Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-04-05
The Bond Adjustment Bils again.

10 Tie EulIOr Oh Tile OlOUe.
"Layman," in Sundays GLOBE, does not
seem to quite comprehend my views on the
bond adjustment act, and the judges duty I'M
der it. The act (sec. q says 'The judges of
the supreme court are hereby authorized and
required to hear, consider and determine the
matters herein submitted" etc, and "said
judges shall hear arguments, determine and
decide whether the legislature has power"
etc. Now if the legislature can constitution
ly enact such a requirement, cannot doubt
that the duty is imposed upon the judges as a
court. thought this view was indicated in
my article. l said ''Now the final and au-
thoritative determination and decision of such
a question is purely, distinctly and exclusively
judicial in its nature, and is the highest judi
cial power recognized IN government. 1t is
the most exalted function and attribute en-
trusted by our constitution to the judicial de.
partment therein constituted" etc. But this
is on the supposition that the said require
ment in the act is authorized by the constitu-
ton. If not authorized then action under it
would not be judicial, and in any other char
acter it is prohibited by article OF the consti-
tation. My article was mainly devoted to
showing the error of the view advanced and
repeatedly published, that, though the
they might yet lawfully act as persons, etc.,
and this is claimed by the Pioneer Press
without possibility of appeal or review.
"Layman" does not seem to go to that extent.
My points are: First, The judges can not
act otherwise than as court, because OF said
article 3, and for other reasons which did
not go into. Second, The court can not act
upon and decide such matters until they arise
in litigation begun and prosecuted in due
form of law.
Deciding questions of law without any law
suit does not properly belong to the judicial
department or any "person" belonging to it.
Both points have been put at rest BY the
frequent unanimous decisions Of the supreme
court itself.
In the matter of the application of the Senate,
ETC., 10 Mimi, 70, the syllabus which is ably
sustained by the opinion of the court delivered
by Mcmillan, is as follows:
",ec 10, chap =, Compiled Statutes, which pro-
viies that either house may by reso ion, request
the oplion f the tupreme court, or any one Of tRe
judges the eof, upon given subject, aud 1t shall be
the duty of such court rjudge, when 80 requested
constitutional AID void, and therefore imposes no
duty on the court"
any opinion ex ressed in pursuance of action
under said section is eAtrajudiia. and no official
spon blity attaches to the judge or court v.lun-
Ia lily giving such opinion"
at Is the duty of ca department Of the govern
meut TO ct ,iu from and oppose encr 'achments on
either of this others"
al he duty sou1 ut 10 be imposed by this section Is
neither Judicial act, nor is it to be performod in
Judicial ner; 1t cJn,tiiutes the supreme court
the advisers of the legislature; nothi more"
IAN unau hOrized expression of opinion by a
judge court, especially oneof last resort. upon
matter which may sub, equen'ly come before the
court for adjudication, is Improper
The principle of this decision if followed
in Rice VS.. Austin, 10 MINI. 1U3, and County
Treasurer VS.. Dixie, 20 MINI. 1868, in which
last case the court cites for authority and pre-
cedent the above case in 10 MINI.
"Layman" says he trusts l ''do not speak
the views of the judges" 1 know nothing
of the views of the judges, except the above
cited decisions and their continued refusal to
act in the premises. Speaking of the court,
he says, 'no one will pretend" etc, stating
just what have shown the court itself has
more than pretended-i. e., has decided:
That the legislature may, for its own en-
lightenment, go outside its own body for
opinions on the constitutionality of proposed
act concede, but it cannot before the passage
of the act have the opinion of any person be-
longing to the judicial department.
1t might even call on me, but it could not
pass the act conditioned to take effect upon my
affirmative answer; and if, in such a case as
this, gave such opinion without pay from
the State, suspect | would be under the sus-
picon of taking pay from the bondholders.
In conclusion, Mr.. Editor, wish to direct
attention to section of the act in question.
1t reads as follows: "In case of the disqualifi-
ton of any such judges (of the supreme court),
or their destinations for any reason applicable
to said court, or the judges thereof, the gov
ernor may and shall make up said tribunal by
appointment, il the place of any judge SO
declining to serve, one of the district judges"
etc. !hink the above shows clear intention
that the judges, if they act at all, are to do so
as the supreme court, but I desire to call par
ticular attention to the point that if the judges
of the supreme court decline to act not on the
ground of disqualification, &c, interest or
relationship, but on the ground of the uncon-
stitutionallty of the act, such declination is
rehabilitation, binding on the district judges.
HENRY f MASTERSON.