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Railroad Records 1896-1897 (part 2)
_ pn ee FEE EER SER “SUPERIOR COURT NOVEMBER TERM, 1597, % ~*--\$tate of North Carolina on relation yer Of L. Oe Calawel) eRe Ce ep NE aed € : as i 5 4 “ ‘ 3 SS ee ies OT RSt hays o ™ We yt tage ON rant ae Mtee James W, Wilson , The defendant answering the-coisplaint, says:- 2; That section 1 thereof is admitted. Ra: That section 2 thereof is admitted. Defendant's term of offieé began April 1st, 1595, and ends April Ist, 1899. 2 7 That section 3 of the complaint is admitted. 4. That. section 4 of the complaint is denied. But defendant udriits that the Governor undertook or attempted to suspend or “Remove the defendant from his said office of Railroad Commiséioner and designated the plaintiff's relator L.’C. Caldwell to fill the vacancy which he had attempted to create, ~~ That the allegations in section 5 of the plaintiff*s téom- plaint are not. true. He admits that said Caldwell has taxen the oath prescribed by law for railroud eommnissioner. 6. That defendant admits section 6 of the compluint, except that he does not admit the appointment and qualification of said Caldwell any further than he has hereinbefore admitted the sume. , That he, denies section 7 of the...compluifit; but he admite that he refuses to vacate his office of railroad commissioner and 6 to surrender the same to the relator. The defendant is advised that his suspension was illegal and that he is still entitled to discharge the duties of his office. 5. Sections 6 and 9 of the complaint are admitted, ‘ep That “thé General Assembly of North Carolina at {te session’ 4 om — * * St. 2001 ‘Wider tice authority of the Constitution of the SE — . ys * ch tae ne es ¢ He, Oe, et vy et Y ate : x C4 ; * oan a aks . nal he : . . « . * “ ate “3% ake \sicis ‘ : nM bad ’ waite ts i te Veien> make a > se oe Re aan te oo we ers pes cite “aeetele 4s Sasttone 2 2 ‘12 ‘and: 30, passed an ace consti tut ing a ar Bsa? © raiiroad Gommissién with ‘the powers: of a court, whieh was: ratified wee Soap hieat oe SME ‘of March, 1094, and. under. said act the defendant was ait member thereot at. ‘the yoshi on of 1693 for. the term, of six yeuts ine. on *the" note. ‘of: sah: 1891, the: Genera Assembly cae BES. ct Tse _ North. darolina paséea. on Kot. declaring. nvhait, the. Ratiroaa “Com s= ‘ “et ws one vy wre aon elected ‘at this session of the general agsenbly and ae = suctessors: in office be ‘and they.” are hereby created and constitu» ~ tea’ a “Court or Record inferior to the Supreme. Court’ and shall be. known as. the Board. or Rasiroad Commissioners, and as. such shall have all the pages. and: jurisdiction of a’ poaurt. ot general Jurte- dtetion as to att subjects embraced in the Ket oreating such railroad oopall BELONT “i That the ict ratified varoh Sth, 2891, im section 2: thereof, - ~~. _prbyides “that said commiss ‘Joner's shall not seine or severally. = 7. - or in any way be. the holder of any stock or ponds or the agent or —— - . i ~ . attorney or’ émployes of any gach company, or heve. By interest te a. any. way. in such COMPANY 5 and shalt go* continue during the term of «= -* nis oftice, and in cage any commi ssi oner shall as distributee or legates c or in any other way, have of become entitled to any stock om p banka: or interest therein of any such company he shall at once -akgpoey- of the same, and in case sf any opoms Sat ORee shalt: fail im. ° +e this: on: on ohse any one of them ‘shall become 4isqualified stovact,. then it mell be ‘the duty of the Governor to suspend him from ofta a ea - and. te. Yeport the fact of his “Suspension vopetner with the. reason S therefor to the next apnereh: asgembly, and the queation of his removal from office stiak be determined by a majority or the exeors. ea. al assembly in joint session, In any ease of suspension the Governe ne ee a ? -_ + es or seit fiii the VACAECY s and if the general assembly shalt oes termine that. “the commfas Loner suapended . shall be reuoved, then the —- — eae, «4 aes of, the Governor shal holt: int) his ‘sucqessor.. in ites - we Sel signe te + aga. quali tied “ag hereinbefore. provided, but. sf. one General ee Meee = 1 is pet be reyes? ‘trom his office then: the ertect “shall be to. cc Sntting4 upstate: him in sata office.. ‘the person ai scharelig’ ‘tie, ‘duties of’: ee we et & “hs vo von ; ~aatd office shall, be entitled to the salary tor the time ne. te so. “ -Sgngagea, but * ‘commissioner who: is suspended still be allowed Be “£ = salary. during, Bis auapension in case he should, be rednetated by. ‘thd oS de ayers ~onext- general sadebie 5 ae tece that no person is eligible ¢ as’ such . Scenes oat nies who ‘shall have been an attorney of any - “each eReny: wi thin twelve months next preceding his election to guch ottiseey” but the defendant -avers, Beene. #9 advised, that said provisions ae : unconstitutional and void. | ates Tl. Zl That as appears by the complaint ‘ina said Daniel b. Ruaseais Governor, preferred the charges contained in his communication of... “Aiplist 24th, 1897, whieh 48 sét out: in Begtion-3 of complaint . ‘The. defendant appeared before .the said Governor at the “day tixed and ? ‘ _—«; ~~ : filed a written denial of said charges with onty- an affidavit - trom 7. 3. Me Bee as. follows: "In 1893 i was a general’ Fapertatendent es ~ > “ ~~ of the VesternNorth oabé1( se ctetircea and during the. said ‘year. appointed the said James W. Wilson, Jr., station agent at Morganton. = and in making said appointment did so ei thant consultation or. aeitirepis with Mr. Wilson's father. J. ¥, Wilson,Jr. had savebal years before appointed gtation agent served as clerk:in the said office and proved himself competent to fill the agency ". Defendant. _ also filed téstimonials from citizens of Morganton showing the 8D nr ae io ~ n business capacity nf find fitness of said J. W. Wilson; Jrz for the — S pesttion of agent at that place. And thereupon the defendant deman= ~~ > = ded of the said ‘Governor that the ebidence 5 2 age him be produced - ‘and that. ‘he have en. opportunity to confront. his ‘pecusers and orose=" ~ oe , famine: the witnesses, This was refused , “the Governor avating. that she had no st te. Sulipderia witnesses. gS wae . aw Su * y ve a et ‘ ‘ ae “That notwithstanding the denials of the defendant and the affida- a ORE. “vit in support, thereof, the said Governor without evidence and ‘with- : 2 eats svtan “Celsrtck to fina generally that the defendant ned’ _ violated the railroad commission ee ‘nea ah tha particulars: “mentioned in seu datter of August 24th, 160%, and that the estes “- S¢ant had’ not only violated the said act tn the spectfications: set esa out in said acf, but that he had otherwise wi titi tite. wedn hue and | ‘ _ intent and words of said act become disqualified $e a There- -apon the said Governor wethout a more aevattio finding undertook Se iceans the defendant and derrive him of his said office. 13. The defendant denden that he is the joint owner with Col. A, B. Andrews, the first Vice President of the Southern Railroad of the Round Knob. Hotel. He for s ‘valuable consideration sold and conveyed the sina nada en the date of the Governors letter of Aug- ust 24th, 1897, and August. 30th, 1897, by deed to nA Brown as he was entitled to do under the provisions of said Act of the General Kasaubly.. 14. That the defendant denies that the said hotel property is worthless as a hotel except when designated and patronized by the Southern Railroad as an eating house for their passenger trains. 15. That the defendant denies that the said hotel property has been unoccupied and unused for any purpose for several years AA past and has: brought in no po to detendant,—fe-& EF & . . , , 7 17.’ That, the defendant denies that it is impossible to use, rent’ or lease said property unless some understanding, agreement or contract qo be made with the Southern Raglroad to designate and patronize the said hotel as a railroad eating house. Aprefl ae Lat 18. That the defendant denies that he and the other. owner or owners of said hotel property secured any agreement, understan- ding-or contract from the Southern Railroad Company to abandon athae eating houses and designate Round Knob as an eating house, ae that by virtue of said agreement with ‘said railroad he was able 26 Kees said hotel property to S. Otho Wilson, or to his mother chitbnah the said Wilson, for profit. The facts are fully stated in the defendants letter of August 30th, 1897, set out in the complaiad 19. That the defendant denies that his son,who is now twenty seven years of age was appointed agent at Morganton of the Southern Railroad over others entitled to the place by promotion under the practice of the company and that this was done for his accommoda- tion, He was in the very line of promotion and was appointed gm in 18935, by V. EB. Mec Bee, former superintendent in pursuance of a pre- vious promise, as defendant is informed and believes, on account of a XanEY vacancy in the office in Morganton. His said son was chief clerk to the agent and was appointed on his dewth 224-40. n, Defendant at first thought he may have spoken to Mr. Me Bee in favomr of his son but on more careful inquiry and reflection is convinced he did not do so and he therefore denies that le said , any thing about it to said Mc Bee. 20. That. defendant acquired the Round Knob hotel property in oe wn hw a 1861. The hotel was built in (SS ana has been a railroad. eating house at divers times since its erection. , , eg = Bi i: 21. The Petendant deities that he has acquired any interest in “Gay wis in the aoebkees Railroad Company in violation of ie: 22, Th: defendant denies that he has become disqualified to act as a euli sukae or commissioner. 28 ; ! that! unaer the laws of North Carolina the defendunt has a property in his office, and he demands to have the charges preferr- as against him tried by a jury in this action. 24. That by the Céiati tution of the State of North Carolina Article 6,Sections 1, 2, and- 3, it is provided that every male person born in the United States and every male person who has been naturalized, twenty one years old or upward, who. shall have re- sided in the state twelve months next preceding the election and ninety days in the County in which he offers to vote shall be dee- med an-elector and eligible to office, except all persons who shall deny the being of Almighty God and all persons who shall have been convicted of treason, perjury or of any ather infamous crime since ne eomsiiig citizens of the United States or of corruption or mal- practice in offive,unless such person shall have been legally re- stored to the rights 6f citizenspip. 25. That this defendant is in every way qualified to hold offive ‘ieee the requirements aforesaid, 26. That the deféndant is advised and so avers that any pro- vision of the Railroad Commission Act Chapter 320 of the Acts of the General Assembly of North Carolina passed at the session of 1891 which prescribe other and different qualifications for the office of railroad commissioner than those laid down by the said provisions of the Constitution are unconstitutional and void. 27. That the Board of Railroad Commissioners is a Oourt of Record and the Commissioners are Judges under and by virtue of Article 4, Section 12 of the Constitution of the State by which it F provided " The General Assembly shall have no power to deprive the. A "ude al Department ‘of any power or Vcavealabton which rightfully 5 pertains ‘to 4t. as a co-ordinate depattment of the Government, but the General, Assembly ‘shall ‘allot and distribute that portion ‘of this. power and . sursedtotion which does not pertain to the supreme . court among the other courts prescribed in this chustituttor or which may be established by law in such manner as it may Be deemed pest, provide dive a proper. ayetem of appeals, and regulate by law eh necessary the method of proceeding in the exercise of their powers, of all courts below the supreme court so far as the same my. may be done without conflict with other provisions of this Consti- tution”. 28, That by Article 4 Section 50, of the State Constitution it is further provided "In case the General Assembly shall establish other courts inferior to the supreme court. the presiding officers and clerks thereof shall be elected in such manner as the General Assembly may from time to time prescribe, and they shall hold their offices for a term not exceeding eirht years”. “ 29. That by article 4,Section 31 of the State’ Constitution it is further provided, "Any judge of the Supreme Court or of the Sup- erior Court and the presiding officers of such courts inferior to the Supreme Court as may be established by law may be removed from office for mental or physical inability upon a concurrent reso- lution of two thiré@s of both houses of the General Assembly. The judge or presiding officer against whom the General Assembly may be about to proceed shall receive notice thereof accompanied by a copy of the causes alleged for his removal at least twenty days before the day on which either house of the General Assembly shall act thfreon". 30. That the alleged causes of aexikunx removal sét up by the? Governor are such as apply to no other judges or presiding offi- cers of courts or any other public officers in the State and the Governor has no power to remove or suspend any other judge or presiding officer of courts or uny other officer not eppointed by mare Vhererore the defendant says the Statute and the said action . of the Governor deceive him of the “get protection of the laws Pana 4 are in violation of the Fourteenth Amendment of the Constitu- tion of the United States,and this defendant expressly claims Sie. protection of pate dandeens.: 31. That as appears by section 3 of the complaint the Governor 3 cited this defendant before him 60 answer the charges preferred against him, ghis defendant fully answered and generally and specifically denied the charges. Thereupon the defendant demanded to be confronted with his accusers and to hear and cross-examine the witnesses against him. This was refused, no witness or other evidence was produced;and thereafter the Governor made his decision by which he attempted to remove the defendant till the meeting of the General Assembly, early in January, 1899. The defendant sub- mits that this action was without a hearing and without evidence to support it, without ang trial and without any right of appeal-- Wherefore he savs the said action deprives him of his liberty and property without due process of lay,and is in direct conflict with the Fourteenth Amendment to the Constitutton of the United States, and the defendant expressly claims the protection of said Amendment. 32. That he submits to the Court whether by the action of the Governor aforesaid the privileges and immunities of defendant as a citizen of the United States have been abridged in violation of the Fourteenth Amendmant to the Constitution of the United States, and if so he expressly claims the protection of said Amendment. 33. That the defendant is advised that the General Assembly had no power to confer upon the Governor the right of removal or suspension ,nor to confer upon itself the power thereafter to pase upon the queation of removal or restoration, nor to add to the , qualifications for holding office. And the defendant further sub- ‘ “mits that: the matters and things charged against him, and which he fully denies, ao not come wa thin the provisions of the Act of. the eter Assembly and do not warrant the action of the Governor, 34. The defendant. submits, being so advised, that the action of the Governor was illegal and void and the defendant is entitled to continue in the exercise of the duties of his office. Wherefore the defendant prays judgment that he go without day and recover of the plaintiff his costs of action. Attorneys for Defendant. James W. Wilson being duly sworn seys that the foregoing answer is true of his own knowledge, except as to those matters stated on information and belief, and as to those matters he believes it to be true, pol we co. Lai; a0 nw Sworn to and subscribed before me ‘ ~~ = this 27 dgy of 0. 4-t—~<+ , 1897. AGE XL METAS OFA ‘7 or =/, ie: pe oa pi f dost ieee Ape UNITED STATES OP AMERICA, ss:- The’ President of the ‘United States of America to the honorable the judges of the supreme court of North Carohina, Greeting:-. Secauae in the record und proceedings, as sini Se: the rendition of the judgment of a plea which ‘is in the said Supreme Court before you or. some of you, being the highest court of law or equity of the said State in which a decision could be had in the suit wherais the State of North Garolina aa the relation of l.. C. Caldwell is plaintiff and James V.. Wilson is defendant, wherein was drawn in question the validity of a statute of or an autherity exercised under’ said State on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decis< ion was in favor of such their validity, a manifest error has te pened to the great damage of the seid James %. Wilson, as by his complaint appears, we, being willing that error, if ary hath heen should be duly corrected and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then, under your seal, distinctly and openly, you send the reco@d and proceedings aforesaid,with all things concerning the same, to the Supreme Court of the United States together with this writ, so that you have the same at Washington on edb iy of January, 1696 in the said Supreme Court, that the records and proce:dings uforesaid being ‘ivebdeted: the said Supreme Court may cause further to be done therein to correct that error what of right and according to the laws and customs of the United States should be done. - os om Witness the Nonoratle ! telville =. wuller, ‘Chiee duactes or the. % itd Supreme Court tiie 23 day of Recember, An the “yeur of. our. Bure ona thousand sige hundred and ninety seven and of Una, . the Uni ted States the oné hundred and twenty ‘otOnd | Clerk of the Circull “virt Indepemicncs © af the United Stutes fer: the Nastern District of Morth Caraqiinpa,. 4 ‘ or om a ye RP OES, = “UNITED STATES. OF ‘nee I0K, ee:- Tie President of ‘the United States of anes pee to. the honowab3e" ‘the judges of the supresie court of North Carobina, Greeting: -* Seeunae in the record and Sceecsdcans, as ‘also in the. rendition or. “the judgment. of. & plea’ which is in the said: Supreme. Court. Berore eo you OF son or: YOU, : ‘being, ‘the. agneat "eourt a5 Law ar: aaut ty of. the said State in which a . decksioh ‘eoukd be. had in the suit wherein “the State of Werth: Carolina on the rouge tsen, of L. ec. caldwell is plaintifr and James +. Wilson is defendant, wherein was drawn in question the valaad t> of a statute of. er an mined ey: exdeteed. under said State on-the ground of their being repugnant te the Retabe Cuvase treaties or laws of the United States, and the decis~ - ion was in favor of svieh their validity; a manifest error has hap- ; pened to the great damage of the said James W, Wilgon, as by his complatnt appears; we, being willing that error, if any hath been should be duly corrected and full and speedy justice done to the ‘parties Se ce in this behalf, do sain you, if judgment be therein shea that then, undér your seal, distinctly and gpenty, you eénd the recotd and proceedings aforesaid,with ali cithes coneerning the sane, sé the Supreme Gourt of the United states “bogether with this writ, so that you have the. sume et Washingten on the 27 day of tertiles 1898 in the said Supreme Court, that the records and vroceedings aforesaid being sndpeetonsi the said senna Court may cause further to be danirvhotede to csrrect thab-errer what of right and according to the lews and customs of the United States shauld be done. “ withess the HonoFabke Melvizie ¥. Puller; chief Justice of the “said saprené Court the 2d ‘day of Meoomber, in’ the year of. our Lord. one Sheasand eight Hundred and ninety seven ang of tie the United States the one undebal and twenty second ud, C4, ree Clerk of the So Court of the United ttates for tittependenos oT the Zastern District’ of Yorth Carciina. ‘Superior Court. Yovenber Term 1897, 2 Pea Me i~ a oe . O getawen = ; pac ae ae a ALL onl PRESENTS; Oe e058 On : . * oe ee nS gtnatl wes Janes vv. ae Fes agian and ,» reties are held~and firmly bound * “upto the ‘Btata/ot Worth RE ahd : cal@wel in the penal sum of eho madee 0 fi “Lo Ga = for the payment WA hich wall and truly ,meme We oe ‘pind squbseleas} our heirs, executors,4 Peete. te . “* ¢ PP; ; Séalndwhty our: oon dep dptg6 this the 10th day of Novem:...= V ; > 4 etonre ; ‘ 72 » ‘a : = ; oe te wre vs i wr. “ 8 . . ' . < 7 . Pr ~ tng a ~~ * men ‘ ON eS Ne ae oe ¥ ‘ A Met SS : wk aoe Lannie ret oe TRE condition of this obitgation ts such that whereas judgment’ vo ~ oe been rendered in: thts action in favor of the pleintitte and against - Qutendants anit’ whereas the defendant has appealed from said sudpmenty fend désires ‘tovstay the execution of the same: pending said appeal. + = aa “Now jTherefore, if the said défendant shall pay unto the party entitled ‘be the ‘sate. all the: sAlary, fees, emoluments end all money “whate “s08veh rece tved by. eaid defendant dy virtue or under color of his office of Ratiroad Commissioner, then this ob] igat ion to be Void{ Otherwise to. = ‘remain=in, fuld-forbe and effect. — <Cythe s ~ Fe. 7D 2 6A (Beal). aa (Seal). “(seal ys © poet wansl ines = Spare count a tod ome penned dé fore me. this aay and first Nene i * each far himse tr + aie, is ety eee eye Ne a in el pee “ * Peel Aeesn) . S igrectt ey et aa : s ee = (egez) 5 .enaqy, aie wae “yetpe oi SELBCS peepee. BIFTNONG Gontize preven” eon ee EICUAY Po AOI Reba} ' - were ” Py Fe09, BP hae 1A or en19 GS LSKge.g 97 (‘S.GL AUGEL, COT eL- O07 ou ees . . . _ eet. 94 ee rpe acme. Cyl“ speheyyen? {eee! cwoyrucupe coy -szy » Sea, © wt Spee crs Ssenecune*® 7. gue Sere Gereers eyery bed uasee eve , an ° ‘ , nem wre ~* . » — ee | : : cr e paaty age Fas? Son ues gps GMECITZ FOR 0% bony pubs -asyg sbhbesj “Ee. Gegecocuy? SHG RNeLETS spe qeLergere prez cbbecyjeq. {Lar ad elie hehe othe oe OG > FL en 0 TLS 4 COMB TR, TOU Gy er as ROTI Th, €Re POT ILS 768 Shu. Sal O.V0y 27 Mey. D.TNoybez? vu TAKS rae bYROPrLe: Ce yueet ; Obey CSLoTiag. ov fiieney Deine Z | jj Ong@e ye Te ew invod” 6 i = OSPR genep Tee NDwiToOR Guile” i ‘i North Carolina, ' Superior Court. | Iredell County. {| November Term 1897. pe oe : At gees |atate, on relation of L. C. Caldwell, vs. J. W. Wilson. a Nee > | are held ana tifniy bouné unto the plaintiffs in this action, | | the State of Nerth Carolina and L. C. Caldwel) in the panal | sum of Two Hundred Dollars, for the payment of whitch well and t eruly to be made we bind ourselves our heirs, executors and | , administrators firmly by these presents, Sealed with our seals and dated this the &th day : of November 1897. The condition of this obligation is wath that if | the above bounden J. W. Wilson shall well and truly pay all | costs and damages that may be assessed against him in this action, and also all fees and emuluments which may be recov- ‘ered against hig by the plaintiff, then this obligation to be void; otherwise to remain in full force and virtue, ln pias Lilet ban (Seat). LORIE SS | a Tiel sf 09 notreque S Ant foisd’ Aso P@BL orrel ‘edmevoll ©}. .ytntr0d ILebert _fLewh{s9 Dl YH Holsalan no ~atate av et. a Seah sr Pa ge PMs bw tad? LRIMAPART. 42a: YE Maid LGA YAO! ti = Res RW ae ; hat. ? fne\nnerth . ——_—- re ee ee ere ee ee ee en ee ee Oe “ame ant . "4 (MOL OR Ata® at ervbhiataita eat ofnsr basrod ¥ ; ota neta \ z ™~ facag oc? mt Clewblsd .9 1 bas ankforsd pa to esate son 4 ° ~ . ~ } han Tiew-AobAw to tnemvaq att 107, arslLod herQrwil ow? [tose ~ . hms evotwosxe ,avier a0 sévyfeets0o hatd ewieham 9: “ere? 7~o~ \ ‘ ‘ ,atnsesiq seat? wet sfankt! avo taytataichs 5 . . . } \ \ web 77h ef? etrit bets bes alser wine ffir hea lree ~~ + fe ad x ote preenttaee.. -clline ttle » “TO - ~wae Ah Ares ; 5 ’ 4. Si tan? cowe ef rotenatido etads.%0 nott throo ent fle vnq vii? Sin (few (fade sto2t{liW .u 4th mehauod aevote eft stadt at mix tentans becteces ed vem tent senemsb brs 2et2o5 -vo0e" od vam fotdw etnemrirme bre see? If2 osifs bas ,mo! son 6¢ of olingifde elAe met? _Witetalo ont <d gin Sentans here -@ndatv bSnae son0o* [{n* mt ntcomet of satwierto ;Slov tteR) te eis ~{feeQ)" ep . » SA. ae - shEse®) =” "SUPERIOR COURT, - NOVEMABR, TRH, 1897. , tae - + aT oe * ~ ; mer he ae. . state. oF ‘North, Gironing on. Fetation eer. bees: é - ef. Be o Calder) Sees tare ie cs Statement of Case on Jes aati | ? ray owe *. : or ee rae * James W. “wilson aie - Aare e ‘ Appeal ~ ~*~ -es- “ ©. dere “he tion in:the nature -of Quo Warrunta tried at Hovember Term 1897, » ‘ ee terre _~— . . > - ar Ls : M ; ~~ = erg Sti Tredell Superior. Court: béfors Coble, vas ness : At the conclusion of the reading. of: the pleadings ne defendant. + - Sean, > tendered the. Toltowiing iususs and demanded a trial by jury: aw Pe nae. the. cplaintate” entitled to -the office of Rat réed a my - ‘Cote ssi oner. ¢ “ ee ‘ ° . . » Does. the defendant: unlawful ly intrude into,- hold end . exercise | the #Ftiee. or ‘Railroad Commi dedoner. and Chairinan. of eae gascn # ~. Sve + Nas the Set anbant aequired any interest in any way in Southern Agtiway’ Conibaby in sidiatecn of law ? —. ° 4..---Has the defendant become disqualified to act as 4 fair : Judge or Commisgionar, or has he besore in-@my way disqualified skom act 9 ‘ Sec. Did: the defendant. prior to. September ist, 1897, ‘calle asus: 3 sakgitey For & valtiunietonsidbration the Round-Hneb-Hoted “to-R,- are: 7k Sag: os So z eer SPE Fi .> a - -- = Z . > & - - ante 6: Dad. the a8 Fondnit deniand or the gaveihot that the evidence, — against ‘him be proguced and that he have an opportuni ty to. con, “front Ste asvugers. and croné=expmine the wi thesses against him %-- - cs 2 a a oa, - wae suid damand refused ae Ven mhy" evidence produced . ae = Bhsbexipoit the plaaniee moved: fer judgaent upon the cSaphaiet ads leant eee = a ot a woke The defendant - “here #intmed: at: “puch notion. 4a Aesesames a wy and that the plaintire should «ither demur or go to trial before the jury. ia honor chae: by consent heard argument both upon the. : right to a fury trial and upon s:.id motion for judgment, During the arcument, the defendant contended, amorig other things, that the ™ statute, haws of N.°C.,. Session or 1691, ‘Chapter 320, Sec, t. and othe action: of the: Governor set ot’ in the pleadings deprived him of -the equal ee tuation of themeqaet—protecttoret the laws, and deprived him'of his office without due process of law, as set out . in the. answer, and therefore the Statute and said action of the Governor were in violation of the Fourteenth Amendment. to the Constitution of the United States, and he ex-ressly claimed the OE protection of said amendrent. ag: Phase Sept Cee Bio Ottgt ls. Quit ot KOYny .- Exception 2. The Court refused to submit the issuejtenderad or any issues and the defendant excepted, Exception 3. The Court further ruled that the plaintiff was ~ , entitled to.judament upon the pleadings. Defendant exéepted. Bxception 4 ; The defendant moved for a ney thal: Tor_the fore~ : Tt IZ going alleged errors . Motion overruled, -and the defendant, Sxdgptes ETO 4. Ther@upon judgment was r ndened in. tavor pr tee bee. set out in the record, Defendant éxbdpteds tnd apieuie ~ ed to the Supreme Coust. Notice waived in ohen Court. Appeul bond ~ fixed at $85.00 and filed and ap: roved. Supersddeas bond" rixed at. v - P . ‘ . $200.00 and filed and approved. (signed) A. Surwell, Jno. D. Shaw, Jno. Gray Bynum, 8. FP. Long, Spier Whitaker, T. N. Hill, R. 0. Burton, Attorneys for Defendant. NORTH CAROLINA, EXGCUTIVE DEPARTMENT. 3 The Attorney-General. Raleigh, N. C. Oct. 4th, 1897, State on the relation of L. C. Caldwell, --Against-- Jas. W. Wilson. Application having been made to me by L. C, Caldwell for leave to bring an action in ine “tame of the State upon the relation of the saidL. C. Caléwell against Jas. Ws Wilson in the Superior Court of Iredell County and others to try the title to the office of Railroad Commissioner; and satisfactory security having been tendered me under Sec. 608 of The Code to indemnify the State against all cests and expenses which may accrue in consequence of the bringing of such action: Now, therefore, leave is hereby granted to the said applicant to bring the said action in the name of the State upon the relation of the said applicant against the said Jas. W. Wilson. Zeb V. Walser. i Attorney-General. 2 ers ‘ | North Carolina, _» r Superior Court. Iredell County. [ | . November Term 1897, 4% . ~~ * ‘State of North Garolina, on relation of Le Cy Oaldwell, Railroad Commissioner. , . ; Complaint. we ? va James WV. Wilson. The plaintiff complains and alleges : det. That the relator L. 0. Caldwell isa citizen and tax payer of Iredell Gounty, North Garolina. Snd. That the defendant was duly eleeted Railroad Cammissioner by the Legislature of 1893 for the term of six years from the time of his eleetion until ex- piration of his term. | Sra. That as the relater is informed and believes that on the 24th day of August 1897 His Excellency Daniel L. Russell, Governor of North Garoclina addressed and sent to the defendant James ¥V. Wilson «a Communieation in theefollowing words and figures to-wit: State of North Carolina, Buecutive Department. Raleigh, Aug. 24th 1897. To James W. Wilson, Bsq., Member of the _ Railroad Commission of Berth Oarolina! Sir: é < os as By seetion first of the Railread Commission act, rati- fied the 5th day of Maresh, 1891, it is made the duty of the Governor to suspend from office any railroad eq@mmissioner whe shall be the holder of "any stoek or bond of any rail- road company; or be the agent or employee of any sush eomi- ; LP ae | pany; or have any interest in any way in sueh company; or in ease any one of them shall be disqualified to act*. It | 49 alleged that you are the joint owner with Col. A. B. Andrews, the first vice-president of the Southern Railroad, general political manage? of the same for North Carolina, of a certain piese of hotel property known as Round Knob, situated on the line of the said railroad; that said hotel property ie worth little or nothing exeept as a hotel and that it is worthleas for this purpese except then designated and patronised by the Southern bas. sone as an eating house for their passenger trains; that said hotel property has been unced pied and unused for any purpose for several years past and has nieught in no revenue 6 you as one of its owners; that it is impossible for you to use, rent or lease said property unless some understanding, agreement or con- tract could be made with the Southern Rai road Campany to designate and patrenise the said hotel as « railroad eating house; that you and the ether owner or owners of said hotel property have segured same agreement, understanding or con- tract fran the Southern Railread Gempany to abandon other | eating houses and designate Round Emob as an eating house; and that by virtue of said arrangements with said reilread that you have been able to lease ssid hetel property to 8. Othe Wileen, or te hie mother threngh the said Wilsa, for profit. It is further alleged that you have @ son in the euployment of the Southern Reilroad Oampany at Morganton; that he wae appointed to this place by the Southern Railroad . -|Dompany at your request, and that he was appointed over , ; is ethers entitled to the place by promotion under the practice . : “ : Y “| of the company, and that this was done for your accommodation ‘and at your request . These allegations have been mace to me by many per- sons, and I. think publication of them has been made in the " publie ae If they or the nasa tik gabstance of them be true ~ ag to which I am expressing su eblaide then the questions to be determined are as follows: | Piret: Have you aeqired any interest in any way in such company in violation.of law? Second: Have you become diéqualified to act as a fair judge or cammissioser f | Under the law the Gevernor has net only a right but is required to sugend a railroad eemnissioner who commits a breach of the statute, whieh has been cited, and this he may do, as in other eases of executive removals, without notice to the party interested; but I shall not pass judgment or éecide this matter until yeu have had a full opportunity to be heara by way eof Genial oF emplamation or justification o& other defense. You will therefore please show sause in writing on or before Wednesday, the lst aay of September, 18697, at the Buscutive office in Raleigh, why you shaild not be suspended from your said office and a report thereof made to the next General Asgembly according to law. On the return day of this notice, you will please make answer and preofe in writing, and be there in person or by sounsel at your elestion. | Daniel L. Russell, Geverner. To which eaid James V. Wilson in obedience to said order made reply as follows : "august 30th 1897. To Daniel L. Russell, Governor of Worth Carolina: Sir? Your favor of the 25th, siting me to appear before you on Wednesday, the let day of September, end reply in writing to eortain rumors or charges from parties unknown. to me, and shew cause why I should not be removed from the responsible position of chairman of the railroad semsission, agreeable to section 1 of the aet creating this ccoumission, was duly re- ceived. In ebedienee thereto I herewith submit this, may anewer to each charge in the order as given in your letter. It is drawn by myself, and possibly free frem the elegant diction which « lawyer would have imparted, but I feel sure it will carry eonviétion te an impartial mind. ist. It is not true, as alleged, that Il a the joint owner with Gol. Ae B. Andrews, viee presidcent of the Southern Railway and gmeral polisieal manager of the same for North Oarelina, in « eertain pisee of hetel property known as Round Kneb. | Snd. It is net true timt eaid hotel property is vorthless for that purpase exeept when designated and pat- roniszed by the Southern Railway Genpéaiy; es an eating house for their passenger. trains. Sra. It is net true that sata hotel property has been unodenpipd and unused for any purpose for severel years ‘ past and* brought in no revenue to me as one of its omers. 4th. It is not true that it was impossible to use, lease or rent said property unless seme understanding, agreenent or emtraet could be made with the Southern Railway Company to designate and patronize the said hotel as a rail- vod batihe house. ie 5th. It is not true, as alleged that I with the other omer or owners of said property have seeureca an agree ment, understanding or econtraet fyem the Southern Railway Company to abandon other eating houses and designate Round Knob as an eating house, and by virtue of said agreements with said railroad that I have been able to lease enid hotel property to Otho Wilson, or his mother, thraigh the said Wilson; for profit. 6th. It is untrue, as further alleged, that 1 have a son in the employment of the Southern Railway Company at my request and that he wis appointed ever others entitled to the place by pratotion under the practice of the canpany, and this was deme for my accommedation and at ay request. I hereby deneunee these sallegatias as made to you by many persons as false, and demand the proef. In explanation I will say that abeut 1861 Cel. Andrews and myself built thie hotel at a sost of abaut $6,000.00 It is not worthless, as stated, but is a most convenient and beantiful hotel, with thirty rooms, elesets and beths on each fleor, and was leased and run as a hotel for several years with ne meals supplied te passengers. The property pas net been uncecupied fer years, as charged, but en the eentrary was leased up to last year at an anmal ren- tal of $500.00 per anma to a responsible party, with ne un- | @erstanding of any kind with the Southern Railway Company. In s eagual conversation with Mr. Othe VWilsen, my redeticstion is that I spoke of this very desirable property, vis tas then vacant, the lease of Priseara & Co. having | expired, and saying that the superintendent of the hoa nid sent me word that if sane one would open and keep a good house he would make it a dinner house; the hotel at Hick ery was then closed, and my impression is that Agheviile was not then « regular eating house, wut of this I am not sure. Mr. Wilson remarked that his mother was leoking around for « boarding house, dna that possibly this might suit her, and he would ge up and examine the property. This he cid, end en his return expressed himeelf as greatly pleased, but said the former lessee had left the property in bad sondit-~- ion and wery airty: I was aware of this, and replied that, ef this aecount, if his mother wauld put the plaece in ques repair she could have it the first year free ef rent - this mush for the profit as charged; the message to me about the eating heuse was net intended fer Mr. Othe Wilson or his | mether, but was sent before Mr. Wilson er his mother ¢ver thought of it, or intended for any persen I eald get whe would keep a first class table. ‘The managqement ef the prop- erty was left entirely te me, and my recollectien is that I never mentioned the matter to Oeil. Andrews until the trade was consummated through Mr. Othe Wilem for his mother. . sii wate tai eal tine tea ie Ga a eated belenged to Jehn Malene, Gel. Greckford ind myself. Tis party owed a debt of abeut $3,090. to R. tt. Brow of MeDewell eounty. I am the omly one of the parties now liv- | ing, and was alone responsible for the debt. Per the hotel iteelf I paid §6,000., Col. Andrews $3,000, (el. Andrews’ interest being about one-quarter of the hotel, with about ten seres of land sdjeining. Before the receipt of ywr letter I had no idea that any man in North Carolina seriously considered that my owning a piece of property jointly with Col. Andrews and held jointly by us sinee 1861, and now rented by a widow, whieh being in addition to a summer re- sort was a dinner station for the passenger trains ef the Southern Railway, would ever im any way be se seenetrued as to make me in any ferm under obligations to the Southern Railway. Finding, hewever, by your ietter that there were parties whe believed or pretended to believe that this was indireetly a violation of the act, I promptly, uncer the advice ef friends, te avoid "even the appearance ef evil’, deeded my individual interests in the property to R. H. Brewn for his claim ef abeut $3,000. abeut the value at the present depreciatéd@n ef the property. Tis was Gene agree- ably te section 1, ef the aet, te avoid amy critician by ) even the captious as te my scon@iet as railroad cammissioner, feeling ne uneasiness that your fairness as a judge should be ee biased as to deeide that with the shewing made you eeuld with any pretention of justices remeve me fram the of- fiee new held by the unanimous suppert ef the Legislature of Herth Carelina; fer this unpreeédented campliment I have never before had an epportunity te return thanks. As to the diarges about my oa, I will say that he is ne miner, as eharged, but is 87 years eld, and is one of the eldest empleyees on the division upen whieh he is stat- ienead. About seven years age the agent at Merganten resign -|e@. My sen was his ehief clerk, and in the very line of premotion. V. Be McBee, general s perintendent ef the Sea- beard Air Line, was at that time superintendent ef that division; he had previously premised my son, as was teld, that he would pramote him at the first opportunity. Mr. McBee kept his pranise. I. have no recellection of it, but it is more than prebable that I spoke to Capt. MeBee in his behalf. It wold have been a mest unnatural father whe would have dene otherwise. I believe this covers the entire bill ef charges. But there are ether matters of rwumer, net in your letter, but caleulated to prejudice yar mind. 1 consider it but simple justice te state the fasts as te each ene. It is changed that then the Seebeard system was en~ deavering te give the people cheap rates I interfered. me fellewing is a copy of erders in the ease. See report of the cawnissioners to the Geverner, page 213: “It appears frem press reports that redueed rates have been again ordered te be put in effeet frem certain points eutsice of this State te eertain peints within, elearly easeing a disgerimination in vielatien ef the leng and shert hel eleuse of the act creating the cqmmission, Justices te the leeal business ef the State req ires us te take prempt estion. I¢ is there- fere erdered by the commission that ell weads deing business in the State of Nerth Oarelina shall re@ice their lecal tariffs te passenger and freight in the same pra@ertion as has been one by thes on their threugh business. It was my opinion Qhen that sur ew felks sheuld have at least as good treatment as Sitsi cere. I arew the erder and weuld de se again under similer cireumstences.* It a we a | ts. ase enargoa en the streets. that the Seabeard system ms unfairly dealt with by me in tie. matter ef their prepesed change ~ line: at Gabten. The fasts ave. that the order ae given was drawn by Capt . MeBee, generat superintenient ef the Seabeard Air Line, and in his ew writing in this effice. By his request, the beard adopted it as their erder, believ- ing it te be a fair solution ef the matter. At least the Seaboard sheuld be stepped fram ebjest ing. The charges as made against me are, in my epinien, se friveleus that they would have been passed unneticed had they net been eamsidered as ef serious impertanee by ene whe helds the emalted.pesitia that you de. It is alse charged that ay influenee during the sessien ef the Legislature was exerted te prevent a re- @action ef rates. The last enmal report submit ted by the Cemissien, with ne difference ef views by the commissioners, gave the rates ef freight and passengers considered by us as just and reasonable. in suppert ef eur views « cauparisen ef the rates ef ail the States in the Gaien me made and published. We were sworn efficers ame mace this repert with regard te the selemmity ef cur cathe. During the session ef the Legislature the members ef the scamsissian were in- vited te appear befere the jeint ceaumittee on railroads aaa give their views as te the justness ef the rates new in feres. Twe ef us respendced. I, for ene, was given « mest respectful hearing by the equmittee. In my argument the repert ef the caqmmissien was sustained by fasts and figures. Hething sinee has been shewn te scenvines me that I was wreng . The charge that it was argued by me befere the camittes that te recammend a ehange of rates wuld be refleeting on the ota osion is not warranted by the facts; nething ef the iia aie dew alluded to by me - in this I em sure that I will be sustained by the committee. In justice to my ante I will say that I never en- tered the halls of the Leer during its session, or : epreeed my. views except when solicited to do so by ite camittes. Giese fasts have.deen intended tobe given without feeling and in a mest Pespestful manner , end I trust they will be se received by you. ; In additsen to the facta, J will say that the State ef North Carelina has a castitutien Wiich you and I have sworn te suppert. This eenstitutien and the laws as expounded guarantee protection te its humblest citizen. To a lawyer ef your acknewledged ability, it may appear pre- sumptious er me te call te yeur attention seotions 4 —_ 5, article 6, ef the State constitution, which reads as follews: "The fellewing classes ef persens shall be disqualified fer offices: First, all persens whe shall deny the being of Almighty God; seeond, all persens whe emmll have been son~ victed ef treasen, perjury er ef aw infameus crime, ou* Bee also article 4, seetion 31. Also article 1, section 19, ef Bill ef Rights. This I will eqpy in full, ae it is re- gar ed by every freeman as a bulwark ef iiberty. It reads as fellows: “In all controversies at law reepesting prep- erty, the ancient mede of trial by jury is one ef the best securities «ef the a guts ef he pe *. and eught to pemain sacred and invielable*. See alse the 14th amendment rs the emnst itati on of the United States, which forbids any State te deprive a . citizen ef life, liberty oF preperty witheut due process of law. Gee also esisiens of eur Buprem Court: Heke ve Hen- Gerson, 4 Devereaux; Cotten ve) Ellie, % Jones; Bunting vs - Gates 77 K.0.; Bransen vs, Turner, 70.5. C. Hewerten vs Tate, 70 B, OC, Legislacare cannet eenfer on an executive judicial . “powers. See Cooley en Gomatitutional imitations, Aet 1892, And on the 23rd day of September 1897 the- said - dorernor of North Carolina issued and sent to the defendant the ener communication and order: _ EXECUTIVE DEPARTMENT. ? ‘ Raleigh, ¥. oT baat, 23rd 1897. To James W. Wilson, Esq. Chairman of Railroad’ Commission. Sir:- ie Take notice that after due” thvestigation and considera- tion I am convinced that you have violated the Railroad Com- mission law in some of the ner haulare mentioned in my letter to you Aug. 24th 1897, and that you have not only violated said Act in the specification set oiit in said Act, but that you have otherwise, within the meaning and intent and words of said Act become disqualified to act. | Now therefore, in obedience to the duty imposed upon me by said Act of the Assembly I do hereby suspend you from the office of Railroad Commissioner and Chairman of said Commission, such ona to continue until the question of your removal or suspensten shall be determined by a majority of the General Assembly in joint session. The fact of your suspension together with the reasons therefor and the evidence documents and information connected therewith will be reported to the next General Assembly. You will further take notice that under and by ¥ir- tue of the powers conferred and duties imposed by law upon the Chief Executive I have appointed &. ©, Caxtdwetl, Beq. of the County of Irddell to fill the yacancy created by your suspen- sion. In as much as you are understood to deny the power of the Executive to suspend you from-Office as provided by the Statutes I have requested Mr. Caldwell to make demand upon you > - for the possession of the office and upon your refusal ,to bring * action therefor to the end that the title to the office may be judicially determined. = - | hogs Signed’ D. L, Russell, Governor." To which communication’ aiid order the ‘said.’ Governor peceived the following reply; ™ | 3 Raleigh, N. C. Sept. 24th 1897. _ To D, L. Russell, Governor. Sirt- Your favor of the 25rd inst. is hereby acknowledged. In reply I will say that I shall disregard your order to suspend but will continue to do business at the old stand until remov- ed by a tribunal other than a self constituted "Star Chamber". (Signed). Jas. W. Wilson, Chairman Railroad Commission.* 4th. And therefore the relator avers and so charges on information and belief that on the said 23rd day of Sep- tember 189? Bis Excellency Daniel L. Russell, Governor of the State of North Carolina in pursuance of the power and authority vested in him by segtion 1 chapter 320 ef the laws of the State of North Carolina passed by the General Assembly at its session of 1691 ratified the 5th day of March 1691 and in execution of duty devolved upon him by the said Act suspended the said James ¥. Wilson from the said office of ‘Railroad Commissioner and as Chairman of said Commission, That on the said 23rd day of September 1897 the said De L. Russell, Governor of North Carolina as aforesaid appointed the relator L. ©. Cald- well a Railroad Commissioner and Chairman’ of the Railroad bedisceson to fill the vacancy caused by the suspenaien of the said James ¥. Wilson from said office of Commissioner and Chairman of said Commission from the said 23rd day of September “1897 to oontinue neil the next General lisseabiy shall deter- | mine the removal of said James v. Wilson or until your successor is elected and qualified depordine to law. 5th. . That the plaintiff relator duly qualified . as Railroad Geuitie tons and Chairman of sata Commission by “earings the oath prescribed by law before David M. Purches one of the Jastices of the Supreme Court of North Carolina, which oaths were duly deposited in the office of the Secretary of ‘State. 6th. That the plaintiff relator gince his appoint- ment and qualification as aforesaid, and before the .inatitution of this action demanded of the said James ¥. Wilson that, he the said James W. Wilson, should vacate the said office of Railroad Commissioner and surrender the’ tame to the relator, and the said James ¥. Wilson refused to yacate and surrender the said office to the relator in wordsWand figures to-wit: | Sept. 28th 1897. Hon. L. C. Caldwell, | Statesville, Ns Cc. Dear Sirt- Your favor ef the asth making your demand for the office of Railroad Commissioner together with all the papers records rights and privileges thereto belonging was duly served upon me by the Sheriff of Burke County. In reply will say that I most respectfully decline to accede to your request. Yours very truly, James WV. Wileon, Chairman Railroad Commission." 7th. That the defendant James ¥. Wilson notwith- ‘Standing the suspension from the office of Railroad Commiss- loner and Chairman of said Commission by the Governor of North : Carolina ‘as hereinbefore set forth refuges to vacate the same / Pana does now unlawfully usurp intrude into, hold and exercise the said office of Railroad Commissioner and Chairman of said Commission, and does now prevent and hinder. thie relator from performing the duties of said office. “a 6th. That said office of-Railroad Commissioner “Bs an office of trust and profit under the laws of North Caro- lina. $ 9th. That leave to.bring this action has been given by the Attorney General of said State, which leave is attached hereto. Wherefore the plaintiff demands judgment: lst. That the defendant has been suspended from his office of Railroad Commissioner and Chairman of said Commiss- fon according to law. 2nd, That the defendant be adjudged guilty of unlavw- ‘fully holding and. exercising said office, and that he be fined $2,000.00 in pursuance of the Statute. Srd. That the relator has been duly appointed to fill the vacancy caused by the suspension of the defendant, and is entitled to hold and exercise the said office. 4th. That the defendant be ousted from and the relator inducted into said office. : 5th. Por such other and further relief as may be just and right and for coste of this action. WW. J. Montgomery, Arufield & Turner, A. D. Cowles. 1m Geek e é North Carolina, i Iredell County. L. C. Galdwell being adny ’ sworm before me says tr he is the relator herein. That the facts set forth in the foregoing complaint are true as df Ris own knowledge, except as to those matters stated upon ee and belief, and as - _ to them he beliewes it to be $rie. 2 hie 4 py ot, Oopghas a8 sal 4 & 4 4 i us By SC. Mpreme Courts Mo, 306, Iredell Go, . State ox rel L, C, Caldwell vs. James 8, Wilson, appellant, R. 0. Burton; J, D. Shaw, f. B. Hill, J. 0. L. Harris, Armistead Burwell and John G, Rymm for appellant; A. C, Avery, Armfield, Turner & Cowles end W. J, Montgomery - for appellee... te a tian se ne Rouglas, ds § This is an actian in the nature of que warrente, brought to try the title to the effice ef Railroad Goumissiener. The defendant wes suspended by the Geverner under the provisions ef Ses- tion 1 of Chapter 320 of the Laws of 1981, known as The Railroad Ga- mission Act, and the plaintiff appointed to fill the vaceney eo ere- ated, The part of the Act new under consideration is ag follows: "Said commissioners shall not be jointly er severally, or in dmy.way be the holder of any stock or bends, or be the agent or ettogney oF: employee of any sueh company, er have am interest ta any way ist ‘any sich company, énd shall se contime @uring the term of his office; and in ease any commissioner shall , as distributee or legates or in any other way, have or becomé entitied to any stock or bands or interest therein of any suebh company, be shall at onee dispese of the same; and in case any commissioner shall fail in this, er in ease any one of them shall becomes disqualified to ast, then it shall be the duty of the Governor to suspend him frem office and to repert the fadt ef his suspension , tegether with the reasa@m therefor, to the next General Assembly; and the question of his removal fran of- fice shall be Getermined by @ majority of the General Assembly in joint session, In any case of suspensieom the Governor shal) fill the vacenay, and if the Generel Assembly shell determine that the Comis- sioner susp@nded ¢hall be removed, then the appointees of the Gevernog shall hold until his successor ig elected and qualified os hereinbe- forg pfdvided, but if the General Assembly shall determine thst tis suspended commissioner shall not be removed from his office, then the effect shall be to reinstete hae in seid of f 400. The person dis- charging the duties ef said ef five shall be eatstied to the salary for the time he is ep engaged, but tte commissioner who is suspended shall be allowed the sslery during his suspension ia case he should be reinstated by the next General Assembly®, The following teeta appear from the reserés Onthe 24th. day of ) magust 1297, the Governor wrote te the defendant calling his stten- tion te the said Act, reciting certain allegations as te the detent- ant’s connestien with the Southem Reilway Gumpeny, end requiring the defendant to show cause in writéag emer before the first day of Sep- tember 1897, why he should not be suspended frem office, ond a report thereof made to the next Gempral assembly. Qn the 80th, day of smguat 1807, the defeniant fiJed with the Governor his written enswer, ameng other defenses, denying the veupe of the Governor te suspend him, and slleging the uncqnet itutiogslity of that portion ef the Railrosd Comission Qet authorising such sus- pensl0B, Qa the 38rd. day of epehee IR. he Cuties notified the de- fendant in writing that after due investigation end consideration he was convinced that the defendant had vicleted the Railroad Cammiesion Lew in seme of the particulars mentioned in his letter of aigust 24th and that the defendant had not only viclated said Act in the speci- fications set out in said Act, but that the defendant had otherwise within the meaning and intent and words of said Act become disquali- fied to § act; omd that therefore he, the Governor, did suspend the defendant from the office ef Ratlwesc Commissioner and Chairman of seid Comission, and did appetnt thereto the relator, Caldgell, The defepdent em Septender S4th., replied te the Gevernor ag fe@l- | lows: *Sirs- Yours of the S8rd. inst. is hereby ackmowledged, in re- ply I will say that I shall disregard your order to suspend, but will continue te do business at the old stand unta) removed by « tribunal other than s self eonstiteted *Ster Chanber*® *, The relator qeli- fied at once, and dqnended of the defendant the possession af the said of fice, together with al) its records, which was refused by the defendent. Thereupon the relator brought this acti to recover said office, and, filed his complaint, fully setting out bis cause of section, The defendant. newered alleging thet the Governor hed ne power te sus- pend him; that if eush power existed, the Governor hed sttemyted to exercise it in an arbitrasy and unlawful namer, etthout giving him the feig hearing to whieh be was entitled ty Lew; that the pert of the railresd commission set authorising such suspension was unsen- stitutional insameh as it ima additional and umsuel qualifice tions for seid office, end interfeted with the independent temre of a judicisl offices, and deprived bin ef bis property in seid office twithout due preeess of law®; and thet Bie suspension in manner and substence wes in vielstin of the Pourtesnth smendsentte the Con- stitutddn of the United States, At the conclusion of the reading of the pleedings the defendant tendered the follewing issues end de manded s trial by jurys le Is the plaimaf! entétied to the office ef Railroad Canmission- er? 2. Bees the defentent unlewfully iatrude into, hold and exercise the effive of railroad commissioner and ehsirman of said Comissionf 8. Has the defendant scqired any interest in any way in the Southern Ratleq Cempary in violation of les? 4, Hee the defendant beseme disqielified te act as a tase Judge or camissioner, or has he besom in ay way Gisqalif ted te ect? 6. Did the defendant, prier to Septamer 1, 1807, sell and eonvey for a valuable consideration the Round Eneb Bete) to R. M. Brown? 6. Did the defendant denend of the Governor that the evidence against him be preduse@ and that he here an opportunity te confront his accusers end aressceexzemine the witnesses ageinst bin? 7, Wes said demand refused? 8, Bas any evidence projueed? cage * Thereupon the. plsiatif{ moved ior judgneat upon the complaint and answer, The defendant here ¢lsimed that sueh motion was irreguler, and that the plaintaéf eheuld either came er ge to trial before the jury. Wis Henor then by emeent heard argument beth upon the right to ea juny tebel and upon said motion for judguent, The defendant*s exceptions were as fehlowss "Daring the angunent the defendant con- tended, among other things, that the stetute, Less of Herth Gasoline Session of 186] Chapter 820 Section 1, and the action of the Governor set out in the pleedéage, deprived himef the equsl protection @ the lows, and deprived him of his office without dye process of lew, es set out in the answer, end therefore the statute and said action of the Geverner were in violstio of the Peurteenth meendment to the Constitution of the United Stetes, and he expressly claimed the pre- teetion of said amendment, These contentions were disallowed and the defendant exeqpted. Sxeeption |. Exception 2. the court refused to suimit the issues tendered, or any issues, and the defendant excepted, Exception 8, The court fustber ruied that the plaintif¢ was sati- tled te judgment upon the pleadings, The defendant excepted. Exception 4 The defendant moved for snes trial for the foregoing alleged errers. Motsen overruled and the defendant ¢xreepted.* Thereupon judgment ese. rendered in {ever of the plaintiff releter ss followet *First, That the defendant James ¥, Wilaen hes been duly suspended fram his office of Railroad Camisssoner and Chairman of said Canmmission, and is unlawfully helding and exercising said office, Second ~ Theat the reletor L, C, Caldwell has been duly appointed to . fill the vacansy caused by the suspension of said James W, Wilson from said office. Third - That the defendant James ff. Wilson be ousted from said office of railroad commissioner and that the relator L, 0, Caldwell be inducted into said office and that the relator LC. Caldwell recover of said defendant and the sureties on his bond the ‘sosts of this action to be taxed by the clerk of this court®, The de fendant excepted to this judgnent and appealed to this eoart. qho first exception cannot be sustained, ss we are utterly unable to see any Federal question whatever involved in this action, The offiee of railroad commissioner, from which the defendant hes been suspended , is an office existing solely under the Constitution and Laws of this Stete, and created to administer the railroad commission Act, It has no recognition in the Laws of the United States, does not interfere with intey-state commerce, and is concerned solely in domestic affairs and internal trede, The deferant was not deprived of his office without due process of lew. He was cited to appear and answer certain charges, and he did s)pear and filed an snswer, The written notice of the Governor, which was admittedly received end acted upon by the defendant, was in effect & citation, shd under the cirounstances hed all the foree of a summons, The only object of « summons is to bring the defendant inte court by giving him legel no- tice, and if he voluntarily appears, without limiting his appearance, he is held to waive a summons, and is as completely in court as if it had been served, The court, or any other tribunal having jurisdio tion of the subject matter, has thereefter complete jurisdiction of the person, Jones vs, Penalnd, 19 5, C. 868; Hyatt vs, Tomlin, 24 N. ©. 140; Duffy vs, Averitt, 27 H, ©, 466; Middleton vs, Duffy, 73 u. ©. 72; Wheeler vs. Sobd, 75 H, Co, 21; Etheridge vs, Woodley, 33 M, C, Ll; Penmiman vs, Daniel, 96 5, C, 84); Reberts vs. Allman, 106 Ni €. 881, In State vs, Jones, 88 N. C, 683, 685, this court hes said: "The object of process is to give notice and an opportunity to make defence to en action, The soire facias furnished this notice, and the sureties submitted to the jurisdiction and resisted the de- mand for judgment. A defendant may appear without process, and his appearance dispenses with process, since its purpose is to bring him into court, and he is in court when he answers and defends the action That this rule is by no means peculiar to this State will be seen by a reference to the Encyclopedia of Pleading and Practice, Vol. 2 p. 689. | What is "due process of law® is generally difficult to define; but we think in the case at bar the defendant has no cause to complain on that score, As the protection of the Constitution of the United States is invoked, we deem it best to omit the nunberless authorities in the different State Reports, ana confine ourselves on this point to the decisions of that Court, essentially supreme wherever its jue risdiction attaches, and where slone the decisions of this court can ever be called in question, The case of Murray’s Lessee vs, The Hoboken Land & Improvement Go, 18 How, 272, was an action of ejectment in which the defendant c laine title to certain lands under a sale made by the United States Marshal by virtue of « distress warrant issued by the Solicitor of the Treas- ury. It was held that such « warrant of distress was not in conflict with the Constitution of the United States, and was "due process of law*; and that the action of the executive power in issuing the war- rent was conclusive evidence of the facts recited in it, and of the authority to make a levy - citing Prigg Ys. Peansylvania, 16 Pet, 621; U. 8. ve, Mourse, 9 Pyters 6; Randolph's case, 2 Brock, 47; U, 8, ¥. Wourse, 4 Cranch ©, C, 161; U, 3. v8, Bullock, cited 6 Pet, 486, The court further seyes "Thus it has been repeatedly decided in this a, of cases, that upon their trial, the acts of executive officers, done under the authority of Congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title’ - citing Foley ys, Harrison, 16 Howard 483; Burgess vs, Gray, 16 How. 48. "It is true also that even in a suit between private persons ‘to try a question of private right, the action of the executive power, gugn a mather committed to its determination by the Constitution and lama, is conclusive* - citing luther vs, Borden 7 Howard 1; Doe vs. Braden, 15 Howard, 686, and cited in Walker vs. Sauvinet, 2 Otto, 93; Davidson vs, New Orleans, 6 Otto 102; Springer vs. U. $. 12 Otto, 686, G04; Ex parte Wall, 107 0. 8, 20; Hilton vs, Merritt, 110 U, 8, 107; Hurtado vs, Gal, 110 U, $. 638, 642. In the ease at bar there can be no question of the right of the Governor to appoint the plaintiff if a wacaney legally existed, Fos- ter vs. Kansas , 112 8, 6, 201, 208. The only question really at is- sue is the legality of the removal of the defendant, and in this view the State ef North Carolina is the real party in interest, as it is her ast, through her chief executive, of which the defendant oom- plains, The Stete has surely ss much interest in having her less properly administered by officers of her choice in every respect qialk ified for their duties, as the general government can have in the colleetion of its taxes, And we can see no reason why the action of the Governor in suspending the defendant fron office in strict asbor’d> ance with the provisions of a statute whieh we hold to be constitu- tional, is not fully as meh *due process of lew' as was the sale of real estate under the warrant of distress, so held in Murray vs. Ho- boken, supra, Under the same authority we feel fully justified in holding thet the action of the chief exeoutive of this State, cer tainly an officer of higher relative rank and greater dignity than a here solicitor of the Treasasy, is equally conclusive upen « matter committed to his determination by the Constitution and Laws of this State, It is at least of equaiyg equal dignity with « tax-esle cer tifivate, whose recitals are held te be evidence prima facie as to S11 end conclusive ss te mony of the facts therein alleged. De Tre- ville ve, Quelle, 0 8. &. 617, 6a. is ‘cetacean ten ak been Cntink teveen to Un. tenth In fact he did not attempt to appeal fras the action of the Governor nor seek the aid of the sourta, wut forcibly retained possession of an office fren whieh he had been rightfully suspended, and forced the plaintiff *© sesk redress in this eetion, The Governor in his notifiestion of suspensions te the defendent distinetly recognised the right of the defendant to heave its legelity tested in the courts, and made no at- tempt to dispessess him, The plaintiff has sought possession only hy ‘the lew of the land! eo shows by tim bringing of this action, in the Sesh of Colummse ve. Ghely, 4 Wheat, 286 it wes held that o-perty may waive his right to trial by jimy, by giving « note payable at a desk the chaster of which authorises collection by summery pro- eoes, The defendant may well be deeued to have waived his right to © Arial ty jury, if ony sash rigtt he ever had, by socepting office under « stetute which expressly provided thet he might be suspended by the Governor without eaterence to © jury. In Murray vs. Hoboken, supra the court also held, ‘That the auditing of the accounts of sreceiver of public monies ray be , in an ene larged sense, a judicial act, mst be admitted. So are all those ade ministrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law, In this sense the act of the President in calling out the militia un- der the Act of 17965 (12 Wheat, 19) or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is ju- dieial, But it is net sufficient, to bring such matters under the judicial power, that they involved the exercise of judgaent upon law and fact® « citing U, 8. vs, Ferreira, 13 How, 40, It may be urged that a distress warrant for the collection of ‘axe es was held to be "due process of law® because such proceeding was in Leledtance with the comoon and statute law of England; but so also was the suspension of « public officer. Be 200 20 error in the triel of the action in the surt bblaw, end wo affim its judgment efter o full bearing of the defendant*s ép- Thie meh et least is ‘due process of lag’. Morley ve, babe Shore R, Co, 46 9. &. 168, Bee process of law does not necendaity imply ip ll cosas the right of trial ty. Jury, Af it did, the equéteiie of the Federal Courte would grevticslly be emutiet. The res@ida ot Ghia sack thon, meat sa.sommen kaowieige, thet in the recent reomgenisestion of « greet rei lay » mort involving milligns of dollere were foreclosed in the Court of the United States, and the steektolders deprived of every veatige of their prop- erty, without any suggestion of @ jury. in Walker way Seuvinet, 92 0, 8, 90, the court (Waite, C..) coves “ADI questions ariaing wmigg. the Congtitutien et kn Seehe alam are finally settled by the judgment belaws We can consider only gush es grow out of the Comtitutian of the United States... o« _ & triad wy Jury in euite at common lew pending in the State courts is net, therefore a privilege or immaity ef national citizenship which the States are forbidden by the Fourteenth Amendment to abridge, A State cannot deprive a persan of his property without ave process of lem; but this dees not neesssarily imply that 61) triels in the State cgurts affecting the property of persons mist be by jury, This re- qiresat of the Constitution is met, if the trial te hel scsgrding — to the settled course of judicial proceedings. Due process.of lew is process due sccerding to the law of the lend, This process inthe States is regulated by the lew af the Gate’. in Leeper vs, Texas, 199 U..3. 408, 467, it was bold, “That whether statutes of a Jegisle tare of & Migte have been duly enseted in acoorisage with the re quirements of the Constitution of such State, is apt o Federal gues tion, and the decision of State courts a0 to what exe the lewsef the tote ts binding aon the courts of the Ugited Patent siting. soute Ottows ve, Porkine, OF 8, 8, 200, a8by Pest va, Supervisors 146 ¥, & 067; Gerten vs, Shelty County, Lie 0, &, 486, 440; Sailreed Go, vs, Georgie, 06 8, 8, 900, 908; Balderin va, Rennes, 129, 8. 68, 87. ‘That lew in ite regular course of eduinistration threygh sourts of justion ts due precgan, ani than secured by the lav of the state the cobetituttoni ) requiresent is satisfied; and thet due process is 20 seoured by laws operating on all stike, and uot subjecting the Anite vittest to the arbitrary exercise of the powers of govemment unre~ strained by the established principles of private right and distrib- uted justice®, eit ing Burtede ve, Gel,, 220 0, 8, S16, 6063 in Re tenenLor , 196 U, 8, 486, 4460; Caldwell vs, Sexes, 187 UV. 8, 688. See also Giesss ve, Tiermen, 148 8. S, 667; Dunces vs. Me. 192 U, 3. S7Y; Wiesourt &6. R, Oo, vs. Mackey 127 U, ——_ Railroad Go, ve, Here risk, io? Wi 8, B20. leh. has, p aorct ak: - 3/9. Lak» Moh amber Pswe 6 00, pate hems 1a Ae f 14 ve, Gel,, supra, in which the meaning of the phrase "due process of lai? is elebérétely dicczseal, it was held that the words "due process of Law* in the 14th, Amendment to the Constitution do ndt necessarily reqire én indictasat by « greed jury 7D pispee” tion by & State for murdep; and thet # conviction upon én sattamiam tar in 3 te Tiny qa» se Ae not without due proseee of law, and was therafore not in vielation Of the Constitutional provision, Mollulty vs. Gal, “OT. ‘. Me: Vincent ve, Gal, Ibid 0. tn thnne vs. Tilineie, 96-8, 3. LIB, M6, the Onify dustion deliv» ering the opinion of the court says: "4 person has no praperty, 2° vested interest, in aay tule of the common len, Thet is cnly one of the farm of munieipal law, and is no mare seored then say other, nights of pragarly Sind have been arvotes by the sansenja sen'net be taken away without due process} but Ue lar iveet?, a & rule of conduet, may de ohanged at the will or oven at the whim of the legis- ‘Ietare, enless prevented by eonstitutéons] limitstions, Indeed tte great office of statutes tn to remedy defegte in the sammen len es they are developed , sind to adapt it to the otanges of tine smi oi eunstances ,* In Devidecn vs, Now Orleans, 060, 5) 97, 106, Justice Miller, for the court saye thet it fe difficult if not impossible to frame o def- inition of the constitutional phrese without due process of lar, at ence perspicveus, comprehensive and satisfactory*, but that "it is not possible to told that & party hes, without due process of lav, been deprived of bis property, when, as regards the issues affecting it, he has by the lews of the State « fair trial in @ court of jus- tice, scoording te the modes ef proceeding applicable to such 2 case, And citing Mutray vs. Hoboken, supra be further says: ‘An exheustive jodicial Anquiry. inte the meaning of the words *due process of law, as found in the Pagth amencment, resulted in the unanimous depision of this court, thet they do net pemeasarilg imply « regular proceed- ing in a court of justice, or after the manner ef such courts. The origin, dapend intent end scope of the Thirteenth and Four- ‘ teenth Amendments to the Goustitution ef the United States are fully and ably diseussed dm the Slanghter Mouse Gases, 16 Wal lace, 98, but es no reasonable sxtrest sould do justice to the opision, it can prop erly be cited.enly ss © sbole. In Missouri vs. Lewis, 101 U, s, 42, 81, it is said thet "The Fours teenth Amendment does not profess to secure to all persons inthe — United States the benefit af the same laws and the same reuedies, Great diversities in these respects may exist in two States separated only by an imaginary line, On one side of this line there may be a right of trial by jury, and on the other side no such right, Beoh State. prescribes its own modée of judicial proceeding, ® fo fx Parte Wall, 107 U, 8, 265, 2 rule was served upon the peti- tioner, by the United States District Judge, without any previous affidavit and upen mere hearsay information, to show cance why he should not be disbarred from practicing as an attorney for taking — part ins lynohing, he respondent {Sled « written answer deqying the charge, and excepting te the jurisdiction of the court, tfter the ekawinetign of one witness and hearing the amgument of counsel, the court every led the exceptions, and mde an order prohibiting the respondent fron practicing ot the bar of said court until « further order, Qn petition fer manda it was held that the proceeding was regaler end wes due process of lew, end thet it was not « criminal — and not intended for punishment, but to protect the court free the official ministration of persons unfit to practice as at- terneys thereim, The preceeding in that case was certainly mich ‘mere cummery end less reguler then in the case et bar, while the avowed object was the seme, The defendant herein was not suspended by the Governor as & — for any crime, as he was not charged with erime, but simply with a legal disqualification, The object of his suspension pending s legislative determinstion ws to prevent the danger end scandal ef having important officiel duties performed by one lexally disqualjfipd, The Railroad Comm ssion was const itu- \ 0) ted by the legisleture ience te @ strong popular deus, and S ae people have « right to require that the men, charged with the _grave duty of deciding a them and the grest transportation com panies which practically control the commirce of the country, should be absolutely free fram the slightest euspicien of interest or bias, Such a requirement is based upen the highest principle of public pel- isy, and is no more unressonable then to say thet « clerk or sheriff must give bond for the faéthful performance of his duties, that en exeautor or trustes cannot buy ot his om sale, ami thet « Judge shell not sit in bis om case, ye ete 5 npn oo oe te nae - ReSETPES ne & gs> rs . my a ee oY TOSTOTY Of fucd Tiana eR ets a8 90ftos1q{ OF oum ylaisites asw ease tadt afk uatheeooty oft .ntetoedt eyantot f : . on © f ‘ rat ® oyry »* i f ry fy mys vrvrr ; eft elidw ,18d ts eso edt at asit tsiuser a2el bas yisauve erom ¢ “ rm o ’ . af * ~ +s < corer « avi + a ot © ra bebne j2zue ton asw aiousd fisoneted eit ,omsa sit esw toetdo oerutedo> tom aew 26 ,OmiLi1s yc foemiativy & 2B tomevoud ott ye to foerdo eAT .noftsorti{supard Isyel s ctrw ylycite fud ,eculto atin daevery of esw noltsifsistes evitsics oi “yiLpney aokensyaue fn bermotisy aetfiuo iste tae fH cf guived to lebnsoe bas Teywish ont eutiftanico esv £ iO! oils ob cif vaio yiis si eno ye ms ,das.ed islugoy wiorte s of (pedo Wl exit i edt ye ; eft dttiw IED .Ne t tsi? etiuped oF Fnyi 8 Vv! joeqg ent w.00 Nols. “toyenstt |} , [+ "9@WPEG “yitbiosy 10 YF OVS L[uoi2a ,yit 2 ont To evreumos elf lot? fos ty 20 1sq o 861 Of ‘rt 10 aOLolya F320 Ff, = ry ylstulcads efoz osiduy to elglailty } id ect ac if rit iS UG Lite ; rey C4 f 8 , Yor . + 4 : 2ef* + ( + Iisde bul sa * . ; . eofsut* to TO*UDeX 2 ¢ “~ +r tor, 0% ‘Such provisions are not uncommon,, A remarkable instance may be found in the Act of August 13, 1888 (26 Ststutes at Large, U. 8, 483) which reads as follows: "Section 7. That no person related to any Justice or Judge of any court of the United States by affinity or com ‘sanguinity within the degree of first cousin shall hareafter be ap- pointed by such court or Judge to or employed by such court or judge in any office or duty in any court of which such justice or judge may be a member’, | It is no crime to be related to a judge of the United States, nor can it be any reflection upon the personal character of such relative | and yet it is made by law an absolute disqualification for office, The object of the law is clearly not to punish one who has commit~- ted no offence, but to relieve the judges from any temptation to ap- point incompetent officials, and to secure to the people in the selee tion of their agents the best judgment of the courts, ’ ¥ ete ace As to the equal protection of the laws guaranteed by the Constitu- tion of the United States, it is well settled that special legis la- tion ‘is not objectionable where it is made to apply equally and with- out unjust discrimination to all who may be affected by it, The Fourteenth amendment does not prohibit legislation limited as to ob-— jects or territory, but merely that all persons subjected to it shall be treated slike under like circumstances and conditions. Hayes ve. Missouri, 120 U. 8. 68; Railroad Co, vs, Mackey, 127 U. 8, 206; lowe vs, Kansas, 163 U. $. 81, 88. | In Walston vs. Nevin, 128 U. $. 578, 582, the court says: *and wherever the lew operates alike on all persons and property, similar- ly situated, equal protection cannot be said to be denied;* citing _ Warts vs, Hoogland, 114 U. 8. 606; Railroad Co. vs. Richmond, 96 U.8, 621, 529. ‘The remedy for abuse is in the State courts, for, in the language of Mr. Justice Fiéld in Mobile ¥e, Kimball, ‘this court is not-the harbor in which the people of a city or count#y can find a refuge from ill-advised, unequal and oppressive State legislation.* In a vs. Tiernan, 148 U. 8. 667,651, the court says: ‘Ir- respective of the operatian of the Federal Constitution and restric- tions asserted to" inherent in the nature of American institutions, the general rule is that there are no limitations upon the legislative power of the legislature of a State except those imposed by its writ- ten Constitution, * | . In Duncan vs, Missouri, 162 U, 8, 377, it was held that the’ privi- leges and immnities of citizens of the United States protected by the Fourteenth Amendment, are such privilezes and immunities ag arise oe. 5 of the nature and essential character of the Federal Government, and are granted or secured by the Constitution of the United States. — Miller on the Constitution, 662; Presser vs. Illinois, 116 U, 8, 252; “” i* a oo Pal Tn the case of Keenan vs. Louisiana, 92 U. S, 480, the plaintite © in error was summarily removed from the office of Associate Justice of the Su preme Court of Louisiana, its court of last resort, by a mere rule of court. The. plaintiff took out a writ of error, assert- ing that he was deprived of his office without due process of lew, in violation of the Fourteenth Amendment to the Constitution of the ‘United States. The opinion of the court, delivered by tam Chief Jus- tice Waite, without dissent, and remarkable equally for its clear exposition of the law and admirable condensation, affirmed the judg ment, for the following reasons; "The question before us isnot wheth- er the courts below, having jurisdiction of the case and the parties, have followed the law, but whether the law, if followed, would havé furnished Kennard the protection guaranteed by the Constitution, Ir- regularities and mere errors in the proceedings can only be corrected in the State cgurts. Quy authority dogs not_ebtend beyond an oxemis, nation of the power of the courts below to proceed at all....... It will thus be seen that the Act relates specially to the Judges — of the courts of the State, am to the internal regulations of a State in respect to its own officers,.... He had an opportunity to be heard before he eae condeaned, This was "process*, and, when served, it was sufficient to bring the incumbent into court, and to place him within its jurisdiction, In this case, it is evident from the record that ‘the rule was made, and that it wee in some form broughh to the attention of Kennard, for on the return day he appeared, At first, instead of showing cause why he refused to vacate his office, 4 he objected that he had not been properly cited to appear; but the 4 court adjudged otherwise, He then mace knows his title to the offices in other words he showed cause why he refused to vacate, This was, in effect that he had been commissioned to hold the office till the end of the next session of the Senate, and that time had not arrived. Upon this he acked-« trigh iM dury. This the court refused, and : J properly, because the law under which the proceedings were had dumb = provided in terms that there should be no such trial... A mere state ment of the facts carries with it a complete answer to all the cone stitutional objections urged against the validity of the Act, The renedy provided was certainly speedy; but it could only be _anforced by means of orderly proceedings in a court of competent ‘urisdict ion in accordance with rules and forms established for the protection of the rights of the parties, In this particular case, the party com- plaining not only had the right to be heard, but he mas in fact heard, both in the court in which the proceedings were originally instituted, and, upon his appeal, in the highest court of the ‘State. I have italicised the words peculiarly operating upon the cake at _ bar, If an Inferior Court of the State of Louisiana can, by virtue of a statute of that State, upon a mere rule issued upon @ prima facie case crested by said statute, remove from office a Justice of'\ its highest constitutional court, we cannot see why the chief exre- \ cutive of this State acting under express authority of a statute, and’ in strict accordance with its terms cannot suspend a member of an inferior administrative court. At least such action affects only “the internal policy of North Carolina when dealing with its own of- ficers, and should be judged by its constitution and laws alone, We have fully considered the first exception, not only from its Federal relation, but also from its important bearing upon thé velid- ity of the Act under our own Constitution, which provides that :*Wo person ought to be taken, imprisoned or disseised of his freehold,’ liberties or privileges, or outlawed or exiled, or in any manner de~ «& prived of his life, liberty or property, but by the las af the land.* Therefore if we were of opinion that the defendant had been deprived of his property in the office "without due process of law*, that is fen process as is cue to the peculiar circumstances of Ns case by the law of the land, it would be our duty to at once. aks the - judgment of the Court below. In going over the ground covered by this exception, we have necessarily been compelled to say mich that . is —, to the other exceptions, and which will not be repeatai, “The second exception to the refusal of the court to submit the issues tendered, or any issues, is practically directed to the denial ’ of a trial by jury. This we think was properly refused, as there were no disputed facts before the court. It is not denied that the” Governor notified the defendant to appear and answer;that the defend- ant did so appear and answer; that the governor subsequently suspendal the defendant, giving him written notice of said action, and appeinta the relator; that the relator duly quelified, demanded possession of the of fice, was refused by the defendant, and brought suit. There was. absolutely nothing +o go to the jury unless the court went behind the action of the governor, which we think could not be reviewed by the court, The suspension by the governor is not a final determination of the defendant’s rights, which mst ultimately be passed on by the legislature, sitting somewhat in the nature of a Court of Impeachment. If it should determine that the defendant hed been suspended without just cause, he would be at once reinstated ,and be entitled to his full pay from the time of his suspension, The duty ef sespension wag imposed upon the governor from the highest motives of public policy, to prevent the danger to the public in- terests which might srise from leaving such great powers and respon- ‘gib‘lities in the hands of men legally disqualified, To leave them in full charge of their office until the next biennial session of the SY it Vicisisture, or ponding ‘Litigation which might be continued for’ years, would destroy the very object of the law, As the Governor was there- fore by the very letter and spirit of the law required to act and act promptly, necessarily upon his own findings of fect, we are) compelled “to hold that such pitweex official action was, under the ci}ounstan- ces, due process of law. Even if it were proper, the governo? would have no power to direct an issue, like a Shancellor. \ a Section 19 of Article I of our Constitution provides that: Th all controversies at law respecting property, the ancient mode of trit ‘by jury is one of the best securities of the rights of the people and ought to remain sacred and inviolable." and yet topes the remote times it has been held that this right did not apply to equitable — \ proceedings, and that is the determination of many matters of fact © the intervention of a jury was neither necessary nor possible, Take for instance, applicatiens for receivers, injunctions and proceedings in contempt. Even in actions at law, there are many matters of fact that must be found by the court below , and which are not even re- viewable in this court, Every time a judge below takes the case from the jury and directs a verdict he practically deprives the party of a trisl by juny; a0 whoa, et that he cen d 80 oe sine a verdict against the party on ulin ted rests Pas por be en att See ine Oho ions in this court from Wittkowsky vs. Wasson, 71 N. C, 451, down to Spruill va. Ins. Co., 120 NW. ©. 141, and several oases at this’ term, In Interstate Commerce Commission vs, Brimson, 154 U, 8, 447 488; the court says; ‘Another suggestion ....is that the defendants sre not accorded a right of trial by jury... The issue presented is not one of fact but of law exclusively, In such a case the de “*idant is no asve entitled to a jury than is a defendant in a proceeding by mam> dams to compel him as an officer to perform & ministerial duty", ' \ any right df tris] by jury which the defendant might have had unday nll, au. ... other cireumstances , if any, would be taken as haying been waived by his acceptance of an office under a statute providing for summary sviepension. That a jury trial may be waived by either written or | oral consent, or even by a failure to appear, is expressly provided by section 416 of The Code. It ig also held to be waived by a cone sent reference, Clark*s Gode p, 400 and cases cited. In England it is regarded as a prerogative of the crown by letters patent to sus- pend & public officer, although the office was granted for life, Throop on Public Officers, Section 401; Slingeby*s Case, 3 Swantt, 178, The only recognition of this rule in Ameri cay seans to be that | involved in Stee thet the power of appointment inetadedtnat of removal, the application of which is necessarily limited by constitue tional or statutory provision, The maxim cannot apply in this case, because the Governor did not originally appoint, and has suspended’ the defendant under express statutory pg authority. It comes rather under the general ly recognized rule that in the absence of any con- atititionalrestrict ion expressed or necessarily implied on the power of the ers it may provide by statute for the suspension of a public officer, by some other officer or board. Throop, supra Sec, 402; Mechen on Public Officers, Sec. 468; Butler vs. Penn, 10 Howard 402, With the exception of this State, it is the well settled doc. trine in the United States that an office is not re,arded as held under a grant or contract, within the general constitutiona) provis- ‘ion protecting contracts; but unless the Constitution otherwise ex- pressly provides, the legislature has power to increase or vary the duties, or diminish the salary or other compensation appurtenant to the office, or abolish any of its rights of prpvileges before the ~~ end of the term, or to alter or abridge the term, or to abolish the lait le ai a ty i ta A. el. i 8 ee lle mca i age i. a office itself, Throop, supra, Sec, 19, citing 92 decisions from the United States Supreme Court and 32 diftewent different States; also Black Const. Law, p. 530 and cases cited, Mechem, supra, Sec, 468 and 464, citing numerous cases, says that, except in North Caroli na, it is well settled that there is no contract, either express or ae | implied , between a public officer ami the government whose agent’ he is; nor can public office be regarded as the property of the iucum bent, In Connor vs, MN, Y., 2 Sandford 356, Ruggles, C. J. says: 7 ‘SPublic offices are not incorporeal hereditaments, nor have they the | character or qualities of grants, They are agencies, With few ex- ceptions, they are voluntarily taken and may at any time be resigned< They are created for the benefit of the public and are not granted -° for the incumbent, Their terms are fixed with a view to public utils ity and convenience, and not for the purpose of granting the emolus ments. during that period to the office holder*. The celebrated case of Hoke vs. Henderson, 4 Dev. 1, recognizes to a great extent the same principle, While deciding in favor of the defendant on the ground that an office is the property of the incumbent by mutual contract, and that the unconstitutional provision was not thet of a law prescribing a rule of property, or modifying ° the extent of interest or the tenure prospectively, but interfered with yested rights, Chife Justice Ruffin (p, 17) says; "That the purpose of creating public offices is the common good, is net doubted, Hence, most of the rules regulating them have a reference to the discharge of their duties and the promotion of the public conveniendés; they are pro commodo populi, Hence they are nat the subjects of prop - erty in the sence of that full and absolute dominion which is recog" nized in many othe& things. hey are Only the subjects of property, qg_fer os they can be so 4h safety to the general interest, iny ayoly ed | the discharge of their duties.’ This court has recently had ocesston to reaffirm the doctrine laid down in that oft quoted decision high’ ” ll ‘ “3 has become too firmly established in the. po licy of our laws now to be questioned; but the varied and extraordinary claims made thereun- der, and the fact that we are the only State in the Union tecognizing the doctrine, may well cause a to pause and consider if we have not — carried it to its fullest Leyi timate extent. It may be doubted if- the great Chief Justice himself ever contemplated the extent to which it would be carried, and least of all that it most extrame construc- tion would be invoked to bring the temre of high official positions within the operation of an amentment to the Federal Constitution primarily adopted for the protection of the colored race, See the Opinion of Justice Miller in the Slaughter House Cases, 16 Wall, 36, But our decision in the case at bar does not conflict with that in Hoke vs. Henderson, The statute now under consideration is riot re trospective, and does not interfere with any vested right,” Being a part of the Act originally creating the office of Railroad Commission er, it *preseribes® a rule of property in said office, and mdi- fies the extent of interest am tenure therein "progpectively®, ~ The defendant, taking under the Act, holds subject to the Act; ‘and relying upon his contract is bound by all its provisions, One df its express provisions was the reserved right of the legislature to remove, and the power and duty of the governor to suspend under a ' given state of facts, This power of suspension, together with the ‘ necessary method of its enforcement, was assented to by the defendant in his acceptance of the office, Bunting vs, Gales ,77 N. e, 283; } McCless vs. Meekins, 117 N, C. 34; MeDonald vs, Morrow, 119 N.C, 666; © Ward vs. Elisabeth City, 121 N. €. ; 27 S, E. Reporter, 993; Koonce ~ vs, Russell, 108 NW. 0, 170; Hutchins vs. Town of Durham, 118 NW, C,” 467; Goo ley” s Const. Limitations 286, It was held in Head vs. Unie ’ versity of Missouri, 19 Wallace, 526 that where one was elected @ professor in a State University for six years "subject to law®, ‘this expression meant subject to whatever lew the State Lezislature might a see fit to pass, It was a part of the contract that the legislature . could, et its discretion and in its pleasure, bring it to an earlier end*, tn Ewart vs. Jones, 116 N, C, §70, which was an action in the nature of “quo warrant Sy this court, te week ise the relator, held that under our present Constitution the legislature had the power, in establishing the office of Judge of the Criminal Court ,to prescribe its powers, jurisdiction and methods of appointinent and removal, and to elect the.incumbent. Ghief Justice Faircloth, in de» livering the opinion of the court says: "Under our form of govern- ~~ ment the sovereign power resides with the people, and is exercised ~~ by their representatives in the general assembly. the only limita- tion upon this power is found in the organic lew, as declared by the delegates of the people in eenvention assembled fran time to time', If the legislature can thus elect a Judge of the criminal court and provide for the manner of his removal, why can it not also elect a railroad commissioner, and in the creative act reserve to itself the right to remove and to the governor the power 7 of suspension, Two higher agencies could not be found, one peculiarly representing the will of the people, and the other the chief executive of the State to whom is comnitted by the Constitution itself "the supreme executive paws of tha State2 and who is expressly enjoined "to tuxe Cire that the laws be faithfully executed’, Sut it .is urged that the legis la- ture has exceeded its constitutional power in reserving the right of , ’ remval, We think not, where the office is purely of legislative origin and administrative duties, / ee. Py Te? TT It is alleged that the statute is unconstitutional because it | - yequires of the Railroad Commissioners qualifications in addition to those prescribed in the €onstitution, We see no mrit in this con- tention, as such provisions were not intended to restrict the rights of the individual, but to secure the faithful and efficient ‘ performance of public duties, Hargrove vs. Dunn, 73 N. C. 895; Commissioners vs. Plaisted, 148 Mass, 875; Rogers vs, Buffalo, 123 M. Y. 178, 181; Throop on Public Officers, Sec, 78, 74, Moreover every presumption is in fFvor of the constitutionality of an-act of the legislature, and all reasonable doubts should be solved : in its favor, Cooley on Const, Lim. page 220, and cases therein , cited; Black’s Const, Law, Sec. 80 and cited cases, _ While our éeeboten attention has not been called to any decision fram other jurisdictions relating to the removal or suspension of Railroad Commissioners, we do find in the creative’ statutes of the United States and of several of the States, provisions similar to those now under consideration, The same presumption of constitution- ality would attach to them, and thus far they may be considered as precedents, Another constitutional objection to the Act has been argued with great force, and has received our most careful and se- rious consideration, That objection is that the Act interferes with the independent temre of the Judiciary so essential to the proper enforcement of the law and the protection of the citizen. This Com mission was eamposed compared te the Criminal\tourts of the State; and the danger of placing the lives and liberties of the people in” the keeping of Judges whose official temre might depend upon the uncertain complexion of the Legislature or the arbitrary will of the Governor, was ably and eloquently portrayed. We realise the responsibilities of this court in settling the | line of demarkation between the legislative, executive and.supreme LE Judicial powers, which by constitutional obligation, must be kept lh pil lille we eatin forever separate and distinct, This vital line mst be drawn by us | . lone, and we will endeavor to draw it with: a firm and even hand, free alike from the palsied touch of interest or subserviency and the itching grasp of power. Should the legislative or executive de- partments of the State cross that line, we will’ put them back where they belong; but upon us rests the equal obligation of keeping upon our own side, This is a question not of discretion but of law, a matter not of expediency but of right. Our conclusion is that the Railroad Commission does not stand upon | the same footing as the criminal courts, inasmich as it is an adminis trative and not a Judicial court, While it was made by a subsequent statute a court of record, it was clearly the object of the Act 4s / simply te give authenticity to its records and proceedings, as it added nothing to its duties or powers, It has been held to be a court of record in Express €o. vs, Rail- road, 111 N. C, 463, 474, but in the opinion of the court delivered: by @hief Justice Shephezd appears the significant qualification, ‘Whether a court, having no power to enforce its judgment, fulfills the definition of a court of record and of general jurisdiction is unnaeossary £0 be considered*. The Supreme Court of the United State in Reagan vs. Farmer*s Loan & trust Co,, 154 U. S. 362, 397, citing the Railroad €amissioner cases, 116 U, 8S. 307, says:*There can be no doubt of the general power of a State to regulate the fares and freights which may be charged and received by railroads or other care riers, and that this regulation ean be carried on by means of & com mission, ‘Such a commission is merely an administratiye board created by the State for carrying intoeffect the will of the State as ex- pressed by its legislature." Upon the foregoing authorities we are of opinion that the disputed provisions of the Act are constitutional, and that the power of suspension rests in the hands of the Governor , , - bj em im “ Sn = mtn m oe ~ én i a a . : nd aa a * se te . “ - ot. “ a - me oe hes. nsaeeilinsineretllarttiiesitamercnasiinill which, when exercised in an orderly manner, is not ™ reviewable by the courts, Whether the action of the Governor was justified by the | facts, which he alone could find, is not for us to say, That the defendant has not been deprived of his property without due process of law; that the only property he could have in the office was that . given to him by the statute, which mist be construed in all its parte His coumission, which is his title deed, appears to us with the fate ful words of the creative act written across its face by the hand of the lew, Whatever right to a trial by jury he might otherwise have had, was waived by his acceptance of the office under the conditions of the statute, at least so far as the action of the Governor was concerned, In the court below, as all the material facts that could there be inquired into were practically admitted, there was nothing left but the bare questions of law, and upon those questions we see no error in the ruling of the court, The judgment mst therefore be affirmed, but in view of the piblic interests involved, we deem it proper, not to remand the case, but to enter final judgment in this court, This action is taken on motion of counsel made without ob- jection in ope court upon the hearing of the case, and under author- ity of section 967 of The Code, as recognised in Bernhardt vs, Brown, 118 MW, ©. 700, 710, ma Jodern wilt Seer ~ amg that t ! adage ate Railroad L. | ionerg that the defendant be ousted therefrom, and that the reliter be placed into A ¢ possession of said office, together with all its records and other appurtenances thereunto belonging. Affirmed, “4 Wes 9063 Wes ak ". dudgment:- his cause coming on to be heard in the Supreme Court : and having been decides in favor or the plaintiff, it is adjudged | and decreed - : , 1, That the defendant has beén lawfully suspended from the office of Railroed Commissioners, 2. That the relator has been duly appointed to fill the vacancy — éoased by the suspension of the defendsnt, | 8. That the defendant be ousted from, and the relator be inducted into said office of Railroad Canmissioner. Therefore let a writ issue out of this court directed to the Sher- iff or other lawful officer of Wake County, commanding him to oust the defendant and put the relator in possession of the rooms occu- | pied as offiees by the Railroad Commissioners, in the Agricultural t Building on Edenton Street in Raleigh, and known as the Railroad Commission offices, tazether with all property, paper and effects ap- pertaining 7g or belonging to said offices, f That the plaintiff relator recover the costs of this action to be taxed by the clerk of this court. (Signed) Walter Clark, Justice Supreme Court, * PF-.E€. benno ’ xi ie om ae WD Migrants Courts’ Sept, Tem: 1897. # 905 Iredellce, ~G, C. Caldwell vs. J. M. Wilsen, appellant: Motion to advance the’ Gause made yy plaintiff. A.C. avery for: plaintiff; R,’0. Burten for defendant, i Per Curiam: This case’ was tried be lew. since the first day of the present term of this court, if the appeal had’ net ‘been decketed . Rt arc eenadte here till the eall ef oduses:drom that Pistrict..at the next term of” . this court, it weuld: have been in time, Rule 5. But the same rule provides.that it may be decketed at this term and the, court has often held that if by complying with the statutory provisions as te timp in | settling cases, the appeal gets here at this term before the expiras .. 7 tion ef the time for docketing cases from that district, it stands regularly: for argument -at this term, Avery vs. Pritchard, 106 N, C, 344 {at bettem of p. 346); Perter ys, Railroad, Ibid 478; State vs, — Beytonge tia ts 0s tet; —tere; by observing the statutery regu tatiens the appeal has getten here after that district has been. passed and hence is.net entitled te be heard as a right, but being a case af- . fecting the title te public effice.it comes within Rule'18 and the court may set it dewn fer argument, This was dene under similar cire cumstaneqs in Heughtalling vs, Taylor, at this term which invelved the title te the effice ef County Commissioner and was set fer heare. ing sem weeks after the call of the district te whieh it belenged, Like the case defere us, it was tried. below after the beginning ef the present tem ef this court, The appel lant*s case en appeal was accept ed by appellee en Nev ember 2 and filed in the Clérk*s ef fice that day, The Code Sec, 661 then makes it the duty ef the Clerk te send up thé transcript within 20 days (State wes Ween lig N, C, $90) theugti in civil cases he is not required te de se unless his fees therefor are paid (bailey vs. Wrewn, 108 WC. 12%; state vs ahs 1a MN, C, @22) but if the clerk sends it up at ence instead of Sd mo wie a er a rey ee Bi et NS ll eure hy ’ at bs a - ‘ pe" oe f taking the whele 20 days er does not stand en his right to exact his cest in advance, the appellant cannot complain, and the case is rege ularly here, ° The motion ef appellant te put the case off the decket has there- fere neither merit ner precedent te sustain it, and in view of the » jertince ef the case te the public the appelleets metion is granted alent eel a ma te * and it will stand for argument en Saturday December 4, If the ‘call » this case aid tosxe of tdytt atd ne baste ton eaeeb te aysb 0S elorw eit wiides eget af easo edt bus ,nislymoo tonnso tasileyys edt ,eonsvbs né f200 ) ’ eeted yItsiu coted? asd texoobd edt tY0 easo edt tug of Sasileygs to meitem eT ' edt Yo wetv ai bas ,ti aistaue of Snebecery 10m titem tedtien e190? 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I cas gig. --. saa Seeiieais oe oo eT oe . Pg at o ie ee (2a Pe, r co : Sa. ow exe Za | oa CUR Lo? aw ck Pe Gk tt ie + | oe 4 V2 on, Ot 4 Ss : hie ee Lie: ee enty ad eae : or Oe os ae, ant, , rs oe a : Saw GZ 22. vg Po. ee. 246 ro 2 re Sy bis AG ee eee se Hea See ome. Phok LK lo a2, ix Miter Wi Me ae. fee ja iz bey gor 2. apf nea. oz ue yr am, aes Dibrr ony, 6s pees ji~ a a Sie ae. A A441 41 e OO_ Ce <a %. ae Le ic aoe 2.25. we 00D) ——S Oe ee Le . — | | it 4 4 X .; 3 | ZZ J oms 1s TQ CERTIFY that......°.7 ... oreee a % : ' oe z nas Cede i > te the State in the case of tiie - 10... OP =) H. ¥. FURCHES, +] Application to fue as”a pauper, Southern Railway Co. ~ 7 “=< $hig’ ts to certify that I have examined the case of ‘the plaintifr. tn the above entitled action, and that he has a good and merituous cause of action in fact and law, ‘ W I hong eo A Iredell County. Ba. ¥. Kerr being sworn says that he is unable to give surety ‘or make the deposit required by law to enable him “to prosecute the above action against the defendant, the Southem Railway Company; ant therefore prays that he my be allowed -to gue in the said’ action as a pauper, ; Fn Sworn to before me this. ¢ XV lst @ay of May 1897, ME hi chew ¢ Tredell County. In the Superior Court. Bd; ¥. Kerr, PRs Order granting leave to sue va . reas P A ‘ as a pauper. Southern Railway Company. . ee In the above entitled action upon the certificate gnd affidavit above set forth it 1s ordered, {opts That’ thé abowe named Bd) omar be allowed ‘ to prosecute, his said eutt. as a pauper and thet no! officer shal) ~ require of him any fee and shall recover no costs except suck costs as may be recovered sos the orer. in. this, ape 4 - 6-4 on q+ - a Second. That B. F. Long and Frank Long Attorneys | at Law are hereby assigned as counsel to prosecute this action for the said pYaintiff. Jh i tu Ss This the lst day of May 1897. ss ose ‘ : | ) | ayemrortaA ysot AnatS bas ynod .* tT 519998 mottos aint eee of tedmiroo $3 Hoan tres ycaian ers wed 25 eee | “yeas 4 ne . o> -TMituisfy bkae edt +o i °o veh tal ant? ealAt Ss - Sais aaa ee ILE. - ea A ee + Wee jg 2k. Se on Boren, Co ae oe ; pe | bc dt 4ee~ Qerw a. 2 : | Kok 4 att oc.) Gee Be be (2271 4, Pes ar nk ne oso~ JA-y 0A, aur, > BW oo ZL dae 2 LY. C22 ne aie we map a ea Lachin as mg tte = ea. 207 op. tt: | Ltt w= OSml fart Yu. Thar td. 27 Sag as LoL Laldpece, gh KERR Ve Railread. — | ISSUES. I-----Was plaintiff in the employ of the defendant? (Gee. @=---Was the plaintiff injured by the negligence of the defendant as alleged in the Complaint? pe 3-~---Did the plaintiff contribute to his injury by his own npel igence? (Vr = 5---~ What damage, if any, has the plaintiff etterea™ Sp a? ( Eighty |g eon Nbr, OG | Re Tha OK Kin £CaiLgy Joe ce ge ox deff -—< eee: ] ) / . ) . “North Carolina, , ! In the Superior Court. Iredell County. ‘November Term 1896. J. A. Russell, vs 7 Southern Railway Company Complaint . 1~ and -the-Western North Oarolina Railroad Company. The plaintiff complains and alleges: lst. That at the times hereinafter mentioned the defen- dant, the Southern Railway Company, was a corporation duly created and organized, and being such corporation was a common carrier of goods for hire over the lines of railroad operated by it, including the line of railway between the village of Hiddéenite in Alexander County, N. C. and the town of States-~- ville in said State. 2nd. That on the Sth day of October 1896 at the depot of the said ratlroad in the village of Hiddenite in Alexander County, N. C. in consideration of the sum of fine dollars, then and there charged by the said Southern Railway and agreed to be paid it, as plaintiff is informed and believes, by J. C. Thomas the consignor, the defendant, the Southern Railway Company, agreed to carry to Statesville, North Carolina, and there deliv er to the plaintiff wAthin a reasonable time after the receipt thereof by it as aforesaid, one car load of pine lumber, the property of the plaintiff, which said car load of pine lumber the said Thomas then and there delivered to the defendant for | 1, 0. = the plaintirt, gud whic defendant received. the same upon the = agreement and for ‘the purposes aforesaid. Stes Srde - That the. defendant; the Southern Railway Company , | after so receiving the said car load of lumber to be transported] and delivered. to the plaintiff as aforesaid, carried the same - i to Statesville, W.-C. and on the 6th of October- 1896 the plain- tite applied for the sata car load of lumber and the Agent of the said Company-at Statesville refused to deliver the same to this plaintiff unless $27.00 fréight was paid by plaintiff: thereupon the plaintiff made written demand on said Agent for the said car load of lumber through his counsel and tendered payment in gold coin of the United States for the freight of $5.00 agreed to be paid as aforesaid, and said Agent declined to deliver the said lumber, and refused to accept the said $9.00 freight, and demanded at this time $16:00 before the de- livery of the said lumber would be made to plaintiff: 4th. That the plaintiff is a contractor for building res- ,;idences and other buildings, and at the time of this occurance was bound by contract to Judge A. L. Coble to bufld him a Pesi- dence in the City of Statesville, and was then engaged in byild- Ping the said residence, and was under a time limitation and for- feiture cén‘ract clause, in default of finishing the said resi- dence by a time fixed and agreed on in his contract with the saix Coble; and to comply with his limited contract, the plaintifrr had employed at work on the said house, numerous carpenters and workmen at the time said luster arrived in Statesville nn) de livery was refused as aforesaid, and at the said time platatire ae Be ee (3) 3 was also in ‘ment’ need of the said car load of lumber in order to be used in paushing forwacd the work. on the said residence, and the failure, negligence, carleseness ‘al ‘mis¢onduct of the defendant in promptly delivering the paid lumber to plaintiff a6 aforesaid, caused the plaintiff great trouble, annoyance and delays in his work on the said house, and compelled him to dis- mi@s several of his employees on account of a want of material for them to, work upon, and also prevented the plaintiff drom having the use of this material, most of which had been specialh selected for this residence and at a figure cheaper than he could buy elsewhere, thereby forcing Bhe plaintiff to buy other lumber at higher figures and after tedious vexatious delays; and the said refusal to deliver the said lumber has also caused the plaintiff to be delayed in finishing the said residence. 4th. That at the times aforesaid the Western North Caro- lina Railroad Company was 4 corporation organized undér the laws of North Carolina and having a line of railway track and right of way from Salisbury, N. C. to Asheville, N. ©. via States- ,ville, N, C. and extending to other points: that thex at the tim the Southern Rajlway Company hauled thé said car load of. lumber t Statesville it was put on to the tracks of the said the Western North Carolina Railroad Company whose tracks, depots etc. are now used and controlled by the Southern Railway Company and its agents, 6th. »That by reason of the premises the plaintiff was damaged by the defendant $400.00, wherefore he demands judgment for $400.00 damages against the defendants and for the cos a of this action and for such other and further relief as in law and (4) - equity the Paletet ier may be entitled to, 2 Robbins’ & Long, Attorneys for Plaintiff. ee ee ee _J. L. Russell after -being sworn deposes and eays: + that pleacts as set rérth in the foregoing complaint as of: “~~ nici ownlnowleded are trie, oo those stated on information an bellers one believes to be tine. ry Sworn to And subscribed*this the 9th’ day of December 1896. MI urcked, ()) 0O? Balititao &. iva "*heatalg 9:13 ysivps eptOl & la Lddok VTLS lALT aor ear orsa North Carolina, ‘Irede22 vouity: »~ J7L.Russel. vs, The Southern Railway Company.et alé. 4 , In this case it is — that ‘the Plaintiff have till the 26" of December I896 to file complaint,and Defendant to have till Peb. Ter m to file answer a ‘lot the Nov.Term 1896. Mirth K Ag Attys.for Plaintiff. Ths ‘ ba Livro Attys for Defendant . ‘ | | Bal O18.) Bi of ) ff aha! Et} ByY ULeyQNOS se > ¥v 3 < © ° be a ot’ LintalS ~oF.aysttAa .*nabreateal tot.avitAa beeeeaad Carat, _ i: Radin TEIE | / me Feud, pat An hp - —, ak | cov Amann 4 OO A ee car bhane LnmSnh pate 2009 Lard ee Ee ees ee baci rane ae oe an at . Aa et Phan Bat afm eed tet tin kd onli Basen ME |F _OnT aT whch Ame flyy, go Canam ite Rey eagles la ite Petter an A AnAr/ pe 9 Bay fp drrermnlnn (FE Oe ane fea Ore jon wn eee A op —"? | Worth Carolina, 7 : In the Superior Court, Iredell County. “< August Term 1897, J. L, Russell, vs Southern Railway Company. > a eal Dene ne decane ae This cause coming on to be heard at/ ne, August | Term e97 of the Superior Court of Iredell County, ; Thetpre a nis Honor A. Lb. Coble, Judge, and it appearing to tnetdurt | that the parties have agreed upon compromise and-seezoiion | ‘thereat upon the terms that the defendant pay to the “plain rl ‘Veare the sum of One Hundred and Forty Dollars ($140. 06) and » | the costs of this action, It is considered and adjudged by | } the Court that the plaintiff do recover of the defendant the ' sum of One Hundred and Forty Dollars ($140.00) and the costs | oe this action, to be taxed by the Clerk. : Hh & oll. Judge Presiding. We consent thereto: Ab tkws Counsel for Piaintif?T. OL. hw las ~ G FG b-<2~ Counsel for Defendant. sf £ romeo aise | ont nt 1 ant fos) Agvow | “rea. ime? Seanuh | .xtaod- {febert | elfeseuA oI.) ev. -¥yneqmod yawlial av Aduge : Te eS nn 38 bised sd of no xnlmoo sida mae yaw Ifebex!I to Jau0D rolsoqie. (as x year eT rt giineeqgs ti Bog ,eybut, .eldod i oe er 0 ta ea tmorgmos noqu besiys evan weliisq ett 2 3 2 as ¥8q ?asbneleb ent tad? amie? ‘ed? noqu nt C +0818) stsilod yi10t brs berbawt sad to mye Sit TTL OS nbutbs Bas beteblenoo ef tI ,noltos abng to abead it 63605 en? bas (00.0)[*%) -erslLod ysxo% bas beibawH en0 to mme «MielS ed? yd bexst ed of ynottosn alnd YO +Balblaetd egbal tofe1ed? Ineanoco »6¥ »Wistatel4 aot ferniwo% . tnghastea scot [eannod Horth. arolina,:. aE 3 at i In the: Superior. Court. . * zi kei ig tas 4 |p tegen. ‘County, oe oi + February Te ran | W897 Se a AR Wesley Morrfssin, Plaintirr, wae i rr) “The Southern Railway Company. The plaintife complains of the defendant and: alleges: ist. That the defendant isa eorporation created by and under the jae oe the State of Virginia and organized ‘pursuant ‘to the laws of the said State, and at the times hereihatter stated, being such corper: tion, was a common carrier of aye tgnt and passengers for hire between the City of Statesville and the Gity of Asheville, North Carolina, and was the owner of freight and passenrer cars and locomotives, and running and operat ine said locomotives and cars over the line af railway between the @aid cities, which said railway line and all the rolling stock operated on the said line were-owned and exclusively controlled by the defendant and its agents. 2nd, That in the early part of the might of the 17th of November, 1896, the defendant so negligently and unskillifully pondusted itself in the management of one of the train of .cars Operated by it as aforesaid at a point on its railway line near the =e and to the west thereof in the City of Statesville, ° net ay Ceiany ats its agents and servants in euiding arid » runn» ing the said train of cars, the said train while running vikials through the said town, and proceeding westward by the Statés- ly and carelessly ran. over the plaintiff crushing his arm so that it-became necessary to amputate his arm to. save his life, and in consequence thereof plaintiff has suffered excruciating: bpdity patn and lon confinement and his health has, Aggie N. @. that throtigh the neglirence of the detendgnt, the-Shuthern. te . ville Depot and a short distance, beyond as aforesaid, negligent» (2) , é tears, ‘been: permanently injured, ‘and: he is so sa wiciely disabled * Rat he As. Likely - to be incapacitated for life to peers his. -weual rare labor, wherewith to obtain subsistence. | See, That the defendants train which thus carelessly | ran over and disabled the plaintiff, as the plaintiff is° intorm- ody, was a freight train and ran over defendants line within the Ancorporate limits of the City of arerenyitse and past the ayes <in Statesville without stopping, and at the time ‘saia train. : ‘struck plaintiff. was running at the rate of about 35 miles an: ‘four, and the place at which plaintiff was injdred was within tie incorporetéon of the said City of Statesville;-and the plaintiff alleges that the defendant is prohibited by law from running its trains within the incorporate limits of Statesville at a speed pibater than four miles bal hour; vin Cel thatandinr: the premises the defendant reckles7ly and nerlirentiv and? contrary to law ran its train at the rapid speed as aforesaid and struck and injured plaintiff as aforesnic. sed 4th. Plaintiff further alleges that just before the gaid train struck him as aforesaid it crossed a street crossing on its track in said City, and it was the duty of the cefendants agents to give sipnal thereof by whistle, and ringing of bell, and to slack up the train, but the defendant nerligently and carelessly failed to give the whistle, ring its bell, or slack up at said crossing, thus depriving plaintiff of all warning of tts approach, and whilst the plaintiff was without fault or ner-. ligence on his part, the defendant negligently ran over him destroying mee arm ag aforesaid. : . ; , ‘gith. ' That by, ‘Ppason of ithe: premises the defendant, has > ~*~ «a hy damaged the plaintite in the sum of Nineteen Hundréd and Pifty Dollars. + : (3) marr “Mherefore the plaintiff demands judgement’ of the aetendant “for Nineteen. Hundred ‘and Firty Dollars damages and ‘the costs, of. ee. ‘this action, : B. FP. Long, Attorney for Plaintiff... Wesley Morrison t.e plaintiff, after being sworn deposes ‘and says that the facts set forth in this complaint.as of his own knowledre are true and those stated on information and belief he believes to be true. North Carolina, In Superior Court, | ay Ph ee County. ) February Term, 1897. Wesley Morrison, Plaintiff, vs. ANSWER. Southern Railway Company, Defendant. The defendant, answering the complaint in this cause, says: That the allegations contained in the first paragraph are true, : That all the allegations contained in the second para- graph are, as defendant is informed and believes, not true, and are denied, except so mich thereof as alleges that the plaintiff was run over by its train on the night of the 17th of November, 1896, and was so injured as to necessitate the amputation of his arm. Defendant especially denies that plaintiff's injuries were in any manner due to its neg igemy or that it was in any manner negligent. That, as defendant is informed and believes, the alle- gations contained in the third paragraph are not true and are denied, That, as defendant is informed and believes, the allega- tions contained in the fourth paragraph are not true and are denied. wi That the 65th paragraph is not true and the allegation contained therein is denied, And, for a further answer and defense to said ac~ tion, defendant says: That plaintiff's injury was caused by his own careless- Ness, negligence and recklessness, in getting drunk and ly- ing down, in the night time, on defendant's track at a point where he could not, by the exercise of que care and diligence be seen by the servants or defendant in time to avert the injuxy complained of. what ‘plaintare contributed to his injury by his own neg- Ligetice and carelessness, in getting drunk and lying down on astendant ‘4 track, in the night time, at a point where he pola not, vy the @xerocise of due care and diligence, be seen sie Haas caibaid (ws servants in charge of the. train in time to avoid the injury papeasee of. Wherefore, having fully cuendl. defendant demands that it be hence dismissed with its costs. Chheanckra Wrest Attorneys for Defendant. North Carolina, ) Wake County. ) A. B. Andrews, being duly sworn, says that he is an officer of defendant corporation, to wit, the First Vice Precident thereof; that.he has read the foregoing answer, and the facts set forth therein as of his own knowledge are true, and those stated on information and belief he believes, to be true. Sworn to and subscribed before } me this April @¢.<<1897, ) NT An chase ) , S ) “<1 that he has & ood and meritortous cause of action in fact ahd ac Worth Gafolina, i eee 3 eeras ae In the Superior Court, fredel County.4 {Wesley Morrison, vs. |. Application to- sue as pauper. 2 : , “ Southern Railway.Co: “i - ob soe 3° By Iredell Sipertor Court, ~~ This is td certify that I have examined the cage’ pt: the plaintiff in the atove ene fh tog action, and balteve | law. So #. - A \ £3 Iredell Gounty. Wesley Morrison being sworn sayas - That he is un- able to give surety or make the -eposit required by lav to en- able him to prosecuté the above action, against the defendant the Southern Railway Company and therefore pray that he may be allowed to sue in eaid action as 4 pauper ta t- pre thes Svorn v2 me this 28n@ day of Beeember 1596 OP mre = allel LT Ee, Ty | k ! i te = “= Bettas. Ire ell County. Wesley Morrison, ' vs { Southern Railway Company. Order grant ing leave to sue as a pauper. In, the above entitled action, upon the certificate and affidavit above set forth it fs onde s- rene - ~ lst. That the above named Wesley Morrison be allowed to prosecute ‘the said suit as a pauper. ‘ 2nd. Phat no officershall require of Wesley Morrison any fee, and shall recover no he lr Caane Ue motes “Sra. That/ (leita oc, gang. ?° assigned to £4.57" 5 4 counsel to presecute said cle This 22nd day of December 1896. Jo V daazhan — Moreton _ 2 2 + 4 | eines [North Carolina, {In the Superior. Court. |Iredell County. §{ - August Term 1897. Wesley Morrison, ys~ é Southern Railway Company. | 4 ‘This cause coming on to be heard at the Auguat”. ‘Tern 1897 of. the Superior Court of Iredell County, before iN his Honor A. b. Coble, Judge, and being heard, and tt ‘appear. | ing tor the Court that the parties have agreed upap & compro- | by mise and settlement of said action upon’ the terms’ that ye ‘derentant shall pay to the plaintiff the sum of Two Hundred land Pifty Dollars ($250.00) and the costs of this acti on; It is considered and adjudged by the Court that the plaintiff | do recover of the defendant the sum of Two Hundred and Fifty ‘Dollars ($250.00) and the costs of this action to be tinea ‘by the Clerk. | MbGKK Coble: Judge Presiding. I \We consent thereto: ‘ | | [uF ding | ‘ ‘ Counsel for Plaintiff. eo: 5 MA % CPL om | cA ’ Pas i, hn Mf Sharyn Counsel for Defendant. stud solr oque ois Res. tS ebatLorsd Aston SBE wot ‘tear Sb .ydam0d: Lebert: eo a i a2 + — a sew . "sv wee = a 2 3s brsed 6@ 03 no .nlmoo 6 el e btaes ‘nated Ans ,enhut ef qu beetas evad asitisq sit ei Sr obs. eit \emire? ef? noqu noltos blase to. 3nemel pe OwT Jo mue GA VIisalelq ot? of YB fade dnapnereh pS aiit to aszo> an? bas (00. 0a88}C ersffoa YsI ls has “792 satera ent san? *1tiod eit vd bénbsutbs bas betebtanoo at 1 E YITIE bas ber baiwH owT To aurea es tnabaeteb ent Io tevodes ob bexs? sd of nolfvos sini? to atsoo ext bas (00.08a8#) etalfod «Mreld on? vd + patblacst eg_bdst. :ofer en? Ineanoo oF «T2tiatalt rot Leanwvod North Carolina, In the Superior Court, Iredell: County. May Term 1897. | Wesley Morrison, Southern Railway Co. he ae 5” Seen Rear xk ._“Motion. of the plaintiff for a judgment by default hye OS. , y : on I an aoe! 5 wads beford His-Honor Starbuck, Judge, May Term. 1897, on the grounds +f Ist. That the return term was February 1897, and ——— comp] giex was filed to the said term, and that the defendant fatied to answer at said term and failed to ask for time to answer... 2nd. Por that at the time the summons was served, or within a day or so thereafter elakut tires ‘avsdenive served: a type -written copy of the complaint upon ‘the local attorney of the defendant dompany.. . See Clarks Coe’, ‘Section No, 386. See Clarks Code, Section Mo. 283, B. FP. Long and Frank Long, Plaintiffs Attorneys, ePrneo -solsegre ere il Oo ceertt Lowa): avo TREE ane? ¥ ual tye tao Ef shanyr - Southern Railway een Statesville, N. C. To be used for Company's business only. eae oS Shs ao v. 332 e > w ice) RAS Ss %..5 3 : Ss oS tt ee oar NN Ook a ; > hao — s+ % +s M\\ Xe ae ane »