St. Paul daily globe., 1896-04-09
BY JUDGE KELLY.

separate memorandum is filed by Judge
Kelly.
In the general result dissolving the injunc-
uon l concur, but prefer to place 1t upon the
ground that when this action was commenced
the wrongs sought to be restrained were ac-
complished facts and nothing remained upon
which the writ could operate. doubt the
power in the court, and certainly the pro-
priety, of forbidding the commission to report
its doings to the legislature. AS to preparing
plans, nothing appears why these plans might
not be used with preprietysas> well ON one
site as another .....
My learned associates hold substantially as
follows: 4sr.ss3a = -
Ffrst-That the commission located: the hos
pital upon the site proposed by the city of
Hastings; second, that 1t failed to make
valid contract for the acquisition of the land
whereon it had located the hospital and third.
that until such acquisition was consummated
by purchase, condemnation or otherwise. or
until the rights of third parties have inter
Vened, 1t may reconsider such action and re-
tract the preliminary steps so taken"
From the third proposition l am compelled
to dissent.
l agree with them upon tho fret nroros,
ton.
AS to the second, 1t expresses the law as now
ruled and as binding on this court. am
inclined to think that with the statute of
Ir&uds out OF the way contract of purchase
might be found from the facts. That cannot
De reached, however, unless the supreme court
should see it's way clear to overrule the cases
clted IN the main opinion. That it NAV do
SO IN proper case is intimated in Harris VS.
Mckinley, 81 Mimi, on page POI! .' 'sTss
From the third proposition I entirely dis
sent, and will briefly state my reasons there
for: ~f~+-e~
Whether there was made valid contract of
purcnase ana sale or not, in my opinion the
iouIlh hospltal Tor insane was, by the action
VI 'he commission on Dec. 49, 1885, definitely
located on the site offered by the city of Hast
ihgs' 1t was the duty of the board then to
proceed to acquire the land as prescribed bv
tle act chapter 157, General Laws of 1895
BY the terms of the law the land NAV he ac
CURED either o. by purchase (2 by part pur
chase ana part condemnation, and (3) wholly
ny condemnation. 1t follows that the first
regular step was locating the site.
MY learned brethren say. "Tbe essential
uuty OF the board was not the location. but
'he purchase as well of a hospital Site" I
So 1n"' d very important duty was the ac-
qulsltlon OF the land-but a far more i'm
portant duty, the very essence. in. NV iudg-
ment, or the boards powers and the obiect
Oh lts creation, was the location of the site
The title of the act is ITO create commio
sion TO locate, acquire land and prepare plans
Tor fourth hospital for the insane" A blum
DER IN the location is worse than a crime 1t
is crime against the most helpless and mis-
cradle OF the states wards, an error almost
without remedy. The state is entitled to the
purest most enlightened and disinterested
judgment and discretion of the commission in
making this location. When that is once ex-
ercised and the location made in good faith
the commission cannot reconsider its action
and ought not, in the interest of good morals,
T. hn nrfr1fft nS6
following circumstances: These circum-
stances are fraud or mistake of fact inducing
the location, or inability afterwards to acquire
the land. location made or induced by
fraud or mistake Of fact is no location Nor
is an attempted location which might fail
cause the land could not be acr,,i-~- 1e-
$4,000 limited by the act ~ -@-feo Ior the
power Therefora ~ 49," exercise of the
cases the cor either of these excepted
by i+- mission would not be concluded
attempted action and would not be
functus officio because it had failed to act.
But where neither of these exceptions occur,
location made as this was in good faith and
upon ample investigation, and confirmed by
the unanimous vote of the commission. is
conclusive, and as to that subject the com
mission is functus officio. Surely this COM
mission was not empowered to locate and
relocate" this hospital at the whm or caprice
of majority Of its members.
In this ruling, i feel that / am unfolding
good morals, the best interests of the state
the fair name Of the commission itself that
no shadow of suspicion rest upon it as body
or upon any member. Kelly. J. ,
An appeal is sure to be taken to the su-
preme court, and the case will probably go on
the October calendar for argument.
DUNN WILL WAIT.
The decision of the district court was the
chief topic of conversation at the capitol yes
terday afternoon, and there was much impa-
tience to know the exact text of the decision
and the accompanying memorandum 1t was
found then, that while apparently victory
for Anoka, the decision was severe in its
structures on the commission for it's unex-
planned change of heart, and advised that the
state pay no money in the transaction until
a possible correction of the deal by the legis-
lature, or at least the settlement of the mat
ter by an appeal to the supreme court.
On this position, Auditor Dunn announced
that he would not, for the present, at least,
draw the warrant for $4,000 which the com
| mission owes Mr.. Woodbury. on his land
And even If the auditor should draw the war
rant, 1t is doubtful II 1t, would help Mr.. Wood
bury much. as Treasurer Koerner would not
pay 1t until he has secured a decision from
either the supreme court or the attorney gen.
eral. AS soon as he heard of the decision yes
terday, Mr.. Koerner secured the abstracts of
title and other papers in the case and placed
them before the attorney general.
Attorney General Childs had not read the