Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-11


permission of the court, to dispose to-day of
the other questions he had to discuss, leaving
the question of validity of the constitutional
amendment of 1860 to be argued by itself at
| one sitting of the court.
In addition to the positions taken yesterday,
he had to say the legislature was incompetent
to confer other than Judicial powers on Judges.
On this point, "a CAL, $40, cited on the other
| side, was claimed as for REALTORS and not for
| respondents. The court simply states that
| the constitutional provision relates to the
| departments of the State, and not to
| subordinate officials, as of town, village
| or city. There is no objection to Judge per-
| forming duties not judicial, if they do not be-
| long to the executive or legislative depart
ment; but powers which clearly belong to one
| department are not to be exercised by the
others.
One distinction overlooked by the other
side is that the appellate power is only to
courts, not to officers exercising grave Judicial
power In this connection the opinion of
Chief Justice fancy as to the appointment of
United States Judges in Florida, as claims
commissioners, is claimed as an authority for
| REALTORS. 1t was evidently his opinion that
| the authority could not have been conferred
on the court as a court. But in that case the
district judges acted separately and without
discussion or elaboration.
In early days of the republic Chief Justice
Marshall was at the same time secretary
of State. Would counsel claim
that could be allowed now and under our con-
stitution, prohibiting the powers of one de-
partment to the Others, and prohibiting the
judges from holding other than judicial Of
fees. But at that time the question of divis-
ion of powers of the government was not set
tied.
14U.S., 1919, has no bearing on this
case, and counsel utterly Inexperienced the
authority. Young's Stat, 6Sl, S. !. Here is
power conferred on this court which is ex-
| plicitly denied to the United States supreme
court by statute, and that denial governed the
cases cited by the other side. 43 Iowa, 752.
| The court comedies it is not competent for the
| legislature to confer its powers on court.
They hadn't yet reached the elevated plane of
counsel-that it was State matter and there
| fore they could brush away the constitutional
inhibition. The Michigan decision 10
Mich.) has no bearing. Fed.
Rep, 653, claimed for REALTORS. The
court comedies that Congress could not de-
| else but Judicial powers. These authorities
were cited to overthrow the position of the
attorney general. 1t is submitted that they
| sustain him.
| When counsels says, because the State is a
party, the minority may be overwhelmed with
out appeal by means of his tribunal, he says
what is contrary to the spirit and letter of the
constitution. Apply his doctrines and see
| what they lead to. COunsel's fundamental
error is that of everybody who wishes to palm
off sophistry for logic. He confounds def
nitions; he confounds the State and legislature.
That the State may do these things, say.
But the legislature is merely an instrument of
the State-one of it's three branches. The
constitution says the Judicial power shall
be vested in the courts. The question
is, shall this court permit the legislature to
override that and create another tribunal, not
| a court, for judicial powers. Shall the legis-
lature be permitted to appoint and designate a
| creature Of its own to pass upon its laws? If
SO the constitution is abrogated and the will
| of the servant made superior to that of the
master. say the State can decide what courts
| shall expound the law; but the legislature
cannot, for it is not the State.
Another fallacy of counsel was in saying the
! legislature had power to pay the bonds if it
| chose and could therefore determine the way
and time of payment. The State only had that
power.
Look at this act of 1881. If the tribunal
shall decide one way then the law is to take
effect so and so. The tribunal is to decide up
on the validity of the constitutional amend
ment-in other words, the power of
the legislature-and the legislature
the power to act then we elect to exercise it..
There is nothing in the act to show that with
out this illegal, extra judicial tribunal the
legislature would have acted at all.
For them to claim here that the tribunal is
not to hear and decide judicial question but
| merely to give advice to Governor Pillsbury,
is contrary to their representations to the leg
islature and to the provisions of this law it.
self. Why, if it is advice and for the govern
or, is not the opinion of the tribunal to be
| filed in his Office. No, it is not to give adj
vice, it is to hear and determine the validity
If the law.
Counsel cites private law creating tribu-
nal to ascertain facts regarding the Sioux
| outbreak and sets up that therefore 1t is COM
pelent for the legislature to appoint this tri-
constitutional ouna tic pass aw upon He she v saVs #
| was competent in Congress to appoint
the Geneva commission, to show it was COM
petent for the legislature to appoint this COM
mission. He might as well have said Con-
gress was competent to appoint the Geneva
commissions; therefore 1t is competent for
Congress to appoint commission to pass up
| on the validity of the thirteenth, fourteenth
| and fifteenth amendments to the United States
constitution That is his logic.
He argues that the legislature had the right
| to pass this law because it has the right to
enact conditional laws. Well, this law says
| if the commission shall say this law is valid,
| than these bonds shall issue. That is not such
| condition as a law may be rightly based up
on. 1t leaves the tribunal to determine what
| the legislature should have decided for itself
| the power of the legislature to act.
He says it is competent to make law con-
| ditioned on consent of the voters, and there
| tore, it is competent to pass this law. He did
not say it was competent to submit the
question of the consttutionality of q
| law to the election. Yet all the decisions to
be made by this commission Is upon the VIOLA
ton of constitutional law, and if his argu-
ment amounts to anything then it would De
competent to submit the consttutlonality Of
law to a vote of the people. ID
Then because it is competent to pass local
option laws, ergo, he argues, it is competent
| to make law depend upon the will of any
other person. This is reductio ad sbsurdmm.
A precedent in the decision of this court
that such thing can be done would be alarm
| ing to every thinking man. Had they said to
the legislature, the tribunal was only to ad-
wise the governor, they would not have got
| such law. They said then twas to decide on
the constutionality of this law, which, if it be
unassailable, is 70 take millions of dollars from
the State treasury. If this law be correct then
any majority ring in the legislature
could override this court to plumber the treas
Il f6a III met oo