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


in the amendment case was not filed until
5 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
chat the courts are instituted for the pur-
pose of adjudicating the acts of the legis-
lature.
The court says: The petition for
rehearing was presented IN this cause and
the whole case has been reargued by emf
nent counsel with much ability and re-
search. In view Of the great interest which
has attached to this question and Of its
public Importance, it 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 one reached in the fore
going opinioa. 1t is asserted in the peti-
tion for a 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-
tion for its own amendment are simply
directory, and may be di.regarded with
impunity. For 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 a 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 aud the
law questions raised. Of the correctness
of that decision no one can entertain a
shadow of doubt bat 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,
simply an amendment, in no manner af-
fecting the judicial authority of those act
ing under the existing governments 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 thai
the sovereignty of the people extends right
fully to the overturning of constitutions
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 tha
right is invoked, a question arises which ii
above the constitution, and above courts
and which contending factions alone car
determine by appeal 10 dernier resort
In such a case as that-might makes
right-it has been said that the changes il
the constitution may be introduced i'll dis
regard of its provisions. That if a ma
jority of the people desire a change ths
majority must be respected, no matte
how the change may be effected, and that
change if the revolution is peaceful revo
luton. But revolution is peaceful onl!
upon the assumption that the party op
POSCO oOAAOHOOLS 4tS OppOSlblOu anu NOiUn
tarily acquiesces. If 1t objects to th
change then the question arises which car
be determined only on one of two methods
by arbitrament or the sword. Disguise
question as we will, theorize about it a
we may, this is the fact with which we ar
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 advc
Gates of this doctrine in their zeal to az
complish an end which majority of tn
people desire, have looked at but on
phase of the question, and have not full
considered the terrible consequences whic
would almost certainly follow the recol
milton of the doctrine for which they col
tend.
1t may be that the incorporation of th'
amendment in the constitution, even If Il
constitution has to be broken to accon
plish it, would not of itself produce an
serious results, but if it should be done
the sanctionary doctrine contended for, Il
precedent would be set which would plagI
the state for all future time. Banquo
ghost would arise at our incantatiol
which would not down at our bidding"
q aforL