The representative. [volume] (St. Paul, Minn.) 1893-1901, 1897-07-21

AOpChd, hdu, June O.-Culcl JUSTICE
Doster, of the supreme court, holds that
tho courts of the present day are assum-
ing too much power.
He lays particular stress on recent de-
cisions tending to curb legislative au-
thority. Two of the supreme court
justices today decided that the legisla-
tive committee was without power to
commit witnesses who refuse to testify.
Chief Justice Doster, in dissenting,
says:
THE prisoners contention in this
case constitutes a striking instance of
the latter day tendency to minimize
the power of the legislative branch OF
the government. 1t has become the
fashion, as it were, for persons unwill-
ing to subject themselves to the whole
some rule Of legislative authority to
rush to the courts with a plea of per-
secution and in the name of some theory
Of popular right to demand immunity
from the restraint imposed.
so frequently have the judges yielded
to the opportunities of this class that
the fact Of this being a government Of
the delegated executive power is be-
coming obscured in the popular mind,
and it's place usurped by fancy, nebu-
lOus and indistinct, but fast outlining
and shaping itself, that the judiciary is
the final and supreme authority, sitting
in censorship and correction over tne
| other branches OF the government.
Government by injunction and govern
ment by habeas corpus and govern
ment by the courts are really losing
those contemptuous and protesting sig
! nificance with which the terms were
first used, and are rapidly passing into
accepted theories of municipal sover-
eighty
Like an infection which, through
lack Of preventive measures, may de-
velop into type of permanent constitu-
tional disease, the virus of this neresy
has so inoculated the body polite as to
endanger the very life Of the organic
political system. Even in this state
only four years ago a majority of the
judges Of this court assumed the right
to compose legislative dispute as to
who, and asserts that they are distinctly
contrary to the intent Of the trainers Of
the constitution.
Among the divisions of government
analytically considered" he says, there
is no such thing as judicial power.
of executive power merely"
eve have grown" he says again, ito
arrogate the prerogative of controlling
executive acts, settling questions of leg
| islative membership, condemning forms
Of legislative procedure, enjoinlng the
enforcement Of executive provisions
marking out the scope and policy Of
| legislative inquiries and generally of di-
recting the plan and supervising the
political government"
These words were used in a dissent
ing opinion from the decision which
practically kills the legislative Doodle
| investigation
| Later a probate judge Of one Of the
| consequence Of his Office to a point Of
| contact with the supreme executive
/ head of the state, and actually had the
| temerity to issue an order restraining
ho foP
| from mastering militia company out
| OF the service, and this court, instead
| of resting it's denial of its right to 90
so upon the clear ground of distinction
between coordinate branches of the
| government and their independence one
| of another, as 1t should have done, de-
| graded the question into one Of mere
statutory construction and official prac-
| tce
Instances of which the above are
| characteristic are constantly OCCUR ing
in this state and the federal courts
and IN my judgment an imperative duty
rests upon the judiciary to disavow In
emphatic terms the extravagant meas
ures OF authority 50 frequently ascribod
to it.
at is now too late for any effective
purpose to deny the right of the court
to sit in judgment upon the acts Of the
| legislature. Accumulated precedent has
established such right beyond a qnes-
ton Of one or even many judges. II,
however, 1t were an open inquiry, l
would have to hesitate in denying the
existence Of the jurisdiction assumed.
No close student Of the structure, his
tory and philosophy of the government
but viii! agree that the exercise OF such:
power was not within the design OF the
| trainers of either the state or federal
| constitution.
Jurisdiction, like appetite, grows by
| what it is fed upon. One assumption
IL al,