The news & observer., 1901-03-27

constitution to uphold these doctrines.
They have forced money out of the State
Treasury without an appropriation by the
Legislature, and in despite of an act of
tho Legislature forbdding it, and by
means of a process in the nature of an
execution against the State, which our
constitution expressly forbids."
WHY THE SUIT IN PERQUIMANS?
How the court got that the money out
of the Treasury was Mr.. Pou's next in
quiry and he contended every step in the
procedure by which Theophilus White
was paid was taken in violation of the
constitution.
"The Auditor and Treasurer re2ide in
the county of Wake, yet suit was brought
in the county of Perquimans. Can we
imagine a reason for bringing this suit
in a county so remote as the county of
Perquimans? Terms of the Superior
court in the county of Wake are held as
frequently if not mere frequently than in
any other county in the State. Mr.. White
was here in Raleigh, and his attorney re-
sided in Raleigh, and here we're the Au-
ditcr and Treasurer. There was every rea-
son, it would seem, why the suit should be
brought in the county of Wake, particu-
larly when we remember that the law so
directed. Can you guess why it was not
brought here? Turn to the court calen-
dar for the fall of 1899, you will find it in
the front part of the Supreme Court Re-
ports. You vii see that the courts of the
Fourth Judicial District were held by
Judge Fred Moore, the judge who had held
that the doctrine of Hoke against HendeT
son did not apply in Abbott against Bed
dinglield, and you will find that Judge
Starbuck was holding the courts of the
First Judicial district.
How was the case tried in Perquimans
county? You will remember the case
agreed was made up on the last day of
wy ember, 1899, ard the clerk of Per-
QuiH,ans court tells us that no term of the
su, crior court had been held in Per-
CUl.. ans county since the court which be-
( N on the third Monday after the first
AicLday in September, which was Septem-
bcr 25th, 1889. The case was sent down
into the East somewhere. If l remem-
bert correctly, it was sent TO Washington,
N. c., and a judgment came back labeled
Superior court of Perquimans county, and
the judgment was for White and directing
the money to be paid, Now we have the
case sent out of it's own district to
where no court is held, but coming back
within few days judgment signed and
everything satisfactory. The case comes
to the Supreme court long after the First
district has been called bur there is no
trouble about it. 1t is given the right
of way and is tried in the Supreme court
within less than four weeks after it is
commenced, but the decision of the Su-
time, an advisari is taken, and it is the
22nd day of May. 1900, before the Supreme
court modifes and affrms Judge Star
bucks judgment.
when the mandamus is to be issued
we find again that the usual course Of
practice is not regarded, we find that the
Auditor is deprived of his constitutional
discretion, he is commanded peremptorily
to pass upon and audit the claim, and at
the same time the Treasurer is required
peremptorily and without delay to pay
the claim when so audited. The Respon-
dents tell US that they did not know
whether the money was in the Treasury
sufficient to pay the claim or not They
relied upon an agreed statement of facts
of nearly year previous. They took
none of the usual precautions, but their
order was an iron-clad one, and it forced
the money out of the Treasury despite
the fact that the law forbid it's being
paid in that manner"
At this point Mr.. Pou began an exami-
nation of the excuses made for the con-
duct of the Respondents, taking up first
the denial that they had any corrupt or
personal interest in the fund. He argued
that it did not make the slightest differ
ence whether they did or not, that under
our law that was not necessary.
THE constitution Of this State did not
undertake to name all the offences which
are impeachable, those offences are
named by statute, and the first of the
classes of. offences for which officers may
be impeached is corruption or other mis-
conduct in their official capacity. We
have not charged corruption, but we do
charge misconduct in their official capac-
ity, and we insist that evidence has over
whelmingly proven this charge"
THE COURT MADE THE LAW.
rrorcbirc fhe uunstinn 0f intent ne said