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2 THE PUBLIC PRIITIHS Case Argued in the Supreme Court. THE DEFENDANTS DEMUR Tin: CASH PIT BE POKE THE (’(H UT ON THE LAW. CID LEGISLAUJfTE MAKE A CONTRACT? If so Can it be Enforced by Mandamus Against the Committee to Whom the Award of the Public Printing Was Giv.-n ? The Pullin' Printing ease was argued Yesterday. from 10 to 1 o'clock, before the Supreme court. The title of the case in the courts is Capital Printing Company vs. Clyde It. 11 1 icy ami others, as members of and composing the Joint Committee on Print ing. Cyrus Thompson, Secretary of State. C. B. Edwards and X. B. Brough lon, trading as Edwards A Broughton, and E. M. Uzzell. The ease for the plaintiff was argued by Ale-x .1. Field and It. 11. Battle: for the defendants. Edwards & Broughton, *hy T. B. Womack, and for the commit tee by .1. N. Holding. It took half tin hour to read the mate rial parts of the record. At its conclusion Judge Womack road the following demurrer: "Tiie defendants other than Cyrus Thompson. Secretary of State, come be fore tliis court by tlieir respective attor neys and move the court to dismiss this action and affirm the judgment of the court below, and in support of their said motion, tile this as their demurrer ore tonus. "They aver that the complaint does not constitute a cause of action, and that this court is without jurisdiction to hour and detormiife the same, for that. "1. This is. in effect, an action against the State of North Carolina, without its consent, and in a court which is without jurisdiction in actions against the State* Constitution Article IV, Section 9. "2. Under the provisions of the statute relied upon by the plaintiff the Joint Committee on Printing was given deliberative, judicial and discretionary powers, which extended until the mak ing. execution) and delivery of the con tract required by the statute, which this court cannot control; especially in the absence of all allegations of fraud or mala tides. "5. Mandamus is not a proper remedy, in that the plaintiff does not establish a chair legal right to the relief sought. “4. The Joint Committee on Printing have exhausted their authority by mak ing. executing and delivering the con tract to the defendants Edwards & Broughton and E. M. Uzzell. and they are themselves, being a legislative com mittee, funti officio. (Turing the recess of the General Assembly. *\ r ». The relief sought cannot be granted for that which has been done cannot he undone by mandamus, "ti. Mandamus being a legal remedy equitable relief cannot lie granted there in. either for tin* specific performance of the alleged contract with the plaintiff or the injunction sought against Edwards & Broughton and E. M. Uzzell. "7. This action being returnable be fore the judge and not to term time, in junction cannot issue. "K. The court cannot try the rights of Edwards iV Broughton and E. M. I Ta ssel I, and their respective relations with the State of North Carolina, by virtue of their contract with the State in a proceeding for mandamus. "9. The court will not determine be tween conflicting claimants to a duty or thing, in a proceeding for mandamus. "10. For that there is an adequate remedy at law; as against the State by an action begun by petition before the Supreme court, and as against the other defendants, an action for damages, there being no allegations of insolvency. "11. For that the court cannot, by mandamus, require or prevent an officer of the State from performing a plain duty of a statute, to-wit: obey the Joint Resolution set out in the complaint, whatever may be tin* rights of the plain tiff as against the State.” The effect of the above demurrer was. <»f course, to shut off all argument of fact and put the ease before the court entirely, <»i a question of law. 1 his dom* counsel proceeded with the argument. The substance of tlie complaint was, he said, thut the defendants who com pose the Joint Committee on Printing, in accordance with the Act of the Gen eral Assembly, ratified February 24th, 1899. advertised for bidders and that plaintiff was ascertained and declared to be the lowest responsible bidder for the public printing, and tendered a bond which was adjudged sufficient under the act; and that thereupon the committee, by vote in regular meeting, accepted plaintiff's bid and awarded to it the contract for the public printing: that subsequently the committee de clined to sign any written evidence of a contract, but insisted on plaintiff's signing a paper writing which was not in accordance with the act of Asseuu ldy. advertisement or hid. and which did not express ihe contract entered into by plaintiff. That subsequently tile com mittee, in pursuance of a joint resolution of the General Assembly, signed with defendants, Edwards & Broughton and E. M. Uzzell, a paper writing pur]sirtiug to be a contract for the public printing, thereby ignoring the vested rights of the plaintiff under its contract with the com mittee. That plaintiff claims that the joint resolution and the attempted con tract thereunder, if it is to have the effect contended for by defendants, is unconstitutional and void, because it would arbitrarily take from plaintiff and give to others the right to do the State printing and to receive the couqicnsation therefor; it would take from plaintiff its CASTORIA Fir infants and Children Ilw Kind You Have Alwan Bojght property in said right and transfer it; to another without compensation and without default on its part, contrary to the Constitution and without due pro cess of law. But plaintiff contends that the joint resolution of March Nth may lie so eo|i strued. in connect inn with the Act of Assembly of March Nth, as to harmonize not only with the Act of Fehrtntrj 24th, tint with plaintiff's rights thereunder, by holding that the contract mentioned in the joint resolution was not to Ik* made unless the contingency arose which is mentioned in the Act of March Nth. "'['lie plaintiff's position is. that while it has a contract for the public printing, it is not recognized by the Secretary of State and other officers of the State ns such, on account of the failure of suit; committee to give the usual written evidence of the said contract; and this action is to compel them by mandamus to do so." Arguing to these facts Messrs. Field and Battle contended for plaintiff that the members of the committee were min isterial officers only, after they had de clared plaintiff entitled to the public printing and approved its bond, thut there was no further discretion to be exercised by them. This being so they held that the mandamus was the proper remedy to require them to give plain written evidence of the existing con t met. The members of the joint committee are still in office, inasmuch as (U the powers conferred upon them by the Act of February 24th were continuous in their nature until their duties are prop erly discharged; (2l the General Assem bly has not adjourned, but has taken a recess till a day certain, (the second Tuesday in June, 1900); (It) the Act of March Nth expressly continues them in office. But even if the court should hold that they art* now out of office, stilt they may be required individually to do what they ought to have done, to-wit, merely reduce to writing and sign the contract which they have already made. This is not an action against tlu* State, but merely against public officers, to compel them to obey a law and do a merely ministerial act. If the effect ol' this is to give the plaintiff a written evidence of a contract or right to which lie is legally entitled, the State cannot complain, and need not be made a party. Plaintiff is not asking for an award of tin* contract, but for the usual and proper evidence of a contract already made. The furnishing of this evidence is a mere ministerial duty involving no official discretion. "'There is not one law for the sovereign and another for the subject." "The State, in all its contracts and. dealings with individuals, must be ad judged and abide by tlu* rules wl-edi govern in determining the rights of private citizens contracting and dealing with each other. There is not one. J-iw for the sovereign and another for the subject: but, when the sovereign engages in business and the conduct of busuies? enterprises, and contracts with indi* id uals, although an action may not in against the sovereign for breach of the contract, whenever, the contract, in any form, comes before the courts, the rights and obligations of the contracting parties must be adjudged upon the same principles as if both contracting parties were private persons. Both stand upon equality before tin* law. and the sover eign is merged in the dealer, contrac tor and suitor." Judge Womack and Mr. Holding argued: 1. That the suit was, in effect, an unauthorizeed action against the State. The suability of the State without its consent was a thing unknown to law. That lias been so often lai I down and aekuowledgede by tin* courts and jurists that it is hardly necessary to be formally asserted. 2. Mandamus not the proper reme dy. Quoting Moses on Mandamus, pages 194 and 135: ‘'Mandamus will not lie to compel pub lie officers to perfect an iiicoinp'ete con tract which will be binding upon the State, especially where the subject o, object of the contract has par cel by sale from the State into the hands of some other person.” "It is upon this principle that it lias been held that a mandamus will not be issued on the application of an individual to any officer of the government, com manding him to approve a contract en tered into with that individual by public officers, when such approval is necessary in order to make the contract binding upon the State.” 3. The powers of the committee wen* discretionary and deliberative, not sub ject to judicial control. It is held in numerous cases that tin courts will control the actions of officers by mandamus only in the "jierformance of a plain, legal duty, purely ministerial:" that such actions are not suits against the State without its consent. 4. A dear legal right a prerequisite in mandamus. 5. The committee is functus officio. A committee of the Legislature expires with the adjournment, unless otherwise explicitly provided. <>. Mandamus cannot undo what has already been done. "The writ of mandamus, being a dis cretionary writ, the fact that the con tract has actually been awarded to another is sufficient to induce the courts to decline to interefere to further compli cate the* matter, even though they might otherwise have done so. State ex rel. Phelan vs. Board Education. 24 Wis.. 085.” 7. Injunction can not issue in this action. Injunction can Ik* issued at chambers only until the hearing: and perpetual injunctions must be issued at term., BA LEIGH MAN FOUND DEAD. (Norfolk Ledger.) A white stranger was found sitting on the steps in an alleyway on Talbot street, next to Scelinger’s bar, this morning, and it was at first thought that he was drunk, but subsequently it was found that he was dead. He was a man about 40 years of age,with whiskers, and plainly but neatly dressed. He had been seen in the neighborhood for sev eral days. The name of the deceased was F. J. Lindley, and papers found on his person would seem to indicate that he was from either Atlanta, Cfa., Au gusta, Ga., or Langley, 8. C. He was employed in Raleigh, N. C., prior to 1895, and was recently in Newport News. The Coroner viewed the body and will hold an inquest. Bears the —» Bign r re TIIE NEWS AND OBSERVER, FRIDAY MORNING, APRIL *2l, 1809. ON THE DIAMOND. Games Played in This and Adjoining States. Washington, April 20. —Harvard met her first defeat of. the season o*i George town field today when the ootne ei.iie giaiis added another to their unbroken series of baseball victories, winning by a score of ti to 5. 'The game was closely contested and was a pitchers’ battle, Bach, of Georgetown, displaying a stead iness that overcame the brilliant work or Beid for the visitors. Score. B. 11. E < ieorget own ....00101)1 40 o—t > i; 4 Harvard 00 1002 11 o—s 11 4 Batteries: Bach and Cranston; Beid and Fitz. At Louisville: Louisville 05202 1 12x11 15 2 Cleveland 0 0010001 0— 2 <1 1 ,\t Philadelphia: Philadelphia ...1 0 00000 2 I—4 ti 4 Brooklyn 1 00 0 0002 o—3 0 4 At Cincinnati: Cincinnati ....0 00000 11 7 0 Chicago 2 00222023—13 20 o At Washington: W ashington .. .0 0000 01 0 o—l 3 5 Boston ......100302092—17 21 ] At St. Louis: St. Liuis 20 100 1 2 x—o 10 3 Pittsburg 00 0000 2 o—2 <i 1 At New York: New York ....00002 1 02 x- 5 lo Baltimore ....00101 11 0 o—4 7 2 THE A. A N. C. It. B, CASE. The Supreme Court Will Hear Argu ment on it Saturday. The Atlantic and North Carolina Bail road cases (2) were yesterday morning docketed in the Supreme court, and on motion of counsel for the plaintiff, and by consent of counsel for tin* de fendant. they were advanced on the docket and set for hearing at 10 o’clock Saturday morning. There are two of these eases, but they will lie combined into one in the argu ment, as the facts and points of law arc practically the same in each. The title of tin* cases are: Atlantic and North Carolina Railroad ct al. vs. H. P. Dortch et al. This is to settle the question as to the director ate and State’s proxy. State in re James A. Bryan et al vs. Dan W. Patrick ct al. This is a quo warranto proceeding for tin* office of presidency of the road. The point in tin* controversy as be tween Mr. Bryan and Mr. Patrick is whether the board of internal improve ments had a right to remove the direc tors of tin* Atlantic and North Carolina Railroad. The charter of the road, which was in no wise changed in that respect, has always provided that the hoard of internal improvements might remove directors and appoint, new ones, as was recently done. The question raised in a number of other eases as to whether the Legislature had the right to take away from the Governor his power to appoint directors jointly with the board of internal improvement* is not involved in the case. The general grounds of the case are that under the act of 1897 the Governor and the board of internal improvements jointly apiH>inted eight directors of the Atlantic and North .Carolina Railroad, of whom Mr. Patrick was one. The directors subsequently elected him presi dent of tin* road, the charter providing that none btft a director should be chosen president. The act of 1899 increased the number of the Imuird of internal improvements from three to nine and vesteed in the board the sole power to appoint direc tors of the roads. Acting under the charter powers the Ixiard removed the old directors and elected eight new di rectors. of whom Mr. Bryan was one. The new directors met and chose Mr. Bryan as president of the road. After his election Mr. Bryan demand ed possession of the office from Mr. Patrick, who declined to yield. It lias been the invariable custom in the man agement of the road for each now ad ministration of State affairs to remove the old board and appoint in its place, the old board always quietly submit ting. When Hancock was appointed president, of tin* road by Governor Bus sell and tlu* board in March. 1898, Mr. Chadwick, though his term did not ex pire until September, made no contest, recognizing the right of tlu* appointing power to remove. The contest there fore involves tin* dispute by the incum bent of a power that lias been exercised without question heretofore. The attorneys for Bryan are Sim mons. Pou and Ward and for Mr. Pat rick Mcßae A Day and W r . C. Douglass. For Patrick: Macßae A Day and J. (’. L. Harris. On Tuesday Judge Hoke heard tln case at Chambers in Tarboro and de cided it in favor of Bryan and the new directors. Now it is to Ik* finally settled by the Supreme court. WORK BEGUN AT JUDGEWAY. The Kidgcway-Bichmoud Line W ill be Built at Once. Work was commenced yesterday on the Ridgeway end of the Ridgeway- Richinond branch of tin* Seaboard Air Line. Already twenty-five miles of the mad at the Petersburg end of the line has been completed. Seaboard people say the work will be pushed through to completion with all possible speed. A Columbia, S. (’.. dispatch says that there are persistent reports in Cb’uaibin that the Seaboard Air Line has secured or will secure control of the Columbia, Newberry and Laurens Road, between Columbia and Laurens, which connects with tin* Seaboard Air Line at t liiuou. President Childs, of the Columbia, New berry and Laurens, said that lie knew nothing about the rumors and talk and did not know how they started, it is stated that the Seaboard Air Line owns one-third of the Columbia. Newberry and Laurens stock, that another third of the ownership of the line is owned by the Atlantic Coast Line, and that ‘he other third interest is held by Columbia stock holders. It is this Columbia interest which it is said the Seaboard Air Line has acquired, or at least a majority of it which would give the Seaboard the con trolling interest in the proper*;. Sonic intimation is also made that it is t la* Atlantic Coast Line and not the Sea board Air Line which has been watching the Columbia, Newberr uud Laurens. A LILAC TEA AT MRS. TURNER S. Her Elegant Home Thronged With Callers to Meet Her Guests. Yesterday afternoon from 5 to 7 o’clock, at her residence on Hillsboro street. Mrs. J. M. Turner gave an “At Home" to the "older people" complimen tary to her guests, Mrs. Knight, of Chi cage: Miss Englcman, of Kentucky, and Mrs. Hogshead, of Lniisianr.. The Turner house is well adapted to receptions of this kind, having folding doors between hall, parlors and dining room. ’Pin* main entrance was decorated with palms and other plants here and there giving a very pleasing effect. The hostees and her guesls received in the east parlor whose decorations were purple lilac and violets. The tab!** was artistically wreathed with sinila.v. la the centre of the table was a bowl of crimson tulips which glowed under tin* brilliant lights of the candelabra. Refreshments were served in the west parlor by the following young laidcs: Misses MePheeters, Riisbce. Turner, Jones and Misses Elbe and Marion Hay wood. From 8 to P 2 o’clock was given to the young people. Soft lights and daintily gowned young women made a lovely scene. The many friends of Mrs. Knight warmly welcomed her to her old home again where she was once so popular as Miss Helen Fowle. This reception was only one instance of Mrs. Turner’s unfailing effort to render these social gatherings at her home, occasions long to be remembered A RALEIGH BOY’S SUCCESS. Mr. George W. Blaeknall Supervises a Big Government Job. Thi* Waterbury (Conn.) Evening Globe tells of the success of Mr. George W. Blaeknall, a native of Ral eigh, now residing in Waterbury, Conn.. His Raleigh friends will be glad to read it. We quote from the Globe: "The firm of Randolph A Clowes on Saturday successfully completed a large government order for condenser heads. The castings weigh 3,090 pounds each, the largest ever run in this city, or it is said, in the world. They are 30 inches wide. 4N inches long and 4 inches thick when east, but each piece is rolled down to IVL* inches in thick ness before it is turned over to Uncle Sam. The composition of which the castings arc made is tiO jK*r cent, cop per and 40 of spelter with a secret alloy. The work was done under the exclusive supervision of George W. Blaeknall, master caster, at Randolph A Clowes. Mr. Blaeknall has already won an en viable place in the mechanical world, but in the minds of local mechanics tiie successful completion of the latest Gov ernment order is his greatest work up to date. Substitution the fraud of the <lay. Sec you get Carters. Ask for Carter s, Insist and demand Carter’s Little Liver Pills. SPECIAL RATES VIA. S. A. L. Meeting Dentists. Raleigh. N. May Ist to sth. On account of the State Dentist meet ing at Raleigh. May Ist to sth. the S A, L.. will sell round-trip tickets from all points in North Carolina, including Norfolk and Suffolk. Va.. at rate based on tariff two circular A-211. Tickets to be sold April 29th to May Ist, inclu sive, limited May Oth for return. For in formation call on ag**nts, or th following. C. 11. GATTIS. Up-town Ticket Agent. W. C. KIMBALL. Depot Ticket Agent. 11. S. LEA HD. Travelling Pass. Agent, Raleigh, N. C. Constipation, Headache, Biliousness, Heartburn, Indigestion, Dizziness, Indicate that your liver Is out of order. The best medicine to rouse the liver and. cure all these ills, is found in Hood’s Pills 25 cents. Sold by all medicine dealers.^ Remember The v ale of those Choice Houses IN GREENSBORO At 2:30 O’clock P. M. Tuesday, April 25th, 1899. Terms I-6th cash; balance one, two, three, four and five years. Summit Avenue Building Company, GREENSBORO, N. C. SJ! Perfect v $ infant Food^ ilk. Sail Borden | Eagle Brand Condensed Milk §A Perfect Substitute For V Mothers Milk. For 40 V Years the Leading Brand. “INFANT HEALTH"s£nt free. W n.y (ondensed Milk new you*. 1 Co -cel-m NATURE’S GREAT NERVr TONIC H * JPJ&'M AfiH R HOIST £•»* y. . CURES Nervousness, Neuralgia. Netvuo** Headache. General Debt lit* Tired Feelings Restlessness, Kidnev WeakucM*. Nervous Dyspepsia Brao Weariness, Depression *nrt many ottaet types <t weakness A true remedy tor Disease?? oj tit* Digestive, Nervous generative Systems, For" teachers, preachers, editors, smdents cierlts, school children, busy -mothers, tired fathers, -worried or anxious people anywhere or everywhere for travelers by land or by sea for sailors and farmers, for artists and at* •«* 3 RrU'ooaire and mechanic, *sO-C£l « *HI i.nto «;t*hti.«i It is the safest, surest and best Nerve Tonu knowi,, «HOVE 1' TRIAt,. or DRUGGISTS, OR TMRZC *£*> ADDRESS. FREE OF CXPRESStGC, O" •CCCIRT OF 8V Winkelmann & Brown Drug Co. i*i.T.»ioaE mo.- u. s. a. RALEIGH AND AUGUSTA AIR LINE RAILROAD COMPANY. April fith. 1899. Notice—The special meeting of stock holders of this company held this day. adjourned to meet at the office of the company in Raleigh, N. C., on Thurs day, May 11th. next, at 11 o’clock a. in. J. M. SHERWOOD. Secretary. SALE OF BERTIE COUNTY BONDS. The Commissioners of Bertie County will offer for sale at public auction, for cash, to the higli»st bidder, at the Court House door in Windsor, Bertie County, North Carolina, at 12 M., on Monday, May Ist, 1899, fO bonds of the said County, issued in pursuance of an Act of the General Assembly of North Carolina, rati fied the 2lth day of January, 1869. F.ach bond is at the denomination of SIOO 00, and the interest on each is payable s-mi-an nnallv, the first (lav of July and January. Ten of said bonds will become due July Ist, 1903, and ten of said bonds will become due on the first of each July thereafter until the whole of said bonds are paid. The bonds bear interest at the rate of four per centum per annum. Correspondence solicited. Apri' 3,1800. E. K. ETHERIDGE, Register of Deeds, Beitie County, N. C. SUMMER LAW SCHOOL, UNIVERSITY OF VIRGINIA. 33th Summer Term, Juiy 1t » :\p - 1. I'***. in mountainous and non-urn: anal m. ■:i (i \ irgtuiu. These courses ha v * ur*.v*,«. n<;c dv r iv prutßable to Beginners: tocfindiifiiOsforii - mission to the barand to practitioners w* 1 ! lor kail systematic instruction or . ceil u*vi- . For catalogue, address 15. C. A' 1 nok, ►c* • Char.ottesvibif, \ al WANTED. Six good men to work in the Singei Sewing Machine business. Apply to W. E. WILLSON, District Agent. RALEIGH. N. C. HOME ENTERTAINMENT Is so large u matter of music that, (here is very little entertainment at home without a Piano. Sf 1 1 IE? SSI" i®* SJanosF Have solid merit, as attested by tie* high praise of everyone who has bought 11 Stieff Piano for tin* past fifty years. Call uud examine our stock or write for 111 ustrated Catalogue. Baltimore, 9 N. Liberty St. Washington, 821 llth St.. N. W. The Pure Food Question la not a lew qneatlo* with a*. We have been advocating pure food for more than a doaen rears, and we are rejoiced to aee other* taking it op. We like to aee men of science taking hold of it and showing people the necessity of eating Only Pure Food, and demonstrating It >y tnalyH eal and other scientific testa, aid we think that everybody should read Prof. Wither’a lecture on this important inentlon. We na veeate pure food buying and pare food eating, In tne only practical way by buying and aelJ lng only that which if pare. Ottr prices may not always be the lowest, bat they are as low as the class of goods we deal (n can be bought at. “PUR* FOOD IS OCR MOTTO.*” Thos Pescud, GROWER In new quarters—3os Fayetteville It., opposite the postoffice. ICE. Our delivery wagons deliver ice each morning and evening to all regular cus tomers who will get tickets and let us know their names and places half a day in advance. Drivers will sell tickets and ice for cash at same old low prices. We cannot fill orders for small lots promptly unless such orders are given before wagons leave Factory. Those wanting small lots quickly, can get them at cellar, under our office, 107 Fayetteville street. Tickets for sale at from 00 cents per 100 pounds down. Ice well packed for shipment at 50 cents iK*r 100 pounds per Express. Raleigh, N. C., April 14, 1899. Jones & Powell, Raleigh, N. C- Charles Pearson Thos. M. AOe PEARSON & ASHE, ARCHITECTS, Raleigh, N. C. PEEBLES & SHARPE, Consulting Architects, Norfolk, Va. Plans, Specifications and Competitive Sketches for all classes of work furnished on short notice. David Getaz & Co., ARCHITECTS & BUILDERS Raleigh, N. C. Represented by F. K. Thomson, Architect. Office: 102 Fayetteville St.
The News & Observer (Raleigh, N.C.)
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April 21, 1899, edition 1
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