Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-01
THE BOND COMMISSION.
COURT OR COMBUSTION, IT'S ALL
THE SAME,

According to Attorney General Hahn--
If 1t Is Court it Cannot Exercise the
Legislative Powers Delegated TO 1t, OF
| Determine the judicial Questions on
| which it's Opinion Is Asked--If Its Not
| Court 1t Cannot Exercise Judicial
| Powers or Act for the Legislature--COn-
tinuation of Argument by the Attorney
! General--A journnent to Monday--The
Proceeding Before tho Supreme Court
| To Last a Week Longer.
At the sitting of the Supreme Court
Yesterday morning Attorney General
Hahn resumed his argument as follows,
with readings at length from the authori-
{; ties cited
1t is the duty of the Legislature itself, in the
first instance, to pass on both the expedency
and the constitutionality of any act passed or
| proposed to be passed by it. Cooley, COnst.
Linn, 1l6, III and I46. N. T., 4S9. 3S
, Wis.,, 500. Iowa, 203 and 227. 10 Cal. ,
400 10 Mimi, 3S9 N Ills., SO to 63. SO
N. Y, 6S2. / Dillon Munic. Corp, 90, 81.
Cooley on Prime. of COnst Law, As.
If it is claimed that the legislature did pass
on the consti,utionalitv on the act, but pro-
sion for approval, or that the question is not
as to the cOnstitutinnality of this act itself
but the constitutionality of this
amendment, then we say that both
are purely judicial questions and
can only be referred to the courts estab-
lished under and by virtue of the constitution,
and cannot by mere legislative decree be con-
ferred on any other person or body. Art. b,
sec l, constitution. Cooley COnst. Linn, So
and 81, and notes. II Penna., State, 494. ~
Wis, 1870. Wheaton, 1871.
The legislature has only power TO say what
the law shall be. 1t is for the courts to say
what the law is. Johns, 49S. Cooley Const.
Linn, lis. 9Minn., 1862.
"To declare what the law is or has beenIis
judicial power; to declare what the law shall
be is Legislative. One of the fundamental
principles of all governments is that the legis-
islatiye power shall be separate from
the judicial" But if it is TO be considered
as an exposition of this amendment for the
information and government OF the courts and
people, then it would be taking cOgnizlnce of
a judicial question. This constitutional
amendment is a constitutional law enacted by
the people in their sovereign capacity for the
guidance and control of every department OF
the State government and every person subject
to it, and can only be repealed or changed by
the people of the State in the manner provided
ture say that it is either valid or invalid, it
could not detract one particle from it's binding
force, if it had any, or add one jot or little to
it's validity. They cannot repeal it, alter it, or
modify it in any way. 1t was enacted by a
power above, and greater than they. Ii it is
the constitutionality or validity OF this amend
ment, that is purely and solely. judicial
The question of what the law is-whlch
includes the question CT its validity and con-
10 l10ipJoI question
and can, under article 6, section l, OF the con-
stitution, only be passed upon by the courts.
l Cooley, p. 81.
The legislature cannot authorize any person
to exercise any judicial power because the ju-
.icial power of the State is exclusively vested,
by the constitution, in the courts. And if, as
we claim, the powers conferred or attempted
to be conferred on this tribunal by this act lire
of a judicial nature-if they are powers prop
erly belonging to the judicial department of
tie government, then this act, so far as it
creates tribunal not known to the constitu
ton, and so far as it refers judicial question
TO such tribunal is in contravention OF the con-
stitution and void. 3 Brevard, s. G., SOL.
But it may be claimed that this tribunal is
legal tribunal and authorized to pass upon and
decide these questions on either OF two
grounds, viz: First, because 1t is a new court
with special powers created by this act OF,
49,
supreme court certain additional functions
and duties. It is true that the constitution
provides that the Legislature may from time
in time establish 'tsuch other courts, inferior
TO The supreme court" as it sees fit, but such
courts must be established by a s'two.thirds
vote" and it will not be pretended or claimed
that this act received such vote. 10 the sec
ond we say that the act does not confer or
pretend to confer, on the supreme court any
duty or function in connection with this mat.
ter; nor, even if they had attempted to
do so, had they such power to
give, nor would the supreme court, under the
Constitution, have any right to exercise the
duties sought to be imposed by this act.
If it is claimed that this question is submitted
10 the members of the commission as judges
and not simply because they are judges, then
we say unless it is a judicial question they
have no right, as judges, to entertain or decide
il. and if judicial question then it must be
submitted in judicial manner, CAL, 40;
Cal, 20 and 343; ia Mass, 247; % Mich,
AGO and 1862. :.
First. If this is not judicial function it
cannot be exercised by the commission as
Judges nor as commissioners, because the con-
stitution does not allow them to hold
any such office. All precedents
action of United States judges can be no sup
port to such action, for the reason that the
constitution of the United States does not SO
explicitly restrain the judges from exercising
executive or political functions as does the
constitution of this State. ia Mass, 247.
If the questions are not judicial they must
be disposed of by some other body or ofhcers
to whom such business may lawfully be dele
gated, or must be determined by the legisla-
ture itself.'' % Mich, 462.
.sIt is impossible to sustain delegation OF
any sovereign power of government to private
citizens, or TO justify their assumption OF it, .
Again, as was said by Chief Justice
JAY: .Neither the legislative nor the
executive branches can constltutionally
assign to the judiciary any duties but such as
are properly judicial and to be performed in
judicial manner" Is How. and 2 Dallas. /
It is true that the chief justice and Judges
Cushing and Duane did act in the case there
under consideration; but the full court in the
district of Pennsylvania and the circuit court
for North Carolina both refused to serve, and
because, as said by the Pennsylvania court,
1.-THE business directed by the act is not of a
iudiciql nature;'' and, as put by the court in
North Carolina, 'that at the same time such
courts cannot be warranted, as; we conceive,
by virtue of that part of the constitution dele.
eating judicial power, for the exercise of
which any act of the legislature is provided,