The news & observer., 1901-03-21
of identification was completed, Mr.. Pou

1 do you know where Mr.. Allen kept
the papers relating to the Shellfsh Com
| mission?"
To this question Governor Jarvis, for
| the defense, objected. The court allowed
| the question and the witness answered:
/ II do. He kept them in his desk-the
upper part of it, in pigeon hole
| Ibid you find those papers there?"
| 81 did"
| Some of the papers were in the hand
writing of Mr. Allen, others were signed
/ by Mr. Allen. They were so marked.
The witness was asked no questions on
| cross-examination, and Judge Walter A.
I, Montgomery, Associate Justice of the Su-
| preme Court of North Carolina, was
sworn Capt. Cook examined him.
| JUDGE MONTGOMERY SWORN.
/ Judge Montgomery said he was licensed
as lawyer in 1867, and he practiced until
he went on the bench in 1895.
| what was the first office holding
cose' you decided?"
wood vs., Bellamy. 1t was decided on
the doctrine of Hoke VS.. Henderson-that
an office is property"
| What was the principle in Days case?"
'The same principle, except that the
L
duties of the office to three persons in
stead of one."
| "Does the same principle run through
all the office holding cases?"
Except in the Western Criminal Court
district cases. where the doctrine of IN
| PARI MATERIA was brought into USE"
when was the first dissenting opinion
fled in a case decided on the Hoke VS..
Henderson doctrine?"
| Il think in Days case, decided in
1899"
Had there been any change in the
| court since 1872"
Judge Douglas had succeeded Judge
Avery"
rs there full and free discussion of
cases in conference?"
| very full"
"How was it with respect to these
| office holding cases?"
| more full and careful than on any
other line of cases that ever came before
Ithe court"
| What words and actions on the part
of these judges, in conference or else
where discovered any purpose otherwise
| than a desire to decide the cases accord
| ing to the law?"
The court ruled out this question on the
ground that it asked the opinion of the
witness. Capt. Cook then re-stated the
question as follows:
! s'What purpose did the words and acts
| of the judges in conference or elsewhere
discover"
| This likewise was ruled out, and Capt.
| Cook tried again, asking:
What were the acts and conduct OF the
| iudges?"
This question was allowed and the wit
ness answered:
"In the consideration and discussion of
these cases, around the council board and
elsewhere, the Respondents approached
the question with care, diligent search
and examination of authorities-as men
4 trying to get to the bottom of the truth
and do the right"
| To the last statement-'as men trying
! to get to the bottom" etc.-counsel for
| the prosecution objected, but the words
were allowed to stand in the testimony.
What was the judgment of the court
in White VS.. Hill?"
/ "That White was entitled to the office
for the term to which he had been ap-
pointed by the Governor"
/ "Who concurred in that opinion?"
4 "All of us, except Judge Clark"
/ "Who concurred in White VS.. Auditor ?"
1.-THE Chief Justice and the two Re-
| spondents"
"Who dissented?"
] Judge Clark and II
Were those dissents on the same
/ grounds?"
/ mo. l dissented on the ground that
there was no means of getting the money
/ out of the Treasury"
/ did you decide that no mandamus
| could be issued?'
Il didn't discuss or decide that ques-
tion.''
please state what occurred in discus
sion of this case in conference?"
| SOME HOT THINGS SAID.
| 'I'll do so though it is all not pleasant
| to me. On the day that White VS.. Auditor
/ was decided l joined the Governor and
| Treasurer Worth on the street on my
| way home. l did not open the discussion
but it soon got on the question of the
| White VS.. Auditor decision and Judge
| Clark's dissent. The Treasurer said Judge
| Clark had just left his office and had
| threatened him and his bond if he paid
| out the money saying that if it was paid
| he would be held responsible and when the
| Legislature met there would be three
| vacancies on the Supreme court bench
| asked if he sent for Judge Clark or was
| the advice voluntary. He said Judge
/ Clark came there of his own accord and
himself brought up the matter. l remark
/ ed that l never heard of such thing
| and | asked whom he was going to obey,
| Judge Clark or the court. He replied that
| he would obey the court. This was in
May and l may have mentioned, think
l did, to some one this matter and re-
ferred to Judge Clarks act as unbecom-
| ing"
| The witness now told of Mr. Harris.
Whites attorney, coming to the court
! for the mandamus, and of Col. Kenan ask
| ing instructions from the court. This
| part of his evidence was the same as that
| given by the other judges, except that
| Judge Montgomery didn't remember
| whether it was the first time Harris came
| that he Montgomery asked him why he
didn't go to the clerk for his mandamus
| He went on to say:
Harris went away. When COL Kenan
came in and asked about the writ, said
| "When this comes before onen court on
motion YOU will hear from me- When
hofo later