Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-11

bulS LrlDun8l. am aware IL 10 sara tue VIII
runs from one court to an inferior court But
this tribunal is assuming to exercise Judicial
powers and assuming to be . court. Hence
the writ will issue. fist Maley's G. r.. ST.
Here the writ issued TO commissioners about
to open q road. This Is an early case, going
to show the foundation of the writ.
Though loosely stated to run
from court to court or one
judicial officer to another it has never been so
this case the writ issued forbidding county
commissioners to appoint jury to assess
road damages. [102 Mass, s10I Here the
writ applied to restrain q board Of aldermen
from widening streets. [127 Mass, SOL This
| is cited to show that the Massachusetts rul-
I ings are not on the local law, but on the writ
of prohibition. The Massachusetts statute is
no stronger as to the writ than that OF Mime
sofa [l27 Mass. Co.. The writ Issued gs to ;a
prohibited the appointment Of persons to open
a road. 70 Rep, 81, 81. SO; 30 Miss; 8 Waite,
254, sec. Z; BacOn's Alb, vol. 8, 228, $780, The
writ of prohibition will lie to q pretended
court. Isl Ala, 81. Though most often ad-
| dressed to courts, In absence OF other remedy
it lies to prevent unauthorized individuals
from usurping judicial powers. How. Pr.
Repts, 1901 The office Of the writ of prohi-
bition cannot be limited. l1O7 Eng. Com.
Law, 49, The writ issued to q coroner about
to inquire into the origin Of fire. r. s. c.,
4191 It issued to unauthorized individuals
assuming to try Judicial matter. r. Speer,
1911 It issued to private persons who were
taking preliminary steps to Judicial action
under an unconstitutional law. Apply this
last case 10 the case at bar. Here, for the
purpose of getting millions out of the treas
ury tribunal, which the parties sometimes
call court and sometimes commission, is
taking preliminary steps for an Illegal, unau.
thorized exercise Of judicial powers. 9 y u 70
The attorney general calls my attention to
the fact that 4 writ in the nature Of writ of
prohibition is here applied for. Your honors
see how the writ has been extended to reach
cases to which originally it did not reach. Our
statute saws In express terms that these writs
shall issue h59tsfq ai-s 20
The Chief Justtce-That statute groups sew
eral writs-sOme to courts and some TO- indi-
viduals. 1t seems to me the argument is far
fetched that therefore each one would issue
to either courts or individuals.
Mr.. Wils0n-Permit me to suggest to your
honor the difference between our statute and
the common law. 1t don't mean necessarily
q court or officer but claimed court or Of
ficer. No decision will be found where 1t was
question at issue whether it was court or
not. The cases cited cover the field. If the
positions are here taken to this time are cor
rect, under thise circumstances the writ must
issue or else this court must draw line be
yond which invasions of the judicial authority
will be presumable.
The Chief Justice-I have not understood the
other side to claim that the writ will issue
only TO court.
Mr.. Wilson read from Mr.. Gilman's argu-
ment that the writ will issue only to an in
ferior court.
Mr.. Cole-The court is not thinking of the
distinction between court and tribunal or
commission, but of inferior or equal tribunals
Mr.. Wilson-If this court is ready to hold
that the tribunal is It's equal in authority for
expounding the constitution, and deciding
and determining the validity of law, I am
| willing to admit right here, that this court
| will decide everything against us: No posi-
ton is more clear and conclusive than that
this tribunal is about to exercise judicial
power of the highest order. And here will
say, am inclined to think the weight of au-
thority is, that the writ will not issue except
to sustain the exercise of judicial authority
taking judicial in the broad sense OF It's
meaning;
Justice Mitchell-What have you to say of
| the proposition of the other side, that this
| tribunal is not inferior to the court, but CO.
ordinate?
Mr.. Wilson-The constitution confers all
judicial powers upon the cial.department.
The highest of powers of the judiciary is the
constituting the constitution and deciding
| whether law violates the constitution. The
fact that the tribunal is going on to exercise
judicial powers gives this court the right to
control To say we have here an unrestrained
tribunal to make an Interchangeable determine
ton of law on which rights of such magni-
| tude depend, is to say we are in an unfortunate
situation. But this court cannot abrOgate its
power; its powers are here. II q court is
legally created, it will be subject to your con-
troll. But, SO it is argued, because it is not a
| legally created court, it has powers above the
supreme court. / think not SO. It is not q
court, but is attempting to assume functions
which can only be authorized to court ~ ou
must say whether the Legislature has power to
delegate powers this way; whether the tribu-
nal is supreme and uncomfortable, and
whether the State might be thus plundered
without protection by its judiciary. Suppose
the legislature had created court and said 1t
was coordinate with the supreme court
Would your honors have hesitated to say, not
SO?
Mr.. Wilson then proceeded to review some
of the authorities cited on the other side. list
Black, 503.1 In this Gordon case, criminal
one, the circuit court was supreme and the
supreme court had no right to interfere. The
right of issuing the writ not being limited by
statute of this State the Gordon case does not
apply here. rs Mimi, 244.] The party was
q COuhey ooeCAAOy NV PS.1As S~SASA.c
judicial powers. The court said that the writ
of error issued to other than courts or officers
was only to sustain the exercise
of judicial power. Ibid, 1881. Perhaps in
this State the writ will issue to other bodies
or officers, but only to restrain judicial pow
ers r. Wevall, 4S6; 1 Hill, 1851 The latter
cases in New York do not follow Bronson
q Hill but do follow Sidle e Wendall.)
After citing the court to authorities that
when necessary and no other adequate RENE
dy exists, this writ will issue Though not on
other grounds admissible. Mr.. Wilson sus-
pended his argument and the court adjourned
to 9 a. m. to-day. :, ,.'.,-.
The remainder Of Judge Wilson's argument
will be in defence of the validity of the ex-
punging amendment of 1850. At it's conclu-
sion, which will probably be about noon TO-
day. the case will be submitted to the court,
but an immediate decision is not to be ex-
pected. - 1850
Funeral of Judge Stephenson.
The funeral of the late Judge Oscar Stephen
son took place from the Church of the Good
Shepherd yesterday afternoon. A rain storm
at the hour designated prevented many from
from being present, but the church was well
filed. All the leading members Of the bar
and large number of old
.oxx,o,. u,aro nracouf IN nov tho