Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-08-10
NEARING THE CLOSE.
Mr. Gilman Concludes HIS Argument In
the Bond Case and Judge Wilson begins
the Closing Argument for the State.

Before the supreme court at 9 a. m yester-
day, Hon. John NJ Gilman, of counsel for
holders of Minnesota State railroad bonds.
concluded his argument by discussing the
proposition from the other side that the con-
stitutional Amendment of 1860 did not impair
the obligation of the contract with the bond
holders, but changed their remedy without
materially impairing it. Upon this he said
that in respect to the interest then due upon
the bonds, the amendment actually postponed
payment, subject to the future pleasure of
the people, and as to the interest and principal
to come due at times certain in the future, il
annihilated that feature in the contract by
making the payment dependent on a vote of
the people, thereby leaving the time indeti.
mite and uncertain. AS respects the interest
then due, it cannot be denied that the amend
ment violated the contract. Equally that was
its effect on the interest and principal to grow
due.
In truth the amendment aimed at more than
the mere remedy. 1t changed the terms of
the contract in respect to the authority to
make payment and to the time of payment
1t was equally invalid as against the right,
power and duty of the legislature to provide
for payment of the bonds. rs Otis, rs, IA. ]
Had the amendment absolutely prohibited
any provision for payment, 1t cannot be
doubled it would have been violation of the
constitution, whether considered as affecting
the remedy or the contract, and without refer
ence to the question of redress. But the pro-
Military character of it is just as much vio-
latiOn of the contract and of the constitution
AS if it were absolute.
The right of taxation to provide for the
bonds, as it existed at the time the bonds were
issued. must be preserved. rs Dillon, 3l3,
1S4, 1911, 204, aud 207; Sd Fed. Rep, $50; IL
Cal, 563; McCaule VS.. Brooks, Is Cal !;
CoOley's Primo. Const. Law, $40. 1t is gener-
al and we'll recognized principle that where a
debt is contracted and at the same time a
trust of any character is created in reference
to payment, the trustees cannot be changed,
nor the trust in any way changed or disturbed
without the consent of the creditor, and this
principle is alike applicable to States, num-
cipalitles and individuals. III WIS.,, $50; 3
Rich U. g., l16 and 2S3; Is Wall. CLIO; ID 8. G..
GIG; 80 Geo., 800
The character Of the parties to the contract
does not prevent the application of the pro-
hibition. The contract parties, whoever they
are, depend upon the same ground. [13
Conn.,, 81; 9 GA. and j., 365.
There is no difference IN principle between a
law which in terms impairs the obligations
of contract, and one that produces the same
effect on the contract and the practical execu.
ion of it. As and j., a. To be in conflicI
with the constitution is it not necessary an
act of the legislature should import an utter
destruction of the obligation Of contracts. IL
is sufficient that the act imports an impair
ment of the obligation. If that is weakened
or rendered less effective the constitution is
violated and the act SO far imperative.
"A Lit, Al; 3 WASH, 313; Hall, L. j., 5O2; II
ho 344 New conditions are prohibited
rs How, SOY; 16 VT, 446; 16 Cal. IL; 9 Cal {,
81; 6 How. 3Ol; IL Miss, %; 16 Wall. 3i4 ]
The objection does not depend on the extent
of the change. rs Wheat, 1; 2 How, Cos;
II Miss, 439: 10 Geo, 100; 10 CAL, 563 l The
legislature cannot by a subsequent act impair
the obligation of the contract by requesting
the performance of other conditions not re
quIred by the law of the contract itself. T.,
Cal. 81.
"Wth this imperfect presentation of our
views" said Mr.. Gilman in conclusion, 81
submit that the constitutional amendment, in
whatever aspect viewed, must be pronounced
invalid as impairing the obligation of the
contract, and therefore as not standing in the
way as any legal barrier of legislation for pay
ment, settlement or adjustment of the
bonds"
HON. THOMAS WILSON,
of counsel for the State, followed Mr.. Gil.
man, and began the closing argument in the
case. Most of what he said yesterday and his
citations and extracts from authorities were
in continuation of a part of the argument
made by the attorney general. 1t was the duty
of the Legislature, he said, to pass upon the
constitutlonallty of its own acts, but it was
evident it did not thus pass upon the consti
nationality of the act of 1851, and hence there
is no presumption in Its favor. But the legis-
lature and the people, both, did pass upon the
validity of the amendment of 1850, and gave
the weight of their judgment that it was con-
StitutIOnal.
Tue tribunal has not jurisdiction. Cooley,
c. L, IS, Ss] Its members take no oath. 1t
is under no sanction. They are not even Of
ticers. If they should accept brides, it is
doubtful whether any law would reach them
In 1858 the people, in their sovereign ca
pacity, made the contract. The bonds issued
were not to be paid by the State, principal or
interest; but the payment was to Be made by
the persons to whom they were issued. They
were payable to order, transferred only by in
dorsement and the companies to whom they
we're issued were required to pay them. Read
in connection with the constitution as part of
the contract, there was no obligation of the
State to the companies, and the bonds had no
obligatory force until transferred
In 1860, the companies having
defaulted, the State made this constitutions
amendment that no payment should be made
until the matter was submitted to the people.
1t was appropriate that it should go to them
for the contract was made by them. When
they made it there was no idea the State would
ever have to raise dollar. 1t was asserted
emphatically in circular signed by all who
were most instrumental in procuring the State
to make the contract that they had so provided
that the State could not be held for cent
And the persons taking the bonds took them
under the bonds.
In 1871 the bondholders got letter from
Curtis and Evarts, and about year after one
from Bigelow and Brisbin, and last winter they
appealed to the legislature, bringing these
eminent opinions of Bigelow, Brisbin, Curtis
and Evarts to back their appeal.
Counsel say the purpose of the appointment
of the tribunal was to get letter of credit to
float the new bonds. He would read from
Gen. Coles [Cole, interrupting: "Good au-
thority If you'll only stick to it. " speech to
the legislature that the purpose was to get
construction of the constitution. Nor was
there any pretense before the legislature that
/ he tribunal would not be court; they called
it the supreme court and said they would have
that court decide the Legislative doubts as to
the power to settle with the bondholders with
out consent of the people.
The law is fraud. The preamble is pecu-
tell what it means. There is fish which is
said to escape from pursuit by throwing out
an inky cloud. That is the style of the pre-
amble. Section 2 says the judges of the su:
preme court. Whether the legislature has
constitutional power to pass this act is what
was submitted. For twenty-one years III
amendment of 1860 has been binding on the
consciences of the legislature. They hestat
ed at violating their oath and it was said to
them submit this doubt to the supreme judges,
and laymen would not distinguish between
judges OF the supreme court and the conrt
itself. The judges are, by the act to pass up
on the "validity of the constitutional amend
ment or the legislative power to pass this
act" and that decision was extended to be
settlement Of this question. The question be
fore the court is whether it was competent for
the Legislature to thus confer judicial powers
ON tribunal not created under the constitu-
ton.
The fallacy underlying the argument on the
other side is that the legislature could have