Newspapers / The Progressive Farmer (Raleigh, … / Sept. 6, 1898, edition 1 / Page 6
Part of The Progressive Farmer (Raleigh, N.C.) / About this page
This page has errors
The date, title, or page description is wrong
This page has harmful content
This page contains sensitive or offensive material
SEC BBG3BIZ3IVC,I7t 1008. THE OYSTER FRAUDS. Let Those Who Want Good Government Read the Report of the Democratic Lawyers Sent to Investigate the Cases. Correspondence of The Progressive Farmer. Hon. TP. B. Worth, State Treasurer, Baleigh, N. C: Dear Sib: Having been employed to look into the now famous Pamlico and Carteret oyster cases, and having made a thorough personal examina tion thereof, we believe it is proper to submit to you as Treasurer of the S:ate, a report, and wo herewith hand you the same : In order that the matter may be un derstood, we desire at the outset to briefly refer to the statutes of the State regulating the license, entry and grants of oyster grounds and the remedies provided for the recovery of oyster grounds, unlawfully licensed, entered or granted! -' V OYSTER LAWS. Sec. 3390 of the Code authorizes in habitants of the State to plant oyster beds, with certain exceptions, includ ing natural oyster or clam beds. Sec. 3391 of the Code authorizes the Clerk to grant license for such oyster beds. Sec. 33?2 of the. Code authorizes the county commissioners to cause surveys to be made of said beds, and if it ia found that the holder of any license had included within his stakes any natural oyster or clam beds, or failed to keep it properly staked, or had in cluded more than ten acres, that he should forfeit his license. Resolution of the General Assembly, laws of 1885, p. 689, provided that the Btate Board of Agriculture should cause a survey to made of the natural oyster beds and private oyster gardens of the State and make a repart to the next session of the General Assembly of North Carolina, and the Governor of the State was requested to aak the Federal Government to detail some person of the public service to make the survey and examination. Chapter 119 of the laws of 1886 pro vided that the State should exercise exclusive jurisdiction over shell fish eries in the State south of Roanoke and Croatan sound and north of Core Bound, and established the following boundaries: Southern boundary line, of Hyde county, shall extend to the middle of Ocracoke Inlet to the Royal Shoal lighthouse, thence across Pam lico sound and with the middle line of the Pamlico and Pungo rivers to the ' dividing line between the counties of Hyde and Beaufort, and the northern boundary line of Carteret county shall extend from the middle of Ocracoke Inlet to the Rjyal Shoal lighthouse, thence to the Brant Island Shoal light house, thence across Pamlico sound to a point midway between Maw Point and Point of Marsh, and thence with the middle line of Neuse river to the dividing line between the county of Carteret and Craven or Pamlico, and that portion of Pamlico sound and the Neuse and Pamlico river not wi hin the boundaries of Dare, Hyde or Car teret counties and not a part of any other county shall be in the county of Pamlico, and for the purpose of this Act and in the execution of the rf quire menta thereof the shore line as now de fined by the United States coast and geodetic surveys shall be accepted as correct. The Act further provides for the election of the Shell Fish Commis sion and prescribes their duties. It also provides for the entry of such oyster grounds within the State survey as are not natural oyster beds, and provides for the is3uing of grants thereto by the Sacretary of State. Chapter 281 of the laws of 1887 pro vides that the commissioners of the ounty of Carteret may designEita and define the natural oyster and clam beds for said county and may make such rules as may be necessary for the protection of said natural oyster beds. Chapter 127 of the laws of 1889 pro vides that the board of commissioners of shell fisheries created by the laws of 1877 be abolished from and after the first day of March, 18S9, and all maps and records then in the custody of said board shall be transferred to the Secre tary of State, who shall thereafter be charged with the requirements of said section. Chapter 179 of the laws of 1889 pro vided that any lawful citizen of the State could purchase land theretofore entered as oyster land or enter any grounds that were subject to entry in any of the waters of Pamlico sound or in the creeks or bays tributary thereof in such quantity as may be desired for the immediate cultivation of shell fish, that said lands ehould be planted in not lees than 500 bushels of oysters per acre before January let, 1891, and should forfeit the lands if not so plated. Chapter 333 ol. the laws of 1891 pro vided for the appointment of a Chief Oyster Commissioner and provided for reports to be made by him to the Board of Shell Fish Commissioners, and further provides that the Chief Com missioner and the two associate com missioners shall constitute a board of shell fish commissioners within this State. Chapter 287 of the laws of 1893 un dertook to amend section 3991 of the Code. There is no such section in the Code. Evidently the legislature was striking at section 3391. This amend ment provides that the Clerk might in his discretion grant licenses for oyster bid to any inhabitants of the State aa provided therein, and further provided that it should be the duty of the Solici tor of the Judicial district in which the county was situated wherein the license, entry or grant for any oyster bed had been made, upon antffidavit filed with him sworn to and subscribed by five inhabitants of said county, stating that such licanse, entry or grant included a natural oyster bed, forthwith to instr tute an action ia the Superior Court of such county in the name of the State of North Carolina upon the relation of such person to vacate euch license, en try j)r grant and to prosecute the same to judgment. The act further pro vides that such action must be begun within 12 months from the fourth day Of March, 1893. Chapter 160 ofthe laws of 1895 re peals chapter 3SS, evidently: meaning 388 of the laws of 1891, and chapter 284 and 2S7 of the laws of 1893. Under this act of 1887 it will be ob served the license issued by the Clerk of the Court was abolfshed as to oyeter bottoms lying in Pamlico sound, and entry and grant as of public land sub stituted. No entries, however, were made un til the year 1891, when a syndicate be gan operations. A survey had been made designaticg certain portions as natural oyster bottoms and certain other portions as not natural oyster bottoms. Professional oystermen de clare that much of the most valuable oyster bottoms were put in that por tion declared not natural oyster bot toms. This syndicate began operations by getting promiscuous people to make entries for the full amount allowed each by law. The syndicate advanc ing the fees for entry and taking an assignment. By this means much of the better oyster bottoms began to be taken up, and the professional oysterman who depended for his living upon these very beds became frightened and then began to lay entries for himself, his wife, his sons, daughters, and babies. The syndicate had laid entries in the names of farmers, lawyers, teachers merchant", anybody, rich or pcor, white or black, from various counties of Pamlico, Craven, Beaufort, Car teret, Lenoir, Jones, and wherever they could get the assignment. Between the two classes six hundred and ninety five entries were laid in the year 1891. Seme of them eaid to be in the names of parties dead at the time. JSone were made after the year 1891. Bj law these entries must have been paid for and grants obtained on or be fore Dec, 3l3t, 1893. S:me lawyers contending before Dec. 31 it, 1892. De pending upon construction of Code 2r66. No grant was ever issued on any of them. Many oystermen told u? that in no case was an entry mad?, on bottoms not already carrying a natural growth of oysters. A great clamcr arose, charges were made of a fraudulent col lusion between the surveyors and the syndicate. Those who had failed to get in entries were urgent for relief. T-ie General Assembly of 1893 pass: d the act chapter 287 defining natural oyster beds and directing suits to set aside entries on such bottoms Ic seems committees were appointed from the counties of Pamlico and Carteret to make the necessary tffi iavitp. Such a committee of five met in Bayboro by appointment on OeS. 6th, 1893, and be fore Festus Miller, C. S. C, made an affidavit which was drawn by said Clerk as follows: State of North Carolina, Pamlico Co., i State and Solicitor of First Judicial district Affidavit, vs. I F. P. Gatas, W. V. Caho I and others. J Jno. F. 8lade, D. G. Saddler. J. C Martin and Geo. Daniels, all of the county of Pamlico and S:ate of North Carolina, personally appeared before me and makes oath that according to entry book of Pamlico county in which the oyster entries are recorded, that there are six hundred and ninety-five entries recorded in paid book and that they are well acquainted with the hot toms on which said entries are laid. and that the entries are all made on bottoms that are public oyster bot toms according to section 1 chapter 287 laws of 1893 Sworn to October 6th. 1893. before Festus Miller, C. 8. 0. (Signed as above ) This affidavit appears to have been sent to J. H. Blount, Solicitor, and was returned by him with a letter to the Clerk, stating that the bffidavit was hardly sufficient, but he thougot that the Clerk could ascertain from the rec ords what was meant, and directed him to lsaue summons giving manner of title. The dockets in the Clerk's office have notes of issuance of summons dates Oct. 31st to Nov. 4th, inclusive, in six hundred and ninety-five cases. Of these summons seventy two were re turned to the fall term 1893, served by the Sheriff of Pamlico county, Thos. Campen, and fifty seven by sheriffs of other counties. Ocher sheriffs returned sixteen "Not in county," We find in the Clerk's office on file three addressed to Sheriff Baltimore, Md. Two to the Sheriff of Craven county, and three hundred and twenty-seven to Sheriff of Pe mlico county, upon which is en dorsed no return of any sher ff what ever or any date of receipt or acknowl edgement of receipt. This accounts for four hundred and seventy seven. And leaves two hundred and eighteen unaccounted for. The dockets do not show any returns therefor, nor do they in any case ehow from what county the summons was issued. It is claimed that many if not all of these are to be accounted for by the fact that the Sheriff of Craven county made no re turns for a large number sent to him. This Sheriff explains that he was not bound to accept or serve them without his fee, that he knew not how many were tendered him and he left them lying around his office. The minute nor other docket nor records of the court nor cases show any order for alias summons in any of these cases, so far as we were able to find. Alias summons were issued, how ever, to the Sher:ff of Pamlico county dated April, 1894, and returned by him, served in three hundred and two cagci, of which eighty three purport to ; served on April 20th, 1894, and sev enty one on May 3rd, 1894, forty two "Not in county" and eight dead. We found no record of other aliases than these, except a bill of cost charging for about four hundred and thirty eight aliases. A peculiarity of the situation is that one of the signers of the affidavit was made the defendant as well &s all of his children, minors living with him. No complaints were filed. We are in formed that the syndicate employed lawyers to defend their entries, and the other defendants employed none. Similar actions had been begun in Hyde county. One State vs. Spencer 114 N. C. 770 was made a test case by agree ment and tried at Hyde court fall 1893 and on appeal to Supreme Court Feb. term, 1894. It was stated that this was to be applicable as a test case to Pamlico as well as Hyde county cases; both being brought by the same solici tor. The c fleet of this decision was to decide the survey conclusive and to make all these ectiona hopeless. There was absolutely no reason to issue any further process or incur iurther cost. Besides, the entries had all lapsed on Dec. 3Ut, 1893. and were null and void. The decision of the Supreme Court had been filed Feb. 27th, 1894, six weeks before the issu ance of the aliases. Further proceed ings could load to only one result, en ormous bills of cost to officsrs. At time for sp ing term, 1894, Judge Armfield, who was riding the First district, was sick and no court was held for Pam lico county. At fall term, 1894, by practical consent of parties before court, non sutti having been taken in all ca es, judgments were rendered taxing the cost againss the county of Pamlico. The county appealed, and by agreement one case was brought up as a test of the whole, reported in the 118 N. C. 9 State va. Siemens. The Supreme Court be d that the county was not liable At epriDg term 1896 Judge Robinson rendered judgment taxing the Stits with the co3t, but added "How the judgment will be Fatisfied U a question roc now before us. Blount vs. SimmcnB 120 N. C. 19 is a rehearing of this case. The court re affirmed the opinion above but passed upon certain items of cost and de clared thorn illegal. At fall term 18u7 of Pamlico 8upo rior Court an order was entered con solidating all CAses and re taxing the bill of ccst, adjudging affixed amount in favor of the Clerk of the Superior Court, Festus Miller, and a certain amount in favor of Thcs. Camp?n, former Sher ff , the aggregate amount ing to Eometning over $4,000. The items disallowed by the Supreme Court in the last named opinion were left out cf the bill, reducing the same several hundred dollars below the amounts for which upon a sworn bill and statement by Fescus Miller. Clerk of Superior Court, a warrant had bean procured from the State Auditor for forty eight hundred, fifty one dollars and forty cents Dec. lsc, 1896. For reasons we giva below thi3 bill of cost we think erroneous and excessive, and while it may be too late in a ju ictal proceed ing by appeal to correct the same, it is not too lata for the legislature. We will consider first the 332 sum mons found in the office of the Clerk, A summens is not issued and the Clerk U not entitled to any fee therefor un til it is delivered to trie sheiiff or some one for him. And the sheriff is re quired to note on the back of it the date of its receipt. This being so the record would show that these 332 sum mons were never issued and actions in those cases never begun. It is claimed, however, that they were handed to the sheriff and by him given back. The Clerk's acceptance of them without any return from the sheriff would be a virtual withdrawal of process, and would not change the conclusion above. In many of these cases what purports to be an alias summons in the bill of cost was issued in April, 1894, but by the terms oS the act no action could be begun later than March 3rd, 1894, and these aliases under the law could not constitute a legally instituted actioD, from which we must conclude that no liability attaches against the State as to any of these 332 actions which had no legal existence. As to other aliases, if they were issued, there is nothing to show that they were other than gratuitous and officious.' They could accompl'eh no purpose at the time issued, and we think it an outrage to compel the State to pay therefor. There is charged in each case $1 80 for continuances, six at 30 cents each. We do not see that the Clerk was en titled to this fee in any case at the re turn term fall of 1893. No court was held in spring 1894, The only purpose of the case upon the docket at any sub sequent term was to await the opinion of the Supreme Court and render judg ment accordingly. Nono of these, in our opinion, constitute continuances for which fee may be charged, there lore we think the entire sum charged for continuances, (over $1200), ia illegal and unjustifiable. There are other items in the bill of C03t as finally allowed which we do not think would have been allowed by the court with the facts fully before them. For instance, in each bill of cost is allowed from thirty to forty cents for filing papers. Ten cents for each separate paper constituting the judgment roll, whereas, the fee fixed in the Code for filing ( 'papers" is ten cents, and not ten cents for filing each paper. As to sheriff's fees the first bill of ccst presented made a charge of sixty cents for service, regardless whether or not any service had been returned. We are glad to say in the last judg ment (his has been corrected to charge only where service was returned, these charges, however, include some services returned as made on Sunday, which service is void upon its face by law. We learn that many defendants were minors, many of them under fourteen years of age. We inquired of many persons in various parts of the county and were informed that in no case were copies of summons delivered to said minors their parents or guardians, and such service was not legal, and had the so matters been called to the attention of the court no fee would have been allowed the sheriff for such S9rvice. In addition to these facts, quite a large number of those returned served have made affidavit that they never were served in any manner. And it is reported to us that even in those cases where defendants were adults, the sheriff did attomp'c service he did not read the summons to the defendants in many cases, but merely stated to the defendant that he had such summons. Bills of cost presented in the cases where summons was directed to sheriff of Baltimore aggregated $23 70 aa ap pears in the bills of cost presented for payment upon which the warrant was obtained from the Auditor. Theee warrants are still held by the claimant?, we aro informed. CARTERET COUNTY CASES. In Carteret county three affiidavits were filed with the Solicitor of the dis trict, alleging that 104 persons named in said tvffidavit, had procured licenses for oyster gardens covered by natural oyeter bed, and actions were begun on theae under the laws of 1893. In Carteret county a great number f alias summonses were issued, and aa far aa the records shosy, without authority. In 70 of the-e cases which do not ap pear on summons docket until spring term 1894, and the original eummoses bear no evidence of ever having gone into the hands of the sheriff at any time, in fact, they appear to have been written out by the Clerk and placed in the files of the papers never having been issued at all. These 70 summonses, with two exceptions, were all issued on the 5;h day of October, 1893 return able to fall term, 1893 These papers are charged for in tne bills of cost a original summonses at one dollar each. In many of the cases there were as many as five alias summonses issued, and as far as the records show, without authority, and several instances where the eher.ff had returned the defend ants as "dead," the Clerk continued to issue .alias summonses. As an illus tration of this we take the case of Jno. Williams: First summons, October 5th, 1893; no evidence that this ever went into the hands of the sheriff. Alias November 22, 1893; returned. i "not to be found in the county." Alias June 9, 1894; returned "dead." Alias, Jan. 1895; returned, "dead." Alias, Aug. 6th, 1896; returned, "dead." In this case the State ia charged with $5 for summonses. It will appear from an examination of the statutes above, that these cases from Carteret had nothing in common with the case of State vs, Spencer, from Hyde county, or the Pamlico county cases, the Carteret cases having been brought to declare void certain license granted by the Clerk, in water outside of the oyster survey, while the other was brought to recover oyster lands within the oyeter euryey; the one in Hyde, State vs. Spencer, to de clare void a grant, theretofore" issued ; those of Pamlico county to avoid cer tain entries. It will be noticed that quite a large number of aliases refer red to above were issued after the Act under which the actions were brought, had been repealed by the legislature of 1895. By actual count 52 alias sum monses were issued after the repeal ( said statute, and the sum of $52 appear as a charge ; against the State in said bills dfcosl;. The sheriff served 23 t t these aliases," for whioh charges ar made, after the said act had been r pealed, the fees charged amounting in $13 80. There was not a single answer file u in the Carteret cases, and there is t reason that we can see why judgmei by default could not have been bac . There was , only one order made as t the time to file answers and that was general order at fall term, 1894 dry witnesses were summonsed, to ap pear in the cases, though no answer was filed in any of them, and it ap pears that the ccst for these witnesse were charged up in the case of W. O Lupton, who, by the way, was one or. the parties who signed the affidavit upon which most of the actions wero commenced including one against him self, Putting all these things together , it can be easily seen how these immene bills of cost have been charged again?;; the State. The original summonses and a part of the aliases were issued by Jno. D. Davis, Clerk, and a part of the alia summonses by L. A. Garner, the pres ent Clerk. The aliases issued in the cases where the parties bad been re turned as "dead," were issued by Mr. Garner. It seems that shortly before the term of court at which the judg ment of non suit was taken, alias sum monsts were issued indiscriminately in all the cases in which service had not been made, whether the return theretofore made was "dead, "or other wise, and as far as the records show the issuing of alias summons was pure ly discretionary with the Clerk, and they were issued to nearly every term of the court regardless of the returns made on previous issues. A number of people in the county state that no summonses were read to them in the cases where they are re turned as "served," and some state that they never heard of the suits, that they had no idea of resisting the with drawal of their licenses, that they were anxious for all licenses to be revoked, so that they could go back to their ec customed business of taking oysters from the waters of Core sound and else where. It seems that a nonsuit was taken in all these cases on account of the de cision of the Supreme Court in the case of State vs Spencer, when, as we have before stated, there was nothing in common in the cases. In these cases the Clerk charges for from five to six continuances in each, amounting in all to about $180. In order to get this amount, the Clerk charges for a continuance at the ap pearance term of the court, and in eludes iu said charges a continuance on the summonses which are referred to as apparently never issued, and which do not, by the way, appear on the summons docket of said court un til spring term, 1894, of said court. In conclusion, we submit that the foregoing circumstances, appearing from the records, together with the facts gathered by us from the citiz ns of said counties and the affidavits madf , and referred to by us herein, point so strongly to fraudulent efforts to stuff these bills of cost presented to the Sea e for payment, and upon which the war rants were obtained, that ycu were perfectly justifiable in refusing pay ment, and in recommending the legis lature of North Carolina through proper committees to make a thorough investigation. Very respectfully W. C. Douglass, W. D. McIver, Attorneys for State. The following letter from a man who requested us to stop his paper when his subscription expired six weeks ago explains itself : Editors The Progres siveFarmer: Enclosed please find $1 for which please send me The Progres sive Farmer. I can't do without it. Have tried to do so six weeks, but fisd 1 1 can't "make it." Geo. F. Fric, I Garfield, N. O. is as necessafy to plants bread is to man. Some rrl need more Potash than othl but none can do without The character of soils m .lso be considered, some si being more deficient in pi and nitrogen) than others. ) Every farmer should rq our pamphlets containing fi particulars of the large numlT rf fvneriments made bv Extvf - 1 j m r j ment Stations with fertilizers different soils and crops. These pamphlets can be had free on applicatic! GERflAN KALI WORKS. 93 Nassau St., N 1WeTb$ter,s Successor of the " Unabridged." One Great Standard Authority, I The So writes Hon. D. J. Brewer. 8 Justice U. S. Supreme Court. Standard of the V. S. Gov't Printing . .! T 1 I . . , i uouri, an iu5 outie .-mi- 17 all tne Schoolboofca. I "Warmly Commended, " by State Superintendent of Schools, College Preetf denta.andotherEancato; almost -without number! Invaluable in the household, and the teacher, scholar, prf All!! iessionai man, ana sej irT" Specimen -pages sent on application i Q.& C. Merriam Co.,Publisher Springfield, DXaas. CAUTION. Do not be deceived iT 1 buying small so-callt "Webster's Dictionaries." All autheni abridgments of Webster's International Diction ary in the various sizes bear our trade-marfe on tb,e front cover as shown in the cuts. J HIGH SCHOOL I lamMsonoLl LorruraoN ACADEMIC rtBsmrs "CHARGES NOT SUSTAINED." The famous Clark Kilgo trial id ecd ed and results in a complete vie dice tion of Dr. Kilgo, president of Trinit College. After brief deliberation th board of trustees of the college decidec that neither the charge nor a single cli of the specifications was sustained. According to the Raleigh Popt,- respondent the charge made by ( s Clark was: , That he (Dr. Kilgo) is u. Y Q president of Trinity College. -H SPECIFICATIONS. A 1. That Dr. Kilgo's reputatif South Carolina was that of aK" puller of the ward politician type f his performances in this date hi justified his reputation. 2 That he was in Tennessee audi known there as a scrub politician. 3 8ycophancy to Mr. Waghirg Duke in that he (Dr. KilgO recec led a procession to Mr. Duke's ho and extolled him as the greatest) the S?.ate ever produced. 4 That he has received pera.; gratuity from Mr Duke. 5. That Dr. Kilgo intended to vent Judge Clark from having &n portunity to produce evidence befd former meeting of tne trustees. ! The wi;n3S8es fjr the prceecU were: 13. C. Beckworth, R. B. Bo T. J. Grattis, Z P. Council and depf Mr. Jennings, of Spartanburg, 8 and Dr. T. B Kingsbury. The' nessea for the defence were Profcf R. L. Flowers, W. H. Pegram, A Merritt, J. a Baseett, W. I. Crawl J. F. Bivins, Rev. James W. K Rev. W. L Griasom, Dr. Dred Peocj and some others. Depositions were troduced from R wa. J. O. Wilsoa South Carolina; H. F. Chrei'zbcr; B. Turrentine, of Charlotte, N. C H. J. Basa, Durham N. C : Govv Ellerbee, Senator McLaurm and Duncan.' The following trustees were pres T?axT A P TtM Mi. T IT Hniif.hi r c air. jd in. uuse, non. wHerv Rev. J. N. Cole, Rev. F. A. Bit Rev. Q A Orfleeby, Mr. V. Bal Mr. E J. Parish, Mr. W. H Brar Mr. W. R. Oieli, Colonel G. W. I ere. Rev, J. R. Brooks, D. D , Hod J Montgomery, Rav. 8. B. Turret: Dr. W. S. Creasy, Professor 0 Carr, Rev. N. M. Jurney, Rev. I Ivey, D. D , Rev. J B. Hurley, i W. C. Wilson, Dr. Dred Peacocfc, A. H Stoke s. . r T- r T-r iit 1 I l'. j ft 1 I Trrv Ppriaprsnvw Farmer W14 j sent from now till Nov. lOtn afte election for only 20 cents. Seed club. This means you. Happy is he, who wisely knows To use the gifts thas heaven bestc Or if it please the powers divine Can suffer want and not repine. Dean S Ft WANTED LIVE liABBITS-J hhita to bfl delivered v-t l IO-tjber lOch, properly boxed ftff ment, at railroad station. Aflw 'stating pneo, Til A x rL.it, zi :ia I PWHWSCHXll DICTKWKiry i Lane, New York, N. Y.
The Progressive Farmer (Raleigh, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Sept. 6, 1898, edition 1
6
Click "Submit" to request a review of this page. NCDHC staff will check .
0 / 75