The news & observer., 1901-03-15


tribunals, # is difficult to conceive the
frame of one which would be. If the
State is named as defendant it can only
be reached either by mense or final pro-
cess through it's officers and agents, and
a judgment against 1t could neither be OBJ
tanned nor enforced except as the public
conduct and government of the ideal poll
tical body called the State could be reach
ed and affec.. through it's official repre-
sentatives A judgment against this lat
er in their official and representative ca
capcity, commanding them to perform Of
fetal functions on behalf of the State ac-
cording to the dictates and decrecs of the
courts. is if anything can be, a judicial
preceding against the State itself; IL not
it may we'll be asked what would con-
stitute such proceedings We confident
Iy assert that the proceeding against the
Treasurer to compel payment from the
Treasury is a proceeding against the State
in violation CT article 4, section 8.
THE WRIT Or MANDAMUS.
Again, the judges deny that the issuing
of the writ of mandamus is in violation of
article H. section 3, Of the Constitution,
because, they say the writ was issued in
consequence of an appropriation made by
law. That is, that under the acts OF 81
and SO there was fund set apart out of
which the claim of White could be paid,
and that they were directing the writ TO
issue in accordance with the legislative
will and not in opposition to it. Attention
has been called to the fact that section
II Of the Act of 1897, requiring all OF the
oyster fund in excess of $500 to be turned
into the school fund on the last of No
yember of each year, was not repealed
by any act of 1899, and that it is still
in force. The examination Of the facts
in the action OF White VS.. the Auditor
discloses that the actions were heard en-
December a. 1900, and for services alleged
to have been rendered from March 10 to
November 20. By the very terms of the
act under which he was claiming to hold
his office there could not have been more
than $500 in the Treasury, and this was
fact known to the court. II there was an
admission to the contrary it must have
been known to be fraudulent and col
lusive. If it be admitted that there was
an appropriation Cf the fund to pay the
salary IN the act when the application for
the mandamus was made, still the
respondents compelled the payment Of
nearly twice the amount in the Treasury
But il we admit that the acts of 1897 and
1859 made an express appropriation for
the payment OF the claim held by White
chapter 81 of the laws of 1899 forbade
the payment Of any sum by the Treasurer
on account Of services rendered to the
Shell Fish Industry, except such persons
as were authorized to act under chapter
19, of the laws of 1899, who were Hill and
ha ntb ties in hot
act, and not White. think it cannot be
doubted that the same power which can
make an appropriation can withdraw it.,
and that although the Legislature may
have provided for the payment of this
claim,o when it said that the claim
could not be paid it was not within the
power of any court to compel payment.
refer the court to the cause of Wilson
VS. jenkins, 70 n c., page 8. That was
an application for a mandamus similar to
the application made by White against
the Treasurer. 1t appears in the case
that IN 1868 the General Assembly passed
an act providing for the payment of the
interest Of the lawful debt Of the State
and that in 1874 the General Assembly
passed another act repeating the act, of
1868, and provided that the Treasurer
shall not pay or discharge any claim for
interest upon any portion of the bonded
Indebtedness of the State. The plaintiff
in that action claimed that the State
having provided for the payment under
the act Of 1868 did not have the power
to pass the act of 1874.
WHO HOLDS THE PURSE?
Pearson, Chief Justice, delivered the
opinion of the court, and says: "The
General Assembly has absolute control
over the finances of the State. The pub
lie Treasurer and Auditor are mere min
isterial officers, bound TO obey the orders
of the General Assembly. 1t follows that
the courts have no power to compel by
mandamus the public Treasurer to pay a
debt which the General Assembly has
directed him not to pay or the Auditor
to give q warrant upon the Treasurer
which the General Assembly has directed
him not to give, unless the act of the
General Assembly be void as violating the
Constitution of the United States or of
this State" And after discussing the
constitutional question and holding that
the Act of 1874 was not unconstitutional,
he again says: "A complete answer to
the position, however, is that the Act
of 1874 not only repealed the Act of 1868,
but in sections 2 and 3, In so many words,
forbids the Treasurer from paying and the
Auditor from recognizing any claim for
the principal or interest of the bonded in
debtedness of the State except as may
hereafter be provided for by law" To the
same effect is the case of Shaffer VS.. Jen-
kins, 72 N. c., 275. 1t appears in that
case that an act was passed in 1862 ap-
pointing surveyor and commissioners to
locate a certain road, and appropriated
$5,0C0 for the construction of the road and
directed the Governor to issue his war
rant for the payment of contractors. That
afterwards, in 1871, the General Assembly
passed a resolution, not an act, directing
the Treasurer not to pay these or any
similar warrants" The opinion was de-
livered by Rodman, Judge, and in it he
says: The Treasurer is a public officer,
who has no power over the moneys of the
State except as is given to him by some
act of the General Assembly and no
promise of his binds the State" And
again, after discussing the question of
evidence, he says: 1--WE concur that his
Honor in considering the evidence mma-
terial in this particular action, not, how
ever for the reason which appears to
have governed him, but for the reason