The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-02-09


ton TO issue the writ (4) The court
has not ordered you to issue IT. and you
ere without any authority until so or
dered.
You win please record this upon your
minutes as a part of the proceedings
WALTER CLARK.
Justice
Examination of Justice Montgomery
by Mr.. Allen
@. DO you remember after the opin-
ion was lied in the case of Theophilus
White V. Hal w Aver, Auditor, what
application was made to the court in
regard to the matter?
A. l think l do. One day shortly af-
ter court convened, Col Loge Harris
came in and made application for man
damus in the matter. One of the judges
saw that it was not in proper shape
that it was irregular and told him to
go before the clerk and see what he
would do. Shortly after that Colonel
Kenan came before the court and ask
cd what he must do about the matter.
Nothing was done about it the first day
| that the matter was discussed, but on
| the second day when it was discussed
Judges Faircloth. Furches and Doug
las said that the clerk ought to issue
| the writ. I said: Colonel. my dissent
! expresses my view, and I do not care
to be dragged into the matter, but 1
do not think you ought TO issue the
! writ
G. Did the three judges direct that the
writ should issue9
| I IN No
it done, but told him they thought he
! ought to do it.
O. Do you remember the day the writ
issued?
A. No; l do not remember the exact
day, though l think it was sometime in
October.
O. Do you remember whether there
| was any communication made to the
| Treasurer as to whether he would obey
the writ?
A. do not know of any such thing.
remember the very night after Judge
| Clark's dissenting opinion appeared, just
about dark. / saw before me q short
| distance away, Governor Russell and Mr..
Worth. They were walking slowly, and
| overlook them, and we began to dis
cuss the matter. Mr.. Worth told me
| about some talk that he had had with
| Judge Clark. ! asked him what he was
| going to do about the matter and he re-
| piled that he would have to follow the
mandate of the Supreme court.
| Q. Was that conversation repeated to
| the members of the court by you?
A. Nc; it was not Have no recollec-
| ton of repeating to them at all. Upon
| reflection | may have mentioned the mat
| ter in the presence of the judges
n usba
what Worth was going TO do or not?
! a. do not.
| @. Did you see the writ?
a. No.
Q. Did you ever see it?
A. / do not think l did. The first time
ever knew anything about it was when
Colonel Kenan came into the court and
asked what he must do about it.
@ Was anything said in the conference
about it?
A. l DO rot remember it.
O. You have seen the entry on the
docket by Colonel keenan,?
A. Yes; and think it is correct.
O. Did Mr. Harris ever show any ver
fed papers on which to base his man
damus?
A. ] do not know that he did.
O. Did the Auditor appear by coun
sci?
A. l DO not know.
O. Did not some question arise about
there not being sufficient notice?
A. l think so.
Q. Was this request made in open
court?
A. Yes; motions were made by Colonel
Harris while we were on the bench.
@. If Colonel Kenan refused to issue
the writ would he have been considered
guilty of contempt?
A. l do not think so. l thought he
was coming for instructions, for he did
not seem to know just what to do. He
simply wanted to get the opinion of the
court
O. Had not the order been made by
Judge Starbuck?
y. Yes.
O. How long was the conversation be-
fore tho 'eeuing the writ?
A. Just after Judge Clark had delivered
his dissenting opinion. l had the con-
versation with Mr.. Worth long before the
mandamus was issued-four or five
| months.
Q. Was it after the decision of the
case Of White VS.. The Auditor?
A. l think it was in May, just after
Judge Clark's dissent in White VS.. Aver
was filed.
Examination of Col. j. c. L. Harris by
| Mr.. Allen.
| @. You were the attorney for Mr.. White
in the case of White VS.. Hill, and also in
| the case OF White VS.. Auditor and Treas.
| urer?
| A. In White VS. Hill, McRae and Dag
| appeared for White. and in the case OF
| White VS.. Aver and Worth. l appeared
| for White
Q. Colonel, do you remember the first
| time you applied for a mandamus in the
| case OF White VS.. Auditor?
| A. think do, though l am not certain
! that l can without refreshing my mem
| DRY from the record.
| 1t was sometime after the decision was
| rendered
| Q. When were you informed that the
| Treasurer would not pay?
! A. l knew that all the time. knew
| ii when the opinion was filed.
| @. Why did you not apply at the spring
| term of the Supreme court?
| a. | could not do so because the ac-
/