The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1865-02-03

lion, request the opinion OF the Supreme
Court, or any one or more of the Judges
the duty of such Court or Judges, when 80 re-
quested. respectively, to give such opinion In
writing"
We are aware of but two instances under
our State organization in which similar resOlu-
tons have been passed, and in both cases re-
plies were made declining to express any
opinion upon the points submitted. (Journal
of the Senate, 1858, page 49, ill., 1868,
page 75.)
We might be justified in resting on these
precedents. But We perceive that in neither
case was the resolution considered by all the
members of the Court; nor does either of the
opinions given by the Judges cover the whole
ground of the power of the Legislature and
the Court under resolution of this kind. We
therefore. deem it proper out of respect to the
senate, and in view of the important principles
involved, to state briefly thu reasons for the
conclusions at which we have arrived
- oy Inc constitution the power of the State
government Is divided into three distinct
departments, legislative. executive and judicial
Inc powers aud dut les of each department are
distinctly defined. The departments are indie
Renoent OF eacn other to the extent, at least,
that neither can exercise any of the powers
OF the others, not expressly provided for.
CONSTITUTION, article 3, section1
This only prevents an assumption by either
department of power not properly belonging to
it, but also prohibits the imposition. by one.
OF any duty upon either of the Others moi
within the scope of its Jurisdiction, and 'it ia
encroachment on either" Any departures from
these important principles must DO attended
This question is well considered in note to
Haybune's case, Dali ct GEO., In which the
Circuit Court for the District Of New York,
Jay Chief Justice, says, That neither the legis.
lature nor the executive branches can consti-
tutionaily assign to the judicial any duties but
such IS are judicial anG are to be performed in
q judicial manner" ..ir sg9.=1 - , 81
The duty sought to be imposed by the sec.
ton of the act referred is, clearly, neither q
Judicial act nor is 1t to be performed in 3
judicial manner. 1t constitutes the Supreme
Court, the advisers of the legislature-noshin
more. This does not como within the pro-
visions of the Constitution, and, a. the Con-
stitution now stands, would be, in our opin-
ion, not only inconsistent with judicial duties
but dangerous precedent. The improperly
of an authorized expression of opinion by
Judge or Court, especially one of last re-
sort, upon matter which may subsequently
come before the court for adjudication will
immediately suggest itself If the statute IN
der consideration is in conflict with the Con-
stitution 1t imposes no duty, and any opinion
OApiCooCN III pursuance VI dCtlOu uuutf II u
extra judicial, and no official responsibility
attaches to the Judge or Court voluntarily
giving it; The evils which might result to
the people from such a source will suggest
themselves on a moments reflection.
In all the instances to which we have had an
opportunity of referring, where courts have
responded to resolutions of this character in
other States, provision has been made therefor
in the State Constitution. Constitution of
Massachusetts D. Hnnatitu-
ton OF New Hampshire, section ~
And OF course In such case official response
bility attaches to the discharge of the duty,
and thus one serious objection is removed. Al
though we confess that, for other reasons,
such constitutional provision does not ad-
dress itself to our minds with any favor.
Whether under the Territorial organization
ed we need not consider, since only such Ter
rltorial laws as are not inconsistent with the
Constitution are preserved by the schedule to
to that instrument.
We are, therefore. unanimously of opinion
that the section referred to authorizing the sc-
ton of the Senate is unconstitutional and void,
and Therefore imposes no duty on the Court.
And we are prevented from voluntarily COM
plying with the request by the views we enter
tain Of our judicial duty and the injurious ten
dency of such precedent
We must therefore respectfully decline to
comply with the request contained in the reso
luton. s. J. r. MCMILLAN,
Associate Justice Supreme Court
ST. Paul, January "a, 1865.
BILLS INrRODUCxD.
By Mr. PORTER-a bill for an act to amend
an act providing for the recording and distrib'
uting the Journals of the Legislature and laws
and public documents.
By Mr.. SHILLOCK-a bill tor an act relat
inr IN Sfata PRINTING RafarraN a Com IN nj oe
on Printing and ordered printed.