Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-05
amendment of 1850 q violation of the States
pledge, and that the court held that We must

look to the State for our remedy.
With this long citation, of itself diecus
sion of the prominent points relating to the
minnesota State railroad bOnds," Gen. Cole
concluded his argument, and thanked the
court for it's kind attention to his long argu.
ment.
COUNSELLOR sECOMBE,
The original relator in the case, followed Gen.
Cole and began by explaining the arrange
ment which had been made between counsel
as to the order of discussion.
He did not deem the long discussion which
had been had as material to the matter before
the court, but thought the chief reason why
the learned gentlemen had presented their
long and learned discussions here was that
they had laboriously prepared them for the
bond tribunal and seeing that the tribunal
was to be dissolved, they did
not wish to suppress the results OF their Ia
Dor.
What he had to say would be confined ex-
clusiyely to the issue he considered to be be-
fore the court But first he would say his po-
sition here was entirely satisfactory to him,
and could have been arranged without the fuss
of the first day, for he would have yielded if
he had been asked to. Counsel on the other
side had asked who had the right to appear
and object to this law. Not the attorney gen.
eral, he says. This is not true to its full ex-
tent. So far as he comes under this law the
criticism is correct. But he is attorney gen.
eral of the State without this law, and so far
as his general duties require him to guard the
interests of the State, it is proper he should
be here. But the relatOr is not at all ham,
pered. He stands here representing himself
and other taxpayers of the State, as by law
authorized, and for purposes eminently prop
er. 1t is a matter of the individual right of
every taxpayer. The moneys of taxpayers put
in the treasury for specific purposes, described
by law, are proposed to be taken for other
uses and other moneys to be wrung from tax
payers to replace those wrOngkllly used.
The points at issue to which he would con-
fine his argument are: 1. The supreme court
possesses the power to issue the writ. 2.
The act of March 2, 1881, is null and void,
first, because it is an attempt to delegate legis-
lative power, and, second, because it is an at
tempt to coerce the judicial department to the
exercise of powers prohibited to it by the con-
stitution. 8. The contingency contemplated
by the act of March Q, 1851, has not arisen.
The supreme judges have not declined to serve
ON the tribunal for reasons specially applica-
| BILE to themselves.
On the first point, as 10 the constitutional
| power of the supreme court to issue the writ,
counsel quoted from the constitution and the
| general statutes, and criticised the opinion in
l3 Minn., A4, delivered by Wilson, c. j. To
the latter he returned his couplet of the other
thought, and said: eff the learned chief JUS
| tice had thought he would have said the term
court implies judicial power"
| In common law the writ of prohibition was
limited in application to courts acting as such.
The early statutes of the State left it there.
But the legislature, having the authority to
make the change, has since said it runs not
only to a court and party but to an officer;
| and that rule must go with all that it implies.
The words ''or officer" carry by implication
that this court may prohibit other than judi
cial acts-that it may prohibit ministerial ac-
ton. But if the functions these respondents
are going on to perform are judicial and they
are officers, (they must be something, though
l collude again with the other side in saying
they are not court,) this writ will certainly
lie. Sec. 1, chap. 63, g. s., enlarges the juris-
diction of this court to all writs, directed to
courts, corporations, individuals, etc.,-all
writs necessary to the futherance of justice.
Ii Mimi, 5l2, treats of writ of certiorari
with increased scope under the statute. So
the writ of prohibition is enlarged by our
statute to an extent commensurate with the
necessities of every case.
But the writ will not issue except there is
no other relief. The relator asserts that if the
tribunal acts there can then be no relief. The
executive officers are beyond the reach of the
court. Counsel las asked can you prohibit
voice; yet in another branch of his argument
he makes it out a most potential
voice. Whether or not it is
potential we have proof, in the governors
signing the law and appointing the commits
sion, that he will follow the instructions of
the law when the voice says go on. Unless
it the cOmmissioE) is prohibited from acting,
the governor will go on to exercise the pow
ers he is charged with by this act The re-
suit will be that the action of this commits
| sion, though void in law, will, in its results,
be beyond the reach of this court.
If my friends, Cole, Gilman and Sanborn
have drawn bill, and passed it through the
legislsture, which cannot be reached Ey judi
cial process, it is only a voice. But the peo-
| pie DO not want to hear many such voices.
Iapprehend that if the court decides it has
| no jurisdiction to issue this writ, it will not
| go out of the way to express its opinion on
other matters. Though all these matters pre-
sented here are of importance to the people,
yet the court will pass upon them only when
| they are properly before it for its decision.
pass, therefore, to my second proposition,
that the act of March 2, 1881, is void, because
| in conflict with the constitution.
| The attorney general has shown that legis-
lative powers cannot be delegated. Counsel
| for respondents admits the fact, but seeks to
avoid it by elevating his respondents on
| plane above, outside of and over the cOnstitu.
ton. He didn't inform us how, when and
where such authority was conferred on the
legislature, as to make it the general agent of
| the people, TO do what it pleases with the pub
| lie purse and in regard to the payment of these
bonds. That is higher plane than can get
| on; I shan't try to get there.
| But to come down to the plane of the con-
stitution, is this act the kind of conditional
| legislation to be valid and constitutional
And here again he was Joined in COLLISION
with the other side, for he considered
Judge Redfield's opinion (26 vt.) as good law.
| Counsel had sought to make pivot of voice.
uOr ct prGterea mihiI Nothing but voice
| [reading]is is not Judge Redfelds contingency.
But counsel says the legislature thought it
| desirable there should be ajudicial decision to
| give credit to the new bonds and satisfy the
| croakers. The law looks as though it was
| intended to do that very thing Those
who voted for the law, other than the con-
| spirators and those learned in the law, un-
doubtedly thought SO. But, (reading the law
| the decision and findings are to be filed with
the clerk OF the supreme court. Undoubtedly
| the lay members of the legislature thought the
law meant the supreme court, and am will
ing to admit for purposes of this argument
that if it was meant this law is constitutional.
| The decision of this court would have been a
legal and proper event on which to hinge the
! law.
| But object that this act is fraud-a fraud
on its face. How far il was intended by nv
friends whose joint efforts produced the law,
do not know; or whether the intent of the
fraud was only to procure the passage of the
| act. II could not have been intended to i'm
pose on this court or, hardly, to impose on
the district judges. If the commission goes
on the other side will claim it's decision as a
judicial decision and of the highest court in
the State. They will claim it Is the same tri-
bunal, the same court-that the district Judges
are simply put on this bench. It will be
claimed that the decision of the supreme court
is stamp of approval put on these bonds.
Yet there is legal contingency in this act
in the eighth section, which provides that
in case of the disqualification of members of
this court the governor might appoint dis
trict judges, etc. That contingency has not
occurred. In the reasons set forth by your