Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-10
This is a specimen absurd,

ty of The law.
Continuing, he said: Counsel argued that
the writ of prohibition will not issue because
the tribunal is not court. But is there
no power to test the cOnstitutiOnality Of
flaw which will take from the State millions
of dollars? say If writ of prohibition will
not, an injunction will lie.
Justice Dickinson was not asked to serve.
Hence the tribunal was not created in accord
anc- with the law.
The whole judicial power of the State is
vested in its courts. This act was not passed
by a two-thirds vote because the tribunal Is
not court of the State. Hence it cannot
exercise judicial power But the hearing
and determining, whether the law is or is not
not in violation of the constitution would be
exercising judicial functions such as are in
hlbited by the letter and spirit of the cOnstitu-
ton. When counsel says they are only quasi
judicial or of a judicial nature, he strangely
estimates the intent of this act.
assume that it is not a judicial tribunal,
though it is clear the language of the law is
intended to convey the impression that it is
Its decision is to be judicial. Hence it was not
competent for the legislature to confer SUCH
authority on the tribunal. Counsel speaks of
the right to take the opinion OF anybody. Yes,
but not to predicate the operation of law on
it. This law follows the tribunals action
with provisions which the executive would
say is binding on him and which would take
millions from the State. 1t predicates upon
the tribunals opinion the action of depart
ment of the government. 1t places these gen
tlemen of the tribunal in place of the supreme
court to eXpound the law and the constitution.
1t is immaterial that they are judges, respect
able and able. 1.-THE legislature had right
TO appoint creature outside of the cOnstitu
ton, if it had right to go outside of the es
tablished judiciary, it had right to say who
-ho no bad -irvhf To dO
as the counsel for the bondholders originally
intended to have it do-call men from outside
the State to pass upon the meaning of our
constitution. The consequences of such a
precedent, if it is established as one, would be
Injurious to liberty and rights. 1t would
break down the checks and barriers of the con-
sttution for restraint of the legislature. SO
that the constitution might be overridden and
the legislature become supreme. l say they
cannot make such tribunal except in the con-
stitutional mode of creating court.
Judge Wilson then went into an extended
review of the authorities and precedents here
to ore cited. In the De Graft case, he said,
there was no contract and no adjudication oil
legal rights or passing upon the constitution.
The TOrinus case, he argued, has no applica-
ton here. IL How, 273, he conceded, was in
point, but found it to be Up. 2S4] directly
against the counsel on the other side who
quoted it. The Sioux war claims commits
SONS were merely to ascertain facts, as Gen
Hubbard and his associates found for the leg
lslature the facts regarding these bonds
There was no attempt to exercise judicial pow
err If the Seymour Sabin 4 Co. transaction
had involved the judicial constituting of law,
he said, 1 still deny that the legisla
ture could create tr bunal and jump over
This court for that purpose. It cannot, for
the most manifest OF all reaSOns-the cOnstl-
tuition forbids it. 1t would be right in the
teeth of justice.
The legislature has certain unctions and
duties to perform 1t was it's du ty to answer
for itself whether it could pass it.. 1t cannon
give the power or duty conferred on
it to others. The supreme court has decided
1t cannot ask the courts in advance of its ac-
tion-that is, it must exercise its own judg-
ment. But if this tribunal is legal, see how
easy Legislative responsibility may be evaded
by comforting it upon commission bound by
no oath and not liable to impeachment or any
punishment for doing wrong. 1t was just
this the constitution intended to prevent when
it placed and divided the powers of govern
mpnt 1t is at variance with the plainest prlnci
p1es of constitutional law.
In reply to the argument on the other side
that it is competent for the legislature to
pass a conditional law and that this act OF
1881 is such law Judge Wilson cited Chief
Justice Redfeld [26 VT, 357] as going to show
that the legislature cannot delegate
the questions of the constitutionaIity
or expeden cy of law. Ais II Penn, 49l;
80 Wis, 50i-510; 23i N. Y 44S, 49, 28th N
T., Cos, 632; Cooley c. L l49, $50 and l45,
l46, l47. Conceding the proprle1y of submis-
sion to locality in cases of local adminlsira
ton and to the people, as the source of poWe
in laws depending upon their wishes, or where
the ascertalnment of their will is desirable, he
argued that this was not delegating power,
but like the act of trustee or agent in refer
ring back to his principal.
In the tlalnview and Elgin bond. cases the
unanimous opinion of this court Was, that it
was not competent for the legislature to sub
NIT to the people of those towns the terms Of
the law providing for the bonds.
Gen. Cole, nterrupting, Didn't you say in
The circuit court the other day that that de
cision was nonsense?"
Judge Wilson, Indignantly, III never ex
pressed such an opinion about decision Of
this court anywhere, and counsel knows it
As q joke if so he means it, his remark is a
violation of the propreties of this place"
Continuing his argument, Judge Wilson
said: If the argument of counsel is
help him, the question of the
constitutonallty of law might be submitted
to the people or to the first man met or
the street, or to anybody. The legislature
may leave the time or operation of the law de-
pendent on certain contingencies. Or, when
public opinion should control legislation it
may make law optional upon the public
voice. But it has not the power to submit to
the people whether it has the right to enact
law. More monstrous than that, however, is
the submission of the right to enact a law to
tribunal without authority or responsibility
say, first, the legislature cannot delegate
power conferred upon ltby the constitution.
Secondly, it cannot take power from the conrt
ar d confer judicial power upon any other than
the courts of the State. say. also, there are
debatable powers not settled upon either de-
partment of the government exclusively, but
their exercise is not in question in this case
They do not apply here. 1t is clearly judi
cial power the tribunal is going on to exer-
else under the act of March I'd.
Here Judge Wilson announced the close of
that branch of his argument, and the court
adjourned to 8. a. m. to day.
SENATOR BEN III. HILL.
The Trouble from Which He is Suffering
and HOtU 1t Has Been AQgraU0ted.