The news & observer., 1901-03-15

4zE
court fer the writ of mandamus. The
court then asked If notice had been given
to the opposite party, and upon being told
that no notice had been given, declined
to entertain the motion. But a few days
thereafter an application was again made,
the notice of the motion having been
waived; and counsel making the applca-
tion was then asked if he had filed any
affidavits, and upon his statement that
he had not done so, the court again re-
fused to entertain the application. That
while these applications were being re-
fused in open court, the respondents were
saying privately to the clerk that he
ought TO issue the writ. Two members
of the court-Judge Clark and Judge
Montgomery-told the clerk that he had
no power to issue the writ, and in con-
sequence of this the clerk refused to is
sue it without the express direction OF the
court. That he twice applied to the court
while in conference for directions. The
first time he made his application the
respondents expressed their Individual
opinions as to his duties, but did not
make any order that he issue the writ
But the second time upon being pressed
by the clerk for specific direction, directed
him to issue it, That Judge Clark, men,
Of cof1 q
right to file an opinion, giving his reasons
for dissenting from the action of the court
and the respondents refused to permit
him to exercise his right. He then asked
permission to file his protest, which was
refused. That copy of this opinion which
Judge Clark asked to be filed had been
sent to the respondents prior to the time
that they directed the clerk to issue the
writ, and in this opinion the attention
of the respondents was sharply called to
the provisions cf the Constitution and the
statutes which they are charged with
violating.
THE JUDGES ANSWER.
The answer TO the charges made is in
many respects wonderful documents. 1t
combines the ability. of learied lawyers,
the skill Of statesmen and the craft Of
the politician. tits an answer and at the
same time a speech. 1t has in it many
expressions appealing to the generosity
of the people, and others intended to
touch their sympathies. The first defence
raised by it is a denial that they have
violated article 4, section 8, of the Con-
stitution. because they say that the claim
of Theophius White against the Treas
urer was not claim against the State
The State like private corporations, has
to act through its agents and it's officers,
and it is through them alone that the
State can be reached, and think that the
authorities are unanimous that an action
instituted against an officer of the State
in regard to his official conduct COM
polling him to do or to refrain from doing
some particular act, is an action against
the State.
The writ of mandamus is not remedy
usually rescrted to, and as is said by
McRae, Judge, in Board of Education VS..
the State Board of Education, ia N. c.,
page 320 'will never be issued except
where it's propriety is plain and beyond
doubt"
In the case of Cunningham VS.. Macon,
100 U. S., page 454, the court Gays: THE
objections to proceeding against State Of
ficers by mandamus or injunction are,
first: That it is in effect proceeding
against the State itself; and second. that
it interferes with the official discretion
vested in the officers. 1t is conceded
that neither Of these can be done" And
again. on page 455. ''The short statement
for the reason of this judgment is that
as a State could not be sued or made a
party to such proceeding, there was no
jurisdiction in the Circuit Court either
by mandamus at law or by a decree in
cbancery to take charge of the Treasury
of the State and seiZing the hands of the
Auditor and Treasurer to make distribu
tion of the funds found in the Treasury
in the manner in which the court might
think best" And again on page $50, THE
Treasurer of the State is a keeper of the
money collected from this tax just as he
is keeper of other public moneys. Taxes
were collected by the tax-collectors and
Maid over TO him-that is to say, into the
state Treasury-just as other taxes were
xybcn collected He is no more a trustee
cf tbeea moneys than he is of all other
r,,blio rnonevs He holds them only as
agent of the State. If there is any trust
tbo Stota is the trustee, and unless the
etato can be sued the trustee cannot be
enioirod. The officers owe duty to the
state alone. and have no direct relations
to the bordholders. They can only act as
The tsate directs them to act, and hold
~ The state allows them to hold. 1t was
never agreed that their relation to the
bondbolders should be other than as OF
GceTs Of the state, or that they could
Fave any control over this fund except to
taen # like other funds in the Treasury