Under the scheme of separation, the judiciary cannot be burdened with non-judicial duties. Neither the legislative nor the executive departments may compel the courts to express an opinion upon issues which are not regularly before the court in the ordinary course of litigation.50 The legislature may not interfere with the administration of the laws by the courts.51 Neither may judges be compelled to accept administrative duties properly belonging to the executive department.52

The legislature may not delegate the law-making function either to the courts or to an administrative board.53 However, an executive commission may be empowered to investigate, hold hearings, and determine whether certain facts exist. Upon such determination of facts, a law may or may not go into effect. The law-making power still remains with the legislature. "The difference between the power to say what the law shall be and the power to adopt rules and regulations, or to investigate and determine facts, in order to carry into effect the law already passed, is apparent."54

The supreme court of this state early took the position that the judiciary had no control over the chief executive officers of the state, even when they exercised functions of a ministerial nature and such as might have been delegated to some minor officer.55 This immunity from control was held to apply even to the state auditor as commissioner of the land office.56 This position has now been modified and in part reversed. The court now holds that ministerial duties imposed by the legislature upon the governor, and which could have been imposed upon some other officer, are subject to judicial control.57 Thus the governor's exercise of the statutory power to remove certain county officers, is subject to review by the courts. Even the proclamation by the governor that a constitutional amendment has been adopted by the electorate raises not a political question but a legal issue subject to judicial review.58

50 In re Application of Senate, 10 Minn. 78 (Gil. 56), (1865). See also Rice v. Austin, 19 Minn. 103 (Gil. 74); 18 Am. Rep. 330, (1872).

51 See Meyer v. Berlandi, 39 Minn. 438; 40 N. W. 513; 1 L. R. A. 777; 12 Am. St. Rep. 663, (1888), where a provision in Sess. Laws 1887, ch. 170, directing the courts to construe an act so as to give laborers the full amount of their claims was declared void as an invasion of the functions of the judiciary. Gen. Stat. 1894, p. lxxv.

52 State ex rel. Young v. Brill, 100 Minn. 499; 111 N. W. 294, 639, (1907). This decision contains a general discussion of the entire subject.

State ex rel. Luley v. Simons, 32 Minn. 540; 21 N. W. 750, (1884); Anderson v. Manchester Fire Assurance Co., 59 Minn. 182; 60 N. W. 1095; 63 N. W. 241; 28 L. R. A. 609; 50 Am. St. Rep. 400, (1894); State v. Great Northern Ry. Co., 100 Minn. 445; 111 N. W. 289, (1907).

54 State ex rel. Railroad and Warehouse Comm'rs v. Chicago, Milwaukee, and St. Paul Ry. Co., 38 Minn. 281; 37 N. W. 782, (1888); reversed on other grounds in 134 U. S. 418; 10 Sup. Ct. Rep. 462, 702; 33 L. Ed. 970, (1890).

Rice v. Austin, supra; State ex rel. Co. Treas. of Mille Lacs Co. v. Dike, 20 Minn. 363 (Gil. 314), (1874); Western Railroad Co. v. De Graff, 27 Minn. 1; 6 N. W. 341 (1880); Secombe v. Kittelson, 29 Minn. 555; 12 N. W. 519 (1887); State ex rel. Tuttle v. Braden, 40 Minn. 174; 41 N. W. 817, (1889).

56 State ex rel. Thompson v. Whitcomb, 28 Minn. 50; 8 N. W. 902, (1881).

State ex rel. Kinsella v. Eberhart, 116 Minn. 313; 133 N. W. 857, (1911).

68 McConaughy v. Secretary of State, 106 Minn. 392; 119 N. W. 408, (1909). See pp. 152-54.

4. ARTICLE 4-THE LEGISLATIVE DEPARTMENT. Twenty-two amendments to this article have been proposed, and twelve adopted. They have dealt with the following subjects: (1) the organization of the legislature-the size of the houses, the terms of members, the length and frequency of sessions, and the time and method of apportionment; (2) railroad taxation; (3) the establishment and management of the internal improvement land fund; (4) the prohibition of monopolies; (5) modifications in the governor's power of veto; and (6) special legislation, and home rule for cities. Two attempts have been made, also, to provide for the initiative and referendum as additional methods of legislation.

The constitution originally provided that the legislature should meet "at such times as shall be prescribed by law."59 Sessions were held annually and there was no limit to their duration. The first amendment to this article to be adopted added to section I the clause, “but no session shall exceed the term of sixty days."60 In 1873 there were proposed two amendments, one of which would have established the system of biennial sessions and have limited them to seventy days, and the other of which would have made the terms of representatives and senators two and four years respectively. Both were defeated. They were resubmitted to the voters in 1877, with the modification that sessions were not to exceed sixty days, and this time they were adopted.62 This plan quickly proved impracticable; the sixty-day session coming only once in two years was entirely too brief for the work to be done. In 1881 the legislature proposed that the time limit should be entirely removed, but this the voters refused to approve.63 Finally in 1888 was adopted the present section, under which the biennial sessions are now extended to ninety legislative days, with the proviso that "no new bill shall be introduced in either branch, except on the written request of the governor, during the last twenty (20) days of such sessions, except the attention of the legislature shall be called to some important matter of general interest by a special message from the governor.'

9964

Sections 23 and 24 of this article make provision for the taking of a census every tenth year, beginning in 1865, and for the frequent reapportionment of representation upon the basis of either a federal or a state census. The 23rd section reads in part that "At their first session after each enumeration so made, and also at their first session after each enumeration made by the authority of the United States, the legislature shall have the power to prescribe the bounds of congressional, senatorial and representative districts, and to apportion anew the senators and representatives among the several districts, according to the provisions of section second of this article."

BO Original Minn. Const., art. 4, sec. 1.

Sess Laws 1860, ch. 22.

Ibid., 1873, ch. 3.

62 Ibid., 1877, ch. 1. Ibid., 1881, ch. 2. Ibid., 1887, ch. 3.

Section 2 lays down the basic rule that "the representation in both houses shall be apportioned equally throughout the different sections of the state in proportion to the population thereof, exclusive of Indians not taxable under the provisions of law." Section 24 as amended in 1877 provides that senators shall be chosen by single districts of convenient contiguous territory, and provides a scheme whereby approximately half of the senators shall come up for reëlection every two years.

66

An amendment was proposed to section 23 in 1909 which would have directed the reapportionment of representation in the legislature at "any session" instead of the first session after each census as now provided.65 Although the amendment failed, the supreme court upheld the 1913 apportionment on the ground that the provision of section 23 is not mandatory, nor is it a grant of power. The legislature has the power to pass apportionment statutes in any case, with or without this section in the constitution, and the section is merely directory. It is interesting to note that the two preceding apportionments, in 1889 and 1897, were not made at the first session after the census. Section 24, which provides for the odd and even numbering scheme for senatorial districts and for the overlapping of the terms of senators, has also been considered as merely directory. The proviso for a complete new election of senators after each new apportionment, if it were coupled with frequent apportionments, would result in senators being elected very frequently for only two- instead of four-year terms. Half of those chosen at the first election after an apportionment, and all of those chosen at the last election before an apportionment would serve for only two years. The plan of overlapping terms has, therefore, been treated as if it is merely directory, and the practice has been adopted of electing all the senators at one time once in four years.

Two attempts have been made to limit the size of the state senate to sixtythree members, and at the same time to limit the number of senators from any one county to seven.67 In both cases a majority of the electors voting upon the proposition favored it, but in neither case was a constitutional majority obtained. The original and present section 2, quoted above, requires that representation be apportioned "equally" throughout the different sections of the state in proportion to the population thereof. The defeated amendments substituted the words "as nearly equal as practicable." The latter form of words describes very well the present method of apportionment, for it is evident that in practice exact equality is not attained. No other evidence is needed than the apportionment of 1913, which provided for sixty-seven senatorial districts, with one senator from each, and either one, two, three, or four representatives from each senatorial district. Either the senators were not apportioned equally, or else the representatives represent unequal districts;

Sess. Laws, 1909, ch. 509.

06 State ex rel. Meighen v. Weatherill, 125 Minn. 336; 147 N. W. 105 (1914). Sess. Laws 1911, ch. 395; 1913, ch. 590.

and it is difficult to see how under-representation of a district in one house can be exactly compensated for by over-representation in the other.

The railroad problem was prominently to the fore in the politics of the early seventies. The legislature proposed and the voters ratified in 1871 an amendment to the constitution, which became section 32 (a) of article 4, under which any law to repeal or amend any law "heretofore or hereafter enacted" for the taxation of railroads upon the gross earnings basis, "shall before the same shall take effect or be in force, be submitted to a vote of the people of the state and be adopted and ratified by a majority of the electors of the state voting at the election at which the same shall be submitted to them."6 In 1873 was passed the first railroad gross earnings tax law, and it was optional.69 In 1887 the gross earnings system of taxation was for the first time made compulsory and applicable to all railroads." The amendment of 1871 is interesting not only because it was passed in advance of the adoption of the scheme of taxation which it was designed to protect, but also on account of the majority it required for the change of the gross earnings tax. While such laws were not required to be submitted at general elections, it was laid down that they must receive the affirmative vote of a "majority of the electors of the state voting at the election." At this time this was a higher vote than was required for the adoption of constitutional amendments, for they required only a majority of the votes upon the proposition. Thus, from 1871 to 1898, it was more difficult to change the laws for the taxation of railroads than it was to amend the constitution.

The Legislature of 1872 proposed another amendment to this article, also to be numbered 32.71 Upon its adoption the secretary of state designated it as 32 (b) and the railroad gross earnings tax amendment of 1871 as 32 (a). The amendment of 1872 has an interesting history. It was discovered about 1866, that Minnesota was entitled to 500,000 acres of land for purposes of internal improvement under an act of Congress passed in 1841, eight years before the organization of Minnesota as a territory.72 When the discovery was made, those who favored the payment of the state railroad bonds of 1858, had an act passed through the legislature in 1867 to provide for the selection, appraisal, and sale of these lands and for the use of the proceeds to retire the bonds.73 The act was submitted to the electorate for its approval as required by the amendment to article 9, section 2, adopted in 1860, and not yet declared unconstitutional, but was rejected by an overwhelming vote.74 This left the state still entitled to the 500,000 acres but without any es Ibid., 1871, ch. 18.

Special Laws 1873, ch. 111. It should be noted, however, that several of the early railroad charters contained provisions for gross earnings taxes to be paid into the state treasury.

of R. R. Laws of Minn., 1872, pp. 130, 194, 261.

TO Sess. Laws 1887, ch. 11.

1 Ibid., 1872, ch. 14.

See Comp.

72 Folwell, Minnesota, 326; ibid., The Five Million Loan, Minn. Hist. Col., 15:204; Orfield, Fed. Land Grants to the States, pp. 100-2, 148.

73 Folwell, Minnesota, 326; Sess. Laws 1867, ch. 53.

74 In favor of act, 1,935; against the act, 49,763. See Laws of Minn., 1872, pp. 42-43.

provision as to the disposition of them. In 1868 an amendment to article 15 of the constitution was proposed, which provided for the sale of the lands and the investment of the proceeds thereof in state or national securities, but forbade other disposition thereof. "State securities" might well have authorized investment in the discredited railroad bonds. This proposed amendment was also defeated.75 In 1870 an act was passed providing for the sale of the lands at a minimum price of eight dollars and seventy cents per acre, and permitting the railroad bonds to be taken at par, without interest, in payment for the lands. This act was also submitted to the people, as required, and was adopted. It proved nugatory, however, due to a clause which required that no sale of the lands could be made on these terms unless at least two thousand of the bonds were offered to be turned in. The bondholders refused to comply with these terms in sufficient numbers to make the law operative.76 All attempts to use the lands for payment of the railroad bonds having failed, the instant amendment was thereupon proposed in 1872, and became a part of the constitution the same year."

It will be observed that the last paragraph of section 32(b) forbids the appropriation of the internal improvement land funds "for any purpose whatever until the amendment for that purpose, shall have been approved by a majority of the electors of the state voting at the annual general election following the passage of the act." In 1875 the United States supreme court intimated that the amendment of 1860 to section 2 of article 9, which forbade the payment of the state railroad bonds without the approval of a vote of the electorate, constituted an impairment of the obligation of a contract, and two Minnesota cases decided in 1881 supported the view that the bonds were legal obligations and would have to be paid.78 The voters of the state thereupon ratified a statute passed in 1881 providing for the payment from the internal improvement land fund of the "Minnesota state railroad adjustment bonds" which were authorized at the same session to take up the old bonds.79 Thus was finally quieted a controversy of nearly twenty-five years standing.

The anti-monopoly amendment adopted in 1888 is of interest because of the large vote which was cast in its favor.80 The vote for governor in this election was 220,558; the vote for the amendment was 194,932, against it, 13,064. It would be interesting to know how far this amendment which was undoubtedly aimed at grain exchanges and chambers of commerce, and the

75 Sess. Laws 1868, ch. 108; vote in favor of amendment, 19,398; vote against the amendment, 28,729.

70 Folwell, Minnesota, p. 327; Sess. Laws 1870, ch. 13. Sess. Laws 1872, ch. 14.

78 Farnsworth et al. v. Minnesota & Pacific R. R. Co., 92 U. S. 49; 23 L. Ed. 530, (1875); State ex rel. Hahn v. Young, 29 Minn. 474; 9 N. W. 737, (1881); Secombe v. Kittelson, 29 Minn. 555; 12 N. W. 519, (1882).

79 Sess. Laws 1881, chs. 71, 1.

so Ibid., 1887, ch. 1.