The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-10-05
WILL APPEAL At ONCE
ONE WAS PERFECTED AS SOON AS
SCHOOL LAW DECISION
WAS GIVEN
SEEK SPEEDY SETTLEMENT

DecISkon Expected 1iune I'D
Spread the Levy II 1t Is So Ordered
| Substance of District Bench De-
| cision and Judge KelIy's Dissent
| Ing Opinion.
! The decision of a majority of the dis
| trict court judges sustaining the consti-
tutionality of the-law authorizing a ~
mill additional levy for school purposes
| was filed yesterday morning in district
court, together with a dissenting opinion
| by Judge Kelly County Attorney Bige-
| low Immediately perfected an appeal to
| the supreme court, in which the papers
were filed during the afternoon. In ref
erence to the matter County Auditor w.
| R Johnson, who was mandamused by the
city to compel him to spread the levy on
! the rolls, said:
Personally I am perfectly satisfied
with the majority opinion rendered by
| the judges of the district court, but IN
view of the fact that the attorney gen
eral, corporation counsel and county at
torney have taken the opposite view OF
the question, it has been decided to have
the matter definitely settled in the high
est court The papers have. been fled
and we are given to understand that the
supreme court will reach decision with
in very short time. The matter will
| be argued on Oct. 13. If the decision IS
expedited and the lower court sustained,
there is still time for me to spread the
levy. The rolls should be made up by
! Get TO- but 1 can delay for few days
in order to wait for the opinion"
The majority decision, signed by Judges
Brill, Otis, Bum, Lewis and Jaggard, is
as follows:
This action came on to be heard at a
special term of this court, held Sept. 81,
on the motion of the REALTORS based upon
! the petition and answer and temporary
writ of mandamus herein, for an order d.
recting that perempt9jry VIII III r pa 1a-
ent William R. Johnson. as county audi
tor of said county of Ramsey, state OF
per centu1n on the assessed VALUATION OF
property within said city OF 81: Pauls
necessary to ra Sc the special tax levy cf
SIP, 900, referred to in the petitlon, ana 20
county, and to include the same as part
of the general taxes for the year 1899 to pc
levied and collected ;, upon the ne t AKA o
St Paul, and that he take such other ON
| cial action as may be necessary 10
proper levy of said tax
After hearing counsel ana upon Que au-
visement it is
Ordered, That sad motion be and it il, j. is
! hereby granted Let peFeHploIy VIII
! of mandamus issue as prayed.
| The accompanying memorandum IS III
| part as followS:
The law is valid unless it contravenes
section SO or 81 of article of the state
constitution, relating to special leglslatlto on,
| Section SO provides, in substance, that the
legislature shall pass no local or spec ea al
| ties, etc, or regulating the management
of public schools, and the raising of
money for such purposes The Legislature
| law, but shall not amend, extend or modi-
| fly the same. Section "a reads: The
legislature shall provide general laws Tor
| the transaction of any business that may
be prob blted by section one (33) of this
amendment. and all such laws snail pc
uniform in INCORPORATION throughout the
state" BY the amendment adopted NO
| vember 1898, the legislature has power TO
pass laws relating to cities of more than
| fifty thousand Inhabitants.
The opinion of a majority OF the court Is
| that it is not ayalid objection to the law;
that it inc dentally operates TO ameno,
extend or modify existing speclfal iaWs;
| only to amending or modifying a special
| law by another lspecial law: state vs.
Sullivan, g. MINI; 2SS. Nor is 1t necessary &c a
repeats special laws on the he same subject.
State VS.. Egan, GA MINI. 1856
Judge Kelly in opening the memoran-
dunn in his dissenting opinion says:
I If I could properly permit my personal
feeling to control l would gladly concur
in the conclusion reached by my learned
associates. Judicially l cannot dlstin-
settled by the supreme court in Alexander
VS.. Duluth and Bowe VS.. St. Paul, and
unless 1 entirely misunderstood the mean
ing of the language there used, particu-
larly in the Alexander case or until the
court which uses it shall give it another
meaning they are decisive in this case -,
memorandum he groups his reasons. for
holding the law unconstitut onal, adding
some personal remarks, as follows:
First-Though called such, and mas
querading as general law, 1t Is really
Seoond-Dealing with the subject Of
raising revenue by taxation and disburs-
ing for school purposes, it does not re-
duce the body of the law the subject
dealt with, in the three cities affected, to
uniform ty in any particular, and intro
duces additional elements of confusion
THRIFT is founded on special charters
and attempts to adopt and perpet9ate
| those special laws with all their differ
ences and contradictions
Fourtt-It cannot be enforced except
through the methods fixed in the special
charter of each city. each being different
from the other, and fails of uniform ty
in this respect
The tax attempted to be levied for 1899
under it is Invalid to st. Paul. because the
methods pointer out in the charter have
nc+ hoon observed.
| From pride of opinion but with
| sincere regret that conScientiouSly | can
| not agree with my brethren, [ have en-
deavored to thus indicate the res sons con-
| trolling my action. nisi prius judge can
expect little from a dissenting opinion,
and the particular Judge knows how diff
ficult the task when confronted with the
opinion of associates, each so we'll Versed
in the law Because of it's subject m alter,
1t has been to me an ungraciouS task to
oppose this statute. Every Judge takes
an oath to support the constitution of TIE
state. And when that instrument IS in
terpreted by the supreme court, the
opinion governs. If in the exercise Of h S
honest and best Judgment and law is
is his duty to refuse to enforce such law,
| let the consequences to hinsslf or Others
be what they may The alternative writ
should be Cuashed.
| Within the body Of the memorandum,
discussing the question and reviewing the
law he proceeds to say, in part:
| Any one who reads this law having
| knowledge of the provisions in the char
| ter of the three cities (and especially st.
PauD is compelled to say from the Ian
| the law is to remove the limitations by
| the charters placed on the taxing p1wer
and add thereto And thus as to e ther
! city it is special legislation and invalid
/ To make my position in this regard as
| clear as possible take this case. 1t has
| been held that classification of cities
| for legislative purposes by the number Of
! inhabitants, is not improper even though
| the law can apply only to one city. Sup
pose this chapter 40 had referred to cities
| by such classification as to embrace ST.
/ Paul alone, and was other wise word FOR
word as it now reads The special char-
~