Saint Paul weekly Minnesotian. [volume] (Saint Paul, Minn.) 1858-1859, 1859-07-30

AZ, nays 10, on the same day, but the entry
on the journal is, @
$50 the bill was lost for want of two
thirds vote" = 20 say 5]
: On the 3lst day of July, 1853, motion
was made to reconsider the vote by which the
bill was lost for want of a two-thirds vote.
which motion prevailed without division, SO
that the bill was restored with the first Sec
ton stricken out. ....--.
On the 4th day of August, 1858, motion
was made to put the bill upon its final passage,
which motion prevailed by yeas As, nays II.
The bill was then passed as amended, viz
without the first Section, and so returned to
the Senate. r
The Senate refused to concur in the Amend
ment made by the House by yeas IA, nays
II, and appointed committee Of conference.
The refusal of the Senate to concur in the
amendment made by the House, being an
nounced, the House appointed a committee of
conference to act with the committee of the
Senate, upon the bill.
On the 10th day of August, 1858, the Joint
committees of conference reported the Bill to
the House, and recommended that the House
recedc from its amendment 'lt ...t r
A motion was made that the House adhere
to its amendment, which motion prevailed by
yeas SO, nays 50.
Various efforts were subsequently made to
resuscitate the bill, but without success until
the 18th day of August, 1858, when the
House reconsidered the vote by which it had
refused to recede from the amendment by
yeas 38, nays 80.
A motion was then made that the House
recede from the amendment, whereupon the
point of order was raised that the reconsider
alton could only be constitutionally determined
upon by two-thirds vote. The point of or
der was over-ruled by the Speaker, and the
motion prevailed by yeas 3s, nays a.
This was the last, and the above specified
is all, of the material voting upon the said
Amendment in the House.
The provision of the Constitution of the
said State is, (Sec. Is, Art. TX, "The Leg
| islature may, By tsco-thicds cote, pass gen.
| eral Banking Law, &C., &C."
| Therefore the said amendment upon which
the said Bank of La Crosse and La Crescent
and other Banks in Minnesota found issues of
circulating notes based upon deposits of Min
nesota State Railroad Bonds at fictitious
valuation of ninety-five cents on the dollar,
was not passed by vote of two-thirds of Ell
Their branch Of the Legislature, and the first
Section of the same was never passed, nor
'oted upon affirmatively by the House Of Rep
rpsentatives at any time, and is consequently
| an absolute nullity.
That the foregoing facts. with correct re-
ferences to the pages of the journals OF
the said Legislature relative to said proceed
ings, were all duly submitted to the said At
torney- General of the said State, at the time
aforesaid, and he was requested to apply for
leave to commence the said action bu ref IS.
ed to make such application in the manner
and from stated in his letter to the At
torney of your petitioner, dated July 18th
1859, true copy whereof is hereunto annex
ed, and made part of this petition.
That section 8 of oh ,pter 80, of the re.
vised statues of Minnesota makes it the Off
cial duty of the said Attorney General to
make such application.
Your petitioner therefore prays that writ
of alternative Mandamus may he issued out
Of and under the seal of this Court, returna-
ble as this Court may direct, commanding the
said Attorney General, to make the said ap-
plication for leave, and comply with the duty
enjoined upon him by the said statute in such
cases made and provided; and for such other
and further relief as the nature of the case
may require and to the Court may seem pro
per. w. l.. BANNING.
| Dateu ot. fau July 10, 1908.
STATE OF MINNESOTA, tes
County of RdmSey. 3d.
William L. Banning, the petitioner named il
foregoing petition being duly sworn says that the
| said petition is truly of his own knowledge, eX
cept as to matters therein alleged upon informa
ton and belief, and that to these matters he We
| rily believes it to be true.
WIN. l.. BANNING.
Sworn to and subscribed before me, July IL, 1859
w. b. McGEORGE, Notary Public
Upon presentation of this petition, tn,
Court made an order requiring the Attorney
General to appear on the 18th inst, and show
cause why mandamus should not be awarded
pursuant to the prayer of the petitioner. Tn,
matter was adjourned until the goth inst.
when it was fully argued before a full bench
by Mr.. Hollinshead and II. j. Horn in behal
of the petitioner, and by the Attorney Gene
raj for himself
On Saturday the 23d inst, the following op
inion of the Court was filed;
William L. Banning, Plaintiff, agt. Charlie
Ii. Berry, Defendant
We do not think that the Attorney Gener
al has exclusive and absolute discretion as t.
whether he will or will not apply for leave t.
bring actions against corporations, under thu
SOth chapter of the Revised Statutes bu
think that the act imposes q duty on him 81
to apply when case is presented to hin
which makes it reasonably probable that any
Of the acts or omissions emu nerated in tn,
statute can be proven against corporation
when the application for leave to sue is mad,
to the Court or Judge, then the discretion a.
| n u-hathpr ma ootinp cha III no hrp,,rhf
is with the Court. 1t then becomes review
by the Court or Judge of the case presented
to the Attorney General, which review is OF
may be conducted nnder tho oAteIltlet
advantages given by section four of the chap
ter of notice to the offending corporation
and an opportunity of hearing both sides o.
the question, which advantages are not pos
sessed by the Attorney General.
The application for leave to sue should, il
seems to us be matter Of course, on pro
bable or prima tacie case being made out tc
the Attorney General, as no rights are or car
be affected thereby. The determination Of
the granting, however, and the granting or re.
fusing of leave, is a much more deliberate
proceeding, and full powers are conferred up.
on the tribunal deciding it to become possess
ed of the W ole case, and protect the rights
of the corporation as well as the public.
We think sufficient case is made out in
the papers which were presented to the At.
torney General in this case, and that he
should have asked leave to bring the action
The writ of mandanus must issue, com.
manding the Attorney General to apply for
leave to Justice of the Supreme Court with.
in twenty days after the service of the writ
upon him to bring an action against the said
corporation as prayed for in the application
for this writ.
The writ of mandanuo shall be served up
on the Attorney General by the Clerk of this
Court, or the Sheriff Of any County of this
State, by handing to and leaving with him a
true copy thereof within ten days after the
filing Of this decision.
Ordered accordingly. FLANDRAu.
The facts being undisputed and indisputa-
BILE, this decision of the highest judicial tri,
bunal of the State, in effect declares the