Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-07-31
THE BOND COMMISSION.
COURT Or COMMISSION, IT'S ALL
THE SAME, ARi

ACCORDING 10 SAItOTncy UcAoT01
If 1t Is Court it Cannot Exercise the
Legislative Powers Delegated to 1t, or
Determine the Judicial Questions on
which it's Opinion is Asked--If It's Not
a Court 1t Cannot Exercise Judicial
Powers or Act for the Legislature--C Con-
tinuation of Argument by the Attorney
acknowledgements to Monday--The
Proceeding Before the Supreme Court
To Last Week Longer.
At the sitting of the Supreme Court
yesterday morning Attorney General
Hahn resumed his argument as follows,
with readings at length from the authori-
ties cited:
It is the duty OF the legislature itself, in the
first instance, to pass on both the eXpediency
and the constltutionality of any act passed or
proposed to be passed by it. Cooley, Const.
Wis, 500. Iowa, 2O3 and 227. 10 CAL,
4O2 10 Mimi, $50. X Ills, SO to 63. IS
N. Y, 6S2. i Dillon Munic. Corp, Sc, 81.
Cooley on Prime. of Const. Law, AS
| If it is claimed that the legislature did pass
on the constitutionalitv on the act, but pro-
posed to submit that question to the commits
sion for approval, or that the question is not
as 70 Tue cons'i'uey VI Sh1S ae' ISL 4Iia
amendment, then we say that both
are purely Judicial questions and
can only be referred to the courts estab-
| lished under and by virtue of the constitution,
and cannot by mere legislative decree be con-
| ferred on any other person or body. Art. =,
| sec. 1, constitution. Cooley Const. Lin, SO
and 81, and notes. II Penna., State, 494 ~
| Wis, 1870. Wheaton, 327.
| Tho leOis1ature has OnsV mower 10 saw what
the law shall be. 1t is for the courts to say
what the law is. Johns, 49S. Cooley Const.
Linn, lis. Mimi, 262.
| "To declare what the law is or has beentls q
| judicial power; to declare what the law shall
| be is legislative. One of the fundamental
principles of all governments is that the legls-
islatiye power shall be separate from
| the judicial" But if it is to be considered
as an exposition of this amendment for the
| information and government of the courts and
| people, then it would be taking cOgnizance OF
a judicial question. This constitutional
amendment is constitutional law enacted by
the people in their sovereign capacity for the
guidance and control of every department OF
the State government and every person subject
to it, and can only be repealed or changed by
the people of the State in the manner provided
in the constitution itself. Should the legisla-
ture say that it is either valid or invalid, 1t
could not detract one particle from its binding
force, if it had any, or add one jot or title to
its validity. They cannot repeal it, alter 1t, or
modify it in any way. 1t was enacted by
power above, and greater than they. Ii 1t is
the constitutionality or validity OF this amend
ment, that is purely and solely Judicial.
The question of what the law is-which
includes the question of its validity and con-
stitutionality-i purely a judicial question
and can, under article 6, section 1, OF the con-
stitution, only be passed upon by the courts.
Cooley, p. 81.
The legislature cannot authorize any person
to exercise any judicial power because the u
i dical power of the State is exclusively vested,
by the constitutional the courts. Andif as
we claim, the powers conferred or attempted
to be conferred on this tribunal by this act are
of judicial nature-if they are powers prop
erly belonging to the judicial department of
the COVE hment, then this act, so far as it
creates tribunal not known to the constitu-
ton, and so far as it refers Judicial question
to such tribunal is in contravention OF the con-
stitution and void. Brevard, S. c., SOL.
But it may be claimed that this tribunal is a
legal tribunal and authorized to pass upon and
decide these questions on either of two
grounds, viz: First, because 1t is a new court
with special powers created by this act or,
second, because it is only conferring on the
supreme court certain additional functions
and duties. It is true that the constitution
to time establish "such other courts, inferior
to the supreme court" as it sees fit. but such
courts must be established by ''two-t thirds
vote' and it will not be pretended or claimed
that this act received such vote. To the sec
ond we say that the act does not confer or
pretend to confer, on the supreme court any
duty or function in connection with this mat
ter; nor, even if they had attempted to
do SO, had they such power to
give, nor would the supreme court, under the
constitution, have any right to exercise the
duties sought to be imposed by this act.
If it lis claimed that this question is submitted
to the members of the. commission as judges
and not simply because they are judges, then
we say unless it is a judicial question they
have no right, as judges, to entertain or decide
it, and if a judicial question then it must be
submitted in judicial manner, 6 Cal, 145;
CAL, 90 and 343 ia Mass, 247; 90 Mich,
400 and 1862.
First. If this is not judicial function it
cannot be exercised by the commission as
judges nor as commissioners, because the con-
stitution does not allow them to hold
that may be cleaned from the
action of United States judges can be no sup
| port to such action, for the reason that the
constitution of the United States does not so
| explicitly restrain the judges from exercising
executive or political functions as does the
| constitution of this State ia Mass, M7.
! If the questions are not judicial they ''must
be disposed of by some other body or officers
to whom such business may lawfully be dele
gated, or must be determined by the legisla.
| ture itself" 20 Mich. 1862.
| sit is impossible to sustain delegation Of
any sovereign power of government to private
citizens, or to justify their assumption of it. :"
90 Mich, 465.
Again, as was said by Chief Justice
Jay: "Neither the legislative nor the
executive branches can constitutionally
assign to the judiciary any duties but such as
are properly judicial and to be performed in a
| judicial manner" - How. and Dallas.
1t is true that the chief justice and Judges
| Cushing and Duane did act in the case there
under consideration; but the full court in the,
district of Pennsylvania and the circuit court
| for North Carolina both refused to serve, and
because, as said by the Pennsylvania court,
''the business directed by the act Is not of a
| Judicial nature;' and, as put by the court in
| North Carolina, "that at the same time such
courts cannot be warranted, as we conceive,
by virtue of that part of the constitution dele
! eating judicial power, for the exercise of
which any act of the legislature is provided,
in exercising (even under the authority of an
other act) any power not in its nature judicial,
or, if judicial, not provided for upon the
terms the constitution requires"
| That the judges ought not to and cannot
| accept or exercise any but Judicial powers,
has been repeatedly decided by the supreme