St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-10-29
THE LAW IN THE CASE.
Statutes and Supreme Court
Are Directly in Support
Of the Auditor.
BIERMANN WRITES A LETTER.
Not Losing Any Sleep About
the Result of the Novem-
ber Election.

Attorney General Childs returned
Saturday from canvassing tour of the
state, and Immediately repaired to his
Office, where it is presumed he began
the work of drawing up his formal
opinion upon the Great Northern land
grant. During the past week Mr..
Childs' assistant. Mr.. Edgerton, has
been engaged in looking up the law in
the case and chasing up the dozen or
more Irrelevant matters included in
Gov. Nelson's demand for an ''immedi-
ate" answer.
Mr.. Childs was seen by GLOB re-
porter yesterday and asked if he had
submitted his opinion to tine governor.
He replied that he had not. To a fur
ther inquiry he made answer that the
opinion was practically drafted. and
would be transmitted to the governor
orthwith. The attorney general de-
clined to give any intimation as to the
purpOrt of his opinion, but unwittingly
committed himself by saying that sit
would, of course, be based entirely
upon the statutes and decisions of the
supreme court" 1t will be remembered
by readers of the GLOBE that in trans
hitting the deed to the governor for his
signature Auditor Biermann cited the
statutes and decisions of the su-
preme court" bearing upon this
matter. The contention of the governor
In this matter has been that the auditor
had no right to make these arbitrary
selections, and he has been slashing
around in the trough loo king for some
place where he could put in his oar. AS
matter of fact. the governor has no
more to do with making these selections
than has his inspector-in-chief of stale
butter and decayed eggs. Wherever the
question of State land is Involved the
only perS on authorized TO act with dis.
cretionary powers is the land commits
siOner, who is also the auditor. In all
the statutes and decisions Oh this SUBJ
state," or where the landed rights of
''the state" are involved. 'the state" is
represented in the person of the land
commissioner.
In the decision by Judge Mitchell,
rendered Dec. II. 1890, of the case of the
Minneapolis and st. Cloud selections,
a case which covers all the points in
this one, the following extracts set COM
pletely at rest the legal status of the
state in the premises, and since 1.-THE
state as an lmmaterial, abstract some
thing, cannot act for itself, it must be
acted for by the state land commits
sioner:
Successive grantees of
lands to be selected. Special Laws
1869, chapter So. although in form an
amendment to Special Laws 1860, chap
ter 3, is in itself ID complete act, making
a "hoat'' grant to the plaintiff in aid of
its "Hinckley" branch of ten sections
to the mile without any limita-
ton as to the locality where
the lands shall be selected. But
the right of selection, not being given
to the plaintiff, belongs to the state,
which may fill the grant out of any of
its swamp lands. Notwithstanding the
grant to plaintiff, the state had right
to grant any OF its swamp lands to any
one else, provided only that it retained
enough to fill plaintiffs grant.
1t will be observed that the act is
silent as to who shall make the selec-
tion Of the land. There are two rules
of law applicable to such a grant that
have an important bearing on the re-
suit in this case. The first is that THE
RIGHT OF SELECTING the lands to fill
the grant, not being given to the gram
tee. BELONGS TO THE STATE. 1t can,
SO far as plaintiffs rights are concerned,
NIL the grant out of any swamp lands in
the state. The second is that such
a grant does not tie up all the swamp
lands in the state until the grant is act
ually filled. Notwithstanding the grant
to plaintiff. the state could still dispose
OF any of Its swamp lands and give per-
feet title to them. provided only that it
retained enough to fill plaintiffs grant.
Y. s. Y. Mclaughlin. 127, U. S. 42S
(Sup. CT. Rep. 1l77).
1t Will thus be seen that on either of
the two rules of law quoted the right of
selection remains with the state, and
that the state land commissioner can at
any time he may see fit select such
lands as he deems proper for the
filling of the grant. With this view of
the case, and looking at the decision of
the supreme court, there is only one
opinion that Mr.. Childs can give, and
that is that the statute, the supreme
court and the land commissioner are
Detter authorities than Gov. Nelson,
ana In consequence the deed goes.
Ihere is only one course left open to
the governor, and that is to take the
position assumed by one of his unfortu-
nate organs, which yesterday declared
1t an injustice to the Great Northern
road to force it to accept lands it did not
want.
The governor was expected to be at
his office again today, but was informed
by wire last night of the probable COM
ing OF the attorney generals opinion
today. and it is not improbable that he
Will delay his visit to the capitol "until
the campaign is over"