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2 THE 8 TO 7 DECISION FULL TEXT OF THE OPINION OF ASSOCIATE JUSTICE MONT GOMERY. THE COURT WANTING IN POWER. He Argues that the Ma jority Decision Os the Court has Chosen the Lesser of the Two Evils to be Dreaded—Both Are Serious Menaces to Popular Gov ernment-Hut the Court, he Thinks, Has no Right to go Behind the Kecod. We published on Sunday, the opinions of Chief Justice Faircloth and Associate Justice Clark on the assignment act, the Chief Justice rendering the decision of the majority of the court, and Justice Clark dissenting. To-day we publish the opinion in full of Justice Montgomery, Fusion Judge, on the same side with the Chief J ustice. To-morrow we will publish the opinion of Justice Avery, who dissented. We give space to these opinions be cause we regard the decision of the ma jority the most monstrous decision that has been rendered by any* judicial tri bunal since the Tilden-Hayes fiasco, ex cept, possibly, the recent decision of Judge Goff in South Carolina. The assignment act was an admitted fraud. If courts of equity cannot re lieve the people of such forgery, then there never was a case for equitable ju risdiction. While criticising the decision we give to our readers the opinion of the major ity so that every one may determine the matter for himself. N. C. Supreme Court: Feb. term, 1895. Carr vs. Coke, Montgomery, J., con curring : The single question for decision is, can this Court inquire into and pass upon the history of a paper writing which pur ports to be an Act of the General As sembly and which is authenticated by the undisputed and genuine signatures of the President of the Senate and the Speaker of the House of Representatives? It is to be always kept in mind that the point is not as to the powers of the Su preme Court to pronounce a law which is admitted to have been enacted void by reason of its unconstitutionality. Our jurisdiction in that case would be com plete and unchallenged. But the ques tion is when the Legislature has solemnly certified to a fact, that is, to the passage and ratification of an act which is within its own sphere, will the judi ciary be permitted to inquire into or dispute that certifi cation. The case is of the very first impression, and it ought to be settled upon the principles of sound reason and well considered authority. This is a strictly legal question, and ought to be settled according to the principles of the law. The court is aware that its judg ment in this case may be attended with dangers in the future, but it is not our province to provide against dangers to the Commonwealth further than to con tinue honestly and as intelligently as we can, the laws which the Legislative De partment of the government has en acted. It may be said, however, in this connection that if policy ought to have governed the court in this matter, if re sults ought to have been anticipated, we feel that in the decision of the court we have chosen the lesser of the two evils to be dreaded. The question at issue brought to the light the more than possibilities of two most serious menaces to popular govern ment. The first one—that of the power of a corruptable or incompetent clerical force, or that ot a depraved and hired set of lobbyists, or both together, to tamper with the acts and proceedings of the legislature, and have that certified to be law which was never in fact en acted: the second, that of the power of defeated and unscrupulous politicians, when stung by loss of office or a desire for revenge on their political enemies, to practically repeal the legislation of their successful opponents by resorts to the court* upon mere allegations that there was fraud in the passage of the acts or in their ratification, and by pro curing injunctions upon affidavits ob tained possibly through bribery or through the ignorauce or carlessness of the oath maker. By the decision of the court the latter danger, the far most to be dreaded, is avoided. The presid ing officers of the two Houses may, by taking a sufficiency of time and by close scrutiny and rigid examination of the bills and wrappers, prevent fraud and error in ratification, ir such a thing be attempted; while for the latter dan ger no limit or restraint can be found in the conscience of men who have never cultivated a sense of either generosity or justice. The motives and purposes of the plaintiffs in this action are not in tended to be reflected on, neither are the character or official conduct of any offi cer or clerk of last General Assembly. No testimony has been heard in the ease and this court knows nothing of the facts or motives. We have simply dis cussed dangers in the future, in this con nection. In the conclusions to which I have arrived, I have tried to keep before me the great importance of the legal question involved and to keep out of mind, as an utterly insignificant feature of the case, the wretched creatures who would commit such a detestable piece of meanness as the complaint charges. They, when detected, will receive the excretion of all good men and most richly will they deserve it It would have been well for the people and for the cause of good government if they had, or could have been ferreted out and named in the complaint that they might have been pilloried in an indignant pub lic sentiment. But to the law in the case : Os the three coequal departments of our government, the Legislative is of the most importance. It is sovereign as long as it keeps within the bounds of the Constitution. The powers of the Judicial Department are clearly defined and limited in the Constitution. Except to hear claims against the State (and then only to recommend action to the General Assembly) the whole power of this court is embraced in these words : “The Supreme Court shall have jurisdic tion to review upon appeal any decision of the courts below upon any matter of law or legal inference.” Const. Art. IV, Sec. 8. This means in plain English, that this court can construe the laws when their meaning is a matter of contention between litigants, and that it can deter mine in cases properly before it whether or not statutory enactments are constitu tional. The writer of this knows of no other instance in which this court can directly or indirectly pass upon the conduct of the General Assembly. As to the formula that are necessary to con vert a bill into a law, we cannot inquire, if the ratification in proper form appears and the signatures of the proper officers are duly attached. However, in the case before us, the plaintiff alleges that what he styles the pretended Act is not a law because it was not read three times in each house before it received the signa tures of the presiding officers of both, as the Constitution requires. That in strument certainly does require that “all bills and resolutions of a legislative na ture shall be read three times in each House before they pass into laws; and shall be signed by the presiding officers of both Houses,” and it is as equally cer tain under the decisions of this court • that the certificate of ratification attest ed by the signatures of the presiding of ficers carries with it the presumtion con clusive, that all such bills and resolu tions have been duly passed by the bodies and cannot be questioned by the courts. Suppose, as individuals, we admit, which the answer does not, that this bill did not pass its several readings, can that fact be shown in a court of law in the face of ratification and the genuine sig natures of the presiding officers certify ing the contrary ? This is the naked ques tion. Ratification gives authority to the Act. The presiding officers who up on ratification attach their signatures to a bill do it in open session, calling the attention of the members to the fact that the same is about to be signed and reading the title of the bill. When it is signed, ratification is thereupon made of it by the body through their agent, the presiding officer. It is their act and deed and nothing, not even the journal itself, can contradict it, or be used as evi dence against it. Ratification is of higher dignity and of more authority than the journals kept by the clerks. Ratification and the signatures of the proper officers presume a passage of the bill by the Legislature according to the requirements of the Constitution, and the courts of law—the judicial depart ment—a co equal department, are not allowed to go behind or question them. We have clear authority for this in our own reports. In the case of Broadnax vs. Groom, 64 N. C., 224, certain tax payers in Rockingham county, in their complaint, sought an injunction against the collection of a tax levied by the commissioners under an Act of the General Assembly on the ground that the act was private and was passed with out the thirty days notice of application required by the Constitution. That ease presented the very question which we have before us now. Could the plain tiffs in that case be allowed to go be hind the ratification of the act ana show by any kind of proof, by the journals or otherwise, that the constitutional require ment had not been complied wfith ? The Constitution provides that “The General Assembly shall not pass any private law unless it shall be made to appear that 30 days notice of application to pass such a law shall have been given.” The Con stitution provides that “all bills are resolutions of a legislative na ture shall be read three times in each House before they pass into laws.” The constitutional requirement in both these instances is specific and definite and positive; and yet this court held in the Broadnax case, supra, that the act having been certified by the pre siding officers of both houses as duly ratified it was not competent for the ju diciary to go behind the ratification Chief Justice Pearson who delivered the opinion of the court in that case said: “We do not think it necessary to enter into the question whether this is a Pub lic act or a Private one, in regard to which thirty days notice of the applica tion must be given; for taking it to tea mere private act we are of the opinion that the ratification certifh*d by the Lieutenant Governor and the Speaker of the House of Representatives makes it a “matter of record” which can not be im peached before the courts in a collateral way. Lord Coke says: “A record until reversed importeth verity.” There can be no doubt that acts of the General As sembly, like judgments of courts, are matters of record, and the idea that the “verity of the record” can be averred against in a collateral proceeding is opposed to all of the au thorities. The courts must act on the maxim “omnia presumpter .” Suppose an Act of Congress is returned by the President with his objections and the Vice President and the Shaker of the House certify that it passed afterwards by the Constitutional majority, is it open for the courts to go behind the record and hear proof to the contrary ?” It is clear from the above that the meaning of the Chief Justice, when he said, “We are of opinion that the ratification certi fied by the Lieutenant Governor and the Speaker of the House of Representatives makes it a matter of record which cannot be impeached before the courts in a col lateral way,” was, that all attacks in the courts upon legislation which appeared to be ratified and had the signa tures of the presiding officers at tached, were collateral attacks, and that any direct impeachment of such acts must arise in, and be conducted by that jurisdiction which has power in the matter, the Legislative Department. If he only meant to say that the courts could afford a remedy in such matters, but that they would not do so in the case then before the court, because the attack was collateral, then it would have to be admitted that he expressed himself most confusedly in one of the most im portant questions ever brought before the court. That would lie a bold asser tion to make of Judge Pearson. And be sides the proceeding in that case was not direct but only collateral, then it is not saying too much to declare that no direct method of attacking an act of the Legislature through the courts can be The News and Observer, Thursday, May 30. 18^5 devised. Certainly that was a more direct impeachment than the one now before the court. We are not without direct authorities from other courts than our own. In the case of ex-parte Wren, 63 Miss. 512 this same question is discussed and decided upon the same principle as was Broadnax vs. Groom, supra, that court holding that an enrolled act of the Legislature, hav ing been signed by the presiding officer of the two Houses and the Governor, is the sole expositor of its contents, and is conclusive evidence that the act so signed contains the provisions of the bill as passed by the two Houses. And the journals of those Houses cannot be re sorted to, to show that such act does not contain amendments to the bill which were adopted by the two branches of the Legislature. The court said “Every other view subordinates the legislature, and disregards the co-equal position in our system of three departments of gov ernment.” The opinion in Wren’s case is comparatively of recent date, is a very able one, and reviews the decisions of many of the State Courts on this ques tion. It mentions that the courts of many of the States, including that of North Carolina in the case of Broadnax vs. Groom, held the same opinion as did the Supreme Court of Mississippi. In Pangborn vs. Young, 32 N. J., 29, The principle laid down in the Broadnax case is more than endorsed. The Su preme Court of New Jersey in that case decided, first, that when an act has been passed by the Legislature and signed by the Speaker of each House, approved by the Governor, and filed in the office of the Secretary of State, an exemplifica tion of it under the great seal is conclu sive evidence of its existence and con tents. Second, It is not competent for the court to go behind this attestation or to admit evidence to show that the law, as actually voted on and passed and ap proved by the Governor, was variant ! from that filed in the office of the Secre tary of State. Third, The minutes of the two Houses, or either of them, al though kept under the requirements of the Constitution, cannot be received as evidence for such purpose. In that case the court said that “The body which passes a law must of neces sity promulgate it in some form. In point of fact the legislative power over the certification of its own laws is of ne cessity almost unlimited as will appear from the circumstance that, with regard to the body of an act, there is no evi dence of aDy kind but that which the legislature itself furnishes in the copy deposited in the State archives. We are also to reflect that it is the power which passes the law, which can best determine what the law is, which itself has created. The legislature in this case has certified to this court by the hands of its two principal officers that the act now before us is the identical statute which it approved, and in my opinion it is not competent for the court to institute an inquiry into the truth of the fact thus solemnly attested.” The above cited authorities seem to me to be founded on experience and the law, and on a wise public policy; and as Justice A veiy well said, in sub stance, in Ixigan vs. Railroad, at this term, we ought to be influenced, when looking for assistance from the decisions of other courts, by those opinions which embody sound principles and just reas oning rather than by a simple numerical an ay of decided cases. I have tried to show that the decision of the court in this case is in harmony with its former decisions and that the court is sustained by the opinions of some of the ablest courts of other Sta'es. The State vs. Glasgow, 1 N. C. 176, was not even cited as an authority by the counsel for plaintiff in the argument be fore us. It has no bearing that I can i see on this case as a law authority, though interesting as a bit of early offi cial corruption. No legislative Act or power was questioned. It was simply the case where a former Secretary of State himself fraudulently issued a land warrant, and was indicted and convicted for the offence, and stripped of his offi cial honors. In addition, there is to my mind an- j other insuperabie objection to the adop tion by the court of the plaintiff’s view of this case, ft is this: There could in that event be no unity of decision eveu in our own courts. If the certificate of ratification can be inquired into by the courts, then the trial courts, with the same matter in issue, that is, whether au Act properly certified as having been ratified had orJy passed its several read ings, might and could arrive at differ ent. verdicts and judgments, as the proof varied iu each trial. To day a statute nii*hl be declared void because a jury had determined that it had not passed its several readings, and to rnorrow the same statute in a new trial with addi tionai testimony, or in a difft r -nt court, might be declared good and valid. And again if ratification be not conclu-ive, how are the stability and integrity of our statutory laws to be maintained iu other States and abroad. From the position I have taken in this concurring opinion, it is not neefssary for me to discuss the other allegations of the complaint that the signatures of the presiding officers were procured by fraud. If the certificate of ratification cannot be impeached in a court of law even by the journals themselves as evidence, it is certain that by all the rules of evi dence, parol proof cannot be introduced for that purpose. In conclusion, i desire to emphasize that the court has not made a decision upon a mere matter of fraud. It is a question of jurisdiction, of power; w'hether one co-equal department of the government can invade the province of another and question or dispute the solemn act of the latter attested by the genuine signatures of those officers who are empowered and required to attest and certify those acts. I in sist that the decision of the court in this case upholds the integrity and independence of one of the co equal departments of the Government, and preserves the power and jurisdiction of the two involved in this suit. It is bet ter for us, and will be better for prosper ity, if in cases where fraud and deceit have been or shall be practiced u{>on the presiding officers of the Senate and House, by means of which their signa tures to spurious bills have been obtain ed foi; the legislature to be convened ; (if an adjournment was had before dis i covery) and allowed to correct such errors or mistakes, than that the court ’ should assume a jurisdiction which does not belong to it, and thereby begin au i encroachment upon the rights of the leg islative department, to end possibly in i judicial tyranny the basest and the most | detestable species of oppression. DANCE AT CHAPEL HILL, Given by Mr. Lindsay to the Young Ladies oi Ihe Village. ! Special to the News and Observer. Chapel Hill, N. C., May 28. Mr. C. L. Lindsay, gave a dance to j the village girls and visiting young ladies on Monday evening, May 27. The hall I was beautifully decorated in roses and daises The following couples were pres ent and participated: Mrs. Dr. Max Jackson, of Macon, Ga., green organdie and diamonds, Mr. C. L. Lindsay; Miss Mannie Gibson, of Macon, Ga., lavender organdie and diamonds, Mr. A. F. Wil liams; Miss Isabella Winston, blue crepe de chine satin and roses, Mr. Sid Cooper; Miss Mattie Kirkland, yellow silk with gold trimming and roses, Mr. O. H. Dockery; Miss Bessie Ilunkle, of Balti more dotted swiss with satin trimmings, Mr. Frank Rogers; Miss Clyde Mason, white swiss with roses, Mr. T. J. Wilson; Miss Nellie Barbee, white albatross with satin trimmings, Mr. Harry Lake. The stags were Messrs. Bruce, Rollins, Gudger and W. E Lindsay. Chaperons, Mrs. Tankersley and Mrs. S. M. Barbee. Free Pills. Send your address to H. E. BucklenA Co., Chicago, and get a free sample box of Dr. King’s New Life Pills. A trial will convince you of their merits. These pills are easy in action and are particu larly effective iu the cure of constipation and sick headache. For malaria and liver troubles they have been proved in valuable. They are guaranteed to be perfectly free from every deleterious substance and to be purely vegetable. They do not weaken by their action, but by giving tone to stomach and bowels greatly invigorate the system. Regular size 25c per box. Sold by John Y. Macrtae, druggist. Nervous Prostration Could Not Sleep Had No Appetite Cured In Body and Mind by Hood's Sarsaparilla “I suffered very much for a long time i with nervous prostration. I had about j /r* given up all hopes 'tr-Jr ever Spring het nt ter when Hood’s fcv-k 1 Sarsaparilla was «jr-n>v Wf:] recommended t o i h*/ nieandl believe it ft? M my duty to let v ' f *\ H other sufferers _/V \ know the benefit I w// . derived from it. I y?,r j i V Could Not Sloop I' '* ' ' l ,C/ at night, was : v h- U k ’ jj'' o::t Bpr--etitc. a'id ftii. ,5. Kdw. 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If you prefer to come here we will con tract to pay railroad fare and hotel bills, and no charge, If we fail to cure. If you have taken mer cury, lodide notush, and still have aches and pains. Mucous Patches in mouth, More Throat, Pimples, Copper Colored (Spots, Fleers on aur part of the body. Hair or Eyebrows railing out, It is this Hyphllltle BI.OOU I’OIHOX that we guarantee to cure. W'e solicit the most obstinate cases and challenge the world lor u case we cannot cure. Syphilis has always banted the skill of the most eminent physi cians. sl*oo,ooo capital behind our unconditional irunraniy. Absolute proofs sent sealed on appli cation. Address COOK KEMEDY CO., 007 siln Temple, CHK’ABO, 11.1.. Uses Mexican Mustang Liniment Ora his horses, on his drivers. 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RANDALL Has opened a studio at 131 Boule vard du Mont Parnasse, Paris,whert he will be glad to hear from his pa trons who may wish portraits made rag aifiliit i a wji * : ■ «.-:j Ct B,i ri ',•«>s IUI.EIOH, N. C., Feb. 8, 1*95. Lyon Mfj. Co., Brooklyn, X, Gentlemen:—Having seen Mexican Hustang Lini ment extensively advertised here Induces me to tell you how useful it is to persons in the livery business. I have Used it for the past 18 years on my horses for almost every thing that horses are subject to. For sprains and stiff Joints I do not think it has an equal, and for such things as harness galls and rubs it is wonderful. I once had a very fine driver who was thrown from his car riage in a runaway and so severely bruised about his shoul ders and breast that I did not think he would ever be able to get on a carriage again. I remembered, however, what Mexican Mustang Liniment did for my horses in case of bruises and had him use it constantly, and in about two weeks he was as good a driver as ever, and not an a- he or pain remained. 1 know you must get tired of receiving such letters, but I thought I would add one more testimonial to the . --ful ness of Mustang Liniment. Yours truly, W. H. t.AKCASTKU. For 18 years in livery and Transfer Imsines*, I K B. BA UJ3F.K ». • t’HOMPSOb BARBEE & THOMPSON. Cotton Buyers, MEMBERS OF THE RALEIGH COTTOh EXCHANGE. Raleigh, N. C, Cable Address— BAßßEE I Ladies who value a refined complexion must use PozaoNt'. PowoKit. It produces a soft and beautiful skin.
The News & Observer (Raleigh, N.C.)
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May 30, 1895, edition 1
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