The Caucasian. (Clinton, N.C.) 188?-1913, 1911-12-07
DIR. McCULLERs LOSES CASE.

Judge Peebles' Ruling VIII Put Al
the County Boards OF Health Out
/ OF Commission-Dr. McCuliers
VIII Appeal His Case to the Su.
preme Court.
Judge Robert B. PEBBLES has de-
cided that the election of DR.. ]. j
l.. McCullers, superintendent Wake
County Board of Health invalid for
the reason the county board OF
health, in his opinion Is not legal
| body, as its members hold other Of
fees. 1t will be remembered that
the county commissioners have re-
fused to recognize DR.. McCullers as
the legal county physician and have
kept him without pie for several
months. And now unless DR.. Nc
Cullers gets relief from the Supreme
Court he must not only go without
pie, but to add Insult to injury"
he must also foot the cost of the pro-
ceedings in court.
Decision of Judge PEBBLES.
The opinion of Judge PEBBLES fol-
lows:
North Carolina, Wake County
In the Superior Court: J. j. L. Nc
Cullers, plaintiff, VS.. The Board Of
County Commissioners and others,
defendants.
This cause came on to be heard
by me in chambers at Raleigh,
Thursday and Friday, November %
and "a. 1911. After hearing COM
plant, answer, affidavits and argu-
ment of counsel on both sides, by
consent Of both sides, I took the pa
pers with me in order to give the
matter further consideration. Hav-
ing given the matter further con-
sideration, I render the following
Judgment:
81. / find and hold that the plead
ings raise no issue of act requiring
the Intervention of jury, and I
therefore override the defendants
motion for trial by jury. To this
ruling defendants except.
"2. I find that the facts contained
in sections one and eight of COM
plant, both included, are true.
SO. 1t appearing from the COM
plant that the county board of
health was organized as is required
by section 3, chapter 62 of the pub
lie laws of 1911. and elected DR. J..
]. L. McCullers county superinten-
dent of health, that the contingency
upon which w. S. Rankin as secre-
tary Of the State Board of Health,
was authorized to act, never hap
pened, and the appointment of plain
tiff by said Rankin was void. I also
find and hold that the said Rankin
did not fix the fees as Is directed in
section 9 of said chapter g.
-. Article XIV, section Z, of the
State constitution forbids the hold
ing of two Offices by one man at the
same time. If the act had provided
that D. T. Johnson, James I. John
son and q. V. Judd should constitute
the board of health for Wake county
their acceptance of said office would
have rendered vacant the Office OF
chairman of the board of county
commissioners, Office of mayor OF
Raleigh, and offices of superintend
ent of public schools for Wake coun
ty. The General Assembly seems tt
have linked the Offices of superinten
dent of the board of health for Wake
county with the other three offices
and made them inseparable, and fol
that reason 1 think and hold tha
section 9 Of lublic laws of 1911
chapter 62, is unconstitutional ant
void.
''5. I find that the facts stated il
section II of the answer to be true
hold that DR.. R. S. Stevens is no
a usurper, but is in the Office of su
perintendent of health for Walk
county under color of title and is
de facto officer and cannot be ouste,
without day in court, and hence
hold that mandamus is not the prop
er remedy. And I therefore dismis
these proceedings at the costs Of tn
plaintiff to be taxed by the clerk.
This December 1, 1911"