The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1903-04-21

STATE
what are the .acts7
simon Schafer ana his brother own and
control practically all OF the bonds sued
on. which are claimed to Re secured BY !
second mortgage upon the stock OF thf
North Carolina Railroad Company. Owned
by the State or North Carolina-thcy
make several unsuccessful attempts Il
secure better terms than those upon
which the state compromised with tn
Vast majority or the holders or similar
bonds-they employ numerous counsel, 0;
record ana otherwise. they petition tn
General Assembly OF North Carolina
early IN 1901 unsuccessfully former Sen
ator Butler. one OF their counsel. induces
his friend, former senator Psttigrew. TO
procure the passage OF an act or the Leg
+ ~islature OF South Dakota for accepting
and collecting donations Of bonds. etc
this act Is said 10 have been introduced
BY Colonel Stewart. who is solicitor or
record for complainant. and Governor
Herried says was probably employed st
the time the donation was made. Gov
ernor Russell. counsel for the Schafers.
says that the feasibility OF assigning Z
portion OF the bonds to some State for
the purpose of suit was discussed, tRec-
ord, p. 1S) and that he understood. or
inferred that the purpose Of the act men
toned above was to enable the State OF
South Dakota to receive a donation OF
bonds with a view Of bringing suit against
the State Of North Carolina. Record. p
1861 the Schafers We're reluctant to make
the donation, but did so and sent with
the bonds a letter containing the Iol-
lowing sentences:
Hon. Charles II. Burke.
''IDq2r Sir. Tho UNDERSIGNED ono 0f
the members OF the firm Of Schafer Bros,
has decided, after consultation with the
other holders of the second mortgage
bonds issued by the State of North Caro-
lima, to donate ten of these bonds 10 the
State of South Dakota.
THE bonds are all now about due, be-
sides of course. the coupons, which
amount to some 10 per cent of the face
OF the bonds.
"The holders of these bonds have been
advised that they can not maintain a
suit against the State of North Carolina
on these bonds, but that such a suit can
be maintained by q foreign State or by
one of the United States
Simon Schafer, the active manager OF
this business and now dead, upon a re-
monstrance by his brother against the
donation, said st would probably in
sure to the benefit of the remaining
bonds" (Record, p. I'd
On the other hand, Governor Herried,
page SO, who seems to have had
little to do with the matter. it being left
to the Attorney General, Pyle, who Is
dead, says that the bonds were handed
to him on September 21st, 1901, nd there
were present Congressman Burke, At
torney General Pyle, and his associate |
counsel, Colonel Stewart and himself, |
and that he had understood from Mr..
Pyle or Mr.. Burke, some weeks before
the donation, that q suit upon these
bonds might be necessary, and Colonel
stewart had been employed-that none
of the authorities of South Dakota ever
made any demand upon the authorities OF
Carolina for payment or adjust
and in explanation of the strange |
conduct said he supposed the legal dc
partment would do what was proper, he
it to them, and Governor Aycock
the first intimation he had of the
was from a notice in the papers
that an application had been made to
his court for leave to file this bill.
These circumstances, mostly drawn
rom reluctant witnesses, taken in con-
1ection with the allegations OF the bill,
nd the answer Of Charles Salter. we
,hink, justify us in saying that there can
De no doubt that the purpose of the as
'ignment was to have this suit brought,
ma that, although the donation of the
ponds was absolute and unconditional.
he authorities of South Dakota were
tWare or this purpose and assented to
t, tacitly perhaps, but they assented.
We do not think anyone can read the
and proofs without seeing
hat the Senator's are the actors. the
spirits, the real plaintiffs. and
hat the suit is instituted in pursuance {
t q scheme invented by the Schafers, or
heir counsel, to collect these bonds by
liring the State of South Dakota to
ring the suit instead of merely employ
counsel to do so. lr
Indeed it is difficult to understand
Why the authorities of South Dakota /
id not communicate with those Of |
'orth Carolina unless they were afraid ,
would be made and this beau {
iful scheme thwarted! +
We submit, however, that it is not .
for us to show that the State )
South Dakota participated consciously ;
/ this wicked scheme-it is sufficient
nat she, being a mere volunteer, became
ne passive instrument of the bond I
olders in carrying it out. a
In Abrams VS.. Cureton, "A N. c.. it was /
eclded that the plaintiff, TO whom a v
ote had been endorsed under a contract {
, collect and pay over the proceeds to b
he endorser after retaining compensa- d
on for services, could not recover in t
is own name, because he was not .the /
party in interest," a
We respectfully insist that is true here q
the State Of South Dakota is not the U
al party in interest, hat the suit was a
'mmenced, and is prosecuted. solely for .
.e benefit of private individuals who, i,
the event of recovery, will be the sole =
znet1ciaries after deductiEg the costs of
e suit, including the fee to South Da- ;,
1ta. :
But whether we are right in this or not q,
e result OF a successful termination a.
the suit will certainly be to enable pri- ie
tie individuals to prosecute a suit
.ainst a State. ,a
do not believe that the p%rohibi-
of the Eleventh Amendment can be !,
easily nullified. ~,
But If we should be wrong and the r.
urt decides that it has jurisdiction in r.
Oh cases, We contend: ii,
tA