Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1883-04-23


in the amendment case was not filed until
O'Clock this afternoon. The opinions
are voluminous, the majority covering
eighty-four pages of legal cap, and the
minority, consisting of Judge Beck alone
covering 113 pages. The majority opin-
ion is in harmony with that rendered at
the first hearing, declaring the amendment
null and void.
The opinion of the court was delivered
by Chief Justice Day. On the new ques-
ton raised in the argument for rehearing
that of jurisdiction, the court is positive
shat the courts are instituted for the pur-
pose OF adjudicating the acts OF the Iegis-
lature.
The court says: The petition for a
rehearing Was presented in this cause and
the whole case has been reargued by emf
nent counsel with much ability and re-
search. II view Of the great interest which
has attached to this question ana of it's
public Importance, il is deemed not only
proper but necessary to examine with con-
siderable fUIlness the leading points re-
lied upon as necessitating a conclusion
different from the enc reached in the fore
going opinion. 1t is asserted in the petit
ton for rehearing that "the judicial de-
partment Of the state has no Jurisdiction
over political questions, and cannot review
the action of the nineteenth general
assembly and of the people in
the matter of adoption or
amendment Of the constitution of the
state. This position practically amounts
to this, that the provisions of the constitu-
ton for its own amendment are simply
directory, and may be di.regarded with
impunity.F it is idle to say that these re-
quirements of constitution must be OBJ
served if the department charged with
their observance are the sole judges as TO
whether or not they have been complied
with.
This proposition was advanced for the
first time upon the petition for rehear-
ing, and if correct, it is of course an end
to the controversy. Upon this branch of
the case the council cite Luther VS.. Borden,
chap. Howard sec. l.
As this case has principally been relied
upon by the advocates of the theory now
under consideration, and has given great
prominence in the discussions which have
taken place, the court presents its facts
with a degree of fullness which under
ordinary circumstances would perhaps be
considered unnecessary, to the end that
the degree Of its applicability to the
present case may be fully understood.
Here follows the statement of the
facts of the Luther case and the
law questions raised. Of the correctness
of that decision no one can entertain a
shadow of doubt but the differences between
that case and this, says the court, are so
many and so evident as to deprive it of
all force as an authority in the present
controversy.
In that case the entire change in form Of
government was undertaken. In this
mpiy an amendment, in no manner af-
fecting the judicial authority of those act
ing under the existing government, is sought
to be incorporated with the existing
constitution. In that case the charter pro-
vided no means for its amendment. In
this the mode of amendment is specifically
provided. In that case the authority of
the courts was invoked for the admission
of oral evidence to overthrow the existing
government and establish new one in its
place. In this that authority is invoked
simply to preserve the present constitu-
ton intact.
1t is apparent that the reasoning en-
ployed in that case can have no applica-
ton whatever to the amendment Of the
constitution, which does not affect the
form of government or judicial powers of
the existing courts.
The case of Luther VS.. Borden gives no
countenance whatever to the doctriue that
the sovereignty of the people extends right
E,,1J 20 4Io
and the adoption of new ones, without re-
gard to the forms of existing provisions.
It is true that the right under our form of
government exists, but it is revolutionary.
and not constitutional right. When that
right is invoked, question arises which is
above the constitution, and Above courts,
and which contending factions alone can
determine by appeal 10 dernier resort
In such a case as that-might makes
right-it has been said that the changes in
the constitution may be introduced i'll dis
regard of It's provisions. That if a ma
jority of the people desire a change the
majority must be respected, 10 matter
how the change may be effected, and that
change if the revolution is peaceful revo-
luton. But revolution is peaceful! only
upon the assumption that the party OBJ
posed surrenders its opposition and voIun-
tarjly acQuiesces. If 1t objects to the
change then the question arises which can
be determined only on one of two methods
by arbitrament or the sword. Disguise a
question as we will, theorize about it a:
we may, this is the fact with which we are
at last brought face to face, and wisdom
dictates that its dreadful possibilitie;
should be apprehended and appreciated.
We fear, says the court, that the advo
Gates of this doctrine in their zeal to &C
complish an end which majority of the
people desire, have looked at but on,
phase of the question, and have not full,
considered the terrible consequences which
would almost certainly follow the recog
milton of the doctrine for which they con
tend.
1t may be that the incorporation of tina
amendment in the constitution, even If tn
constitution has to be broken to accom-
plish it, would not of itself produce an.
serious results, but if it should be done b,
the sanctionary doctrine contended for, tn
precedent would be set which would plagu
the state for all future time. Banquo'
ghost would arise at our incarnation
which would not down at our bidding"
hoN-