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 r rHE ATTACK 
 
 UPON THK 
 
 Legislature of 1874-75, 
 
 CONTAINING 
 
 Summons, Complaint, Affidavit and Bonds Filed 
 by Josiah Turner, Attorney, 4c, 
 
 IN THE CASE OF 
 
 JOSEPH HARRIS, 
 
 Vs. 
 
 D. A. Jenkins, Public Treasurer, 
 
 AND 
 
 Raleigh & Augusta Air-Line Railroad Company, 
 
 TOGETHER WITH THK 
 
 Orders of Judge Kerr and Opinion of Counsel for 
 Defendants. 
 
 I 
 
 Also, an Appendix, Containing Letters of Maj. J. C. McRae, John M. Moring 
 
 and Geo, V. Strong, Esqs., and Hons. J. W. Graham and D, A Jenkins, 
 
 and Card of Directors of Raleigh & Augusta Railroad Co. 
 
 EALEIGH: 
 
 DAILY NEWS PRINT, NO. 6, MARTIN STREET. 
 1875. 
 
 «<€* 
 
 i) 
 
Digitized by the Internet Archive 
 
 in 2012 with funding from 
 
 University of North Carolina at Chapel Hill 
 
 http://www.archive.org/details/attackuponlegislOOharr 
 
I 
 THE ATTACK 
 
 UPON THK 
 
 Legislature of 1874-75, 
 
 CONTAINING 
 
 Summons, Complaint, Affidavit and Bonds Filed 
 by Josiah Turner, Attorney, &c, 
 
 IN THE CASE OF 
 
 JOSEPH HAEKIS, 
 
 Vs. 
 
 D. A. Jenkins, Public Treasurer, 
 
 AND 
 
 Raleigh & Augusta Air-Line Railroad Company, 
 
 TOGETHER WITH THK 
 
 Orders of Judge Kerr and Opinion of Counsel for 
 Defendants. 
 
 Also, an Appendix, Containing Letters of Maj. J. C. McRae, John- M. Moring 
 
 and Geo. V. Strong, Esqs., and Hons. J. W. Graham and D. A. Jenkins, 
 
 and Card o Directors of Raleigh & Augusta Railroad Co. 
 
 KALEIGH : 
 
 DAILT NEWS PRINT, NO. 6, MARTIN STREET. 
 
 1875. 
 
" HOUSE BILL No. 423." 
 
 OR 
 
 Laws of N. C, 1874-'5, Ch. 245. 
 
 An act explanatory of certain acts and to enable parties hold- 
 ing bonds of the State issued for internal improvements 
 under acts passed prior to the war to sell the same. 
 
 Whereas, Under an ordinance of Convention, ratified 
 March eleventh one thousand eight hundred and sixty- 
 eight, and an act of Assembly ratified the thirteenth of De- 
 cember, one thousand eight hundred and seventy-one, the 
 Raleigh and Augusta Air-Line Railroad Company is 
 authorized to pay off $1,200,000 of its second mortgage 
 bonds held by the State Treasurer with any bonds or other 
 indebtedness of the State ; and whereas, the Public Treas- 
 urer expresses a doubt whether under the construction of 
 said act he is authorized to receive bonds issued during the 
 war for internal inprovement purposes, but under acts 
 passed prior to the war'; and whereas further, said bonds were 
 issued to and are now held almost exclusively by citizens 
 of this State, and the same have been recognized as valid by 
 the authorities of the State ; now, therefore, 
 
 Section 1. The General Assembly of North Carolina do 
 enact, That it was the true intent and meaning of the ordi- 
 nance and act above referred to authorize and empower the 
 Public Treasurer to receive any of the aforesaid internal 
 improvement bonds in execution of the provisions of said 
 act and ordinance. 
 
 Section 2. The Public Treasurer be and he is hereby' 
 authorized, empowered and directed to receive any of the 
 internal improvement bonds for the State of North Carolina 
 herein before described which may hereafter be tendered 
 under the provisions of said act and ordinance in execution 
 of the same. 
 
 Section 3. This act shall be in force on and after its rati- 
 fication. 
 
 Ratified the 22nd day of March, A. D. 1875. 
 
(3 
 
 SUMMONS. 
 
 Orange County — In tlie Superior Court : — Joseph Harris, 
 plaintiff, against Raleigh and Augusta Air Line Railroad 
 Campany and David A. Jenkins, Treasurer of the State 
 of North Carolina, W. J. Hawkins and P. C. Cameron, 
 Directors of the said Company, defendants : — Summons 
 for Relief. 
 
 State of North Carolina —To the Sheriff of Wake Coun- 
 ty : --Greeting. 
 
 You are Hereby Commanded to summon the Raleigh 
 and Augusta Air Line Railroad Company and David A. 
 Jenkins, Treasurer of the State of North Carolina, and W. J. 
 Hawkins and P. C. Cameron directors of the said Company, 
 the Defendants above named, if they be found within your 
 County, to be and appear before the Judge of our Superior 
 X3ourt, at a Court to be held for the County of Orange at the 
 Court House in Hillsboro, on the eighth Monday after the 
 first Monday in September, 1875, and answer the complaint 
 which will be deposited in the office of the Clerk of the Su- 
 perior Court for said County, within ten days from the date 
 of this summons, and let the said Defendants take notice 
 that if they fail to answer the complaint within that time, 
 the Plaintiff will apply to the Court for the relief demanded 
 in the complaint. 
 
 Herein fail not, and of this summons make due return. 
 
 Given under my hand and the seal of said Court, this 
 14th day of July, 1875. 
 
 GEORGE LAWS, 
 Clerk of the Superior Court of Orange County. 
 
 
BOND FOR COSTS. 
 
 Orange County : — In the Superior Court, Joseph Harris, 
 against the Raleigh and Augusta Air Line Railroad 
 Company : — Bond for costs. 
 
 We, Joseph Harris the plaintiff and Henry N. Brown 
 and Jas. A. Cheek, our Executors and Administrators, are 
 bound to the Defendants, Raleigh and Augusta Air Line 
 Railroad Company in the above entitled action, in the sum 
 of Two Hundred dollars. This obligation to be void upon 
 the condition that the said plaintiff, Joseph Harris, shall 
 pay to the defendants, all such costs as the defendants may 
 recover of the plaintiffs in said action. Otherwise to re- 
 main in full force and effect. 
 
 Witness our hands and seals, this 15th, day of July, 1875. 
 (Signed,) JOSEPH HARRIS, (Seal.) 
 
 by Josiah Turner, Att'y. 
 (Signed,) HENRY N. BROWN, (Seal.) 
 (Signed,) JAS. A. CHEEK. (Seal.) 
 
 COMPLAINT. 
 
 State of North Carolina, Orange County, Joseph Harris Plain- 
 tiff, against David A. Jenkins, Public Treasurer of North 
 Carolina, and the Raleigh and Augusta Air Line Rail- 
 road Company — Defendants. 
 
 The plaintiff above named complaining of the defendants 
 above named on behalf of himself, a citizen and resident of 
 North Carolina and a tax-payer therein and pecuniarily in- 
 terested in the financial affairs of the State and subject to loss 
 under an act of the General Assembly of North Carolina, 
 ratified the 22d day of March 1875, entitled an act explana- 
 
(5) 
 
 tory of certain acts and to make parties holding bonds, is- 
 sued for internal improvments, under acts passed prior to 
 the war, " to sell the same," and all other citizens and tax- 
 payers in the State of North Carolina affected like him by 
 said act, who shall in due time come in and ask relief and 
 contribute to the expense of this action. 
 
 Alleges: 
 
 That the said tax-payers are very numerovs, " to wit: " 
 more than one hundred thousand in number, and that some 
 of them are unknown to the plaintiff and cannot with dili- 
 gence be ascertained by him, and that it is impossible there- 
 fore to br'.ng them before the Court in this action, therefore 
 he sues in behalf of them all. 
 
 II. That the defendant David A. Jenkins is public Treas- 
 urer of North Carolina, and the defendant, the Raleigh and 
 Augusta Air Line Railroad Company in North Carolina, is 
 a corporation duly created and organized under and in 
 pursuance of Acts of the General Assembly of North Caro- 
 lina, said road being chartered by an Act of General As- 
 sembly ratified the 15th day of February, 1861, by the 
 name of the Chatham Railroad Company, the name of which 
 was changed to Raleigh and Augusta Air Line Rail Road 
 Company by act of General Assembly, ratified 13th day of 
 December, 1871. 
 
 III. That said Chatham Railroad Company, now chair 
 ged to Raleigh and Augusta Air Line Railroad Company, 
 obtained from the Treasurer of the State of North Carolina, 
 under an ordinance ratified 11th of March, 1868, a large 
 number of State bonds, to wit : $1,200,000 in amount, and 
 secured the payment thereof by depositing with the said 
 Treasurer mortgaged bonds, of the said Railroad Company, 
 to the amount of $1,200,000, said bonds bearing date August 
 20th, 1868, and bearing interest at the rate of 6 per cent, 
 payable semi-annually. 
 
 IV. That under ordinance of Convention ratified 11th of 
 March, 1868, and act of Assembly ratified 13th day of De- 
 
{6) 
 
 cumber, 1871. authorizing the Raleigh and Augusta Air Line 
 Railroad Company, to discharge the said bonds of the Chat- 
 ham Railroad Company, the said Raleigh and Augusta 
 Air Line Railroad Company, had at the time of the ratifi- 
 cation of the Act of 22d March, 1875, paid off, and dischar- 
 ged with bonds of the State of North Carolina, said Rail- 
 road bonds to the amount of §710,000, leaving at that time 
 in the Treasurer of North Carolina of the $1,200,000 mort- 
 gaged bonds, bonds to the amount of $490,000. 
 
 V. That said mortgaged bonds, are first mortgaged bonds 
 on the said Railroad and are valuable, worth 90 cents or 
 $1.00 in the dollar, and that War bonds, i. e., bonds issued 
 during the war, are worth only from 10 to 15 cents in the 
 dollar. 
 
 VI. That on the last working day of the Session of the 
 last General Assembly of North Carolina an Act entitled 
 "an Act explanatory of certain Acts and to enable parties 
 holding bonds, of the State, issued during the war for inter- 
 nal improvements under acts passed prior to the war to sell 
 the same was passed the House of Representatives and sent to 
 the Senate and passed through that body without reference to 
 any committee and without having been explained, and 
 plaintiff believes without having been read except by the title. 
 
 VII. That since the ratification of the last named Act, 
 the Raleigh and Augusta Air Line Railroad Company have 
 purchased bonds issued during the war and worth only 
 from 10 to 15 cents in the dollar, and discharged and paid 
 off of the said mortgaged bonds to the amount of $190,000. 
 
 VIII. That plaintiff believes -from information and from 
 the title of the Act of 22d March, 1875, which recites a dif- 
 ferent intent from the body of the Act, 10 wit : the title says 
 it is an Act " to enable parties holding bonds of the State 
 issued for internal improvements under acts passed prior to 
 the war to sell the same. " When the intent of the Act is 
 as follows, expressed by section 2 : The Public Treasurer 
 be, and he is hereby authorized, empowered and directed to 
 
 f 
 
(7) 
 
 receive any of the internal improvement bonds, of the State 
 of North Carolina, herein before described, which may here- 
 after be tendered under provisions of said Act and Ordi- 
 nance and in execution of the same, the first section declar- 
 ing simply that it was the intent of the said ordinance, and 
 Act that the Treasurer should receive the internal improve- 
 ment bonds, in exchange, and from the fact that the pream- 
 ble calls these bonds "second mortgage bonds," when they 
 are first mortgage bonds, that the said Act of 22d of March, 
 1875, was passed through the Legislature by trick and de- 
 ception, without having been read three times as the Con- 
 stitution requires 
 
 IX. The plaintiff further alleges, that the State bonds 
 given to the Company in exchange of the mortgage bonds 
 of the Railroad were valuable and sold for four or five 
 times as much as the internal improvement bonds issued 
 during the war and with which the said Railroad Compa- 
 ny are now paying off and discharging the said mortgage 
 bonds. 
 
 X. That interest has been accumulating on said bonds 
 since the 20th of August 1868, and the interest on some of 
 them has never been paid and a large sum to wit : $89,000 
 of said interest is now due and unpaid, said interest by an 
 ordinance ratified 11th of March, 1868, and by agreement of 
 said Railroad Company with the State as expressed in the 
 mortgage of the 20th July, 1868, and registered in the office 
 of the Register of Deeds for Wake County, in Book 26, page 
 189, a copy of which is hereunto annexed marked " A " and 
 made a part of this complaint, was due and payable semi- 
 annually, and said Company have violated the said agree- 
 ment and broken their contract with the State of North 
 Carolina in failing to pay said interest then due. 
 
 XL The plaintiff is informed and believes that the de- 
 fendant the Public Treasurer of North Carolina is about 
 to receive many thousands of dollars worth of the aforesaid 
 bonds, issued during the war and worth 15 ©ents in the 
 
(8) 
 
 dollar in discharge of the aforesaid mortgage honds worth 
 90 cents or $1.00 in the dollar. Whereby the plaintiff and 
 all other citizens of North Carolina and tax-payers will be 
 greatly damaged, wherefore, the plaintiff demands Judg- 
 ment. 
 
 First that David A. Jenkins, Public Treasurer of North 
 Carolina be restrained by Injunction from receiving said 
 State bonds issued during the war in discharge of the said 
 mortgage bonds of the Chatham Railroad Company, and 
 that each and every Agent, Attorney, Servants and Counsel- 
 lor of the said David A Jenkins be in like manner restrain- 
 ed by injunction. 
 
 2d. That the Defendants, the Raleigh and Augusta Air 
 Line Railroad Company, its officers and agents, be restrain- 
 ed by injunction from accepting said mortgage bonds held 
 by the Public Treasurer of North Carolina, which may be 
 tendered them by the defendant, the said David A. Jenkins. 
 Plaintiff has commenced action by issuing summons to 
 Orange Court. 
 
 3d. And that the Plaintiff have his cost in this action. 
 
 JOSIAH TURNER, 
 
 for Plaintiffs. 
 
 "A"— COPY OF MORTGAGE. 
 
 State of North Carolina, Wake County, July, 20th 1868. 
 
 Whereas, the Convention of North Carolina by an ordi- 
 nance ratified the 11th day of March, 1868, entitled an or- 
 dinance to amend the charter of the Chatham Railroad 
 Company, authorizing the issue of coupon bonds of the 
 State to an amount not exceeding twelve hundred thousand 
 dollars to the Chatham Railroad Company, said Company 
 to deposit with the Public Treasurer the coupon bonds of 
 said Company as in said ordinance set forth, and secure the 
 
0) 
 
 principal and interest of said bonds issued by the Chatham 
 Railroad Company, it was ordained that the State of North 
 Carolina shall have a lieu upon certain estate and rights of 
 said Company in said ordinance and hereunto set forth, 
 which lein shall be more effectually secured by a first mort- 
 gage duly executed by said Company, and whereas, said 
 Chatham Railroad Company by the Stockholders did accept 
 said amendment to the Charter, and did subsequently de- 
 posit with the Treasurer the coupon bonds of said Company 
 dated 1st day of April 1868 bearing six per cent interest. 
 the principal payable at the end of thirty years from the 
 date thereof, the coupons of interest payable semi-annually 
 at the National Bank of the Republic in the City of New 
 York, being the same time and place as designated by the 
 Public Treasurer for payment of principal and interest of 
 the bonds of the State to the Chatham Railroad Company 
 to be issued. 
 
 Now, therefore, this deed of mortgage executed this July 
 20th, 1868, by the Chatham Railroad Company, to carry 
 into effect said ordinance and for the considerations 
 aforesaid, as well as of ten dollars paid, hath bargained and 
 sold and by these presents doth bargain and sell unto the 
 State of North Carolina, all the estate of said Company, both 
 real and personal, which they may now have or may here- 
 after acquire between the City of Raleigh and the Gulf, the 
 terminus of said Railroad in the Coal Fields, including that at 
 both points, together with all the rights, franchises and pow- 
 ers thereto belonging or appertaining or that which may 
 hereafter belong or appertain to said Company, to have 
 and to hold to said State of North Carolina. Provi- 
 ded, nevertheless, that if said Chatham Railroad Com- 
 pany shall pay and continue to pay to the State 
 the semi-annual interest on its bonds within twen- 
 ty-four months next ensuing after the said interest shall be- 
 come due, and shall further pay the principal of said bonds 
 within twelve months next ensuing after the said principal 
 
10 
 
 shall have matured and become due, then the foregoing 
 conveyance shall be void and of no effect, otherwise remain 
 in full force and virtue* and it is further covenanted and 
 agreed that if the said Chatham Railroad Company shall 
 fail to pay the semi-annual interest on its bonds for twenty- 
 four months after each interest shall become due or to pay 
 the principal of said bonds for twelve months after their 
 maturity, the Board of Internal Improvements for and in 
 behalf of the State may enter upon and take possession of 
 all the property herein before specified and dispose of the 
 same by sale so as to protect the State. 
 
 In testimony whereof the Chatham Railroad Company 
 by its President, W. J. Hawkins, and two of its Directors and 
 Stockholders, have hereunto signed and subscribed this day 
 and year above mentioned. 
 
 W. J. HAWKINS, 
 President of the Chatham Railroad Company. 
 
 C. H. K. TAYLOR, 
 Director Chatham Railroad Company. 
 
 GEORGE LITTLE. 
 Director, Chatham Railroad Company. 
 Witness : — Thomas Badger. 
 
 Registered in Book 26, Register of Deeds office Wake 
 County, page 189. 
 
 JURAT. 
 
 Joseph Harriss, against David A. Jenkins and others: 
 
 At Chambers, Jul}' 15th, 1875, Josiah Turner, this day 
 appeared before me and swore in due form of law that he 
 
(11 ) 
 
 is agent and attorney for the plaintiff in the above entitled 
 action that the allegation contained in the complaint so far 
 as stated on his own knowledge are true, that so far as sta- 
 ted information of others, he believes to be true. 
 
 (Signed,) JOSIAH TURNER. 
 Sworn to and subscribed before me, day and date above 
 written. 
 
 (Signed,) JOHN KERR, 
 Judge &c, 7th Judicial District. 
 
 INJUNCTION ORDER. 
 
 North Carolina, Rockingham County — At Chambers, July loth 
 
 1875. 
 
 Upon the plaintiffs giving bond and good security in the 
 sum of five thousand dollars for the payment to the defen- 
 dants of all damages they may sustain by reason of swear- 
 ing out of the restraining order in case the plaintiff fail in 
 his action; the clerk of the Superior Court of Orange Coun- 
 ty, is hereby commanded to issue summons to each of the 
 defendants to appear before me at Greensboro in Guilford 
 County, in the Court House of said County on Wednesday 
 of the first week of the next regular term of the Superior 
 Court of Guilford, which begins on the 1st Monday in Sep- 
 tember A. D., 1875, there and then to show cause, if any 
 they can, why the prayer of the plaintiff's complaint for a 
 perpetual injunction shall not issue and the said clerk is 
 also directed to issue an order commanding defendant Jen- 
 kins to abstain from receiving from the other defendants 
 any and all bonds, which may be tendered him, in satifac- 
 tion of the mortgage bonds of said defendants, now in his 
 custody as Treasurer of the State, until the further order 
 of the Court. 
 
 (Signed,) JOHN KERR, 
 Judge of the 7th Judicial District, of North Carolina. 
 
(12) 
 INJUNCTION BONO. 
 
 Orange County — Superior Court: — Joseph Harris, plain- 
 tiff, against David A. Jenkins, Public Treasurer of North 
 Carolina, and the Raleigh and Augusta Air Line Railroad 
 Company. 
 
 Whereas, The said plaintiff, Joseph Harris, has applied 
 for an injunction against the above named defendants, and 
 an order has been made by the Honorable John Kerr, Judge 
 of the Superior Court of the Seventh Judicial District, 
 awarding the same and thereby commanding the said de- 
 fendant, Jenkins, to abstain from receiving from the other 
 defendant, the Raleigh and Augusta Air Line Railroad 
 Company, any and all bonds which may be tendered him 
 in satisfaction of the mortgage bonds of said other defen- 
 dant now in his custody as Treasurer of the State until the 
 further order of this Court: now therefore we, Joseph Har- 
 ris, Principal, and Simon G. Hays, A. Miller and Patrick 
 McGowan, sureties, do undertake covenant and agree with 
 and to the said David A. Jenkins, Public Treasurer, and the 
 Raleigh and Augusta Air Line Railroad Company, defen- 
 dants aforesaid, in the sum of Five Thousand dollars to pay 
 to them all such damages as they may sustain by reason of 
 such injunction not exceeding the said sum, if the said 
 Court shall finally decide that the plaintiff is not entitled 
 thereto to be ascertained according to law. 
 
 In testimony whereof we do hereunto subscribe our names 
 and affix our seals this 19th day of July, 1875. 
 Witness: J. B. Bunting, Clerk. 
 
 (Signed,) JOS. A. HARRIS, {Seal.) 
 (Signed,) S. G. HAYS, (Seal.) 
 
 (Signed,) A. MILLER, (Seal.) 
 
 (Signed.) P. MeGOWAN, (Seal.) 
 
 State of ISiorth Carolina, Wake County. 
 
 On this the 17th day of July, 1875, before me personally 
 appeared Jos. A. Harris, Patrick McGowan, Simrn G. Hays, 
 
■ (13) 
 
 Alex, Miller, to me known to be the persons who executed 
 the foregoing bonds, and personally acknowledged that they 
 did execute the same. And the said Simon G. Hays being 
 dul} r svrorn says that he is a resident and a free holder in 
 Wake county, and is worth one thousand dollars of the 
 foregoing bonds, exclusive of property exempt from execu- 
 tion, and over and above all liabilities; and the said Alex. 
 Miller, being duly sworn, says that he is a resident and a 
 free holder in Wake county, and worth the amount of four 
 thousand dollars on the foregoing bonds, exclusive of prop- 
 erty exempt from execution, and over and above all liabili- 
 ties. 
 
 Witness my hand and seal, the year and date above writ- 
 ten. 
 
 {Seal) J. N. BUNTING, 
 Clerk Superior Court of Wake County. 
 
 RESTRAINING ORDER. 
 
 Orange County — Superior Court : — Joseph Harris, plain- 
 tiff, against Raleigh and Augusta Air Line Railroad 
 Company, defendants. 
 
 THE STATE OF NORTH CAROLINA— To David A. 
 Jenkins, Public Treasurer of North Carolina. 
 
 Whereas, The above named Joseph Harris has sued 
 out of the office of the Clerk of the Superior Court of 
 Orange County a summons against you a defendant as 
 aforesaid, returnable before the Judge of the Seventh 
 Judicial District, at Greensboro, on Wednesday of the 
 first week of said term, which begins on the 1st Monday 
 in September, 1875. 
 
 And has filed and verified by his oath his complaint in 
 said cause. 
 
(14) 
 
 And whereas, upon such complaint and affidavit ex- 
 hibited before the Honorable John Kerr, Judge of the 
 Superior Court of the Seventh Judicial District in this 
 State, and he has thereupon made an order granting to 
 the said Joseph Harris an injunction as therein prayed 
 for, and directing me to issue, on the said plaintiff giving 
 bond and good security in the sum of Five Thousand 
 dollars to the effect the said Joseph Harris will pay to the 
 said David A. Jenkins, defendant aforesaid, such damages 
 not exceeding Five Thousand dollars, as the said defend- 
 ant may sustain by reason of said injunction, if the Court 
 shall finally decide that the plaintiff was not entitled 
 thereto. 
 
 Now therefore we, do strictly command } 7 ou and enjoin 
 you to desist and refrain from receiving from the other 
 defendants, the Raleigh and Augusta Air Line Railroad 
 Company, any and all bonds which may be tendered 
 you in satisfaction of the mortgage bonds of said other 
 defendants now in your custody as Treasurer of the State 
 until the further order of the Court. 
 
 In testimony whereof, I, George Laws, Clerk of said 
 Superior Court of Orange County, have hereto subscribed 
 my name at office in said County and affixed hereto the 
 seal of said Court, this 19th day of July, 1875. 
 
 GEORGE LAWS, 
 Clerk Superior Court of Orange County. 
 
 NOTICE TO DEFENDANTS TO SHOW 
 
 CAUSE. 
 
 Joseph Harris, Plaintiff, against David A. Jenkins, Public 
 Treasurer of the State of North Carolina, and the Raleigh 
 and Augusta Air Line Railroad Company. 
 
 STATE OF NORTH CAROLINA— To the Sheriff of 
 
 Wake County : — Greeting. 
 
 You are hereby commanded to summons David A. 
 Jenkins, Public Treasurer of the State of North Carolina, 
 
(15) 
 
 and the Raleigh and Augusta Air Line Railroad Com- 
 pany, if they he found within your county, to he and 
 appear before the Hon. John Kerr, Judge of the Superior 
 Court, 7th Judicial District, at the Court House in 
 Greensboro. Guilford county, on Wednesday of the first 
 week of trie regular term of the Superior Court of Guil- 
 ford, which begins on the first Monday in September, A. 
 D. 1875, then and there to show cause, if any they can, 
 whv the prayer of the plaintiff's complaint for a perpetual 
 injunction shall not issue. 
 
 Witness: George Laws, Clerk of said Court, 19th day of 
 Jul v, 1875. 
 
 GEORGE LAWS, 
 Clerk Superior Court of Orange County. 
 
 OPINION OF COUNSEL. 
 
 The undersigned have examined the papers in the case 
 of Joseph Harris, plaintiff, against David A, Jenkins, Public 
 Treasurer, and others, defendants, depending in the Superi- 
 or Court of Orange,and the restraining order made therein by 
 the Judge of the 7th Judicial District, of which Orange 
 county is a part, and are of opinion that the proceedings 
 are irregular and the order without warrant of law. 
 
 I. The jurisdiction of proceedings against the Publie 
 Treasurer, to enforce or restrain him in his official action, 
 is vested in the Superior Court of the county of Wake and 
 to be exercised by the Judge of the 6th Judicial District 
 exclusively after the award of an injunction. Batt. Rev. 
 ch. 17 (C. C P.) sec. 67. Alexander vs. Commissioners of 
 McDowell, 67 N. C. R. 330. Jones vs. Commissioners of 
 Bladen, 69 N. C. R. 412. Steele vs. Commissioners ef 
 Rutherford, 70 N. 0. R. 137. 
 
 II. But independently of the restriction in actions against 
 public officers, none of the parties necessary to confer juris- 
 
(16) 
 
 diction are represented to reside, nor as we are informed, 
 do any of them, plaintiff or defendants, reside in Orange 
 county, except P. C. Cameron, who has no interest and is a 
 nominal party in the summons only by an attempt to con- 
 fer jurisdiction, and is not mentioned in the complaint, 
 application for injunction or any other paper in the cause. 
 
 III. The complaint is not supported by the affidavit of the 
 plaintiff, but by that of his counsel and attorney, in an action 
 not "founded upon a written instrument for the payinenjt 
 of money only" "in possession of" the attorney, nor does the 
 affidavit disclose the attorney's "knowledge or the grounds 
 of his belief on the subject, and the reasons why it is not' 
 made by the party," as required by law. Batt. Rev. ch. 17 
 (C. C. P.) sec. 117. Indeed the restraining order has been 
 granted without any legal affidavit. State on relation of 
 Martin vs. Sloan, 69N. C. R. 128. 
 
 IV. It is doubtful, at least, if such restraining order is 
 operative for more than 20 days, while in this case it ex- 
 tends over double that space. Batt. Rev. ch. 17 (C. C. P.) 
 sec. 345(5). Foard vs. Alexander, 64 N. C. Rep. 69. 
 
 V. The order in form restrains a public officer from com- 
 plying with the requirements of a mandatory statute, upon 
 an allegation that the statute was passed through the Leg- 
 islature " by fraud and deception," and without the read- 
 ings required by the Constitution and thus seeks to impeach 
 its validity upon facts not appearing upon the records of the 
 General Assembly but sought to be proved by evidence dehors. 
 This is not permissible, and, if allowed, would unsettle all 
 laws, and leave their validity to depend on the uncertain and 
 capricious finding of ajury. Broadnax vs.Groom, 64 N. C Rep. 
 244. In this case the Court says, " There can be no doubt 
 that acts of the Legislature, like judgments of courts, are 
 matters of record, and the idea that the 'verity of the record' 
 can be averred against in a collateral proceeding is op- 
 posed to all the authorities. The courts must act on the 
 maxim, 'Omnia presumuntur,' &c. Suppose an Act of 
 
(17 
 
 Congress is returned by thu President with his objections, 
 and the Vice-President and the Speaker of the House certify 
 that it passed afterwards by the constitutional majority ; is 
 it open for the courts to go behind the record and prove to 
 the contrary ?" 
 
 It is well settled law that the court cannot enquire into 
 the motives of the Legislature. Chief Justice Chase, in ex- 
 parte McArdle, Wallace, 513. C. J. Marshall in. Fletcher 
 vs. Peck, 6 Cranch 87. Sunbury and Erie R. R. 
 Co. vs. Cooper 33 Penn. St. Reports. Exparte Newman 9 
 Cal 503. Baltimore vs. State 15 Md. 376. Johnson vs Hig- 
 gins 3 Met (Ivy.) 566. "The courts can not impute to the 
 Legislature any other but public motives for their acts." 
 People vs. Draper 15 N. Y. 545. " The Court cannot usurp 
 the inquisitorial office of enquiry into the bona fides of the 
 Legislature in discharging its duties," Shankland J. in 
 same case. 
 
 "The powers of these departments are not merely 
 equal; they are exclusive in the duties assigned to each. 
 They are absolutely independent of each other. It is now 
 proposed that one of the three powers shall institute an in- 
 quiry into the conduct of another department and form* an 
 issue to try by what motives the Legislature were governed 
 in the enactment of a law. If this may be done, we may 
 also enquire by what motives the executive is induced to 
 approve a bill or withhold his approval. To institute the 
 proposed inquiry would be a direct attack upon the inde- 
 pendence of the Legislature and a usurpation of power sub- 
 versive of the Constitution." Wright vs. Defrees 8 Ind. 302. 
 The acts of the supreme power of a country must be consider- 
 ed pure for the same reason they are considered just, because 
 there is no power to declare them otherwise. — Fletcher vs. 
 Peek and Crank, 87, above cited. 
 
 VI. The act impugned is but a recognition of a distinct 
 previous obligation contracted in the very statute under 
 which the exchange of bonds was made, and declared by the 
 
(IS) 
 
 Supreme Court to be binding on the State. Raleigh and 
 Augusta Air Line R. R. Co. vs. Jenkins 68 N. C. 502. 
 
 VII. The bonds which are authorized to be received un- 
 der this act, were issued by authority of laws in force pre- 
 vious to the war and in pursuance of public policy in re- 
 gard to works of Internal Improvements, and their validity 
 is recognized in the recent funding act, and they are rated at 
 the value of the very bonds issued in exchange for those of 
 the Railroad. Laws of North Carolina 1874-5, Chapter 175,' 
 page 204. 
 
 VIII. The injunction attempts, upon allegations only ap- 
 plicable to the act known as House Bill 422 to annul the orig- 
 inal contract of the State as adjudged by the Supreme Court, 
 and to restrain the Treasurer from obeying the mandates of 
 an unim peached law, and whose validity has heretofore been 
 sustained by the Supreme Court, Raleigh and Augusta Air 
 Line, 68 North Carolina Reports, 502. 
 
 IX. The Injunction order gives more even than is asked 
 for in the complaint and restrains the Railroad from pay- 
 ing in, and the Treasurer from receiving, any bonds of any 
 class. 
 
 X.' The Court takes Judicial notice of the Journals of the 
 Legislature, Cooley on Cons., Limitations, page 135, and cases 
 there cited. This record like all records can not be collat- 
 erally impeached. The Journals of the Legislature show that 
 the Bill was read three times ineach House, duly engrossed 
 and ratified. House Journal 1874-5 pages 304, 758 and 776 
 and Senate Journal 1874-5 pages 642, 646 and 659. 
 
 XI. The allegation that the mortgage bonds are worth 
 90 cents to $1.00 in the dollar is untrue By the ordi- 
 nance of Convention March 11th, 1868, authorizing the 
 deposit of the bonds they are held as collateral security, 
 and can not be put on the market at any price. They are 
 not negotiable or saleable. 
 
 XII. The Court can judicially see, that the allegation 
 that they are first mortgage bonds (upon which is predica- 
 
19) 
 
 ted one of th© reasons for calling the act fraudulent) is erro- 
 neous. By an act entitled an " aet to enable the Chatham 
 Railroad Company to complete its Road" ratified April, 10, 
 1869, the State's mortgage was made a second mortgage. 
 
 XIII. If the act in question — House Bill No. 422 — was 
 stricken from the Statute book, it would not alter the 
 right to exchange these bonds. That right exists indepen- 
 dently of this Statute, by virtue of the original contract 
 i. e., ordinance, March, 11th, 1868, authorizing the repay- 
 ment of " any valid indebtedness of the State," and the act 
 of March, 17th, 1875, to " compromise the State Debt," which 
 recognizes the Internal Improvement Bonds, as valid in- 
 debtedness. Upon a suggestion therefore against " House 
 Bill No. 422," only, the restraining order has been given 
 against rights, existing by reason of other statutes. House 
 Bill No. 422 has conferred no right or power, not already 
 existing, by reason of other and unimpeached statutes. 
 
 XIV. The validity of the Internal Improvement Bonds 
 have been recognized by no less than six other acts, besides 
 House Bill 422 to wit : 
 
 Ordinance of Convention, '65-'66, Chap. 11, page 19. 
 Acts of 1865. Chap. 3, page 4. 
 
 Acts of 1866. Chap. 37, page 95. 
 
 Acts of 1866- '67. Chap. 106, page 177. 
 
 Acts of 1868. (special session) Chap. 32, page 44. 
 
 Acts of 1874-75. Funding Act. 
 
 XV. The irregularities in the papers are great. The 
 summons, complaint, and bond for costs, filed in the cause, 
 each presents different parties defendant. 
 
 XVI. The order of the Judge to show cause why a Per- 
 petual Injunction should not issue at Chambers is irregular. 
 It is not in accordance with the old or the new system. 
 Whitehurst vs. Green, 69, North Carolina, 131. 
 
 XVII. The amount of the Injunction bond ordered by the 
 Judge, $5,000, is insufficient, there being several hundred 
 
( 20 ) 
 
 thousand dollars involved. Martin vs. Sloan, 69 North 
 Carolina, 128. 
 
 XVITI. The restraining order having issued without no- 
 tice the same may be dissolved without notice. 
 
 Sledge vs. Blum, 63 North Carolina Reports 374, C. C.P., 
 Sees. 195 and 297- 
 
 Respectfully, 
 
 W. N. H. SMITH, 
 J. B. BATCHELOR, 
 T. C. FULLER, 
 WALTER CLARK. 
 
 NOTICE TO PLAINTIFF TO SHOW 
 CAUSE. 
 
 On the 28th day of July 1875, the defendants appeared 
 before Judge Kerr, at Chambers in Reidsville, North Caro- 
 lina, and through their Counsel, Messrs. T. C. Fuller and 
 Walter Clark, moved to vacate the restraining order upon 
 the Plaintiff's papers, Avhereupon, his Honor issued the 
 following notice : 
 
 North Carolina — In the Superior Court of Orange County — 
 Joseph Harris, Plaintiff, vs. Raleigh and Augusta Air- 
 Line Railroad Company, David A. Jenkins, Public Treas- 
 urer of North Carolina, Defendants. 
 
 On motion of T. C Fuller and Walter Clark, Counsel for 
 the defendants in the above entitled cause, made be- 
 fore me at Chambers to-day, in Reidsville, in the county of 
 Rockingham, North Carolina, to vacate or modify the In- 
 junction and restraining order heretofore made by me in the 
 above entitled cause : It is now ordered that the plaintiff 
 appear before me in Greensboro, North Carolina, on Satur- 
 day the 31st imt., at ten o'clock, A. M., and show cause if 
 
(21) 
 
 any he can, why defendants' said motion should not be al- 
 lowed. 
 
 Let copy of this order be served on the plaintiff and the 
 original returned before me on that day, July 28th, 1875. 
 
 (Signed,) JOHN KERR, 
 Judge 7th, Judicial Distrsct. 
 
 This was endorsed : — 
 
 "To hand and served by leaving copies with plaintiff 
 Joseph Harris and Josiah Turner, Att'y., this 29th day of 
 July 1875. 
 
 (Signed,) S. M. DUNN, Sh'ff, 
 
 By J. K. Dunn, Dep'ty Sh'ff. 
 
 ORDER VACATING RESTRAINING OR- 
 DER. 
 
 At 10 A. M. July 31, 1875, the defendants appeared by 
 their Counsel T. C. Fuller and Walter Clark, before Judge 
 Kerr, at Chambers in Greensboro. Josiah Turner, Esq., 
 appeared for the Plaintiff and asked till 4 P. M. to procure 
 additional counsel and look up his authorities which was 
 granted. At 4 P. M. the cause came on for hearing before 
 his Honor and after hearing Counsel at length on both 
 sides his Honor rendered his final order in the cause 
 vacating the restraining order, refusing an injunction till 
 the hearing and giving defendants leave to sue upon the 
 Injunction Bond. 
 
(22) 
 
 North Carolina — Guilford County, At Chambers Greens- 
 boro, N. C, July 31., 1875, before his Honor -Judge Kerr, 
 7th Judicial District. 
 
 Joseph Harris vs. David A. Jenkins, Public Treasurer, &c, 
 The Raleigh and Augusta Aii-Line Railroad Company. 
 
 On motion of Walter Clark and T. C. Fuller Esqs., Coun- 
 sel for defendants it is ordered, adjudged and decreed by 
 the Court here that the restraining and injunction order 
 heretofore issued in this cause be vacated and dissolved and 
 that the injunction prayed for till the hearing of this cause 
 be refused. 
 
 Let this order be filed with the Clerk of the Superior 
 Court of Orange county where this action is pending. 
 
 And it is further ordered by the Court that the Defen- 
 dants have leave to institute suit upon the Bond given by 
 the Plaintiff in obtaining the restraining order in said 
 
 cause above entitled. 
 
 (Signed,) JOHN KERR, 
 
 Judge 7th Judical District. 
 
 THE KIND OF "TAX-PAYER" THE PLAINTIFF IS— 
 CERTIFICATE OF SUPERIOR COURT CLERK OF 
 WAKE COUNTY. 
 
 Superior Court, Wake County. — I, John N. Bunting, Clerk 
 of the Superior Court in and for said County, do hereb}^ 
 certify that Joseph Harris was indicted for "Failure to list 
 Poll" at January Term, 1875, of Wake Superior Court, and 
 that said indictment is still pending against the aforesaid 
 defendant in said Court. 
 
 In witness whereof I have hereunto set my hand and seal 
 of office this 20th July 1874' 
 
 / Seal of 1 (Signed,) J. N. BUNTING, . 
 
 { Office, f Clerk Superior Court. 
 
( 23 ) 
 FINALE. 
 
 On the 2nd August 1875 the defendants brought their 
 action in the Superior Court of Wake Count} 1- to recover of 
 the Plaintiff and his sureties to the Injunction Bond the 
 sum of $5,000 being the penalty of said Bond. 
 
 And may so end every attack upon the integrity and 
 watchfulness of the Legislature of 1874-5. 
 
 IVOTE. 
 
 As a part of the history of the case, it can be stated that the plaintiff is a 
 printer in Mr. Josiah Turner's office, and resides in Kaleigh. 
 
 As to the question of " fraud and deception " in the passage of the act (if 
 it could he inquired into by the Court.) see the letters of Messrs. McEae, 
 Moring and Strong, published in the appendix. No allegation was ever 
 more entirely without foundation. 
 
APPENDIX. 
 
 LETTER FROM MAJ. J. C. McRAE, MEMBER FROM 
 CUMBERLAND. 
 
 Maj. J. C ( McRac, Fayetteville, N. C. : 
 
 Dear Sir : — At a meeting of the citizens of Wake county 
 a committee of twenty tax payers were appointed to enquire 
 into the histor}' of the passage of the Act on page 328 of the 
 late Acts of the General Assembly, exchanging mortgage 
 for depreciated State bonds. Will you be kind enough to 
 write me what you know of it, and if 3'ou were aware of its 
 passsage. 
 
 And oblige, 
 
 H. 0. PARKER, 
 Chairman of Committee of Twenty. 
 
 H. 0. Parker, Esq., Chairman : 
 
 Dear Sir : — Upon my return home after an absence of 
 several days, I find your postal-card, and reply immediate- 
 
 iy- 
 
 I refer you to the lengthy article in the Daily News of 
 several days ago as a correct statement of the matter. Also 
 to the letter of Mr. Moring, published in the same paper on 
 July 7th, in which I fully concur. The Act t© which you 
 refer, upon its introduction as a bill, was referred to the 
 Committee on Internal Improvements and was examined 
 
(26) 
 
 and discussed in that committee, and was held until the 
 bill providing for a compromise of the State Debt had be- 
 come a law. If the latter had not recognized as a valid 
 debt of the State, bonds issued during the war in pursuance 
 of acts before the war, the committee would have reported 
 adversely upon the bill in question. But the*e State bonds 
 being recognized, as they ought to have been, the case was 
 this : the R. & A. A. L. R. Co. was authorized to withdraw its 
 own bonds from the State Treasury upon returning to the 
 Treasury in lieu thereof coupon bonds of the State; the 
 Legislature had already recognized the bonds proposed to 
 be exchanged, and had gone further, it had put these 
 bonds exactly upon the same footing as the State bonds 
 which had been issued in exchange for the Mortgage 
 bonds of this Railroad company. Was there any objection 
 to the Legislature directing the Treasurer to accept these 
 bonds ? Would it have been honest in the State to have said 
 to this company, it is true when you gave us your bonds in 
 exchange for ours we agreed with you that at any time be- 
 fore the maturity of your bonds you might take them up by 
 depositing in the Treasury a like amount of our coupon 
 bonds or other indebtedness; it is true that we consider the 
 bonds which you now offer as equal in dignity and value to 
 the bonds which you received from us, but because we have 
 set a value upon our own bonds which is below that which 
 you are making yours worth by the expenditure of more 
 money than the security, we break the solemn contract 
 made with you and we refuse to make the exchange. 
 
 I think that I had the interest and the honor of the State 
 as much at heart as the Hon. Josiah Turner or any one 
 else. I know that the other gentlemen on the Internal 
 Improvement Committee, gentlemen of experience and in- 
 tegrity, are, to say the least, just as honest and just as vigi- 
 lant as Mr. Turner, and if there had been in this matter any 
 attempt to swindle the State, they would have recognized it 
 and would have rebuked it in fitting terms before the House. 
 
(27) 
 
 I know of the passage of the bill, I voted for it, I would 
 do it again, and any assertion of undue influence used to 
 obtain its passage is simply a slander. 
 
 Yours truly, 
 
 JAS. C McRAE. 
 
 CARD FROM JOHN M. MORING, MEMBER FROM 
 CHATHAM. 
 
 Editor News : 
 
 Dear Sir: — I herewith hand you a copy of a communica- 
 tion sent to Raleigh Sentinel which you will please publish 
 and oblige, 
 
 Yours, &c, 
 JOHN M. MORING. 
 
 Hon. Josiah Turner : 
 
 Dear Sir : — I see in the columns of the Sentinel for the 
 last few weeks, a series of editorials concerning H. B. 422, 
 " A bill to be entitled an act explanatory of certain acts and 
 to enable parties holding bonds of the State issued for In- 
 ternal Improvements under acts passed prior to the war to 
 sell the same," which it appears to me are based upon a 
 misapprehension and calculated to do myself, the introdu- 
 cer of the bill, as well as the entire body of the last Legisla- 
 ture, an injustice. I therefore beg leave to make a state- 
 ment of the facts in the case, together with a history of the 
 passage of the bill in the House, as concisely as I may be 
 able ; and ask that you give it a place in your columns. 
 
 You have stated correctly that the ordinance of Convention 
 of March 1868, which authorized the issuing of one million 
 
(28) 
 
 two hundred thousand dollars of bonds of the State to the 
 Chatham Railroad company in lieu of a like amount of 
 mortgage bonds of said Railroad, also provided that the 
 company might at any time before maturity take up its 
 bonds deposited with the Public Treasurer by substituting in 
 lieu thereof coupon bonds of the State or other indebtedness of the 
 State. 
 
 Under this provision of their charter you say that the 
 Raleigh and Augusta Air Line Railroad Company sought 
 to take out of the Treasury its bonds and put in " repudi- 
 ated war bonds " (meaning the bonds authorized to be ex- 
 changed by H. B. 422) that the Treasurer refused and that 
 the Supreme Court sustained him. 
 
 In this you are mistaken, and if you will refer to the 68 
 North Carolina Reports, pages 499 and 502, you will see 
 that in the only two suits ever had between 'the said rail- 
 road and the Treasurer it is decided : 
 
 1st. That the Treasurer is not bound to take any bond is- 
 sued after the date of said ordinance of March 11, 18G8, 
 which will embrace all the special tax bonds. 
 
 2d. That the Treasurer is bound to receive in lieu of the 
 bonds of the railroad any coupon bonds, or other valid in- 
 debtedness of the State issued and outstanding prior to the 
 passage of said ordinance. 
 
 Now another remark as to the facts surrounding this case, 
 and I have done upon this point; and that is, that the bonds 
 authorized to be exchanged under H. B. 422 are " repudia- 
 ted war bonds," and I would refer you to the Act itself, (and 
 I would be glad if you w T ould publish it,) by which you will 
 see that it only authorizes the exchange of bonds issued du- 
 ring the war for Internal Improvement purposes, under 
 Acts passed prior to the war, (for detailed statement of 
 which, see Treasurer's report for year ending September 
 30th 1874, page 34.) These bonds certainly could in no 
 sense be said to be issued for the purpose of carrying on the 
 war, since they were authorized before the war was antici- 
 pated. 
 
( 20 ) 
 
 I will here also state the further fact that at the time of 
 the introduction of H. I>. 422 — the Raleigh and Augusta 
 Air Line Railroad Company, had already redeemed from 
 out the Treasury about seven hundred thousand dollars of 
 its bonds leaving remaining five hundred thousand- 
 Let us now trace the history of H. B. 422 as it passed 
 into a law. It was introduced on the 28th day of January, 
 nearly two months before adjournment, and was referred 
 to the committee on Internal Improvements. I had it re- 
 ferred to this committee because I desired it to be scrutini- 
 ze d (as indeed all acts should be,) and I knew the compe- 
 tency of the committee for this work. The able representa- 
 tive from Cumberland, Maj. McRae, was its Chairman, Col. 
 Tate, of Burke, also Chairman of Committee on Finance, 
 Mr. Oaksmith, who had given mucJi time to Finance and 
 Railroads, and the no less watchful Patton and others, 
 formed this committee. 
 
 When the bill was considered before the committee I was 
 sent for, and stated all the facts within my knowledge con- 
 nected with it as well as the objects of the bill. The only 
 question then arising as I understood, under the decisions 
 of the Supreme Court before referred to, as well as in right 
 was -whether the bonds issued during the war for Internal 
 Improvement purposes under acts passed before then were 
 of the valid indebtedness of the State. 
 
 This question the State Debt Committee, of which Messrs. 
 McRae and Tate and myself were members, had before that 
 time decided in the affirmative. Owing to the time the In- 
 ternal Improvement bonds issued during the war were sold, 
 they had nearly all fallen into the hands of citizens of this 
 State. Some of the holders of these came before the Com- 
 mittee on State Debt and Liabilities and asked that their 
 claims be considered in the adjustment of the debt of the 
 State, and as that Committee were of the opinion that when 
 our own citizens furnished the means to build our own 
 railroads they were as much entitled 10 consideration as the 
 
(30) 
 
 bond-brokers of New York, this class of our indebtedness 
 was recognized, as in justice it ought to be, and it so turned 
 out that the bonds issued during the war for Internal Im- 
 provement purposes under acts passed before the war, and 
 the bonds issued to the Chatham Railroad Company, which 
 H. B. 422 proposes to exchange, were placed in the same 
 class in the adjustment of the State Debt, long before H. B. 
 422 was introduced. And indeed so far as lam concerned, 
 during a previous session of the Legislature, that of 1873-'4, 
 I had introduced a bill to adjust and settle the State Debt, 
 and which passed the House during that session, embodying 
 identically the same classification as that of last session. 
 
 The Committee on Internal Improvements then, as I un- 
 derstood, were of the opinion that if the State Debt bill 
 passed, the Treasurer was authorized to receive the bonds 
 mentioned in House bill 422, and that there was really no 
 necessity for the passage of that act ; and that when such 
 exchange were made, if it should be made, the State would 
 receive exactly the same from its debtor, the Raleigh and 
 Augusta Air Line Railroad Company, as it proposed to pay 
 to its creditors, the holders of the bonds issued to said Rail- 
 road Company. 
 
 In accordance with this view, after the State Debt bill 
 passed, the committee reported on the 12th of March (see 
 Journal of House, page 657) that there was no necessity for, 
 or objection to, the passage of the House Bill 422. 
 
 I did not call the bill up, in fact gave it no attention, as I 
 was necessarily absent some days during that week in at- 
 tendance upon Chatham Court, until some time after my 
 return I heard it announced as it was regularly reached 
 upon the calendar, was read and failed to pass for want of 
 a quorum ; then at the request of the gentleman from Alle- 
 ghany, Mr. Field, I arose in my place, stated all the facts in 
 connection with the bill, its purport and intent, and it pass- 
 ed by the requisite vote. It was then engrossed in its prop- 
 er order, sent to the Senate, and from the character of that 
 
(31) 
 
 body for intelligence and integrity, it passed that body ac- 
 cording to parliamentary order, was enrolled and ratified. 
 
 I regret it has taken such length to state the facts con- 
 nected with, and the history of this bill to show that there 
 was no haste, fraud or unfairness whatsoever connected, 
 with its passage by a Democratic Legislature; and further, 
 that when this exchange is made, by the care taken by 
 those whose duty it was to guard her interests, the State 
 will not be the loser to the extent of one cent. 
 
 To sustain their action in recognizing the validity of the 
 Internal Improvement bonds issued during the war, under 
 acts passed before by providing for them in the bill to ad- 
 just the State Debt, the Legislature had the opinion of the 
 Attorney General Rogers in 1866, and the action of Treas- 
 urer Battle in funding the interest upon them under act of 
 1866. And in fact the only averment against the validity 
 of these bonds that I have ever heard was the doubt of 
 Treasurer Jenkins as set forth in the Preamble of House 
 Bill 422. I trust that it will be needless for me to say that 
 it was not my intention or that of the General Assembly in 
 passing House Bill 422, to allow any one to " rob the State" ; 
 and that such cannot be the case under the operation of that bill : 
 but that a class of our State Debt as honest as'any, and held 
 almost entirely by our own people, might be given a mar- 
 ket value as well as those held by stock-biokerson Wall St.. 
 New York. 
 
 Again respectfully requesting a publicationof this state- 
 ment, 
 
 I am very respectfully, 
 
 Yours, &c., 
 
 JNO. M. MORING. 
 
 July 2nd, 1875. 
 
(32) 
 
 CARD FROM GEORGE V. STRONG, ESQ., 
 
 Raleigh, July 24th, 1875. 
 II. 0. Parker, Esq: 
 
 Dear Sir : — Your postal card of July 1st has been re- 
 ceived. 
 
 It is well known to my friends that I was often called 
 from my seat during the late session of the Legislature by 
 indispensable professional engagements; and it is well 
 known to all, that during the closing scenes of any Legisla- 
 ture much disorder and confusion prevails. For these rea- 
 sons, I suppose my attention was not called to the Act in 
 question, or if it was, it has escaped my recollection. 
 
 It is but right, however, to say, that I have carefully ex- 
 amined the merits of the said Act, and have come to the 
 conclusion that it is altogether just and proper, and that 
 the State could not either in law or honor, refuse the ex- 
 change of bonds therein provided for. She expressly con- 
 tracted in the ordinance of March 11th, A. D. 1868, that 
 she would make this very exchange, and the Supreme Court 
 has decided in the case of the Raleigh and Augusta Air 
 Line Railroad Company against Jenkins, to be found in the 
 68th volume of the North Carolina Reports at page 502, 
 that she is compellable in law to perform this contract, and 
 in that case did compel her to perform a part thereof. 
 
 The State under the ordinance above named held twelve 
 hundred thousand dollars of the bonds of the Raleigh and 
 Augusta Air Line Railroad Company, formerly the Chat- 
 ham Railroad, and now holds a large number of them, as 
 an indemnity against a like amount of her own bonds is- 
 sued in exchange to the road. She proposes to pay on her 
 bonds thus exchanged and those which the road now ten- 
 ders her, 25 cents on the dollar, and if the provisions of the 
 Act of which you speak be not carried out, she will collect 
 from the road 100 cents on the dollar, thus taking one dol- 
 lar for having paid as surety twenty-five cents. 
 
(33) 
 
 But. apart from the idea of contract, the State should not 
 hesitate to do what the Act provides. A, who is insolvent, 
 has a claim against B, who is solvent, and who has a claim 
 against him of the like amount. Could A, collect his whole 
 claim out of B and pay him only one fourth of his? 
 I might give other reasons, but the above will suffice. 
 I regret that so much has been said about this Act, be- 
 cause so far as I know or have reason to believe, no improp- 
 er influence was used to secure its passage, and because its 
 provisions meet my unqualified approbation. 
 I have the honor to subscribe myself, 
 Dear Sir, 
 
 Your friend and 
 
 Ob't servant, 
 GEO. V. STRONG. 
 
 TREASURER JENKINS' REPLY TO G. H. ALFORD, 
 ESQ., CHAIRMAN OF THE LATE DEMOCRATIC 
 MEETING IN METROPOLITAN HALL. 
 
 State of North Carolina, 'j 
 
 Treasurv Department, V 
 
 Raleigh, July 6, 1875. j 
 
 Green H. Afford, Esq., Chairman, &c, Raleigh : 
 
 Dear Sir — Your note accompanying resolutions adopted 
 by a meeting of the citizens of Wake county, held in this 
 city on the 26th ult., was received at a time when I could 
 not promptly respond as you requested, owing to official 
 duties. 
 
 The first resolution above referred to is as follows: 
 " Resolved, That the Treasurer be and he is hereby re- 
 quested to discontinue the exchange of the Mortgage Bonds 
 of the Raleigh and Augusta Air-Line Railroad, for the de- 
 preciated bonds of- the State." 
 
(34) 
 
 A brief history of the transaction of an exchange of bonds 
 in 1868 with the Chatham Railroad Company (now Raleigh 
 and Augusta Air- Line Railroad Company) and a statement 
 of reasons for my action th; s far in surrendering the bonds 
 of the company, will serve as an answer to said resolution. 
 
 An ordinance of the Constitutional Convention, ratified 
 11th of March, 1868, entitled "An Ordinance to amend the 
 charter of the Chatham Rail Road Company," directed the 
 Treasurer of State to deliver to the President and Directors 
 of said campany the coupon bonds of the State to an amount 
 not exceeding twelve hundred thousand dollars ($1,200,000) 
 for the purpose of enabling said company to finish its road. 
 The ordinance further provided that the Chatham Railroad 
 Company should deposit with the State Treasurer the 
 coupon bonds of the company of same amount, date, &c, 
 and to secure the principal and interest of which the State 
 should have a lien upon all the estate of said company. 
 
 The requirements of the ordinance were complied with 
 on the part of the State and the Company in an exchange 
 of bonds and the execution and delivery to the State by 
 the company of a mortgage on its real and personal estate. 
 
 It should be borne in mind that the bonds of the company 
 were, in the expressed terms and meaning of the ordinance, 
 a deposit followed by a lien for the security of the same. The 
 Treasurer, therefore, held them as a deposit. 
 
 It was also provided in the same ordinance — " that the 
 Chatham Railroad Company may, at any time before ma- 
 turity, take up the bonds of said Company deposited with 
 the Public Treasurer by substituting in lieu thereof coupon 
 bonds of the State or other indebtedness of the State." 
 
 The General Assembly, at its annual session of 1871-72 
 passed an act entitled " An Act concerning the Chatham 
 Railroad, amendatory of certain acts, and authorizing a 
 change of name" to that of the " Raleigh and Augusta Air 
 Line Railroad Company," in which it was provided as fol- 
 lows: 
 
(35) 
 
 "The said Raleigh and Augusta Air Line Railroad Com- 
 pany may at any time hereafter discharge the bonds of the 
 Chatham Railroad Company deposited with the Public 
 Treasurer, in the same manner and not otherwise, as the said 
 Chatham Railroad Company is now authorized by law to do 
 and the Public Treasurer is hereby directed to return to the 
 said Raleigh and Augusta Air Line Railroad Company the 
 said bonds of said Chatham Railroad Company on pay- 
 ment in the manner above described until the whole 
 amount of said bonds of the Chatham Railroad Company 
 held by the State shall have been surrendered." 
 
 In view of the provisions of law authorizing the company 
 to take up its bonds and ' redeem its mortgage, the only 
 question for me to consider was— what is State indebted- 
 ness ? 
 
 I think on one occasion prior to the decision of the Su- 
 preme Court, January Term, 1873, in the case of Raleigh 
 and Augusta Air Line Railroad Company vs. David A. 
 Jenkins, Public Treasurer, 1 was enquired of by the Presi- 
 dent of the company if I would accept in exchange for the 
 bonds of the company and redemption of mortgage (in con- 
 nection with other bonds) the bonds issued for internal 
 improvement purposes during, but authorized under acts 
 passed pior to, the war, (the bonds referred to 1 presume in 
 the resolution transmitted by you) and my reply was that I 
 did not feel authorized to accept them in the absence of any 
 direct legislation providing for their funding or redemption, 
 though admitting at the time that the coupons of said bonds' 
 had been funded by my predecessor, Kemp P. Battle, Esq., 
 under the " Funding Act" of March 10, 1866, by the advice 
 of the Attorney General, but basing my declension to accept 
 them upon the fact that the "Funding Act" of August 20th, 
 1868, excluded them from its operations. 
 
 Reviewing the history of the legislation in reference to 
 the State debt, I find no statute plainly and unmistakably 
 recognizing the bonds in question as indebtedness of the 
 
(36) 
 
 State, of equal validity with other bonds, until the act of 
 17th of March, 1875, entitled "An Act to compromise, com- 
 mute and settle the State Debt," which contains this pro- 
 vision : "That when any person holding and owning any 
 bond or bonds of the State of North Carolina, issued in pur- 
 suance of any act of Assembty passed at any time before the 
 twentieth da} r of May Anno Domini, one thousand eight 
 hundred and sixty-one," (which date embraces the bonds in 
 question) bhall surrender and deliver such bonds, together 
 with all the unpaid coupons belonging to the same, to the 
 Treasurer of the State, then in that case it shall be the duty 
 of the Treasurer, and he is hereby required, to issue and 
 deliver to the person so surrendering such bonds a new bond 
 of the State," &c. 
 
 The following rates of exchange in reference to the bonds 
 issued during the war as referred to, are set forth in the 
 Act: 
 
 III. For the bonds issued since the twentieth day of May, 
 Anno Domini one thousand eight hundred and sixty-one, 
 in pursuance of Acts passed before said last named date, 
 and the bonds described in this Act issued to the Chatham 
 Railroad Company, twenty-five per cent, of the principal of 
 the bonds so surrendered." 
 
 It thus appears that these bonds are placed at the same 
 rates as the bonds given for the Chatham Railroad mort- 
 gage bonds in the original exchange. 
 
 Another Act, ratified 2nd day of March, 1875, entitled 
 '' An Act explanatory of certain Acts, and to enable parties 
 holding bonds of the State issued for Internal Improvements 
 under Acts passed prior to the war to sell the same," after 
 referring in a preamble to previous legislation in relation to 
 the Railaoad Company provides as follows : 
 
 Sec. 1. " That it was the true intent and meaning of the 
 Ordinance and Act above referred to, to authorize and em- 
 power the Public Treasurer to receive any of the aforesaid 
 Internal Improvement bonds in execution of the provisions 
 of said Act and Ordinance. 
 
Sec 2. The Public Treasurer be, and he is hereby author- 
 ized, empowered and directed to receive any of the Internal 
 Improvement bonds of the State of North Carolina herein- 
 before described which may hereafter be tendered under the 
 provisions of said Act and Ordinance and in execution of 
 the same." 
 
 It is clearly seen that I have no discretionary power under 
 the mandatory provisions of Sec. 2 above given, but that it 
 absolutely requires of the Treasurer, who is a mere minis- 
 terial offioer, the performance of a plain duty which he has 
 not the legal right to disregard. 
 
 I suggest that if the act last above mentioned had not 
 been passed, the recognition of these bonds as indebtedness 
 of the State, by the "Funding Act" of 17th of March, 1875, 
 Would have given ample power to the Treasurer to accept 
 them in an exchange with the railroad company. 
 
 I call attention to the language of the decision of the Su- 
 preme Court, January Term 1873, before referred to in this 
 communication, " We think it clear that the Public Treas- 
 urer ought to receive the State bonds issued in exchange for 
 the Chatham Railroad bonds, as it was one transaction,' 
 and suggest that the Internal Improvement bonds issued 
 during the war are embraced in the same section of the 
 " Funding Act" with the bonds issued to the Chatham Rail- 
 road Company, in exchange for its bonds are of equal value 
 and are directed to be funded at the same rate. 
 
 I may be pardoned for saying, in conclusion, that, in the 
 discharge of my official duties I have ever had in view the 
 interests of the State, and have endeavored to execute the 
 laws as I- understood them, or was legally advised in refer- 
 ence to them, and I do not deviate from that course in 
 obeying the statutes directing the exchange of bonds with 
 the railroad company. 
 
 Very Respectfully, 
 
 Your Ob't Servant, 
 
 D. A. JENKINS, 
 
 State Treasurer. 
 
(38) 
 
 LETTER FROM MAJ. JNO. W. GRAHAM, SENATOR 
 FROM ORANGE IN 1870. 
 
 Hillsboro, N. O, July 9th, 75. 
 Jno. D. Cameron, Esq., Raleigh, N. C : 
 
 My Dear Sir: — At your request I enclose a copy of a re- 
 port made by me in relation to the bonds issued during the 
 war for Internal Improvements under authority of Acts 
 passed prior to May 28th, 1861. By the contract made with 
 the Chatham Ruilroad Company the State is bound, and it 
 is ordained, chap. XIX. of Ordinances of Convention of 
 1868, sec. 3, " That the Chatham Railroad Company may at 
 any time before maturity take up the bonds of said Com- 
 pany deposited with the Public Treasurer by substituting 
 in lieu thereof coupon bonds of the State or other indebted- 
 ness of the State." The only question then is whether the 
 State is bound to make the exchange. I think this too 
 plain for argument. It is said in the Sentinel of the 8th, 
 " It is the exchange of bonds of which we complain and not 
 that the bonds issued during the war were recognized by the 
 Act," (meaning EL B, No. 422.) My report was to the effect 
 that the Internal Improvement bonds were a part of the in- 
 debtedness of the State. If this is so, the price the Chatham 
 Railroad pays is not the criterion, as the State did not make 
 the exchange originally for purposes of speculation but 
 merely to hold an idemnity against future liability on ac- 
 count of the bonds issued by the State. If these are returned 
 or their equivalent, the Treasurer would be compelled by 
 mandamus to deliverup the bonds of the Chatham Railroad 
 Company even if H. B. No. 422 had never passed. Thecaso 
 is precisely similar to that" of the Banks which were char- 
 tered in this State before the war. When they sue their 
 debtors and attempt collection, the debtor is allowed to buy 
 up the Bank notes and have satisfaction entered on the 
 judgment docket. The debtor may purchase the bills even 
 at one cent on the dollar or after judgment is given. The 
 
(39) 
 
 Bank is compelled to take its own paper, and this is all that 
 is required of the State by the exchange now being made. 
 
 Yours, &c, 
 
 JOHN W. GRAHAM. 
 
 REPORT OF THE COMMITTEE ON THE JUDICIARY. 
 
 The Judiciary Committee to whom was referred the me- 
 morial of Annie E. Henderson, in relation to certain bonds 
 of the State of North Carolina, issued under an act of the 
 General Assembly of I860, chapter 142, ratified the 16th day 
 of February, 1861, to her father, the late Charles C. Hen- 
 derson, submit the following report: That under the act re- 
 ferred to, the State of North Carolina authorized the issue to 
 the Wilmington, Charlotte and Rutherford Railroad of 
 $950,000 in bonds, and by the said act the said company 
 was to deliver to the State a like amount of bonds of the said 
 Railroad, secured by a first mortgage. That the bonds 
 were not issued to the said company until July 1st, 1862, 
 when bonds of the company were delivered in exchange for 
 the same. The committee upon examination of the Treas- 
 urer's report, find that four hundred and ninety-three 
 thousand dollars of the class of bonds described by the pe- 
 titioner, Annie E. Henderson, and of which she holds four 
 thousand, are still outstanding. The committee think 
 proper to raise the general question as to the validity of this 
 class of bonds, rather than to submit a separate report upon 
 every case that may hereafter be referred to them, as there 
 is the same general equity on the part of the holders of this 
 class of bonds to have them recognized. Four hundred and 
 fifty-seven thousand dollars of this class of bonds have been 
 expressly recognized by the State since the war, and new 
 bonds or certificates given for the same, as will be hereafter 
 shown by the committee, and the balance has been brought 
 
(40 
 
 forward as a part of the public debt in the Treasurer's re- 
 port. 
 
 The committee think the debt was in fact contracted at 
 the passage of the act referred to in 1861, before the war, 
 and the issue or use of the bonds was in no way in aid of 
 insurrection or rebellion, as from the evidence which they 
 have been able to obtain, they And that a large portion of 
 these bonds were paid out by the company for work done 
 before the war commenced. 
 
 Under the repeated decisions of our present Supreme Court 
 in regard to county obligations, there is no question that 
 the application of the principle therein laid down, would 
 render the State liable for these bonds. The committee also 
 have carefully examined the matter in the light of cases de- 
 cided by the Supreme Court of the United States in the case 
 of Texas vs. White, Chiles el al, and of Chief Justice Chase 
 in Evans vs. city of Richmond in circuit court, and submit 
 the following extract : 
 
 EXTRACT PROM TEXAS VS. WHITE, CHILES ET AL. 
 
 "And yet it is a historical fact that the Government of 
 Texas then in full control of the State, was its only actual 
 government, and certainly if Texas had been a separate 
 State and not one of the United States, the new government 
 having displaced the regular authority, and having estab- 
 lished itself into the ordinary functions of administration, 
 would have constituted, in the strictest sense of the word, a 
 de facto government, and its acts during the period of its 
 existence as such would b© effectual, and in almost all re- 
 spects valid , and to some extent this is true of the' actual 
 government of Texas, though unlawful and revolutionary 
 as to the United States. 
 
 " It is not necessary to attempt any definitions within 
 which the acts of such a State government must be treated 
 as valid or invalid. It may be said, perhaps, with sufficient 
 accuracy, that acts necessary to peace and good order among 
 
(41) 
 
 citizens — such, for example, sanctioning and protecting 
 marriage and the domestic relations governing the course 
 of descent, regulating the conveyance and transfer of proj - 
 erty, real and personal, and providing remedies for injuries 
 to persons and estates, and other similar acts which would 
 be valid if emanating from a lawful government must be 
 regarded in general as valid when proceeding from actual 
 though unlawful government; and that acts in furtherance 
 or support of rebellion against the United States, orintended 
 to defeat the just rights of citizens, and other acts of like 
 nature, must in general be regarded as invalid and void." 
 State of Texas vs. White, < hiles, et al. 
 
 !' In the case of Texas vs.- White, Chiles and others, the 
 Supreme Court held that the acts of a body exercising au- 
 thority in an insurgent State, as a Legislature, must be re- 
 garded by the United States as either valid or not, accord- 
 ing to the subject matter of legislation. That the Governor, 
 Legislature and Judges of Virginia, during the war, consti- 
 tuted de facto government, nobody will question. They 
 exercised complete control over the greater part of the Slate, 
 proceeding in all the forms of regular organized government.' 
 But then it was a government at war with the United 
 States, and in rebellion against its constitutional authority, 
 and could not be recognized in the national courts as the 
 lawful government, nor could its acts be recognized as law- 
 ful acts, so far as these acts had the effect, or were intended 
 to have the effect, of overcoming the authority of the United 
 States within the limits of Virginia, or of excluding that 
 authority from those limits. As to regulations concerning 
 marriage, descents, conveyance of property, everything in 
 short, which belongs to ordinary business and the common 
 transactions of life, its acts may be upheld as valid, but on 
 the other hand, those acts which were intended to give a 
 sanction to the proceedings of any body, corporate or other- 
 wise, which would have the tendency to subvert the author 
 ity of the United States, cannot be so regarded. 
 
(42) 
 
 This is the distinction laid down b}* the Supreme Court 
 in the case of Texas vs. White. Chiles, et at, and if we were 
 disposed to depart from it, we should not be at liberty to do 
 so. * * * But all this does not touch the controlling 
 question in this case. That question is, for what purpose 
 were the notes issu< d ? Were they or were they not issued 
 for the purpose of aiding the rebellion against the govern- 
 ment of the United States?" Evans and Evans vs. the 
 city of Richmond. 
 
 When it is remembered that the purpose for which these 
 bonds were issued was to assist in building a railroad, and 
 at the time that purpose was formed the war was not thought 
 of, it must be plain that there is no taint of illegality. If 
 after the war commenced and the State resolved to build 
 a road like the Piedmont Road, for the purpose of aiding 
 the war, the case would be different. — The bonds so issued 
 would not be binding. But no such purpose was contem- 
 plated when the State formed these obligations. 
 
 The committee find that by act of 1865, chapter 3, four 
 hundred and thirty thousand of these honds were surren- 
 dered to the State, and new bonds dated January 1st, 1866, 
 were issued to Wilmington, Charlotte and Rutherford Rail- 
 road Company, also that by chapter 56. of the laws of 
 1866 — '67, Heman H. Robinson, surrendered twenty-three 
 thousand dollars of the bonds described and received new 
 bonds in exchange for the same dated Januar}^ 1st, 1867. 
 Also that by chapter 68, of laws 1866 — '67, the Treasurer is- 
 sued a certificate to the Literary Fnnd for four thousand 
 dollars for bonds of the class now held by the petitioner, 
 dated January 1st, 1867, and now part of the recognized 
 debt of the State. The General Assembly of 1866 — '67 also 
 by chapter 50, authorized the Governor to appoint three 
 commissioners to investigate the claims against the State 
 and to distinguish between debts created for lawful purposes 
 and for war purposes. That Gov. Worth, appointed J. C. 
 Harper, Chairman, and R. H. Battle and W. W. Husted, 
 
(43) 
 
 Commissioners under said act. This commission in their 
 report made July 21st, ISO?, state " that the question of the 
 entire exemption from repudiation of the bonds described, 
 as a portion of the war debt cannot be even debatable. If 
 we have any State debt contracted during the war, that 
 may be pronounced entirely without stain or even suspi- 
 cion, it is surely that created by railroad bonds issued dur- 
 ing the war, but under authority of acts of General Assem- 
 bly passed prior thereto. 
 
 The Committee also find in their examination that $200,- 
 000 of bonds, dated October 1st, 1861, were issued to the 
 Western Railroad Compan} r under authority of chapter 137 
 of the laws of 1860 — '61 in exchange for bonds of a like 
 amount of that company, and also that bonds to the amount 
 of $220,000 were issued in the Western North Carolina 
 Railroad Company, dated October 1st, 1861, under authori- 
 ty of acts of 1860 — '61, chapter, 528, in payment of stock in 
 that company. As the two classes of bonds stand upon the 
 same footing with those described in the memorial of the 
 petitioner, the committee are of the opinion that the State is 
 bound for the same and the new bonds should be issued in 
 exchange. The decision of the Supreme Court in Phillips 
 vs. Hooker, is a settlement to the question as to the liability 
 of the State on account of the terms of the contract. Having 
 no doubt whatever as to the valid claim of the holders of 
 the several classes of bonds herein described, the committee 
 have instructed that the accompanying bill be reported and 
 recommend its adoption. 
 
 JOHN W. GRAHAM, 
 For the Committee. 
 
(44) 
 
 CARD OF THE BOARD OF DIRECTORS OF THE 
 RALEIGH & AUGUSTA AIR-LINE R. R. 
 
 The attention of the Board of Directors of the Raleigh 
 and Augusta Air Line Railroad Company having been 
 called to the fact, that an act passed by the late General As- 
 sembly has been made the subject of public discussion, the 
 Board deems it proper to submit the following statement of 
 facts in relation thereto : 
 
 The Chatham Railroad Company was chartered by act of 
 the Legislature of 1860-'61. During the war work was com- 
 menced on the road, but no part was completed for use. — 
 The Convention in March 1808 passed an ordinanceauthor- 
 izing the exchange of one million two hundred thousand 
 dollar State bonds with the Chatham Railroad Company, 
 for a like amount of its bonds for the purpose of continuing 
 the work which had been begun during the war. In the 
 ordinance it was provided, that the company at any time 
 before maturity might take up its bonds deposited with the 
 Public Treasurer "by substituting in lieu thereof coupon 
 bonds of the State, or other indebtedness of the State." To 
 secure the payment of these bonds by the company it was 
 required to and did execute a mortgage on its road-bed 
 property, &c. The State had before the war exchanged 
 bonds with other companies on terms similar to these. 
 
 The bonds thus received from the State were sold by the 
 Company, and the proceeds used in the construction of the 
 road. Several Amendments were made at different times 
 to the charter of the Company, and it being its intention to 
 extend its line by the most direct and practicable rou : e to 
 Augusta, Ga., its name was changed to the Raleigh and Au- 
 gusta Air Line Railroad Company. 
 
 To carr}' - out this intention, and complete this great work 
 it became a matter of importance to the Company to take 
 up its bonds held by the State, and to substitute thereupon 
 coupon bonds of the State, which it had the right to do un 
 
(45) 
 
 der the ordinance of the Convention above referred to, and 
 which authorizes the exchange of bonds. Tn making the 
 substitution, the Treasurer of the State and the officers of 
 the Company differed in opinion as to what classes of bonds 
 the Company had the right to substitute, and the Treasurer 
 was bound to receive. To obtain a construction of the ordi- 
 nance above referred to. and an Act of the Legislature in 
 relation to the same subject, actions were brought by the 
 Company against the Treasurer which were arried to the 
 Supreme Court in order that the rights and duties of the 
 parties mignt be adjudicated by the highest tribunal of the 
 State. The decision of the Court was in effect, that the 
 Company had the right to substitute, and the Treasurer was 
 authorized to receive from the Company for its bonds, any 
 valid bond or other indebtedness of the State, which had 
 been issued or contracted prior to the passage of the ordi- 
 nance above referred to, to wit: 11th, March. 1868. The 
 Company thereupon p.oceeded to deliver from time to time 
 to the State Treasurer, State bonds, the validity of which 
 was not questioned and which had been issued before the 
 said 11th of March, 1868. 
 
 Before the late war begun the Legislature had passed acts 
 providing for the issue of State bonds for internal improve- 
 ment purposes. Under these acts bonds were issued to rail- 
 road companies after the war begun, but they were not re- 
 garded as connected with the war and were always recog- 
 nized as valid. Under the Funding Acts of 66, 67 and 68, 
 coupons of these bonds we're received by the then Treas- 
 urers of the State, to wit: (Messrs. Worth and Battle, one or 
 both of them as they are informed) and bond and certifi- 
 cates of indebtedness issued therefor, which were recognized 
 as valid by the State and on the stock market; and in the 
 act passed at the late session of the General Assembly en- 
 titled, "An act to compromise, commute and settle the State 
 debt," the original bonds and bonds issued for coupons thus 
 funded are recognized as valid and new bonds are ordered 
 
(46) 
 
 to be issued for them according to their classification. The 
 most if not all of these bonds, were held in this and the 
 Southern States (as the Directors are informed) they not be- 
 ing recognized in the stock markets North because the} r had 
 on their face Confederate States instead of United States." 
 
 The Treasurer, notwithstanding the decision of the Court 
 which allowed the company to deliver these bonds\, as the 
 company was advised, still hesitated to receive them. 
 
 Under these circumstances it was deemed proper that 
 the Legislature pass ah explanatory act declaring the mean- 
 ing and intention of previous legislation and in # accordanee 
 with the decision of the Court, The act now referred to 
 was drawn and introduced into the Legislature for that pur- 
 pose. So far as the Directors know or believe there was 
 nothing secret in the introduction or passage through that 
 body. It being in itself right and free from objection, they 
 suppose it was passed in the usual course of business. The 
 Journal shows the day of its introduction — that it was re- 
 ferred to the Committee on Internal Improvements, was re- 
 ported favorably by that Committee and passed its several 
 readings. 
 
 As a matter of law these bonds being recognized b} r the 
 Legislature as valid in the act to compromise the State Debt 
 above referred to, the Treasurer was bound to receive them 
 without any additional legislation. 
 
 The passage of this act however cannot injure theyState, 
 since it is only additional recognition of the validit} 7 of the 
 bonds which ought never to have been questioned, and 
 when paid into the Treasury the State is benefitted by 
 having her debt reduced by the amount thus paid in. But 
 t may benefit the holders of these bonds who reside chiefly 
 in the South by giving them a better opportunity to sell if 
 they do not desire to fund. These bonds are of similar val- 
 ue and are placed by the bill to compromise the State Debt 
 in the same class with the bonds issued by the State to the 
 Road. 
 
( 17) 
 
 A copy of the act is hereto appended from which, it will 
 be seen that the whole purpose was declared in the Pream 
 ble. 
 
 W.J. HAWKINS, 
 JOS. B. HATCH ELOR, 
 P. C. CAMERON, 
 GEO. W. GRICE, 
 WALTER CLARK, 
 GEO. LITTLE, 
 W. W. CHAMBERLAIN, 
 
 Directors, 
 Office R. & A Air-Line R, R,, 1 
 Raleigh, N. C, June 30th, 75. ( 
 
 [Editorial in the Raleigh Daily News, July 3rd, 1875.] 
 
 A FOOLISH CRUSADE. 
 
 For ten days or more the Editor of the Sentinel, true to his 
 instincts of ruin, has exerted himself by voice and pen to 
 stir up some new subject of commotion and draw to him- 
 self a renewed share of that public consideration which he 
 is conscious is fast leaving him, and coming before the pub- 
 lic again, if not in the role of martyr, at least as the pecu- 
 liar guardian of the public honor and champion of its rights. 
 He has raised up a dust, and so far as the influence of his 
 \joice goes, may have succeeded in infusing some of his own 
 erratic ideas into the minds of his hearers, and impressing 
 those who know no better, with exalted notions of his saga- 
 city and wisdom. Beyond the sound of his voice his efforts 
 have fallen still-born, and have enlisted none of the press of 
 the State, except that of the Radical party who recognize 
 
(48) 
 
 in Josiah Turner a fit instrument to help it break down the 
 Democratic party of the State. 
 
 And really this would seem to be the direct aim of Mr. 
 Turner, and will certainly be the effect if he should suc- 
 ceed in inspiring his own hostility to the best men of his 
 party, by his arraignment of them for participation in what 
 lie alleges to be glaring frauds, and by affixing to the Leg- 
 islature a stigma which a Democratic body had been spared 
 at the hands of its political enemies. 
 
 What is the charge so noisily rung on the public ear? It 
 is that the Augusta Air Line Railroad is engaged in an op- 
 eration through which, by the exchange of worthless bonds 
 for valid ones which the company forces the Public Treas- 
 urer to deliver for its own invalid ones, it will swindle the 
 State of a million and a half of dollars ; and that the Legis- 
 lature of North Carolina, a body which up to this time had 
 been honored by the whole State for its incorruptible integ- 
 rity, had suffered itself to be corrupted or to act under undue 
 influences, and thus passed an act by which a scheming 
 corporation was empowered to swindle the State to the ex- 
 tent charged by the editor of the Sentinel. 
 
 What was the act of the rail road Company that has been 
 the origin of such grave charges? It was, that under 
 assumed authority of law, it had exchanged bonds of the 
 State in its possession, for its own mortgage bonds held by 
 the Treasurer of the State. 
 
 Now let us see if it had not trie right to do so. 
 
 The Convention of 1868 to enable the Chatham Rail Road 
 to finish its road, directed the State Treasurer to issue State 
 oonds, taking in exchange for them the mortgage bends of 
 the Company: but provided that the Company might take 
 up their bonds so deposited with the Treasurer by substitu- 
 ting bonds of the State, or other indebtedness of the State 
 for them. 
 
 The Supreme Court in a case made up between the Rail 
 Road and the Public Treasurer in order to obtain a defini- 
 
( 50 ) 
 
 tion of the bonds to be received, decided that the Treasurer 
 was bound to receive in exchange for the Chatham Railroad 
 bonds, any coupon bonds or other valid indebtedness of the 
 State — and says farther, "we take the words of the ordi- 
 nance, 'coupon bonds of the State' to mean any coupon bond 
 of the State then outstanding," that is at the time of the date 
 of the ordinance, March 11th, 1868. 
 
 But the point of the charge of the editor of the Sentinel 
 is, that admitting the decision of the Supreme Court to give 
 the necessary power, the Rail Road Company took advan- 
 tage of it to return to the Treasurer bonds in themselves 
 worthless, and by the force of secret or corrupt legislation 
 forced him to take them. 
 
 The class of bonds embraces those issued under the Act of 
 1860, known as " Internal improvement Bonds." These 
 bonds were issued under an Act or Acts passed previous to 
 the war, but were really not applied until after hostilities 
 began, and were headed ''Confederate States," instead of the 
 " United States." After the war this defect excluded them 
 from markets abroad, but as they had been used at home in 
 the early period of the war, they were regarded as a valid 
 claim against the State. 
 
 Their validity was recognized by frequent acts of subse- 
 quent legislation and in the hands of the R. & A. R. R. 
 Company came fairly under the definition of the Supreme 
 Courts " any bonds of the State" the Company was author- 
 ized to use in exchange for its own mortgage bonds. An 
 opinion of the Attorney Ceneral Sion H. Rogers, given in 
 1866, sustained the validity of these bonds. At the session 
 of 1868, the committee on claims, through its Chairman, 
 Kemp P. Battle, Esq., made a full and clear report upon 
 various subjects of inquiry, and among other things of these 
 very Internal Improvement Bonds. We have only room to 
 make the following quotation from the Report : "If we have 
 any State debt, contracted during the war that may be pro- 
 nounced entirely without stain, or even suspicion, it is sure- 
 
(51) 
 
 ly that created by the Rail Road bonds issued during the 
 war, hut under Acts of Assembly passed prior thereto de- 
 signed to accomplish high patriotic objects alone, and 
 sought to be carried out, with the best views by the most 
 useful spirits in all her borders." The validity of these 
 bonds being shown and their equality with others of their 
 class being established, where is the foundation for the as- 
 sertion that by the use of those bonds in exchange for the 
 mortgage bonds of the Chatham Road the State lias been 
 swindled ? These bonds as well as others were a recognized 
 charge upon the State. Apart from recognizition by decis- 
 ions of the Courts, they were included in the funding Act — 
 that for the settlement, commutation and compromise of 
 the State debt, and it became as much the duty as it was the 
 interest of the State Treasurer to receive them In receiv- 
 ing them in exchange for the mortgage bond.s of the Chat- 
 ham road, he was really decreasing the public debt by re- 
 tiring so much of its liabilties. Every bond of the class 
 embraced in the funding Act was so much a reduction 
 of the public debt, principal and interest. Every bond out- 
 standing is so much existing as an obligation of the State, 
 and under this operation of exchange the debt of the State 
 has been diminished to the extent of the outstanding bonds 
 that have been received in exchange. So far from any loss 
 to the State if it has gained to that amount. For these 
 bonds whose validity has been affirmed by the Supreme 
 Court and by solemn Acts of legislation must not be con- 
 founded with the "special tax bonds" issued at another 
 period and for far different objects and which the people of 
 the State very justly determined to repudiate. The taking 
 up or retiring of any of these valid bonds is so much de- 
 ducted from the indebtedness of the State. 
 
 Mr Turner has had much to say about the haste or secre- 
 cy with which the " act explanatory of certain acts and to 
 enable parties holding bonds of the State issued for Internal 
 Improvements under acts passed prior to the war, to sell the 
 
(52) 
 
 same," passed through the Legislature, and has intimated 
 that our silence on the subject proceeds from a complicity 
 in a fraud upon the public. The intimation is as silly as it 
 is malicious. Our position as Clerk of the House did not 
 
 carry us out of the lineof special duties, nor were we likely 
 to be informed of designs which were intended, if any, to he 
 carried through secretly. Nor did we feel called upon to 
 heed the idle and causeless clamor of the editor of the Sen- 
 tinel, or the call of an irresponsible committee to give infor- 
 mation that might be found by reference to its proper 
 source. 
 
 In the Journal of the House for Thursday, Jan. 28th, 
 page 304, will be found the introduction of the bill referred 
 to, "explanatory of an Act, &c." Mr. Moring, of Chatham, 
 was its introducer. It was referred to the Committee on In- 
 ternal Improvements. On page 657, March 11th, will he 
 found the report of the committee through its chairman, 
 Mr. McRae, " reporting that there was neither objection to 
 nor necessity for, the passage of the bill." At the evening 
 session of Friday, March 19th (page 759) the bill— H. B. 422 
 came up on its second reading, and failed to pass for want 
 of a quorum. Mr. Moring renewed the question on the bill 
 on its second reading, and It passed. Under a suspension 
 of the rules the bill came up on its third reading. 
 
 Mr. Kendall called for the ayes and nays. The call was 
 not sustained, and the bill was put to a vote and again failed 
 for want of a quorum. 
 
 The question on the bill was then renewed. 
 
 Mr. Lloyd moved to postpone and make the special order 
 for the same day at 11 a. m. The motion was rejected and 
 the bill passed its third reading and was ordered to be en- 
 grossed. 
 
 The bill was sent to the Senate and came up on its several 
 readings on Saturday, March 20th, and by reference to page 
 644 of the Senate Journal it will be seen that this, like many 
 bills before the Senate at the same time, was read and 
 
(53) 
 
 passed the second and third time, the yeas and nays being 
 dispensed with by consent. 
 
 On March 10th the bill to compromise, commute and 
 settle the State Debt, passed its final reading in the House. 
 On the 12th of March Mr. McRae made his reporrt on the 
 bill " explanatory, &c," the recommendations of which are 
 explained by the provisions of the bill for the settlement of 
 the State Debt, making further legislation to facilitate the 
 the sale or exchange of bonds useless, since the latter bill 
 gave all the powers needed. 
 
 It is therefore absurd to assert that there should be any 
 secrecy or any collusion in the passage of a bill by which 
 not a solitary advantage was obtained. 
 
 We present below the card of the Directors of the Raleigh 
 and Augusta Air Line Road. Some names at least can 
 escape the slurs of the Sentinel At any rate, they are above 
 it, and a discerning public will give more weight to their 
 statements than to the reckless and ill sustained assertions 
 of one who is working simply for political capital. 
 
 The Legislature needs no defence. Its purity and integ- 
 rity are assailed for the first time, and that by one of its own 
 party peculiarly interested in maintaining and defending 
 its character. And the public will be very well enabled 
 to judge from the above example how little foundation there 
 is for charges, the effect of which, if true, would be as suc- 
 cessful in the degradation of the representatives of the Dem- 
 ocratic party, as were the efforts of Mr. Turner to fasten the 
 deserved stigma upon those of the other party in times past, 
 when his zeal appeared really to spring from patriotic mo- 
 tives. 
 
(54) 
 LETTER FROM JUDGE KERR. 
 
 The following is a letter from Judge Kerr commenting 
 upon an article in the Raleigh Daily News, upon the sub- 
 ject of the injunction granted by him restraining the 
 State Treasurer from a farther exchange of bonds with 
 the Raleigh and Augusta Air-Line Railroad Company : 
 
 Reidsville, July 21st, 1875. 
 To the Editors of the News: 
 
 My attention has just been attracted by an article in your 
 paper of the 21st, in which an allusion offensive in charac- 
 ter, is made to my official aetion in the case of Harris vs. the 
 Public Treasurer and the Raleigh & Augusta Air-Line Rail- 
 road Company. Among other things which you state in the 
 article referred to, is the following, viz : " We are at a loss to 
 conceive the force of arguments which induced Judge Kerr 
 to lend himself ( italicised by me,) to the futherance of per- 
 sonal purposes, inadvertently perhaps, but not less effect- 
 
 II q 1 1 xr * •¥■ •¥ k * * % *p % 
 
 The burden of the attack falls upon the Legislature and 
 its bad effects upon the Democratic party. " 
 
 In the first place, Messrs. Editors, I am slow to believe 
 that an} r personal offense to myself was intended by you, in 
 publishing the article referred to, but the article is mani- 
 festly offensive in its terms, and I respectfully ask that you 
 will reconsider your conclusion in regard to my official con- 
 duct alluded to by you. 
 
 Mr. Harris, the complainant, by his Attorney and Agent, 
 Josiah Turner, came before me with a complaint in due 
 form of law, in which it is alleged, among other things, that 
 a great wrong was about to be done to the people of the 
 State, by virtue of what purports to be an act of the Legisla- 
 ture of the State, passed at its last session ; that the said 
 supposed act of Assembly, is in fact, no part of the law of 
 the State, for that it never received the sanction of the two 
 Houses of the Legislature, but is in fact a fraud, having 
 
(55) 
 
 been surreptitiously passed through the Senate, without 
 going through the forms required by law. 
 
 This was sworn to, and upon this as well as other allegations 
 in the complaint, a perpetual injunction is prayed for, to 
 prevent the public Treasurer, who is a defendant in the 
 case, from making with the other defendant the exchange 
 of bonds, which the supposed fraudulent act authorizes 
 Upon this showing of the plaintiff, who sues for himself and 
 for other tax-payers in the State. I granted an order, that 
 " upon the plaintiff's giving bond and good security in the 
 sum of ten thousand dollars conditioned for payment of all 
 damages which the defendants might sustain by reason of 
 the plaintiff's wrongfully suing out said order," the Clerk of 
 Orange Superior Court should issue a summons to the de- 
 fendants to appear before me at the next term of Guilford 
 Superior Court, on Wednesday of said term, and show cause 
 why an injunction should not be granted as prayed for in 
 the plaintiff's complaint and that in the mean timethe pub- 
 lic Treasurer be restrained from making any exchange of 
 bonds with the other defendant, the Raleigh and Augusta 
 Air-Line Railroad Company. 
 
 To my mind it is very clear that I was bound to grant 
 this order. I judicially know nothing of the facts which 
 have influenced your minds in regard to this controversy. 
 I am, as a judge, bound to hear and determine all matters 
 brought before me, without regard. to what may be the per- 
 sonal character or political relation of the Jparties, and I 
 should feel that I had justly forfeited all claim to personal 
 respect and official support, were I in the least degree in- 
 fluenced in my judicial actions by regard to the effect those 
 actions might be supposed to have upon either of the polit- 
 ical parties, into which the people of our State arc now 
 divided. 
 
 In my office as Judge, it behooves me not to know any 
 man, either as a friend or as an enemy, as a political asso- 
 ciate or political opponent, but, ignoring all these disturb- 
 
(56) 
 
 ing forces, it should be my earnest aim to administer the law 
 with inflexible justice to all, without fear on the one hand 
 or favor on the other. 
 
 Respectfully yours, 
 JOHN KERR, 
 
 We need not point out to the professional reader that an 
 Act of Assembly is law, if constitutional, and that Judge 
 Kerr erred in supposing that the judiciary, a co-ordinate 
 branch of the Government, could go behind the signatures 
 of the two speakers of the General Assembly, and at Mr. Tur- 
 ner's suggestion of " fraud and deception ," examine into the 
 motives which actuated the Representatives of the people. 
 For their motives the members of the Assembly are respon- 
 sible to their God, their consciences and their constituents — 
 and to them alone. No one doubts that the distinguished 
 Judge did what at that time he deemed his duty and he 
 proved this (if indeed it needed proof) by promptly dissolving 
 the restraining order and dismissing the action when upon 
 examination he found there was neither ground in law or in 
 fact for the charges made in the complaint. 
 
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