Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-07-30

IHc purpose Vi luqutrIuS WutLutr all VIII
ing to serve under the same. AS / read the
act, it provides for commission or board of
arbitrators, to consist in the first instance, of
the persons who are, judges of the supreme
court, not as such judges acting in their
constitutional judicial capacity, but as
private persons designated by their official
titles. lam not, then, called upon to perform
any duty which, as judge of the supreme
fcourt, I owe to the people of Min
nesOta, or which is imposed upon me as a jul
dicial duty by the constitution or laws of this
State. Service upon the commission or board
of arbitrators beiHg therefore altogether out
of the line of my official duty, feel at entire
liberty to decline to act, since / deem it un-
wise, and not for the public interest that
member of the court of llast resort in this
State should take part in the decision of mat
ters in controversy between those who are in
effect parties litigant, otherwise than as am
called on to do SO in my judicial capacity.
For this reason land several others occur to
me) Unjust decline to serve under the act to
which you call my attention. Very respect
fully, yours, JOHN M. BERRY.
JUDGE MITCHELL.
ATTORNEY GENERALS OFFICE, ST. PAUL,
March Is, 18Sl-Hon. j. S. Pillsbury, COVER
nor of Minnesota-Sir: I beg leave to inform
you that after serious consideration of the
member of the tribunal created by an act ap-
proved March Q, 1881, entitled ''An act pro-
viding for the adjustment of the Minnesota
| State railroad bonds"
In view of the fact that all of the judges of
| the supreme court, as heretofore constituted,
had prior to my acceptance of the appoint
| ment of associate justice, declined to serve on
| this tribunal, and the majority of them had
assigned reasons for their declination, which
1 n oil IF fho
| as we'll as to themselves, would have felt
great hesltaucy about serving upon this tri-
bunal, even if had been unable fully to concur
| in the reasons which they assign for their
declination.
But my own judgment fully concurs in
| their conclusion That it would not be expedi-
emit for any member of the supreme court to
serve upon this tribunal. After it has per-
| formed its work cases might arise, involving
| the legality of this work, and even the con-
| stutionality of the organization of the tribu-
nal itself. Such cases would naturally come
before the supreme court for adjudication. If
so it would place member of the court in q
position of doubtful propriety to pass judi
cially upon the validity of his own actions, as
| member of this tribunal. For this reason I
decline to serve. WILLIAM MITCHELL, 4
Associate Justice Supreme Court
JUDGE CLARK.
ST. PAUL, March 15.-Hon. John s. Pills
bury, Governor of the State of Minnesota
Dear Sir: Assuming that the judges of the
supreme court contemplated in the second Sec
ton of the act of the legislature of March 2,
1881, entitled can act providing for the adj
| justment Of the Minnesota State railroad
bonds,n are the judges who shall be such at
| the time of their meeting, under the provis-
| ions of that section, which seems to me the
L fr,o 81 ofio IF -
| tify your excellency of my declination to serve
under that act. The question presented, and
which I have carefully considered, is one of
| Importance and peculiar character, viz, the
duty and propriety of judge of the supreme
court serving under this act, the constitution
ality of which, and the legality and effect of
the proceedings under which, may be brought
before the supreme court as court of last
| resort.
| Although have had some doubts upon the
i question, arising out of considerations of pub
| lie policy, have been unable to resolve them
/ so as to feel justified in adopting a conclusion
/ and course of action contrary to the views of
all the other members of the court, who have
had occasion to express themselves on the sub
ject, and contrary to the action of all the other
Judges, and I therefore decline to serve under
the act. Very respectfully yours,
.eGREENLEAF CLARK,
Associate Justice Supreme Court, Minnesota
Mr.. Cole submitted the letter of the late
| Associate Justice Cornell, as follows:
IL JUDGE CORNELL.
| ST. PAUL, March s, 1SS1.-His Excellency,
John s. Pillsbury, Governor of Minnesota
! Sir: Your communication of the 4th inst. is
before me, calling my attention to the recent
| Legislative enactment which provides for ssthe
adjustment of the Minnesota State railroad
| bonds, J" and requesting that l advise you at
my earliest convenience what action shall
| feel it my duty to take in the matter, in order
that you may be able seasonably to appoint
some district judge in my place, in the event
of my inability to serve on the tribunal con-
templated by that law.
| In determining the main question, which
that tribunal will be required to decide under
| the act, it is obvious that it may become nee
essary to consider and pass upon the question
as to the validity of the constitutional amend
ment under which the bonds were issued, and
also as to the liability of the State thereon to
the bondholders. In the somewhat recent lit
igation in the federal courts, between Mr..
Selah Chamberlain and the railroad companies,
to whom the State transferred the land grants
pertaining to the lines of road originally held
by the Cedar Valley and the Southern Mime
sofa railroad companies, acted as one of the
attorneys and counsel for Mr.. Chamberlain. In
oneof these suits the validity of the loan amend
IueuL Wdb Iuduc Ill iSSue3 llGlSdGeu aIlO Q6uer-
mined, and in both, the legal liability of the
State upon the bonds, to the holders thereof,
was distinctly presented and decided. The
litigation resulted, as is well known, in up
holding the authority of the State to issue the
bonds under the amendment, and in declaring
them to be valid, and binding obligations up
on which the State is primarily liable to the
bondholders.
have also both before and since the adop-
ton of the loan amendment taken part in the
public discussion of these questions, and from
what knowledge have of the facts that tran
spired in connection with the issue of the
bonds, most of which are matters of public
record, it has become with me
a settled conviction to which l have
on different occasion given pub
lie utterance, that they were issued, not
only in obedience to the expressed will of the
people, but in strict compliance with law; and
that legal liability was thereby voluntarily
assumed by the State which she is bound in
honor to discharge and which she cannot ig-
more without mourning, in the estimation of
the commercial world, the shame and reproach |
of willful reputation.
Whether legally incapacitated or not from
serving on the contemplated tribunal, to act |
as one of its members, under the circum |
stances would, in my opinion, directly tend to |
impair the public confidence in the impartial |
ity of the judiciary, and hence sense of duty |
~ of v,@Opriofu o11o covn mn 70 Jao1;,o |