therefore, proposed, whereby the term of each of the executive officers named in this article should "commence on taking the oath of office on or after the first day of May, 1858."102 This amendment was ratified by the voters but no returns of the election have been officially published. Had the executive officers taken advantage of this amendment before the admission of the state into the Union, and had they attempted, as would have been necessary, to have ousted the territorial officers, the history of Minnesota might have been stained by an outright clash between the state and federal authorities. Governor Sibley pointed this out in his first message to the legislature, in explanation of his failure to carry out the provisions of the amendment.103 He exercised sound judgment in not taking office until after he had been fully notified of the passage by Congress of the act admitting the state to the Union. The second amendment to this article was first proposed in 1873, unsuccessfully; but in 1877 it was again proposed and this time it was adopted.104 The original section 2 of this article had provided that both houses of the legislature should meet to canvass the vote for the various constitutional executive officers named in section 1. The canvassing of the votes in a statewide election is a long and difficult process. It soon proved that a large body like the joint convention of the two houses was a very clumsy piece of machinery for this purpose. Still the original provision was fairly workable as long as the legislature followed the practice of convening in December, a month before the executive officers took office. When it was decided to change this practice and to have the legislature meet in January, it became necessary to relieve the legislature of the duty of canvassing the election returns. Otherwise the executive officials could not have taken office until some weeks later in January. The voters ratified the proposed amendment to set up a separate canvassing board in 1877. The statute which makes the provisions of the new section 2 effective fixes the time of meeting of the canvassing board as the fourth Tuesday of November, which gives ample time for the work to be done before the governor and other officials take office.105 It is evident that the constitutional provision creates a board of canvassers to canvass the returns for the officers named in section 2, namely, the governor, lieutenant governor, secretary of state, auditor, treasurer, and attorney general. However, the statute increases the duties of the canvassing board by the provision that it "shall open and canvass the certified copies of the statements made by the county canvassing board," and the county canvassing boards certify the returns for legislative and judicial as well as executive officers.106 In fact, the county canvassing boards certify and file the 103 Sess. Laws 1858, ch. 2. 103 House Journal 1857-1858, pp. 602-9; Senate Journal 1857-1858, pp. 372-79. 104 Sess. Laws 1873, ch. 3; 1877, ch. 1. 108 Gen. Stat. 1913, sec. 519. 100 Ibid., secs. 520, 521, 512. returns for practically all elections not of a purely local nature. It is evident, therefore, that the statute gives the canvassing board much wider duties than the constitutional provision would imply. Now, since judges of both the supreme and district courts serve with the secretary of state upon a state board of canvassers, it is an interesting question whether judicial duties have not been imposed upon the judges in excess of those authorized by the constitution.107 The statute also provides that the secretary of state shall call to his assistance "not more than two judges of the supreme court" at one time, whereas the constitution says that the secretary of state "shall call to his assistance two or more judges of the supreme court."108 There seems to be a discrepancy between the statute and the constitution at this point also. The system of biennial elections had been discussed in Minnesota for some years before it was finally adopted in 1883.109 When it went into effect, however, it was necessary to have the various executive and judicial officers serve for an even number of years. The term of the auditor which had formerly been three years, was increased to four years by an amendment to section 5 of this article in the same year. 110 The last amendment to this article came in 1896. The governor had formerly had the power "to grant reprieves and pardons after conviction for offenses against the state." By the amendment now under discussion, the pardoning power was transferred to a board of pardons consisting of the governor, the attorney general, and the chief justice of the supreme court of the state.112 The amendment further makes the powers and duties of the board subject to regulation by law. Pardons may be granted only after conviction, and, therefore, the board of pardons, unlike the president of the United States, does not have the power to grant a general amnesty. It is also interesting to note that treason is not excepted from the offenses for which pardons may be granted in this state. 6. ARTICLE 6-THE JUDICIARY. This article, like that upon the executive department, has been very little changed since the adoption of the constitution. The population of the state has grown to be fifteen times as large as it was in 1857 and the quantity of commercial business has undoubtedly increased many times more. In view of these facts, it is probably true that the amount of litigation has also increased at least fifteen fold and undoubtedly there is now a greater variety of judicial business to be done than there was originally. Nevertheless, the original constitutional provisions relating to the judiciary 107 See pp. 163-64. 108 Gen. Stat. 1913, sec. 519. 100 See pp. 165, 181. 110 Sess. Laws 1883, ch. 1. 111 Art. 5, sec. 4. 112 Sess. Laws 1895, ch. 2. stand practically unchanged to this day. Of the five amendments which have been proposed to this article, four have been adopted; but the proposal to increase the term of probate judges had to be submitted three times before it was ratified. Fortunately the original provisions regulating the courts were sufficiently simple and flexible so that a break-down of the judicial system has been avoided. The first amendment was adopted in 1875.118 Section 4 as originally adopted set the number of judicial districts at six and limited the number of judges in each district to one. It was, therefore, impossible to enlarge the number of district judges as the growth of the state and of judicial business made such expansion necessary. Consequently the legislature proposed the present section 4 which sets no limit either to the number of judicial districts or to the number of judges to be assigned to each district. The 1919 legislative manual lists forty-seven district judges distributed throughout nineteen districts, with from one to nine in each district.114 Section 2 of this article limits the number of associate justices of the supreme court to four, making a maximum of five with the chief justice. The legislature decided in 1881 that four associate justices were necessary.115 Since that time the pressure of work has grown greater almost every year, but it has been impossible to bring about an increase in the number of justices. In 1913 and again in 1915 constitutional amendments were proposed to remove the limit.116 In each case a majority of the voters voting upon the proposition favored the increase, but it was impossible to obtain the required majority of all the voters voting at the election. In 1913, following the example of other states which have similar restrictions in their constitutions, the legislature created the office of commissioner of the supreme court in order to assist the supreme court until it is possible to amend the constitution to authorize additional justices.117 Two commissioners are appointed by the court for terms of six years each, at the same compensation as is received by the justices themselves. The commissioners do the work of associate justices but have not the power of voting upon decisions. Nevertheless, if three justices concur in an opinion written by a commissioner, it becomes the decision of the supreme court. Thus in fact we have additional judges, though their powers are somewhat limited, and they are chosen not by the voters but by the court itself. The amendments proposed in 1913 and 1915 also carried provisions that the supreme court should have the power to appoint its own clerk. At the present time the clerk of the supreme court is elected by state-wide popular vote.118 The amendment proposed in 1913 also provided that "no statute 118 Sess. Laws. 1875, ch. 1. 114 Leg. Man. 1919, p. 455. 118 Sess. Laws 1881, ch. 141. 110 Ibid., 1913, ch. 585; 1915, ch. 382. 117 Ibid., 1913, ch. 62. 118 Minn. Const., art. 6, sec. 2. shall be declared unconstitutional unless five members of the court shall concur in the decision." This was an innovation designed to prevent the supreme court from declaring statutes unconstitutional without the concurrence in the decision of five justices. On the two occasions about an equal number of voters voted in favor of the amendment, but in 1914 when the more radical proposal was before the voters, fully 40,000 less voters voted "no" than in 1916. It is difficult to understand these votes. The second amendment to this article was adopted in 1876.119 It took the form of an addition to section 3 whereby the governor, or in certain cases the lieutenant governor, has the power to assign district judges to take the place of supreme court justices in any cases where, from any cause, any of the latter were disqualified from sitting in the said court. This provision was found to be useful in the recent soldiers' bonus case where three of the supreme court justices were disqualified by virtue of the fact that they had relatives interested in the bonus law.1 120 The third amendment to this article came in 1883 when the terms of both supreme court justices and district judges were reduced from seven to six years and the term of the clerk of the supreme court was increased from three to four years to correspond with the system of biennial elections which was established by another amendment of the same year.121 These changes in terms have no other significance. The three propositions for increasing and decreasing terms were submitted separately, but the vote was practically the same upon all three. Of those who voted upon the proposals, three out of every four favored the amendments, 122 The three attempts to extend the term of the judges of probate from two to four years are mentioned elsewhere as illustrating the difficulty of changing details in the constitution.123 The term was originally fixed at two years. Subsequently the terms of other county officers were increased to four years, and for several reasons it became very desirable to lengthen the term of probate judges also. No increase in term was possible, however, without an amendment to the constitution. Both in 1914 and in 1916 proposals to alter the constitution to effectuate this change were defeated. The question was again submitted to the voters in the 1920 election, and the amendment was then finally carried.124 7. ARTICLE 7-THE ELECTIVE FRANCHISE. The history of the suffrage in Minnesota is very briefly as follows: In the Northwest Ordinance it was provided "that a freehold in fifty acres of land in the district, having been a citizen of one of the states, and being a resident in the district, or the like 119 Sess. Laws 1876, ch. 3. 120 Gustafson v. Rhinow, 144 Minn. 415; 175 N. W. 903, (1920). 121 Sess. Laws 1883, ch. 3. 122 Cf. Sess. Laws 1885, pp. 1-2. 12 See p. 150. 124 Sess. Laws, 1913, ch. 589; 1915, ch. 386; 1919, ch. 531. freehold and two years residence in the district, shall be necessary to qualify a man as an elector of a representative."125 The organic act for the territory of Minnesota, as has been explained above, provided for the suffrage in the following language: Sec. 5. And be it further enacted, That every free white male inhabitant above the age of twenty-one years, who shall have been a resident of said territory at the time of the passage of this act, shall be entitled to vote at the first election, and shall be eligible to any office within the said territory; but the qualifications of voters and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States, and those who shall have declared, on oath, their intention to become such, and shall have taken an oath to support the constitution of the United States and the provisions of this act. It will be observed that citizenship of the United States was not an absolute requirement for voters in territorial days. When Congress came to pass the enabling act authorizing the people of a certain portion of Minnesota territory to form a constitution and a state government, it was provided that "the legal voters" should have the power to elect delegates to the constitutional convention.120 The legal voters included, of course, a number of aliens. In the constitutional conventions there arose a bitter controversy over suffrage questions. In the Republican convention, the chief difficulty centered around the attempt of certain members to give negroes the suffrage in this state.127 In the other convention there was some discussion of the residence requirements and whether or not aliens should be required to have a longer residence than citizens.128 In both conventions it was agreed that aliens who had declared their intentions to become United States citizens should have the right to vote on the same basis as white men. When this constitution was submitted to Congress, the opponents of admission made a great to-do over the provision authorizing aliens to vote and there was also some objection to the provision relating to Indian suffrage.129 However, no conditions were attached to the admission of the state which would require the state to change its constitution in either of these respects. The more extreme partisans of the negro who had fought in the Republican convention to give him the right to vote in this state did not cease their efforts to bring about negro suffrage. Beginning in the last year of the Civil War, the legislature submitted on three occasions the proposal to strike the word "white" out of the constitution.18 The vote was close on each occasion. 1 See p. 287. 126 Enabling act, sec. 3. See pp. 60-62. 127 Rep. Deb., pp. 349-66, 367-76. 128 Dem. Deb., pp. 422-37, 607-10; and see pp. 123-24 of this study for the compromise which was worked out between the conventions. 129 See p. 140. 130 Sess. Laws 1865, ch. 57; 1867, ch. 25; 1868, ch. 106. |