Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-04-02
The Bond adjustment "1ribunal..

| To the Editor of the Globe.
Perhaps, among other good reasons why
our supreme judges will not act under the
bond adjustment bill, is Article III. of the
constitution, which is as follows:
"The powers of government shall be divided into
three distinct departments legislative, executive and
judicial; aud no person or persons belonging to,
or constituting of these departure Is shall exer-
else any of the powers properly belonging to either
OF the Others except in the instances expressly pro-
vided in this constitution"
The above italicized words, ono person or
PERSONS" etc., are entitled to some meaning.
They must have been put there with the in
tention of their having some effect. Yet what
meaning or effect can they have, if they do
not preclude the judges from acting in It's
, case?
1t is not claimed that they can act as the sa.-
preme court created by the constitution, nor as
an inferior court, which must be created by a
twO-third vote of the legislature. For If the
power in question is one properly belonging"
to the judicial department, it can be exercised
only by one of the courts which constitute
brought before them in a suit, on due process
of law. 1t is only claimed that the judges may,
if so it please them, act "aS persons" the same
as the Florida judges did in United States u.s.
Fcrreicr 13 How. 40-). But the consti-
tuition of the United States has no such pro-
hibition as the one above quoted.
In that case the supreme court of the
United States held that the decision of the
judge twas not the judgment of the court, but
a mere award, with power TO review it con-
ferred upon the secretary of the treasury"
(Sylabus.,, "That the authority conferred on
the respective judges was nothing
more than of commission to
adjust certain claims against the
United States, and the office of judges, and
their respective Jurisdictions are referred to
in the law, merely as designation of the per-
page A. "The claim is to be paid if tie Sec
rotary (of the treasury thinks it just and
equitable, not otherwise. 1t is to be debt
from the United States upon the decision of
the secretary, but not upon that of the
Judge" That is to say, the persons who
were judges, acted in that case as subordinates
of the erccpt;oe department
To make tiat case parallel with this, and a
precedent for it, two things were necessary,
neither of which existed, namely: First, a
prohibition in the constitution of the United
States such as in Minnesota's above quoted.
Second an amendment to the constitution of
the United States to the effect that no act of
Congress providing for the payment or set
Element of the claims under the Florida treaty,
should take effect until submitted to, and rat-
fled by, the same authority, which is neces-
sary to change the constitution itself
and the questions submitted to the judges
not as judges, but as commissioners,
have been the validity of such constitutional
amendment. If such had been the question,
we may safely say it never could have gone far
enough to reach either Jay or Taney.*
Under our constitution, article 5, the State
auditor and the attorney general are classified
as members of the crecuti0e department, and
their functions are, therefore, sEpowers prop
erly belonging" to that department within the
meaning of said ARTICLE 3. Aud thus auditing
claims against the State and giving opinions
on questions of law, except when given by the
courts as such in due course of law, are eTecu-
tire functions. This classification is not open
to criticism, for the constitution is entitled to
its own definitions when the question is its own
interpretation; and under it the exercise of the
powers assumed to be conferred by the adjust
ment bill, if not to be performed by the judges
in their capacity of supreme court of the State,
is an exercise of the powers properly belong
ing" TO one of the other OBSERVATION-DISCLOSURES
tive or executive-and expressly prohibited TO
any person or persons belonging to or consti-
tuting the judicial department.
An approved method of demonstration is
that by reductiO ad abSurdam, and such may
be the following. The question which is to
the Tribunal, 4" commissioners" "persons,"
''arbitrators," or what not, from whose
determination and decision mot opinion) there
is no appeal, is this: Whether an amendment
to the constitution, adopted by the people with
unparalleled unanimity, and which has been
recognized as a valid and binding part of the
constitution for more than twenty years, IS
valid and binding. Now, the final and
authoritative determination and decision of
such question, is purely, distinctively, and
exclusively judicial in its nature, and is the
exercise of the very highest judicial power
recognized in government. 1t is the most ex-
allied function and attribute entrusted by our
constitution to the judicial department therein
constituted. Now if the exercise of such a
function can be taken from the courts of that
department, acting as courts, and conferred
upon any person or persons, in or out of the
judicial department, not acting as courts of
that department, then the like may be done
with all questions of constitution and law, and
rights of persons and property, and the judicial
department of the constitution be shorn of all
power-except perhaps power of drawing sal
aries. HENRY +. MASTERSON.
Chief Justice Marshall acted as chief
justice and secretary of state at the same time.
But no lawyer, and perhaps no layman, will
claim that under our constitution Judge Gill
fillan can be authorized to follow it as a pre-