Secombe v. Kittelson
| Decision Date | 07 June 1882 |
| Citation | 12 N.W. 519,29 Minn. 555 |
| Parties | David A. Secombe v. Charles Kittelson, Treasurer, etc |
| Court | Minnesota Supreme Court |
After the decision of the last preceding case (State v. Young ante, p. 474,) an extra session of the legislature was called by the governor, at which the act in question in that case was substantially re-enacted, with the omission of the provisions for submission to a tribunal or to the people. Laws 1881, Ex. Sess. c. 1. Before the issuance or signature of the new bonds provided for in the act, the plaintiff in this action brought suit to restrain the governor from signing or issuing them, and on November 16, 1881, a writ of injunction was allowed by a court commissioner, and served upon the governor, who, nevertheless, proceeded to sign the new bonds, which were also countersigned as required by the act, and delivered in accordance with its provisions. The state treasurer being about to pay the interest on these new bonds the plaintiff brought this action in the district court for Hennepin county, to restrain him from doing so, on the ground that the constitutional amendment of April 15, 1858 under which the original state railroad bonds were, and on their face purported to be, issued, was void; that the act of the extra session under which the new bonds were issued was void, and that the new bonds were signed and issued in violation of the injunction. The defendant did not appear in the action in the district court, and the plaintiff, having applied for judgment upon his default, which was denied by Young, J., appealed from the order denying the application.
The court below properly denied plaintiff's application for judgment. Order affirmed.
D.A Secombe, appellant, pro se.
Wm. J Hahn, Attorney General, for respondent.
This action was brought to restrain the defendant, as state treasurer, from paying, out of the funds of the state, the interest about to become due upon the bonds of the state of Minnesota, issued under the act of November 4, 1881, in adjustment of the so-called "Minnesota state railroad bonds." The injunction is asked upon the ground that the "Minnesota state railroad bonds," in adjustment of which the bonds about to be paid were issued, were themselves void, and no obligation of the state, because the pretended amendment of April 15, 1858, to section 10, article 9, of the state constitution, commonly called the "loan bill," under which these bonds were issued, was null and void, never having been lawfully proposed or submitted to the people of the state for their approval or rejection, and never having been adopted by the people of the state in accordance with the provisions of the constitution of the state. The plaintiff is entirely correct in stating that the question was not considered or decided in the case of State v. Young, ante, p. 474, for, no question having been there made as to their validity, it was assumed, for the purposes of that decision, that these state railroad bonds were legally issued.
In order to a correct understanding of this objection to the validity of this constitutional amendment and of the bonds issued thereunder, a brief history of the formation and adoption of our state constitution, and of the organization of a state government, may be necessary. On February 26, 1857, congress passed an act, commonly called "the enabling act," authorizing the people of Minnesota to form a constitution and state government, preparatory to their admission into the Union on an equal footing with the original states. (11 U.S. St. at Large, 166.) In pursuance of this act, delegates were elected, who assembled at the time and place therein designated, and framed a constitution, which was submitted to the people for adoption or rejection on the 13th of October, 1857, at which election it was adopted by a large majority of the popular vote, and its adoption officially proclaimed on the 22nd day of December, 1857. Section 7, article 5, of this constitution provided that the term of each of the executive officers (governor, lieutenant governor, etc.) should commence "upon taking the oath of office after the state shall be admitted by congress into the Union." (See Laws 1858, appendix, p. 392.) Section 16 of the schedule to the constitution provided for an election of state officers and members of the state senate and house of representatives, on the same day on which the vote was to be had upon the adoption or rejection of the state constitution. Section 6 of this schedule provided that the first session of the state legislature should convene at St. Paul on the first Wednesday of December, 1857. Section 5 of this same schedule provided that all territorial officers, civil and military, should continue to hold and exercise their respective offices until they should be superseded by the authority of the state.
In pursuance of these constitutional provisions, members of the state senate and house of representatives were elected, and assembled and organized as the first legislature of the state of Minnesota, at St. Paul, on the first Wednesday of December, 1857, and continued in session as such until the 26th of March, 1858; recognizing the territorial governor as governor of the state, and in his absence the secretary of the territory as acting governor of the state. (By section 3 of the organic act, establishing the territorial government of Minnesota, the secretary of the territory, in the absence of the territorial governor, executed and performed the duties and powers of governor.) Congress did not pass any act or resolution formally admitting Minnesota into the Union, until May 11, 1858, (11 U.S. St. at Large, 285,) up to which time the territorial governor, and in his absence the secretary of the territory, acted as governor. On the ninth of March, 1858, the state legislature passed "An act proposing an amendment to section 10, article 9, of the constitution, and providing for the submission of the same to the people." Laws 1858, c. 1. This was signed and approved by the secretary of the territory, as acting governor, in the absence of the territorial governor, as were all acts passed at that session. It was stated on the argument of this case that this act was never thus signed, and the printed volume of the laws of that session seems to sustain that statement. But an inspection of the enrolled bill, now on file in the office of the secretary of state, shows that it was in fact signed by Charles L. Chase, secretary of the territory, as "acting governor." This proposed constitutional amendment was adopted by a very large majority of the voters present and voting, on the 15th of April, 1858, and, after a canvass of the vote, was proclaimed as adopted, on the fifth of May, 1858, by the acting governor. This amendment has always been popularly known as the "loan bill," and is that under the authority of which the "Minnesota state railroad bonds" were issued.
It is urged that this amendment was never proposed or submitted to the people in accordance with article 14, § 1, of the constitution, which provides as to...
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