Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-04
COLES CLINOHERS,
SEVERAL STRONG POINTS MADE FOR
THE BONDS.

The Bond Commission Not Court But a
Board of Arbitration Charged With
0uasi-Judicial Powers Which Are Not
Prohibited-The Writ of Prohibition
Will Not Lie Against 1t Because 1t Is Not
An Inferior Court, But Legislative
Agency-The constitutional Amendment
of 1860 Invalid Under the United States
Constitution.
In continuing his argument yesterday morn
ing upon questions connected with the pend
ing application for writ of prohibition
against the bond commission, Gen. Cole, in
closing his last point of yesterday, as to the
right of the law-making power to cause an act
to become operative on certain subsequent
conditions, said he had no doubt of the power
of the legislature to bind the State without
the Intervention of such condition-the
opinion Ofthe cOmmissiOn-but in view of the
adverse pnblic sentiment it had wisely adopted
this plan of reference to that tribunal.
1889 THE COMMISSION NOT COURT.
The next point to consider was the claim of
the other side that the law was void because
it does not vest judicial power in the judges in
a judicial manner. He conceded that the leg
islature could not compel the judges to serve
on the tribunal. But the judges of the supreme
court in declining TO serve did not put their
refusal on constitutional grounds, but on
grounds of propriety particularly applicable
to court of last resort; and from all which
transpired in the formation of this commits
sion-oral as well as written, personal or pri-
waite as well as official-from
the history of this attempt-the commission
ers had right to assume that the judges of
this court believed it most proper and emil
nently right for the district judges to serve on
the commission. I'd
1t requires but few words to state our DO
sition. This commission is not court but
its duties are of nature judicial, hence were
properly conferred upon judicial officers.
Their powers are quasi Judicial, such as are
exercised in State affairs by executive officers
by commissions created for special purposes,
and sometimes by courts, but which are not
embraced in the constitutional prohibition of
judicial powers outside OF the regularly con-
stituted courts. Our friends Of the other
! side, if they review the history of the govern
ment, will be surprised at the vast number
of judicial powers exercised outside of the
constitution and which the constitution was
never intended to embrace.
This commission is not an inferior court
ance with numerous legislative presidents for
a specific purpose. AS such the writ of pro-
hibitiOn will not lie against it.
This is the only branch of this case really
before this court But as cited by the State,
in case of this gravity the court will be
justified IN departing from the rule which con-
fines it to the point necessary to be decided.
And the moment this court pronounces its de-
liberate decision upon the questions which
have been raised in this proceeding, that
moment the backbone of reputation will be
broken. Yet, arguing as lawyer, I have to
say that the only question is as to whether the
tribunal is to exercise judicial powers inferior
to this court. If not, this court has no ]u-
risdiction and the writ cannot issue.
Here the counsel reviewed the California
cases cited by the attorney general, read at
some length from the overrul1ng decision,
and commenting thereon, said the precedents
were numerous, in clusters, like the stars in
the heavens, where powers judicial have been
exercised by executive officers and where pow
ers executive have been performed by judicial
officers. In Illustration he described the river
Jordan as flowing into the Dead sea, limpid
stream of sweet water, bOrdered by the opaque
brackish waters of the sea until it shades into
ind mingles with them. So, he said, are the
powers of government flowing side by side,
clear and distinct but shading into each other
in infinite variety where they approach their
common object.
In this case the powers conferred are judi.
cial, that Is quasi judicial not necessary to be
vested in the courts. They might have been
vested in executive officers, as in the case OF
Seymour, Sabin q Co. and the. Lake Superior
railroad company. The attorney general
quotes from 9 Mich, where court held an
election, ,all the duties being ministerial and
executive. That more than transcends the
shading of powers. It was a clear invasion
of the duties of one department by another,
but it has no application here. So in the case
cited from ia Mass, there was nothing in the
nature of judicial powers.
The attorney general said, quoting from a
Wisconsin case, that no judicial power can be
conferred upon anybody but judges. This
ruling was on statute authorizing mem
Der of the bar to be substituted for Judge. If
he means that no one but a judge can consti-
tute court in the full meaning of the term,
that is conceded. But if he means that no
powers judicial in their nature can be con-
ferred upon any other than Judge, he is,
with all respect, talking nonsense. The State
always confers such powers upon its officers
1t is not supposed the State could do that as
to matters where private parties only were
concerned, but in State matters executive
officers are almost always charged with duties
which are judicial in their nature
Its the duty of the legislature to distribute
the whole of the judicial power to the courts
of the State. But not the quasi judicial DOW
ers always exercised in the settlement of State
Indebtedness. The Wisconsin and South Car
olina cases were each where a member of the
bar had been called to hold term of court
But suppose three lawyers had been called
to decide State matter? That would
be legal and proper, because they
would be arbitrators; and the
writ of prohibition would not lie against their
proceeding. That is the natural and ordinary
way in which State Indebtedness is settled.
Another consideration is that the State has
waived its sovereignty. According to the at
torney generals theory the remedy having
sprung into existence at that moment the OBJ.
legation came into existence. The legislature
has provided the machinery which will fur
nish remedy and infallibly cause the paw
ment of these bonds. 1t has waved its SOW
ereignty and submitted it's contract to tri-
bunal of its own creation. The supreme
court OF Pennsylvania says that to hold such
laws invalid would block the wheels of gov
eminent. 1t would make a State repudiate
her obligations in spite of herself
The United States court of claims has no
more power than this tribunal 1t is simply
an auditing board. In case where the State
has differences with contractor or creditor
there are no means of settlement if it is de
| MED the power to create these boards OF
| arbitrament or adjustment
Let us see if we can find authority for the
distinction between judicial and quasi Judi
cial powers. The constitution of the United
States is substantially the same as that of this
State regarding the distribution of judicial
RS IINr IL T.