Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-03


pose. Tits treaty between the State and the
public creditors. tell the attorney general
he wlllnot find single instance Of a sovereign
nation settling with its creditors except by
similar means and commissions. The sprece-
| dents are numerous in our own authorities.
An individual, with joint consent, may sub
NIT his cause to arbitration and no writ Of
prohibition would lie. Is the State debarred
from privilege enjoyed by every citizen
commission of 1877, Whence was its power ?
Not from the constitution. Nor was 1t in
violation of that instrument, because 1t came
! from the inherent powers Of government ap-
plying to amatter wholly within and OF itself.
Such matters are not fit subjects of the ortli-
nary legal maxims. The proceeding was not
Unconstitutional but extra constitutional.
The tribunal which this State has created
for arbitration of her differences stands as high
as any court. The writ Of prohibition cannot
issue, because the tribunal does not stand in
the descending line. When the State appoints
a commission or court of arbitration, sit is a
missioner to call it inferior to the supreme
court g.-o-ys. feer--4sf ,,r, ~ SsTe-s.
The general duties of the commission are in
40 sense judicial, according to our constitu-
ton. In Western Railway Co, VS.. DeGraff
this court settled these principles as contend.
rs N. w. Rep, 345 The legislature could
have conveyed the lands absolutely, but it in
| terposed commission of executive officers to
pass upon the Jaw and the facts, and the ap-
plication of the law to, the facts. =,
This commission is created simply to give o
piece of advice, q voice, to the governor. You
cannot entoin voice. You cannot say these
persons shall not express their opinion upon
the matter submitted to them. aas'
Nobody but the Legislature can represent the
State in its contracting capacity. The legisls-
| ture provided $4,000 to help the attorney gen
eral protect the rights and interests Of the
State, "under this act''-not against it.
The legislature, still assuming the constitu-
tional amendment to be out of the way, had
| the right and power to provide in all respects
| for the adjustment of this debt, by its direct
act, or through designated officers, or by ar
| bitraters to be selected as it should provide.
There is a distinction, which cur friends have
overlooked, between what the State may do
for itself and what it may do for private par
| ties.
In the case of Wisconsin VS.. Torinnes the
| legislature made a note valid, on which the
| courts had before refused judgment, by ratify-
| ing the action of it's agent, and the court held
| this was not an exercise of Judicial power by
the legislature, and then gave judgment on the
note. -
The case of the county commissioners of
Rice county, in 8 MIMI, illustrates the mis-
take of the attorney general. 1t was decided
by Judge Wilson III my favor, and therefore l
think it was good decision. The law cOnfers
judicial powers on county commissioners, for
| acting on the rights of third parties. So,
| when public officers are acting for the State,
| they do not come under the prohibition of the
| exercise of judicial powers except by courts.
Our friends were loaded for duck and have
got a wolf. So s.
Wilson Gnterrupting)- is the best
| illustration ever heard.
Cole-Wait till get through. They loaded
| for private party and have got the State
The number of these boards or commissions
| is legion. But no writ of prohibition lies
against them.
There was reason why the reference should
be had to this commission. Whenever the
payment of the bonds has been advocated the
response has been, you have been bought to
do your duty, you have been bribed to be
honest. That has been the cry for twenty
years.
A precedent in point was the appointment of
board of auditors of Sioux war claims in
| 1928. Nobody supposed a court was con-
stituted, although the board exercised Judicial
functions. 1t was composed of executive
officers and took $3.50, 000 out of the treasury
Furthermore board of appeals, composed of
| executive officers, was created in 1864, which
appears to have been court of record, &C
| cording to the arguments advanced here.
The powers given to the State auditor in
| 1878, is further illustration of judicial pow
ers being constitutionally exercised on behalf
of the State. He heard and decided tax as
sessmentS and construed the law.
| The Seymour, Sab.n q Co. commission of
| 1878 is another illustration. It was appointed
| to settle all matters of difference between the
State and that firm. And the law providing
| for the commission delegated to third persons
| The power to appoint commissioners. But
| that it was constitutional and legal is appar-
ent when YOU consider it was the State acting
| in its corporate and contracting capacity.
| Another is the Lake Superior commission of
| 1878, appointed to settle and adjust the claims
of the Lake Superior & Mississippi Railroad
company against the State, for stumpage sold
| by the State auditor. That commission had
| to pass upon both law and fact, and the law
was alternative IN its effect like the act we
| have under consideration here.
But here is single matter of difference, a
| single question of law, submitted to certain
gentlemen, heads of courts of the State,
whose opinions will give credit to the new
bonds.
Dealing with the State in it's contracting ca
pacity, the objections of the attorney general
| do not apply.
| In Murray's Lesser VS.. the Hoboken Land
duu improvement COMpduJ9 LILO A4OWS Ss6sj
| the exercise of judicial power by an executive
officer was sustained because it was for and
| by authority of the government.
Practically, we are proposing to refund our
debt at fifty certs instead of one hundred
cents on the dollar. But theoretically, we do
| not force our creditors to come into court and
accept this proposition.
| Closing the first subdivision of his argu-
ment here, the speaker said he felt confident
| it was unnecessary to follow the attorney gen.
eral into an elaborate review. He maintained
| that the State, acting in it's sovereign capac-
| ity, had proposed new contract, which had
been accepted by the bondholders. There was
no question of the exercise of judicial powers
| in this. And that, he thought, settled the
matter.
But before proceeding to answer the attor-
ney general from his standpoint, he would re-
| fer to his objection to the Intervention of the
commission. Conceding that the commission
| is to exercise judicial powers, yet it
will only do so by voluntary con-
sent of the parties. It is not a
court inferior 10 the supreme court, whatever
you call it. But it is not court Being pro-
vided for settlement of case between the
State and other parties, it is commission of
arbitration. Therefore the writ Of prohibition
will not apply
This commission may go on and file its
opinion. It falls harmless or of no force If
nothing more is done-if the governor does
not act; and there is where, if ever, this court
shnuld intprfpre Won have M mower tn nre.