Prescott journal. [volume] (Prescott, Wis.) 1861-1871, 1865-03-11
SHALL THE GOVERNOR OBTAIN THE
SUPREME COURTS OPINION
DEBATE IN THE SENATE THURSDAY, MARCa "a.

The bill to enable the Governor to get the
opinion of the Supreme Court relative to
| laws of doubtful constitutionaIity, designed
to enable him to procure its opinion as to the
law of last session, providing a sinking fund
for the benefit of Farm Mortgagors, from the
earnings of certain railroads, under which the
/ time has come for the appointment of a re-
ceiver, and which had passed the Assembly,
but the indefinite postponement of which was
recommended by the Senate Judiciary Com
mittee, was taken up and debated at some
| length.
| Senator Thorpe said similar provisions to
| those of this bill existed in Maine, New Hamp-
shire and Massachusetts,, and he saw no i'm
propriety in the Governors getting the opin-
| ion of the Supreme Court on laws when great
| interests were involved.
Senator Pope said the object of this bill
was to assist the farm mOrtgagOrs, toward
whom he had the most friendly feelings, ana
desired to afford all the relief possible. He
| understood too that the Governor wished the
passage of the bill, and he had been anxious
to bring his mind to consent to it if possible,
but the more he examined, the better he was
sat.sded it would be an entire nullity, that
the Court could not and would not act under
it. He pointed out the difference between
our Constitution and those of the States re-
| ferred to. Our Constitution only gave the
|, Supreme Court appellate Jurisdiction in such
cases as this. An opinion given in this way
was not finding, and might be reversed by
change of Judges or even by the same Judges
when the case was regularly brought before
them.
Senator Thorpe replied to the objections
urged, and claimed that the Supreme Court
was not precluded from considering case
thus brought before it that the provisions
of this bill were entirely fair, and its result
would be salutary. decision given in the
regular way would be equally liable to be re-
versed.
Senator Sessions said the class of people
| intended to be benefited by this bill had his
warmest sympathy. Many of them were
included in his constituency, who had been
villainously swindled by this farm mortgage
arrangement He would do any thing 60 &c
ieye them which could be done without
injury to the State. He thought this bill was
inadequate to afford them relief; that the
Legislature had no right or power to pass
such under our Constitution. This was
not an original or appellate suit; there was
no case, no parties. Besides the cOnstitu-
tonal objection, he opposed the bill on gem
eral principles of public policy, as introduce
ing system of practice that would be most
injurious to the State. He thought that any
court with any self-Fespect would refuse to
act under such Law.
Senator Clark said he had large lumber
of farm mortgagoIs among his constituents,
whom he was anxious to relieve so far as he
could. He did not think this bill violated
the Constitution, and though he did not sup
pose an opinion of the court, obtained as was
proposed, would be binding in any other
court = he thought there was no objection to
the Governors obtaining an advisory opinion
from the Supreme Court in this way. If the
court held it was proper and right, all well,
if not, there is an end of it.
Senator Sessions said if it was admitted
that the opinion sought to be obtained was
not binding he could see no use of passing this
bill. He was opposed to fishing round the
Judiciary after e1PGrte opinions, given with.
out mature reflection, which on solemn argu-
ment it might be obliged to reverse. If the
Governor wanted legal advice let him go to
the Attorney General or to other able lawyers,
but don't tamper with the Judiciary.
Senator A. Fl. Young said there was no
benefit to be derived from the bill which
would not result from taking proceedings in
the regular way. If the Governor had any
doubt as to the sItutionality of the law
he could refuse to take action, and appoint
receiver under it, and the Farm MoFtgagors,
by applying to the Supreme Court for a writ
of naa,adanaus to compel him to do so, could
test the question. If he did appoint a re-
ceiver and the railroad companies were dis
satisfied, they could apply for an injunction.
A decision as to the constitutiOnality OF the
law could thus be reached, which would have
some binding force, in less time. than under
this bill, the passage of which would open
the door to endless trouble. q u
Gau,tor Tbnrr.a held that tho
Court could not issue any writ interfering
with the duties of the Executive. lift could
compel the Governor to do or to refrain
from doing, it would assume all the power of
the State. He said a definite proposition
was to be submitted. It would save litiga-
ton and heavy expense, and he could not see
that any harm would result se.F .a
Senator Pope said we had admired Jack
son because he was not afraid to take the
responsibility, and he had sufficient conf
dence in the Governor to believe he would
take the responsibility of acting in this mat
ter as he deemed best. He again urged that
there was no necessity for this special legis-
latioh, and, as well as Senator Young, show
ed that the Supreme Court had Jurisdiction
and could compel the Governor to perform
certain acts ...[l f.7n sac
Senator Bentley said the Senate was bound
w ScAcAuCA buS DOoAAAo WhAOh buC pdoSdHC VI
this bill would have, on general principles
and he thought its effect was bad. If there
was any necessity of such action as this bill
proposed, to relieve the Governor, he thought
the best way was to pass law transferring
the appointment of receiver to the Court,
and then they would have to decide, and the
Governor would have no trouble He moved
a recemmittal to the Judiciary Committee,
but the motion did not prevail. -, ss-sA'
Senator Webb said he did not oppose this
bill on account of any sympathy with the Su-
preme Court, lest they should stultify them
selves by acting under it, nor any opposition
to the class for whose special benefit its pas
sage was asked. But it was class legislation
such as he was always opposed to. He forci-
bly, argued the unconstitutionality of the bill, |
calling particular attention to section OF
article To-, of the constitution, which he
claimed conclusiYely showed that the Su-
preme Court could have no jurisdiction in
such a case.
The Senate agreed to indefinitely postpone
the bill by the following vote:
Ayes.-Barnum, Bentley, Blair, Case, W. H. |
Chandler, ]. A Chandler, Cole, ElWood, Littlejohn,
Pope, Reed, Sessions, Van wyek, Webb, A. II. |
Young-15.
Noss.-Bowman, Clark, Ellis. Harris, Lawrence, |
IA 2rnsfh