#### Territory ex rel. Smith, District Attorney v. Scott et al.

1. TEBBITOBIAL LEGISLATUBE: LEGISLATIVE POWEBS OE: IN WHAT SENSE DELEGATED. The investiture of the territorial legislature with legislative powers, is to be regarded as a delegation of authority in the same general sense only in which the powers of Congress are considered to be delegated by the people. And such powers are, within their proper scope, to be exercised by *357the territorial legislature in the same manner as like powers may be exercised by other legislative bodies, state and national.

2. RELOCATION OF CAPITAL: LEGISLATIVE POWER IN’. HOW EXERCISED. That clause of section 12, of the Organic Act of this territory, which provides that the location of the territorial capital “ shall thereafter be subject to be changed by the said governor and legislative assembly,” is not to be regarded as either an enlargement or a limitation of the general legislative powers conferred upon the territorial legislature, but as a declaratory provision inserted by way of precaution. And whether considered as pertaining to the strictly law-making functions, or to those administrative functions belonging to every legislature, this power could be properly exercised in the form of a legislative act, as such functions are usually exercised by legislative bodies.

3. same: legislative functions: cannot be delegated: administrative, mat. Prescribing by law that a change of the location of the seat of government shall be made, and a new location selected, and the mode in which this shall be accomplished, would seem to pertain closely to the law-making function, which cannot be delegated. But the actual selection of a suitable location, and the erection of buildings and improvements thereon are clearly acts of an administrative character.

4. legislative aot valid. The provisions of the act for the selection by commissioners of a suitable location for the seat of government, and for the erection thereon of the necessary buildings and improvements, are a lawful and proper exercise of legislative authority, and the act in question is valid and operative.

5. NAMING COMMISSIONERS IN THE ACT: NOT IN CONFLICT WITH SECTION 1857, u. s. revised statutes : not offioers. The officers contemplated by section 1857, U. S. Bevised Statutes, and who are required to be nominated by the governor, ahd by and with the advice and consent of the legislative council, appointed, are those continuously employed in the regular and permanent administration of government, and by whom the territory performs its usual political functions. The duties to be performed by these commissioners are of a temporary character; their functions wholly cease with the completion of those duties, and they cannot be regarded as officers within the meaning of the section of the Organic Act referred to. Hence the designation by name, of the commissioners in the act itself was lawful.

*William, F. Vilas, W. P. Glough*and *Alexander Hughes,-tor*appellants.

Points and authorities:

It is necessary for tbe assailants of this act to establish two *358propositions: that law-making power is delegated; and, that the act is, therefore, invalid. Neither of these propositions can be rightfully affirmed.

The Organic Act, and the Revised Statutes, to the extent they supersede it, stand as the constitution of the territory — its charter of government: *Ferris v.*Higley, 20 Wall., 380, 381.

While it is the acknowledged duty of the court, when the occasion arises, to declare an act of the legislature invalid, no doctrine of the law is better settled than that the necessity must be plain, undeniable, and unavoidable, in order to justify such action: *Fletcher v.*Peck, 6 Cranch, 87; *Wellington et al. v. Petitioners, etc.,*16 Pick., 87; *Com. v. Blacldngton,*24 Pick., 352; *Clcork v. City of Rochester,*24 Barb., 470-71; *Rail/road Co. v. Commissioners,*10 Ohio St., 77; 20 Ohio, appendix “A.”; *Bridges v. Shallcross,*6 W. Ya., 562; *Ogden v. Saunders,*12 Wheat., 270; *Derby Turnpike Co. v. Parks,*10 Conn., 522; *Adams v. Howe,*14 Mass., 340; *Ex-parte McCollum,*1 Cow., 550, 564; *Coch/rane v. Van Surley,*20 Wend., 365, 382; *Morris v. People,*3 Denio, 381, 394; *Fisher v. McCi/rr,*1 Gray, 1, 21; *Commonwealth v. Williams,*11 Pa., 61, 70, 71; *State v. Cooper,*5 Black., 258; Cooley on Const. Limitations, 159, 160.

It is generally laid down in text books that the power of *making laws*cannot be delegated by the body in which that power is reposed: Cooley on Const. Lim., 116. But if any one asserts this rule to forbid the legislature to commit to others all things, or anything, which it may constitutionally perform itself without mediation, he will find himself instantly confronted by an overwhelming mass of precedents, both those which have been judicially upheld and those which by long and repeated practice have equally as great force. He will find Congress to have delegated most important functions; the legislatures of the states to have *359done the same, and the legislatures of the territories. So frequent, so many and so important delegations of the functions which a legislative body may exercise, will present themselves, that the rule, if rule it be, will be found so restricted by undeniable limitations and exceptions, that it is in very rare instances only when it can be applied. The necessities of this case demand no attack upon the principle; it is so clearly within recognized and established limitations that these alone require to be shown.

Congress takes its powers by delegation quite as much or more, than a state legislature, and a state legislature takes its powers no less by delegation than a territorial legislature. All are simply legislative agents of the sovereignty, and if the principle applies, according to the assumed reason of it, because power is delegated,, it applies as much to one as to another, the reason and the rule extend alike to all.

Congress has only such powers as have been *granted*to it; whatever is not granted is denied: . Cooley on Const. Lim., 173. Congress has power to legislate over the territories: *Amerioa/n Ins. Co. v.*Canter, 1 Peters, 511; *National Bank v. County of*Yankton, 11 Otto, 129.

Yet every Organic Act for territorial government is a delegation of legislative power which Congress might itself directly exercise: See, also, Rev. Stats., U. S., relating to the District of Columbia, pp. 1 to 149. Grant of authority to the President to call forth militia, 1 Stat. at Large, 424. Sustaining this statute, *Martin v. Mott, 12*Wheat., 19. Congress has delegated to the President its power, in *his*discretion to raise an army: 1 Stat. at Large, 367; id., 558; id., 223, Sec. 7; id., 243, Sec. 13.

Congress has power to grant letters of marque and reprisal; but granted its power to the President: 2 Stat. at Large, 755. Congress has power to borrow money, but authorized the President *360to cause it to be borrowed, etc.: 1 Stat at Large, 187; and other instances on pp. 345, 461,'488, 534, 551, 607, 609.

So to make rules for the government of the land and naval forces: 1 Stat. at Large, 569, Secs. 1, 2, 3, 4. Another delegation of like power: 2 Stat. at Large, 819.

By act of July 17, 1862, the President was authorized to make needful rules and regulations in respect to enrolling the militia— affirmed, *In re*Qrvner, 16 "Wis., 423; *In re*Wehlitz, ib., 443; *Pruecker v.*Solomon, 21 id., 621.

So Congress authorized the Supreme Court of the United States to modify and add to laws adopted: 1 Stat. at Large, Oh. 36, Sec. 2, and the legality of this action was passed upon in the case of *Wayman v.*Southard, 10 Wheaton, 1; see, also, *Golden v. Prince,*3 Wash., C. 0., 313. As to the exclusive'power of Congress to suspend the writ of *habeas corpus, Kemp, in re,*16 Wis., 359. As to the constitutionality of the act of Congress, authorizing the President to suspend the writ, see *In re Oliver,*17 Wis., 681.

The power of eminent domain is one of the highest prerogatives of the state, peculiarly appertaining to the legislature: Cooley’s Const. Lim., 528, 530. Yet by legislation, long since too frequent for citation, legislatures have delegated this power, sometimes to individuals and sometimes to corporations.

It is within the legislative power to pass laws for the government of people in cities, villages, and boroughs and towns. But delegation of this power to common councils, boards of trustees, supervisors, selectmen and the like, enabling them to enact ordinances or by-laws, having all the force of acts of the legislature, is universal: *State v. Noyes,*30 N. H., 279; *State v. Simonds,*3 Mo., 414; *Tanner v. Trustees of Albion,*5 Hill, 121, 131; *Oity of Patterson v. Society, etc.,*24 N. J. L., 385; *Cole v. Schulz,*47 Barb., 64.

*361Another class of cases uphold the power of the legislature to ■authorize school districts and towns and counties to determine by vote whether schools shall be organized, or particular systems of school government adopted: *State v. Wilcox,*45 Mo.,458; *Bull v. Bead,*13 Graft., 78.

Referring the operation of law to local vote on subscriptions to aid railroads: *TIitchcocJds Opinion,*20 Ohio, appendix “A.”; *Marshall v. Donovan,*10 Bush., (Ky.) 681; *State v. Binder,*38 Mo., 450; *Bridgeport v. Nousatonic B. B.,*15 Conn., 475; 8 La. Ann., 341; 9 id., 561; Cooley’s Const. Lim., p. 119, note. So the laws making organizing of counties dependent upon popular vote, have been universally sustained: *People v. Beynolds,*5 Gilman, 1; *XJpharn v. Supervisors,*8 Cah, 378; *Kayser v. Bremen,*16 Mo., 88; *State v. Weatherby,*45 Mo., 17; 55 Mo., 295.

Laws authorizing taxes, to be levied in case of a favorable vote, have been sustained universally: *Burgess v. Pue,*2 Gill., (Md.) 11 and 254; *Steward v- Jefferson,*3 Harr., 335; *People v. Solomon,*51 111., 37; *Alcorn v. llamar,*38 Miss., 652; *Weaver v. Cherry,*8 Ohio St., 564; 42 Conn., 583; 9 Am. and Eng. R. R. cases, 385; *Cornvngv. Oreen,*23 Barb., 33; *People v. Stout,*id. 349.

The following states have denied the constitutional validity of ulocal option ” liquor laws: *Delaware,*4 Harr., 479; *Indiana,*4 Ind., 342; 11 Ind., 482; *Texas,*17 Tex., 441; *California,*48 Oal., 279; *Iowa,*2 la.. 165; 5 la., 49T; 9 la., 203; 33 la., 134;' 3 R. I., 33.

*Such laws have been sustained by: Pennsylvania*— 8 Pa. St., 391; 10 Pa. St., 214; 21 id., 188; 56 id., 359; 72 id., 491; *Vermont,*21 Yt., 456; 26 Yt., 357; *New Jersey,*36 N. J. L., 72; S. C. 13 Am., 422; *Maryland,*1 Md., 128; 25 Md., 541; 42 Md., 71; 2 Gill., 254; *Kentuchy,*14 Bush., 218; S. O. 29 Am., 407; *362*Minnesota, 24*Minn., 247; 31 Am-., 344; Connecticut, 42 Conn.,. 364; Massachusetts, 24 Pick., 352; 108 Mass., 27; 11.0 Mass..* 357; Michigan, 3 Mich., 343; 3 Mich., 330.

In *Barto v. Mimrodi,*8- N. Y., 483, it was held- that the legislature could not leave the enacting of a law to- the people. In *Thorne v.*Cramer, 15 Barb., 112, the same view of the law was-taken, and in *Johnson v.*Rich, 9- Barb., 680, another bench of that court sustained the act. In *Bank of Rome v. Village of" Rome,*18- N. Y., 38, the Court of Appeals- distinguishes *Barto v. Hi/iwrody*as authority only with respect to a law referable to the-whole people, but sustains a law depending upon a local vote.. But the greater weight of authority is against *Barto v. Mimrodr Smith v. City of Janesville,*26 Wis., 291; *State ex rel. v. O’JVeily etc.,*24 Wis., 149; *State v. Barker,*26 Vt., 357; *Bull v. Ready*13 Gratt., 78; *State v. Wilcox,*45 Mo., 458; *Alcorn v. Mamar,.*38 Miss., 652; *Opinion of Judges,*55 Mo., 295; *People v. Solomon,*51 111., 37; *People v. Reynolds,*5 Gilman, 1; *Kayser*v* *Bremen,*16 Mo,, 88; *TJpham, v.*Supervisors, 8 Cal., 378; 20* Ohio, appendix “ A.;” *Weaver v. Cherry,*8 Ohio St., 564; *Erl-inger v. Boneau,*51 111., 94; *Holcomb v. Davis,*56 111., 413; *Burgess v. Pue,*2 Gill., 11; *Marshall v.*Donovan, 10 Bush.,, 681.

The first broad distinction, which would naturally occur to any intelligent reasoner, relates to the nature of the powers possessed by the legislature. These are the powers of administration, as • they may be called, in distinction from the powers of legislation. This distinction was at an early day remarked by the illustrious Marshall in the case of *Wayma/n v. Southard,*a/nte/ and, also, *In re Crvner,*16 Wis., 423; *Slack v. M. <& L. R. R. Co.,*13 B. Monroe, 1, at pp. 22, *et seg./.People v. Collins,*3 Mich., 400; *People v. Reynolds, ante.*

*363Another qualification or exception to the .general undefined doctrine, is equally well settled by the authorities which have been «collected. It is, that any law, general or special, may be enacted in such terms that its operation and effect depend, in whole or in part, upon some future action or contingency, and that such contingency may involve the discretion or judgment of others. And this is especially true of some single provision or detail of the act, which, from the nature of it, the legislature could not wisely or advantageously for the public interests so well predetermine as to leave to other judgment.

The legislature exercised its rightful function to “ change the seat of government.” -The act declared the seat of government to be located and established at a place to be determined upon in the future, and fixed certain efficient machinery for the necessary ■determination within a limited time, of the place to which the seat of government was changed, and declared that place, then certainly contemplated and known in the eye of the law, to be the seat of government. There was a contingency in this, precisely such a «contingency as the legislature had power to create by this law; *Uphamv.*Supervisors, 8 Cal., 378; *People v. Reynolds, supra; Commonwealth <o. Painter,*10 Pa. St., 214. County seats have, been thus located in Iowa, Missouri, Kansas, Ohio, Indiana, Illinois; and in at least five instances — Montana, Colorado, Iowa, Illinois and Nebraska, state and territorial capitals have been located in pursuance of a delegation of choice by the legislature to others.

The location of the national capital furnishes a final example of the delegation of such authority. Congress 'was certainly vested with that power. It also as plainly delegated it, to a great extent, as any act which was ever passed in a similar case: Chap. 28, 1 Stat. at Large, page 130.

*364Territories are states in embryo, and the political power of self-government which the people in the territory possess, though derived by grant from Congress, is much more analogous to that of states, than of eounties in states. It is simply puerile to liken the executive department of the territorial government to the president of a village, its legislature to a board of village trustees, and its system of courts, with this court at its head, to a justice of the peace with police jurisdiction within the borough. The territorial legislatures, under the grant of power over “ all rightful subjects of legislation,” exercise substantially the same power as state legislatures. They may *create*counties, cities, villages, boroughs, and may invest them, by delegation to them, with all the functions which such corporations and political subdivisions usually possess. Are all such acts invalid because a common council cannot create a city within itself, or because a county government cannot do the same? The legislature of Dakota in innumerable instances has done these things, and are all these acts to be declared void?

Another and independent ground was taken, not indeed against the, validity of the act in question, but against the validity of the appointment of these appellants under the act; that the appointment of commissioners in the act was in conflict with section 1857, Revised Statutes, U. S.: “ All township, district and county offi- “ cers, except justices of the peace and general officers of the mili- “ tia, shall be appointed or elected in such manner as may be “ provided by the Governor and legislative assembly of each terri- “ tory; and all other officers not herein otherwise provided for, “ the Governor shall nominate, and by and with the consent of “ the legislative council of each territory, shall appoint, etc.”

It may be readily conceded that, in a very general sense, these commissioners are officers — because they discharge an office or duty which is public. The section above referred to manifestly relates *365to those officers who are charged with regular and permanent duties in the administration of the continuing affairs of government, and not to those temporary and occasional employments for special purposes which circumstances of a peculiar nature sometimes give rise to. The distinction mentioned has been recognized in every judicial decision throughout the country which has touched upon this subject; and long continued practice, both in the states and territories, has also given added sanction to it. A leading case is *Com. v. Sutherland,*3 Ser. & R., 145; *Shepherd v. Commonwealth,*1 Ser. & R., 1; *Com. v. Bussier,*5 Ser. & R., 451; *Com. 'V.*Bitms, 17 Ser. & R., 219; *United States v. Hatch,*1 Pinn., 182. In the last case almost this identical question arose in the Supreme Court of Wyoming: *Sheboygan County v._ Parker,*3 Wall., 93; *State v. Kennon,*7 Ohio St., 546; *Branham v. Lange,*16Ind.,497; *Bridges v. Shalleross,*6 W. Va., 562; *In re Hathaway's will,*71 N. *Y.,*238; *People v. Palmer,*52 N. *Y.,*83; *Attorney General v. Squires,*14 Oah, 12; *People v. Ilurlburt,*•24 Mich., 62-4, 93-4; *Mayor v. State,*15 Md., 376; *People v. Bennett,*54 Barb., 480; *Cotwoy v. Copland,*4 La. An., 307; *State v. Wilmington C. C.,*3 ILarr., (Del.) 294; *Appendix No. 2,*3 Me. Rep.; *People v. Nichols,*52 N. Y., 478.

If it were granted that the Governor had the right of appointment, with the concurrence of the legislative council, the court could not dispute that the concurrent action of both the Governor and the council did name these officers. No valid objection can be taken upon the fact that their nomination was suggested in the legislative assembly. The court will not oust- officers whose appointment is substantially correct, on a mere technicality: *Pack's relation,*3 Mont., 426; *Rankin v. Hoyt,*4 Iiow., 327.

This case was triable by a jury. It is a *quasi*criminal prosecution, although in form a civil action. It might result not only in *366dispossessing defendants of tbeir offices, but also in inflicting a fine upon them: *State ex rel. Wood v.*Baker, 38 Wis., 71. The common law writ of *qico warranto*was always triable by jury. This action stands in the same right. Therefore the case was not properly noticed for a special term without a jury. It was not rightfully on 'the calendar and should have been struck off: *People v. Alb. <& Sus. B. B. Go.,*57 N. Y., 161.

But it was said no issues were presented by the pleadings. This is manifestly incorrect from a mere examination of the pleadings. Some important averments in the complaint are expressly denied, others stand denied by the rules of pleading laid down in the Code. It is contended these were immaterial, because the act itself was unconstitutional. This required the court to predetermine the right to judgment to permit the cause to remain on the calendar and entertain the motion for judgment.

A demurrer to-the answer should have been interposed, and having been noticed for trial would have raised the question.

*Bartlett Tripp, G. C. Moody, Gamble Bros,*and *E. G. Smith,*District Attorney, for respondent.

Points and authorities in brief:

We first invite the attention of the court to the proposition that there was no power in the Governor and legislative assembly to change the seat of government by the appointment of commissioners to whom was delegated the power of naming the location to which the seat of government should be removed, and providing for the erection of a capítol building, etc. And first let us inquire what kind of a power was vested in the Governor and legislative assembly to change the seat of government.

Is it a legislative, or administrative power? It would seem from the argument on the part of appellants, to be claimed as an administrative power, because if the power so conferred is a legis*367lative one, (whether it is a delegated or original legislative one) under the Organic Act the Governor and legislative assembly would have no power to delegate it to commissioners to be exercised. Mr. Cooley lays it down as a settled maxim that power conferred upon the legislature to make laws cannot be delegated: Constitutional Limitations, p. 138.

In support of this doctrine, he cites: *Thorn v. Cramer,*15 Barb., 112; *Bradley v. Baxter,*15 Barb., 192; *Barto v. Himrod,*8 N Y., 483; *People v. Stout,*23 .Barb., 349; *Biee v.*Foster, 4 Barb., 479; *Santo v. State,*2 Iowa, 165; *Geebrick v. State,*5 Iowa, 203; *State v. Weir,*33 Iowa, 134; *People v. Collins,*3 Mich., 343; *B. B. Co. v. Com’rs, Clinton Co.,*1 Ohio St., 77; *Parker v. Com.,*6 Pa. St., 507; *Com. v. Williams,*11 Pa. St., 61; *Maize v. State,*4 Ind., 342; *Meshmeier v. State,*11 Ind., 482;. *State v. Parker,*26 Yt., 357; *State v. Swisher,*17 Texas, 441; *State v. Copeland,*3 B. I., 33; *State v. Wilcox,*45 Mo., 358; *Com. v. Locke,*72 Pa. St., 491; *Fx-parte Wall,*48 Cal., 279;. *Willis v. Owen,*43 Texas, 41; *Farnsworth v. Lisbon,*92 Me., 451; *Brewer Brick Co. v. Brewer,*62 Me., 52; *State v. Hudson County Com’rs.,*37 N. J., 12; *Auditor v. Holland,*14 Bush, 147. The question has arisen in a variety of ways. In *Houghton v. Austin,*47 Cal., 647, it was attempted to delegate the power to-fix the rate of taxation. Some courts have gone to a great extent, as in the case of liquor laws, to save some act of legislation, by holding that under the particular facts of the case it was not a delegation of power, but a statute to take effect upon the happening of a contingency. But in every instance it will be found that the reasoning of the court is confined to the facts of the particular case; and if it is found that the law was not complete when it left the legislative hands, but was left to the people to determine upon its expediency, or determine upon any fact which was to make the act law, the courts have held that it was a delegation of legislative *368power, and void; *Ex-parte*Wall., 48 Cal., 279, 315; *Lannert v.*Lidell, 62 Mo., 188; Cooley’s Const. Lim., 143; *State v.*Young, 29 Minn., 474.

The act under consideration cannot be said to come within any of the exceptions of delegation of legislative power; it is not a local, or option law, or a police regulation; nor can it be seriously claimed to be a law when it came from the legislature, perfect in itself, to lake effect and be in force upon a contingency. If so, what contingency? The recital of the “ removal ” of the capital, in the first section of the act must be construed with the other sections of the act, and we find that it no where names the place to which the capital is removed. The only question of. expediency upon which the legislative assembly and governor passed, was that the capital should be removed from Yankton. Was the question of the expediency of the place to be selected, its location with reference to the future interests of the territory, and of the people, at all taken into consideration or passed upon by this enactment? It follows that the act left to these nine commissioners the power of selection and location of the capital. The only contingency upon which this law depended to carry it into effect was the very *act*of the commissioners, to->wit: the act of locating or changing the seat of government. If they changed it, the contingency happened; if they failed to locate or change the seat of government, the contingency did not happen. Compare this contingency with that in *State v. Young*(29 Minn.) Our case would be somewhat parallel if the legislature had removed the capital from Yankton and located it at Bismarck or Fargo, as the commissioners might determine — a case in which the legislative discretion and judgment had been exercised in rejecting every other city except these two places. Yet within the Minnesota case the legislative judgment and discretion must have been exercised upon each of these.

So much upon the theory that the power delegated was a legis*369lative one. But if we understand the arguments of appellants’ counsel correctly, it is not claimed that the power delegated was of the legislative, but was of administrative character. The authorities cited and relied upon by counsel are ail cases of delegation of administrative power.

As to the reluctance of courts to declare an act unconstitutional: Courts are to act upon such a question unhesitatingly and fearlessly. lt-does not differ in principle from the question whether or not a later enactment repeals an earlier one. There is only this difference: that in determining whether the later act is in conflict with the prior enactment of the same body, in case of doubt, the later act is to prevail; while in determining whether a law is in conflict with a fundamental law, in case of doubt the fundamental or organic law1' is to prevail: *Oakley v. Aspinwall,*3 N. Y., 568; Dwarris on Statutes, 365.

The power to relocate the seat of government is not placed among the general legislative powers granted the territory by section 1851, extending to “ all rightful subjects of legislation not inconsistent, etc,” but is found in another and separate section, giving it thus a certain prominence. In the first instance the power was conferred upon the Governor alone, to name the time and place of holding the first legislative assembly. It thus later becomes a special duty, whether administrative or legislative, but partaking in its character perhaps somewhat of both — conferred upon the Governor and legislative assembly, to locate the seat of government and change the same.

Can such, duty, if an administrative one, conferred upon these two bodies, be delegated by them? A trust can only be executed by the one to whom it is confided: *Maxwell v. Bevy Oity Bridge Co.,*2 N. W. Rep., 639; *Clark v. Washington,*12 Wheat., 54; *Thompson v.*Bohermerhorn,6 N. Y., 92; *Davis v. Reed,*65 N.Y., *370556; *Supervisor v. Brush,*77 111., 59; *Thompson v. Boonville,*61 Mo., 282; *State v. Patterson,*34 N. J., 168; *Hyde v. Jones,*4 Bush., 464; *OaMa/nd v. Carpenter,*13 Cal., 540; *Whyte v. Nashville,*2 Swan, 364.

"We understand that a delegated power involving judgment and discretion cannot be delegated; that the rule is inflexible, and there are no exceptions.

If disputed, it would require no argument to show that the power conferred on the Governor and legislative assembly over the changing of the seat of government is one involving judgment and discretion. It was one which Congress chose to separate from all the other powers conferred upon the Governor and legislative assembly, and to prominently mention in a separate section. What is a delegated power? The word comes into our language with much of its original force; the word itself presupposes some higher, original power. It does not mean a severing and transmission of a part of the higher, original power, to another, to be used and exercised by him of his own independent will and volition, but it means a power belonging to a person, temporarily used or employed by his agent, or person selected by him to use for the benefit of the person to whom the power belongs, and subject to his control. It is never disassociated from agency. The maxim grew out of the principle and law of agency. The act is that of the principal, not that of the agent. The moment the power of revocation is lost there is no longer a delegated power. It seems that the argument of the learned gentleman for the appellants is based upon a wrong premise. He blends delegated and original or sovereign power. He says the sovereign power is in Congress, so far as the territory is concerned. We admit it. Then the power which Congress has conferred upon the territory is a delegated one. He says all sovereign power is in the people; that is true in an abstract sense, but it is that residuum of original or *371sovereign power that was not surrendered at the formation of the state and national governments. What is sovereign power? Blackstone says it is “ the making of laws,” “ and all the other powers of the state nrast o£>ey legislative power,” etc.: 1 Blackstone, 49. It was that sovereignty that made parliament omnipotent. Under our view of sovereignty all power is not in the legislature. Each department of our governments is independent of the other, and the sovereign power of the state and nation, is divided into three great departments or classes, the executive, the judicial and the legislative, and each is sovereign only in its sphere: Rapalje Law Diet.; 1 Story Const., 207; Cooley Const. Lim., 1 and 2.

A sovereign power is one that admits of no superior. It has been settled by the highest court — the decision of war — that we are a nation; that when the compact or confederation of the states was made it was for all time; not dependent upon the will of the states, or of the people. The powers granted to the national government, and to the states, cannot be said to have been delegated; a better term would be that they were surrendered. Legislative powers when possessed by legislatures and by Congress, no longer exist in the people, as such. The states cannot so modify their fundamental law as to abolish their governments, or make them unrepublican in form. They have also in the creation of their state and national governments temporarily surrendered all their rights. The people as such have no power of legislation nor any other sovereign power, however gross or unjust might be the law of any state. The people of the whole state have no more right to resist the execution of a law than do the people of a particular city or county; and if the whole people of the state were to take into their hands the resisting of the execution of a murderer, or attempt to condemn and hang some defendant, they would be as much in rebellion as though they were but a few citizens of a city *372or county; the acts of the many would be as much riotous and rebellious as the acts of the few.

The sovereignty that rests in the people is an abstract sovereignty. The actual, existing sovereignty, so far as legislative and administrative powers are concerned, is deposited in the three great departments of government. The people as such never had any legislative and administrative powers. They sprang into existence at the birth of the state and nation. The powers of a state or nation cannot antedate its birth. The people never delegate powers, within the legal meaning of the word. They may create governments with pow'ers, but the people of the United States never had any powers to delegate.

The powers which are now national sovereign powers were a surrender of so-much of the state power as had become sovereign by successful revolution. No portion of the people, however large, can interfere with the regular working of the agencies of government: Cooley Const. Lim., 598; *Gilson v.*Mason, 5 Nev., 283-291; Cooley Const. Lim., 747.

The powers then, as they exist in the state and national government are original and sovereign powers. The legislature may exercise or delegate any of its powers except so far as it is limited by the express words of the constitution. The legislatures of the states, and Congress, cannot delegate their legislative powers, because it is impliedly prohibited by the terms of the constitution; and on grounds of public policy it has long been held that such powers, though original, cannot be delegated. But all such powers not in terms or impliedly prohibited by the constitution, may be delegated. Hence, whenever the legislative, executive or judicial departments of the government have imposed upon them duties not strictly legislative, exemrtive, or judicial, and which they are not by the terms of the constitution prohibited from delegating, *373they may do so, even though the powers delegated involve judgment and discretion. Hence it is that in all the cases in which this question has arisen as to the power of Congress or of the state legislatures, to delegate any of their powers, the turning point in each case is, is it a legislative delegation? If legislative it is not susceptible of delegation: *In re*Grimer, 16 Wis., 433; *In re,*Wehlitz, 16 Wis.; *Druecker v.*Solomon, 21 Wis.

The court, *in re*Griner, with some hesitation, arrives at the conclusion, in the particular case, that the act of Congress giving the President power to make all necessary rules and regulations to cai’ry into effect the law for calling out the militia, was not a delegation of legislative, but of administrative power, which Congress under its sovereign and original authority, might delegate to the executive. No one will doubt that an original power carries with it the right to delegate it, and laws delegating all others of the original powers, either of state legislatures or of Congress, not legislative, nor directly or impliedly prohibited by the terms of the constitution, have been sustained. This will explain very many of the illustrations and decisions cited by counsel. In the original or sovereign power all rights are implied for it. In the delegated power nothing is implied, and the terms of the grant are strictly construed. What are the powers possessed by the legislature of Dakota, and was the power to change the seat of government, expressly and in direct terms imposed upon the Governor and legislative assembly, a legislative or an administrative power? The argument of counsel is, that the people have delegated to Congress powers to govern, and Congress has delegated to the territories; so that the legislature of Dakota takes its powers two degrees removed from the people. So it is conceded that all the powers possessed by the Dakota legislature and executive, are delegated powers. Were there any doubt upon this question the Supreme Court of the United States has set it at rest, in *American**374*Ins. Co. v.*Canter, 1 Peters, 542-3; *National Bank v. Yamkton*County, 101 U. S., 132 — 3. *Are*not all tlae powers vested in the territorial legislature by the Organic Act, delegated powers, strictly within the decisions of the Supreme Court just cited? Is it not a temporary loan of the sovereign powers of Congress? It is true the power of legislation given by the Organic Act is full and ample, but it is subject to instant recall or constant change.

Every one of the powers exercised in the many instances of legislation cited by counsel, is expressly granted by the Organic Act, and this “ outlying domain ” of the United States has, then, no original or sovereign powers of legislation, but all its powers are delegated to it by Congress; and all of the powers so delegated, involving judgment and discretion, cannot be redelegated by the agents to whom they are intrusted: *Buggies v.*Collier, 43 Mo., 351, 377; Farmers’ *Loam & Trust Co. v.*Carroll, 5 Barb., 649; *Thompson v.*Schermerhorn, 2 Selden, 92; *Thompson v. City of*Booumlle, 61 Mo., 282; *Lauensteim v. City of Fondulac,*38 Wis., 336-9; *State v. Hastings,*10 Wis., 525, 553; *Lord, v. City of Oconto, 2*N. W. Bep., 785; *Mullarhy v. Town of Cedar Falls,*19 la., 21; *Gale v. Kalamazoo,*23 Mich., 344; *MilJwn,v. Sharpe et al,*17 Barb., 435; *Meuser v. Bisdon et al,*36 Cal., 239-44; *Clark v. Washington,*12 Wheat., 40-54; Cooley’s Const. Lim., 249, (Marg. 204;) *Cornell v. State,*6 Lea., 624.

If, instead of the law placing the power in the Governor and legislative assembly, Congress had placed the power to locate and change the seat of government, in the hands of *commissioners—*which it clearly could have done — would it be seriously contended that such commissioners could have delegated that power to others ? Or if such power had been vested in the Governor alone, could he have farmed out or sublet the trust reposed in him? Corporations are enjoined from disposing of their franchises so as to disable *375themselves from operating their lines, unless expressly allowed to do so by their articles of incorporation: *Thomas v. Railroad Go.,*101 U. S., 71-83.

Legislatures are not deemed to delegate legislative power to municipalities, “ because the regulation of such local affairs as “ are commonly left to local boards and officers is not understood “ to belong properly to the state; and when it interferes, as some- *“*times it must, to restrain and control the local action, there *“*should be reasons of state policy or dangers of local abuse to “ warrant interposition: Cooley Const. Lim., 229; *Gom. v. Turner,*1 Cush., 493-5; *State v. Noyes,*10 Foster, 279; *Bancroft v. Dumas,*21 Vt., 456; *Tanner v. Albion,*5 Hill, 121; *State v. Simonds,*3 Mo., 414; 108 Mass., 27-29; *Gom. v. Dean,*110 Mass., 357; *State ex rel. v. Gourt G. P.,*36 N. J. L., 72; 13 Am. Rep., 422; *Lock's appeal,*72 Penn. St., 491; S. C. 13 Am. Rep., 716. Local option laws may properly be classed — -not as examples of delegated power — but as coming simply within the authority of municipal or police regulation: Cooley Const. Lim., 148, (Marg. 125;) Do, 141-2, (Marg. 119-20;) *Slvnger v. LLenneman,*38 Wis., 509-10.

If these appellants were ever clothed with the powers claimed, the mode of their selection and appointment was unlawful: Organic Act, Sec., 1857. They belong to the class of officers whom “ the Governor shall nominate, and by and with the advice and consent of the legislative council of each territory, * * appoint.”

It is contended these commissioners are not “ officers ” within the meaning of this section. See Bacon’s Abridgement, Officers: *United States v. Maurice,*2 Brock, 128; *United States v. Hart-well,*6 Wall., 385-93; *Vaughn v. English,*8 Cal., 40-42; *Clark et al. v. Stanley et al,*66 N. C., 59-63-4; *People v. Hays et al,*7 How.- Pr., 248; *People v. Comptroller,*20 Wend., 595; *Wood's**376*Gase%*2 Cow., 30; *United States v.*Ferreira, 13 How., 51; S. O. 19 Curtis, 380; *State ex rel. AWy Gen. v. Kennon et al,*7 Ohio St., 547; *Territory ex rel. Fislce,*1 Mont., 252; *Dimcan v. Me-AlUster,*1 Utah, 81; *People ex rel. Ryder v. Mizner,*7 Cal., 519.

Both plaintiff: and defendants moved for judgment in the court below, and defendants cannot now be heard to say the practice ■ adopted by themselves in the lower court was improper. But this .'■practice is proper and well settled. If the act was unconstitutional - and -void, then the issues, if any, raised by the answer, were imma- ■ terial: *Felsh v. Beaucbvy,*40 Cal., 439; 3 Estee, (2d Ed.) 221, and cases cited. But this case belongs to that class of cases in which a. jury cannot be demanded as a matter of right: Sec. 236, Code of Civil Procedure; High Ex. Leg. Kem., 443, (Sec. 613); *State v. Johnson,*26 Ark., 281; *People v. Carpenter,*24 N. Y., 86; *People v. Draper,*15 N. Y., 532; *People v..*AC *P. R. Go.,*42 N. Y., 217.

*G. G.*Moody, supplementary brief:

Since preparing my additional brief and argument, I have had an opportunity of examining some of the supposed precedents cited ' appellants’ counsel from the legislation of other territories.

The “ inventive genius ” which has enabled counsel to distort J these legislative acts into examples or precedents for the legislation ' which is in question in this case, 'is far greater than any that could • spring from the “ boundless perrairers ” of Dakota, or from any 'other spot on earth, save from the brain of one who thus, whether It be carelessly or wilfully, perils his professional reputation and abuses his high trust as a counselor of this court, by impressing upon it such pretended examples, in the vain endeavor to uphold a shameless swindle.

*377These statements, of what are alleged to be examples and precedents, exhibit either a carelessness unworthy of the gravity of the question involved, a willingness to deceive the court to whom these citations are commended, or the most *u*child-like and bland” supposition that the poetic fervor displayed in the brief would so overwhelm court and counsel that they would be unable to discover the falsity of the statements regarding them.

"We are gravely told, that “ In at least five instances which have “ come to our notice, state and territorial capitals have been located “ in pursuance of a delegation of choice by the legislature to “ others,” and counsel start off with Montana Territory:

“ In Montana the seat of government was changed from Yir- “ ginia City to Helena, by virtue of a vote of the people under “ authority of an act approved February 11, 1874. It is unnec- “ essary to add that this was no less delegation of legislative “ authority, than if the choice were left to commissioners. *Barto*“ *v. Himrocl,*is a gun which may be turned on the adversary for “ this point.”

*B'i/rst*— Let us see what are the facts about this:

On the-26th of May, 1864, Congress passed the Organic Act of Montana, which contained this provision:

“ Section 12. *And be it further*enacted, That the legislative “ assembly of the territory of Montana, shall hold its first session “ at such time and place in said territory, as the Governor thereof “ shall appoint and direct; and at said first session, or as soon “ thereafter as they shall deem expedient, the Governor and legis- “ lative assembly shall proceed to locate and establish the seat of “ government for said territory, at such place as they may deem <l eligible: Provided, That the seat of government, fixed by the “ Governor and legislative assembly, shall not be at any time “ changed, except by an act of the said assembly, duly passed, and *378“ which shall be approved, after due notice, at the first general “ election thereafter, by a majority of the legal votes cast on that “ question.”

This section (12) was incorporated into the U. S. Revised Statutes and still remains as a part thereof.

The act of the Montana legislature submitting this question to a vote of the people, quote.d by appellants’ counsel, is exactly in accordance with the act of Congress, and is not only authorized but required by Congress. Congress required before any change in the seat of government should be made, not only 'the passage of an act to that effect, but also that such act should be submitted to a vote of the people for their approval. This was done just as Congress prescribed. Still we are admonished that “ *Barto v. Hvm/rod*is a gun which may be turned on the adversary for this point.”

2. Let us take Colorado, the next cited. As we understand from the acts we have been able to obtain and examine in that instance, the seat of government was declared to be the to\yn — the location of the building was left to a commission. Moreover, about nine months after the passage of the act quoted by counsel, it was repealed.

This Colorado case is of no moment as a precedent. After the seat of government is located by the Governor and legislative assembly, as the act of Congress provides, the site for a capitol building, the executive mansion, or other public building, may be obtained through subordinate agents, without violating either the letter or spirit of the enactment. This was all that was done in Colorado.

3. Next we will examine the foundation for the confident statement that Iowa furnishes us an “ example of practical construction of the authority conferred on the territorial legislature,” etc.

*379I quote again from appellants’ brief:

“ In Iowa : The first capital of the territory, Iowa City, was “ chosen by three commissioners, *named in the*act, and authorized' “ to select a site for a permanent seat of government, and to lay “ out 640 acres into a town to be called Iowa City, with directions “ to sell lots and from the proceeds to build the capitol.

“ The only limitation upon the discretion of the commissioners “ was, that the site should be chosen within the boundaries of “ Johnson county; the county then being larger than some states. “ The act, which was passed January 21, 1839, by the territorial “ legislature, gave substantially the same powers to commissioners “ therein named, which the act under debate gives this commission. *“*Pursuant to that act, Iowa City was selected on the first of May, “ 1839, as the territorial capital, the town laid out and the capitol “ buildings constructed.”

"What are the facts in this instance? The legislature of Iowa did on the 21st of January, 1839, pass an act for the appointment of commissioners to locate the seat of government, but on the same day the legislature passed an act supplementary thereto, which provided that no further steps should be taken after the selection and report thereof to the Governor, until the consent of the United States should be obtained, and also authorized the Governor to apply to Congress for a donation of four sections of land *on which to locate the seat of government.*And also on the same day by resolution instructed the Delegate in Congress to ask for such donation of land on which to locate the seat of government, to be selected by the commissioners. Thus showing beyond controversy that nothing could be or was intended to be done until Congress had acted and consented to this mode of locating the seat of government.

The sections of this act and the joint resolution are as follows:

*380“ Section 1. *Be it enacted, etc.,*That so soon as the place “ shall be selected, agreeably to the provisions of the act to which *“*this is supplemental, and report thereof made to the Governor, “ *and the consent of the United States obtained,*the commis- “ sioners shall proceed to lay out a town, to be called “ Iowa City,” a on the piece of ground so selected, upon such place as may be “ agreed upon by a majority of said commissioners, etc.”

Sec. 2. * * * * *

Sec. 3. * * * * *.

“ Sec. 4. That the Governor is hereby authorized to apply to “ Congress for a donation of, or a pre-emption to four sections of “ land on which to locate the seat of government of the territory “ of Iowa, etc.”

“ *Be-it resolved by the Council and House of Representatives*“ *of the Territory of Iowa,*That the Hon. "William W. Chap- “ man, our Delegate in Congress, be instructed to ask a donation, “ of at least four sections of land, on which to locate the seat of “ government of the territory of Iowa, to be selected by the com- “ missioners appointed by the legislative assembly of Iowa, to “ locate the seat of government of said territory. Approved, “ January 21, 1839.”

After this action by the territorial legislature, in pursuance thereof, application seems to have been made to Congress, and on March 3, 1839, Congress passed the following act:

“ *Be it enacted, etc.,*That there be, and hereby is, appropriated “ and granted to the territory of Iowa, one entire section of land, “ of any of the surveyed public lands in said territory, for the “ purpose of erecting thereon the public buildings for the use of *u*the executive and legislative departments of the government of “ the said territory: *Provided,*That the said section, of land “ shall be selected *wilder the authority*of the territorial legisla- *381*“*ture, the seat of government located thereon, and notice of said *“*selection officially returned to the register of the land office, in “ the district in which the land is situated within one year from *“*the passing of this act: *And provided*further, That nothing *“*herein contained shall authorize the selection of the sixteenth *u*section in any township reserved for the use of schools, nor of “ any lot reserved for public purposes; and that in the selection to “ be made as aforesaid, no pre-existing improvement or right to *“*pre-emption recognized by law, shall be prejudiced thereby.

“ Sec. 2. *And he it further*enacted, That if, at the time of *u*the selection of the section of land to be made as aforesaid, the *i(*contiguous sections thereto have not been made subject to public “ sale, or being so subject have not been sold at public sale or by “ private entry, then each and every section contiguous to said “ selected section, and not so sold, shall be thereafter reserved and *“*withheld from sale in any manner, until the further order of “ Congress thereon.

“ But nothing herein expressed shall be construed to restrain “ the said territory of Iowa, after appropriating a sufficient quan- “ tity of land within said selected section for the site and accom- “ modation of the public buildings, from selling and disposing of “ the residue of said section in lots or otherwise, for the use of “ said territory, in the erection and completion of said buildings. “ Approved, March 3, 1839.”

Thus it will he seen that instead of this being a precedent for the legislation now before us, it is directly the opposite. In Iowa neither the legislature nor the commissioners sought to do any act without express authority of Congress, and Congress by its act of March 3, 1839, expressly provided for the selection of the section on which the seat of government is to be located — not by, but *under the authority*of, the territorial legislature. Having these *382Taws and these petitions before it, Congress expressly provided for precisely what was done by the legislature. Yet this court is told with all the gravity which ordinarily pertains to truth, “ that this is in every respect a complete precedent for the act in question.”

4. But appellants’ counsel seem to have got the worst “ mixed in the case of *Illinois.*Again quoting from appellants’ brief, they say:

“ In Illinois: Long before its creation into a territory, “ Kas- “ kaslria,” or “ Kusky,” as it was familiarly called, was by common “ consent of the earliest settlers, the headquarters of the country, “ and as such was recognized as the seat of government on the “ organization of the territory.

“ By an act of the first territorial legislature, passed at its second- “ session in 1818-19, commissioners were appointed by the legis- “ lature, *i/n the*act, to select a new site for the territorial capital, “ without limitation. These commissioners made choice of a “ place, then in the midst of the wilderness, subsequently named “ Vandalia, and there the capital remained for a long period, al- “ though it was afterwards changed to its present location.”

Now the fact is that Illinois was organized as a separate territory, February 3,1809, and by section 8, of the act, Kaskaskia was made the seat of government in these words:

“ Sec. 8. *And he it fwther*enacted, That until it shall be “ otherwise ordered by the legislature of the said Illinois Territory, “ Kaskaskia, on the Mississippi river, shall be the seat of govern- “ ment for the said Illinois Territory. Approved, February 3, “ 1809.”

Illinois was admitted into the "Union, December 3, 1818; and it was the first *State*legislature — -not the first *territorial*legislature — that passed the act which the counsel refer to.

Even that act was passed under these circumstances: Section 13, of the schedule to the constitution, contained these provisions, *383and. it will be seen Kaskaskia still continued tbe seat of government:

“Tbe seat of government for tbe State shall be at Kaskaskia “ until the general assembly shall otherwise provide. The general “ assembly, at their first session holden under the authority, of “ this constitution, shall petition the Congress of the U nited States “ to grant to this State a quantity of land, to consist of not more <£ than four, nor less than one section, or to give to this State the “ right of pre-emption in the purchase of the said quantity of land; “ the said land to be situate on the Kaskaskia river, and, as near “ as may be, east of the third principal meridian on said river. “ Should the prayer of said petition he granted, the general assem- “ bly, at their next session thereafter, shall provide for the appoint- “ ment of five commissioners, to make the selection of the land so “ granted; and shall further provide for laying out a town upon “ the land so selected; which town, so1 laid out, shall be the seat. “ of government of this State for twenty years. Should, however, “ the prayer of said petition not be granted, the general asseznbly “ shall have power to znake such provisions for a permanent seat “ of governznent as may be necessary, and shall fix the same where “ they may think best.”

In pzzrsuance of the petition thus provided for, Congress, on March 3,1819, passed the following act granting the four sections for a seat of government for the State, and recognized the mode of selection in such schedule:

“ *Be it*enacted,, *etc.,*That there shall be granted to the State of “ Illinois four sections of land, or contiguous quarter sections and “ fractions, not exceeding the quantity contained in four entire “ sections, for the purpose of fixing thereon the seat of government “ for the said State; -which lands shall be selected in the manner “ provided in the thirteenth section of the schedule to the consti- *384“ tution of the said State: Provided, That such selection shall “ be made before the public sale of the adjoining public lands “ shall have taken place. Approved, March 3, 1819.”

Thus it will be seen:

*1st.*It was not a territorial act at all appointing these commissioners, but the act of the State legislature.

*2d.*Instead of being a delegation of power, the act was simply obeying the mandate of the sovereign authority as embodied in the constitution.

These are the wonderful “well-known examples of practical construction of the authority conferred on the territorial legislature by these acts,” and from them, “ it is to be supposed that Con- “ gress intended by the Organic Act of Dakota to confer the same “ powers on its legislature which had been exercised by the legis- “ lative assemblies of Iowa and Illinois, under similar acts without “ dissent or question on the part of Congress or of any lawyer or “ judge.”

It is to be hoped that before such broad assertions are again made as are here so confidently made by the distinguished counsel for the appellants, that a little of “ that inventive genius ” which springs from the “ boundless perrairers ” may enable them to at least search for the truth; and if having searched and found it, to display it.

It would be commendable if the “ desperate absurdity of the attack ” was met by more careful research or more truthful citations. At least we of the “ boundless perrairers ” have been taught that before citing statutes as precedents, it is wise to examine them.

5. In the case of the State of Nebraska, the constitution contained no provision upon the subject of locating the seat of gov-*385eminent, and only provided that the first legislature should meet at the capitol at Omaha. There was, then, no prohibition and no restraint upon the legislature in this regard. We cannot see how it can be a precedent for this territory, when, as we have seen the principal, the source of all power, has in direct terms imposed this trust upon these.two tribunals and upon them alone. ■

We are justified in presuming that in so important a case as this, counsel for the appellants have searched for and found all the instances of territorial or State legislation which they supposed were precedents for the legislation in question, and the foregoing are the results.

We submit that the very particularity displayed in each instance of congressional and territorial aetion, argues that Congress meant by this law just what it says: that the Governor and legislative assembly, and they alone, were authorized to and entrusted with the duty of changing the seat of government for the territory; and if any other mode of changing such seat of government was contemplated, Congress would have so expressly provided.

Church, J.

This was an action in the nature of a proceeding of *quo*warranto, brought to prevent the defendants from exercising certain duties as commissioners for selecting a site for the permanent seat of government, and erecting the capitol building of the territory of Dakota, under appointment of an act of the legislature of the territory, approved March 8, 1883.

The complaint alleges the appointment by the then Governor of the territory, February 11, 1862, of the city of Yankton as the place for the first meeting of the legislative assembly; the meeting of the legislative assembly at the time and place so appointed; the location and establishment by said Governor and legislative assem*386bly of the seat of government at Yankton by act approved April 8, 1862; that Yankton has ever since been the lawful seat of government; that all sessions of the legislative assembly have been held there; the territorial offices held thereat; and all the public books, records, and archives kept there; and that' said seat of government has never since been changed by the Governor and legislative assembly, as provided by the Organic Act. The complaint then alleges the appointment of the defendants as commissioners for the purposes above mentioned “ under and by virtue of a pretended act of the legislative assembly of the territory of Dakota, * * * approved March 8, 1883, which said appointments were and are in violation of said act organizing the territory of Dakota.”

It further alleges that the defendants, as a pretended board, under said pretended act, have usurped said office of commissioners, and the right, privilege, and franchise of naming the seat of government, and are proceeding to change and permanently locate the capital and seat of government at some place other than the city of Tankton, in violation of law and the Organic Act. After some further allegations, not material to the present inquiry, judgment is demanded that defendants are not entitled to said office, and that they be ousted therefrom, and that the said pretended act, and all acts done or performed by said commissioners, be declared illegal and void.

The answer of the defendants, admitting the facts to be substantially as charged in the complaint, avers their due qualification as commissioners by giving bonds and taking the oath as prescribed in the act of 1883, and insists upon the validity of said act, and the regularity of all their proceedings thereunder. ,

It being considered by the court that no material issue of fact was raised, the cause was heard upon motions by both parties for judgment upon the pleadings. The motion of the plaintiffs pre*387vailed, and on August 27, 1883, judgment was given “that said “ defendants and each of ,them be, and they are hereby forever ousted ■“ and excluded from said office of commissioners mentioned in said “ act in the complaint described, and from all franchises and privi- *< leges named, enumerated, or included therein.” From that judgment.this appeal is taken.

Passing by as not necessary to be considered, certain questions of practice raised by the appellants, the errors assigned are the refusal of defendants’ motion for judgment, the granting of plaintiff’s motion, and the judgment rendered thereupon.

The provisions of the act, quoted in full so far as necessary to the proper consideration of this case, are as follows:

“ Section 1. The seat of government of the territory of Dakota “ is hereby removed from the city of Yankton, in the county of “ Yankton and territory of Dakota, and is located and established “ as hereinafter provided.”

“ Sec. 2. That Milo *~W.*Scott, Burleigh F. Spaulding, Alex- “ ander McKenzie, Charles H. Myers, George A. Matthews, Alex- *“*ander Hughes, Henry H. DeLong, John P. Belding, M. D. *“*Thompson, be and they are hereby appointed commissioners for “ the purpose of locating the permanent seat of government and “ the capitol building of the territory of Dakota.”

Section 3 provides for the qualification of the commissioners by giving bonds in the sum of $40,000 each, and the taking of the customary oath, their organization by the election of president, secretary, and treasurer, and the giving of a bond by the latter in the sum of $100,000.

“ See. 4. On or before the first day of July, A. D. 1883, the “ commissioners, or a majority of them, shall select a suitable site “ for the seat of government of the territory of Dakota, due regard “ being had to its accessibility from all portions of the territory, *388“ and its general fitness for a capital, when at least one hundred “ thousand dollars ($100,000) shall be paid or guaranteed in “ money; if the amount be not paid in money, then its payment “ to the territory shall be secured by a bond, with good and suffi- “ cient sureties, payable to the territory, which bond shall be ap- *“*proved by said commissioners, or a majority thereof,, and after “ the site is determined upon as aforesaid, said commissioners shall “ secure good and sufficient title deeds of at least one hundred and, “• sixty acres of land, upon which the capitol buildings shall be “ erected, and a sufficient amount of said grounds shall be laid out “ into squares and suitable landscapes, and the same is hereby de- *“*dared to be the permanent seat of government of the territory “ of Dakota, at which all of the public offices of the territory shall “ be kept, and at which all of the sessions of the legislature shall “ hereafter be held.”

Sections 5, 6, and 7, provide for the laying off into lots, blocks, streets, alleys, and public squares, and for sale and conveyance of the residue of the lands not occupied by the capitol buildings and improvements.

“ Sec. 8. All moneys received by the commissioners for the “ sale of lots shall be forthwith deposited by them in the territorial *“*treasury, and said money shall be held by 'the treasurer as a terri- *“*torial building fund, and shall be kept by him separate from “ other funds and be separately accounted for.”

Section 9 provides for the expenses of the commissioners, and for their compensation at the rate of six dollars for each day actually employed, (such compensation not to exceed in the aggregate $10,000,) all to be paid out of the territorial building fund. Sections 10, 11, and 12, provide for the erection of the necessary buildings; section 12 concluding as follows: *“*As soon as the cap- “ itol building, provided for in this act, is erected and completed, *389it shall he the duty of said commissioners to report such facts to “ the Governor, who shall thereupon issue his proclamation setting “ forth the action of the commissioners, and declaring said build- “ ing ready for occupancy. And it shall then be the duty of all “ the territorial officers, whose offices are properly kept at the cap- “ itol, to remove, within thirty (30) days thereafter, their several “ offices, together with the public property, archives, records, books, “ and papers to the building and place so declared ready for occu- “ pancy, and all sessions of the legislature shall thereafter be con- “ vened in the said building at the said place.”

“ Sec. 13. The title to all lands secured by the commissioners “ for the location and erection of capitol buildings shall be con- “ veyed to the territory of Dakota.”

Section 14 requires the commissioners to make a full and complete report of all their doings to the next legislature, declares that they and their sureties shall be held responsible on their bonds for-all their acts until the legislature shall order the bonds delivered up to them, and prohibits them from purchasing or acquiring any. interest in any real estate, within 10 miles of the site selected, within one year from the passage of the act, and from being interested in any contract made under the provisions of the act.

Section 15 prescribes penalties for violation of the foregoing section.

“ Sec. 16. Until the territorial capitol buildings shall be ready “ for occupancy as provided by this act, the territorial officers shall “ temporarily keep their offices, archives, books, records, and “ papers at the city of Yankton, unless the Governor shall desig- “ nate some other place by written order, in which case the said “ officers shall remove their respective offices, together with the “ archives, books, records, and papers pertaining thereto, to the *“*place so designated within the time prescribed in such order.”

*390“ Sec. 17. Chapter 1, of the Political Code, and all acts or “ parts of acts in any manner in conflict with this act or repugnant *“*thereto, are hereby repealed.”

<£ Sec. 18. This act shall take effect and be in force from and after its passage and approval.”

We are not informed by anything in the records, or by any written opinion of the learned Chief Justice before whom the case was tried, of the grormds upon which the j udgment of the District Court was based; but the principal reasons urged in-this court in support of that judgment are:

*First.*— That the act of 1883 is in conflict with those provisions of the Organic Act of the territory, under and in pursuance of which alone the power to change the seat of government can be exercised, in that it delegates to these defendants the duty of selecting a suitable site for the location of the seat of government,— a duty which, it is claimed, could be lawfully performed by the Governor and legislative assembly only.

*Second.*— That said act is also in conflict with the Organic Act, in that it appoints these defendants by name as commissioners, whereas, if any lawful appointment could be made for the purposes indicated, such appointment should have been made by the Governor, by and with the advice and consent of the legislative council, upon the Governor’s nomination.

These are the questions, therefore, which are presented for our consideration, — questions whose just determination is to be sought in the line of established principles of legal interpretation and construction, guided only by the purpose to ascertain and declare the law.

The first inquiry which suggests itself is as to the nature and extent of the general powers conferred upon the territorial legis-*391¡ature by the Organic Act, since upon this foundation rests whatever claim to validity may be possessed by the act in question.

We shall not attempt to follow counsel in their interesting discussion of the various theories of ultimate sovereignty, and the sources and nature of the power of the Federal and State legislatures. We shall limit ourselves to as brief an expression of our views as may be consistent with an intelligent statement of the reasons which have led the court to its judgment.

We think it must be regarded as a settled principle of constitutional interpretation in this country, that the people are the sovereigns, and that in the people resides ultimate sovereignty.

If we consider the several State organizations, it is evident that' the legislature is not the State, nor is the judiciary, nor the executive, nor are all combined, the State. The people organized into a political society are the State, and the various departments mentioned are but the machinery through which the popular will finds expression, interpretation, and execution. To these several departments the people have committed — nr, in other words, delegated— the exercise of the various powers and duties appropriate to each, and as limitations thereupon have formulated and adopted those organic instruments which we call constitutions; and the power that thus created, conferred, and limited, may, within certain limitations, alter, amend, and even abrogate. -And it is to be observed that these limitations last referred to are either self-imposed, or such as inhere in the very nature and constitution of human society; they are never imposed upon the people by any of the departments of the State government, nor can they be. The servant cannot control the master.

Nor does it militate against this view to suggest, as do respondents’ counsel, that no body of the people, however numerous, even though comprising all the citizens of a State, would have any more *392..right to violate a law than would any one citizen; since it is not in the people as a mere aggregation of individuals, but in the people as an organized political society, which is, in contemplation of law, a voluntary association, that the sovereignty resides; and the •sovereign will having been expressed ip its appointed way, one and all are equally bound to obey it; and, in the terse language of the accomplished author of the Letters of Junius, *“*the submis- “ sion of a free people to the executive authority of government is “ no more than a compliance with laws which they themselves “ have enacted.”

Passing now to the Federal government, we find here a like commission or delegation of power from the sovereign, to-wit: the people; only here it is the people of the United States who are sovereign. The language of the preamble to the constitution is: “ We, the people of the United States.” Here, too, we have the three departments of government framed for the expression, interpretation, and execution of the sovereign will, to each of which have been committed or delegated its appropriate powers. And here, also, we find an Organic Act or instrument, called a constitution, containing within itself an expression of the conditions and methods, self-imposed by the sovereign, under and in accordance with which it may be altered or amended. This is sometimes spoken of as a surrender of power by the people to the general government; but ean it be so regarded? The only true view of our system of government, both State and National, is that which regards the people as still sovereign, and every lawful act of every department of any of these governments, State or National, as but the will of the sovereign, expressed by and through their chosen instruments.

It may, perhaps, be conceded that there is this difference between the State and the Federal constitutions: that while the former are *393to be regarded as limitations upon tbe general powers of the State government, the latter is to be searched for the grant of any power claimed on behalf of the National government: (Cooley, Const. Lim., 173;) although, in such a search, it should always be remembered that there is “ a vast domain ” of implied powers,— powers necessary for the effectuation of those specifically granted. By the ordination of that instrument the federal Union was formed; and in it, either expressly declared or necessarily implied, is to be found every power delegated by the people to the *general*government. We should hardly have thought it necessary to cite any proof of the proposition that the powers possessed by the several departments of the federal government are, in a broad and general sense, delegated powers, had not counsel for the respondents so earnestly insisted upon a contrary view.

The preamble to the constitution recites the sovereign purpose. The first section of article 1 declares that “all legislative powers herein *granted*shall be vested in a Congress of the United States.” The eighth section of the same article prescribes what this Congress shall have power to do. And article X of the amendments declares that “ the powers *not delegated*to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Among the powers conferred upon the general government in its various departments are those of declaring war and making treaties. Implied in these powers is that of acquiring territory by conquest or purchase; and a necessary consequence of such implied power would seem to be the power to dispose of and make all needful rules and regulations respecting the territory so acquired. This latter power, however, has been expressly conferred upon the Congress by section 3, of article IY, of the constitution. From whatever source derived, the possession by Congress of the *394power of governing the territory of the United States is unquestioned, (Am*er. Ins. Co. v.*Canter, 1 Pet., 542;) and this power is complete and absolute. “ Congress is supreme, and, for the “ purposes of this department of its governmental authority, has “ all the powers of the people of the United States, except such as “ have been expressly or by implication reserved in the prohibi- “ tions of the constitution. * ** **It has full and complete legislative authority over the people of territories and all the departments of the territorial *governments Nat. Bank v. Yankton Co.,*101 U. S., 132.

It is manifest, also, from the considerations already advanced, that this power, like all others possessed by Congress, is *a delegated one.*In the language of the.opinion just cited, “ Congress * * * has all. the powers of the people of the United States *”*in the matter. If, therefore, the maxim, *delegatus non potest delegare,*invoked by respondent’s counsel, be applicable, it may appear .somewhat strange that, instead of any question as to the power of Congress to legislate for the territories, there has never been raised the question whether such delegated power could be redelegated; in other words, whether it could be lawfully exercised in any other way than by the enactment by Congress of a system of laws complete in all details of government for the territories. For, beginning with the ordinance of 1787, the practice of Congress has been to establish in all the territories complete systems of local self-government similar in all essential respects to those of the States of the Union, and to commit to the various departments of these local governments the exercise of all the functions appropriate to each, reserving either expressly, as in some instances, or impliedly, as in others, a supervisory and revisory power over all territorial legislation.

It would be a vain task for this court or any other court to *395assail this long-established policy, on the ground that it is an unlawful delegation of delegated power. Rather should we seek for some solution of the question which shall be in harmony with those broad principles upon which rests the fabric of the republic. Such a solution, we believe, may be found embraced in or closely associated with the great underlying principle of local self-government. It was never the intention of the framers of our federal Union that any portion of the public domain should *forever*continue to be “ but political subdivisions of the outlying dominion of the United States,” bearing a relation to the general government “ much the same as that which counties bear to the respective States.” Nor do we think that the above language, quoted from the opinion of the Supreme Court of the United States in the case of *National Bank v. Yankton Co.,*before cited, is to be extended beyond its original purpose.

The principal questions under consideration in that case were as to the power of Congress to legislate specifically for the territories, and the effect to be given to such legislation, and to those questions the language quoted was apt and pertinent. But it is unnecessary to presume that that language was intended by the court as an accurate judicial definition of the political- *status*of the territories applicable to all cases. Such a proposition would not command the assent of any diligent student of constitutional law, and we think no such construction can be placed upon that opinion.

The controlling basilar idea of our republic is that of an organic union of republican States; a noble building “ fitly joined together, and compacted with that which every joint supplieth.” The ultimate purpose is that every portion of its territory shall, as soon as practicable, be organized into States which shall take their equal place and part in the Union. The territorial condition is but a necessary incident of immaturity. Every essential element of *396statehood is there, and the policy of the government has always been to employ this period as one of preparation by clothing the territories with the paraphernalia and investing them with many of the duties and privileges of statehood.

Let us see what has been done in this respect. The ordinance of 1787 for the government of the northwestern territory has been already alluded to, and although that was enacted prior to the adoption of the constitution and is not now in force, *(Strader v.*Graham, 10 How., 82,) the general policy of Congress in reference to the government of the territories has remained as therein expressed. "We do not wish to be understood as affirming any right in the inhabitants of any particular portion of the public domain to demand admission into the Union as a State. The hand that created can destroy, and the boundaries of any territory may be entirely altered by Congress at its pleasure. "We are merely stating what we understand to have been the general policy of the government.

The acts under which the several territories have been from time to time organized, are all drawn after the same general pattern, and are in all essential particulars similar. That organizing this territory was passed March 2, 1861: 12 Statutes at Large, 239. Its title is: “An act to provide a temporary government for the territory of Dakota, and to create the office of surveyor general therein.” The first declaration of the act is, that the territory therein described “ is hereby organized into a temporary government by the name of the territory of Dakota.” Section 2 vests the'executive power in a governor, and prescribes in very general terms his powers and duties, among which we note here, for future reference, that “ he shall approve all laws passed by the legislative assembly before they shall take effect.” Section *4c*vests “ the legislative power and authority of said territory in *397the Governor and legislative assembly,” and provides for the election and constitution of the latter. Section 6 declares that “ the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the constitution and the provisions of this act;” but prohibits any legislation interfering with the primary disposal of the soil, taxing property of the United States, taxing property of non-residents higher than that of residents, impairing private property, or making any discrimination in taxing different kinds of property. Section 9 vests the judicial power of the territory in certain courts therein mentioned, and prescribes in general terms their jurisdiction. Section 13 provides for the election of a delegate to the House of Representatives of the United States. Other sections provide for the appointment of various officers, and sundry other matters not necessary to be mentioned in this connection.

Here, it will be observed, is no code of laws, civil or penal. This Organic Act is, in all its essential generic features, similar to-the constitutions of the several States, and there can be no doubt that it was designed to serve a similar purpose, *(Ferris v. Higley,*20 Wall., 375, 380;) the power to amend, alter, or repeal, however, remaining in Congress, which may exercise such power in a summary way, either directly or indirectly, by adyerse legislation.

If the provisions of the Organic Act pertaining to legislation are to be regarded as a mere delegation to the territorial legislature of the law-making power, ample and complete as it is, and extending as it does, in general terms, to all rightful subjects of legislation, they might seem obnoxious to the well-settled rule that powers strictly and exclusively legislative cannot be delegated: Cooley, Const. Lim., 116; *Wayman v. Southard,*10 Wheat., 1. But such a view of the Organic Act is manifestly a too narrow one. The same author just quoted, referring to the rule that legislatures cannot delegate the power to make laws, says, (5th Ed. p. *398228:) “ But fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims, * * * that the right to create towns and counties, * * ***and to confer upon them the powers of local government, ** * #*would always pass unchallenged. The legislature, in these cases, is not regarded as delegating its authority, because the regulation of such local affairs is not understood to belong properly to the State.” And yet it must be admitted that the State may regulate them by direct legislation.

"We have quoted these words of this learned author merely for the purpose of showing that not every creation by the legislature of subordinate legislative bodies is to be regarded as a delegation of law-making power, although, for reasons already stated, we think that the analogy between the relations borne by counties and other municipal organizations to the State legislatures and those borne by the territory to the Congress of the United States is by no means complete. There is a wide and, as it seems to us, an essential difference in the conditions and purposes of their existence. The relations between the territories and the general government may indeed be said to be *sui*generis, having no complete analogy in any other political organizations.

So, then, we must either boldly affirm that the whole scheme of territorial government is unlawful, and that the established policy of Congress in this regard is an abdication of the trust committed to it by the people; or, taking a broader and more comprehensive view, we shall conclude that the power reposed in Congress to make needful rules and regulations for the government of the territories comes fairly within the scope of those administrative functions of legislative bodies which it is generally conceded they may either exercise themselves in detail or by statutes containing general provisions only, and that in erecting within the prospective *399State the full machinery of a State government, with all its departments, Congress has discharged to that extent the trust reposed in it in a mode which was not only demanded by the exigencies of the situation, but which is also in entire harmony with our republican system of government.

And since the investiture of the territorial legislature with leg- ' islative powers is, as we have seen, general in its terms, extending to all rightful subjects of legislation, we think this is to be regarded as a delegation of authority in the same general sense only in which the powers of Congress are considered to be delegated to it by the people, and that such powers are, within their proper scope, to be exercised in the same manner as like powers may be exercised by other legislative bodies, state and national.

Sanction for the views thus expressed will be found in several decisions of the Supreme Court of the United States. In the case of *Miners’ Bank v.*Iowa, 12 How., l,the court says: “ By what “ may be termed the Organic laws, creating the governments of “ both the territories above mentioned, it will be seen that those *“*governments were vested with general legislative power, and “ were subjected to no enumerated or specific limitations of that “ general power, save in certain exceptions relating to the lands or “ other property of the United States,” etc.

Language of like import was employed by the court in the case of *Trustees of Vincennes University v. Indiana,*14 How., 273.

Again, in the case of *Clinton v. Englebrecht,*13 Wall., 434, the court says, (p. 441:) “ The theory upon which the various govern- “ ments for portions of the territory of the United States have “ been organized has ever been that of leaving to the inhabitants “ all the powers of self-government consistent with the supremacy “ and supervision of national authority, and with certain funda- “ mental principles established by Congress.” And after referring *400to the Ordinance of 1784, and the fact that this was superseded by that of 1787, already referred to, the court further say: “ This “ legislature (provided for by the Ordinance) ** * **was “ clothed with the full power of legislation for the territory:” Page 442. And again, on page 443: “ In all the territories full u power was given to the legislatures over all ordinary subjects of “ legislation. The terms in which it was granted were various, “ but the import was the same in all.”

So, also, in the case of *Hornbuckle v. Toombs,*18 Wall., 648, the court says, (p. 655:) “ As a general thing, subject to the general scheme of local government chalked out by the Organic Act “ and such special provisions as are contained therein, the local *“*legislature has been intrusted with the enactment of the entire “ system of municipal law; subject also, however, to the right of “ Congress to revise, alter, and revoke at its discretion. The pow- “ ers thus exercised by the territorial legislature are nearly as ex- “ tensive as those exercised by any State legislature.” See, also, *Ferris v. Higley, supra.*We might add that in the District of Columbia, over which, by the express terms of the constitution, (article 1, Sec. 8,) the power to exercise exclusive “ legislation in all cases whatever ” is given to Congress, Congress at one time provided a Governor and legislature, and a complete system of government: Revised Statutes relating to District of Columbia, pages 1 to 149.

Having thus defined the relation of the territory to the general government, and the general powers of the territorial legislature under the Organic act, the next inquiry which presents itself is, what provision is made in the Organic Act for a change of the location of the seat of government of the territory? Section 12 of that act, is as follows: “ That the legislative assembly of the terri- “ tory of Dakota shall hold'its first session at such time and place *401•“ in said territory as the Governor thereof shall appoint and direct, *“*and at said first session, or as soon thereafter as they shall deem “ expedient, the Governor and legislative assembly shall proceed “ to locate and establish the seat of government for said territory •“ at such place as they may deem eligible; which place, however, u shall thereafter be subjeet to be changed by the said Governor *“*and legislative assembly.”

It is contended by counsel for respondents that in this section • alone is to be found the power to change the location of the seat of government, and that such power is a special trust conferred upon and reposed in -the Governor and legislative assembly, by which they are charged with the duty of personal selection of a new location. In support of this view it is insisted by counsel for respondents that the words, “ as they may deem eligible,” contained in the section just quoted, not only impose upon the Governor and legislative assembly the personal duty of determining the eligibility of the place at which the seat of government was to be first located, but that these words are to be transferred, and relate with like force to the last clause of the section, which contemplates a subsequent change or changes.

It would be a sufficient answer to this contention to say that the section referred to was long since superseded by section 1944 of the Revised Statutes, in which these words are not found; but, inasmuch as what we regard as the only provision of the original section pertinent to the circumstances is preserved in the present . act, it will be convenient to take a general view of both.

In the first place, let us see to what a result such a construction as that contended for would lead us. This territory is, in round numbers, some 400 miles square, with a population said to be nearly 350,000, distributed over a great portion of its surface. A number of important and growing towns were contending for the *402honor and profit attaching to the seat of government —each, no-doubt, deeming itself to possess peculiar advantages. By the organic law the legislature meets biennially, and its sessions are limited to 60 days. The facilities for ready transportation in the territory are limited. Manifestly, it would be impossible for a legislative assembly convened from so large a territory for so short a period, and in the midst of many other pressing duties, to make intelligent choice of a location for the seat of government. But it is suggested that a committee of the legislature might be appointed to examine and report. To examine, when? During the 60 days’ session,-or so much as might remain after their appointment 2 Meantime, during their absence upon this duty, what is to be done with general legislation? How are the constituencies of these committee men to be represented in the legislature? Or, if their examination is to be made after the adjournment of the legislature, to whom are they to make their report? To the next legislature? That would not be the body that appointed them; they would probably not be members of the new body, and, if they should, it would be by virtue of a new election; and, even if the report of such a committee to such new legislature could have any possible value, or be received and adopted by legislative act, at least four years would intervene between the initiation of steps to change the seat of government and the time when a new location could be made available for a session of the legislature. But we do not think the act will bear any such construction. Certainly none such is necessary. The argument of tbe learned counsel strikes us as more ingenious than forcible. Ve have already noticed that it was not wholly pertinent.

In order to ascertain the powers and duties.of the legislature in this respect we must look, not alone to any isolated section of the Organic Act, but to every part of it, considering its whole scope and purpose. We have already seen that the purpose of that act, *403as declared in its title, is not to govern, but “ to provide ” a temporary government for the territory. We have also seen that the legislative power in the territory is vested in the “ Governor and a legislative assembly,” and that such legislative power is a general one, extending to all rightful subjects of legislation. We have heretofore noted the fact that, by the second section of the original act, it was provided that the Governor should approve all laws passed by the legislative assembly before they should take effect, thus requiring the absolute concurrence of the Governor, and constituting the executive a part of the legislature, or lawmaking department of the government.

An examination of the Revised Statutes of the United States will show that this provision is now repealed. This was effected by an act passed March 2,1863, relating primarily to the territory of Colorado, but made applicable, in part, to this territory: 12 Stats, at Large, 700. This last-mentioned act gave the Governor the usual veto power, but provided for the passage of bills by the assembly over the veto, thus recognizing the usual distinction between the legislative and executive .departments, and assimilating the system of legislation to that of the states and of the United States: Rev. Stats., Sec. 1842.

It will be noticed, however, that the original provision of the Organic Act, by which the legislative power is vested in the Governor and a legislative assembly, is still retained in the Revised Statutes, (section 1846,) whence we must conclude that these two •sections are not repugnant, but are to be read together, if possible, which, it is manifest, may be readily done.

Let us now examine the provisions of section 12 of the Organic Act, already quoted. Obviously it was necessary that some provision should be made for the first meeting of the legislature. Hence we find that the Governor was authorized to designate the *404place for holding such first session, but the legislature — that is, the Governor and legislative assembly — were directed “to proceed thereafter to locate and establish the seat of government * * * at such place as they may deem eligible;” in other words, wherever 'they may choose to locate and establish it. And it may not be out of place here to call attention to the same omission on the part of Congress to restrict the choice of location in terms to the territory of Dakota, that counsel for respondent have noted with some severity of criticism, in the territorial statute of 1883.

Realizing, however, that in such a vast territory the center of population and commerce would, in all probability, shift from its original location, and thus render a further change or changes desirable, and with the purpose, no doubt, of avoiding any question which might arise as to the power of the legislature to make such change, the further clause is added: “ Which place, however, shall thereafter be subject to be changed by the said Governor and legislative assembly.” This seems to us to be the full scope and purpose of the section referred to. We do not regard it as either an enlargement or limitation of the general legislative powers already conferred, but as a declaratory provision inserted by way of precaution; and, whether considered as pertaining to the strictly law-making functions of the legislature or to those administrative functions belonging to every legislature, this power could, at least, be properly exercised in the form of a legislative act, as such functions are usually exercised by legislative bodies.

In accordance with this view was the action of the territorial legislature, which, by enactment in the usual form, passed by the legislative assembly, and approved by the then Governor, April 8, 1862, located and established the seat of government at Yankton. Strangely enough, however, all the counsel who have presented printed briefs in this case seem to have overlooked the fact that *405this is not the provision of law now in force applicable to this territory. Some of them.have cited the section of the original act above quoted, while others have cited section 1885 of the Eevised. Statutes, which is substantially the same. But section 1885 in> terms applies only to territories thereafter to be organized, while section 12 of the original, act is superseded and repealed by the enactment of section 1944 of the Eevised Statutes, which reads as follows: “ The seat of government of the territories of [naming seven, Dakota among them,] may be changed hy the governors and legislative assemblies thereof, respectively.” And this is the provision now in force in this territory.

Eor the reasons already stated, however, we do not think any substantial change in the law was effected by this enactment; it merely re-enacted so much of the former act as was then applicable to the territories named. What we have said, therefore, in considering the former act, is in the main applicable to the present one.

With this general review of- the powers of the legislature in respect of the subject-matter of this controversy, we are now prepared to consider the act in question, and to ascertain whether ,. such of its provisions as are assailed in this proceeding are in conflict with any of the principles by which legislative bodies possessing general powers of legislation are governed in similar cases; for to this point, as we think, is the discussion brought by the views already, expressed- Over 20 years have elapsed since the passage of the first act locating the seat of government, during which vast tides of immigration have been flowing in upon these broad and fertile plains. Yankton, once the practical center of population, has become, to by far the greater part of this new population, remote and inconvenient of access, and at its last session the legislature, deeming the time to have arrived when it was *406expedient to remove the seat of government to some place better adapted to the convenience and growing needs of the community, passed the act entitled “ An act to provide for the location of the seat of government of the territory of Dakota, and for the erection of public buildings thereat,” which act was duly approved by the Governor, March 8,1883. Sections 2 and 4 comprise the provisions directly assailed by this action.

Upon the argument before this court a considerable portion of the discussion was devoted to the inquiry whether, the exercise of the power of changing and relocating the seat of government pertains to the administrative or to the purely law-making functions of the legislature. Possibly it may involve both. Prescribing by law that a change shall be made and a new location selected, and the mode in which this shall be accomplished, would seem to pertain closely to the law-making function. But, whether so or not, the actual selection of a suitable location, and the erection of buildings and improvements thereon, are clearly, as we think, acts of an administrative character. Undoubtedly there maybe combined in one section, as has sometimes been done, a declaration of the legislative will that a change be made, and a selection and designation by the legislature of a new location. Or, as has also frequently been done, the former may be expressed in one portion of the act, while in other portions thereof provision is made for the latter.

*We*are of the opinion that, if not wholly administrative, so much at least of the act in question as relates to the selection of a new site, and the erection of suitable buildings and improvements thereon, is clearly of an administrative character. The legislative will that the seat of government be removed, that it be located and established as in the act provided, and that the site selected and determined upon by the commissioners, in pursuance of the provisions of the act, shall be the permanent seat of government of the *407territory, is definitely expressed in the act itself. Tlie undoubtedly important and responsible duties of selection and preparation for occupancy were delegated to these commissioners. Tbe convenience of such delegation, the obvious difficulties in the way of a direct selection by tlie legislature, have been already alluded to. What legal principle is contravened by the delegation of this power? The legislature made the law. Every act done under it by these commissioners is done in pursuance and by authority of the law, and derives its sole vitality therefrom, and.when done is to be regarded as the act of the legislature itself.

Legislative precedents in such cases are of great' value. As remarked by Justice Oaton in the case of *The People v.*Reynolds, 5 Gilman, 1: “In determining what is legitimate and proper legislation we feel warranted in looking at the past to see what kind of laws legislative bodies have been in the habit of passing.”* And an examination of such precedents will show, that the provisions in question are in harmony with the long-established and well-nigh universal practice of legislative bodies, federal, state, and territorial.

Only alluding in passing to the unchallenged legislative practice of this territory, in common with many other states and territories,, of delegating, to commissioners and others the power to locate county seats, and do many other administrative acts which the-legislature might undoubtedly do 'itself, we shall cite but a few of' the more important of the legislative precedents just referred to.. Tbe territory of Iowa furnishes one of these. In its essential features the Organic Act of that territory was the same as that of Dakota. I very much regret that the statutes of the territory of Iowa are not accessible by me at this time. Though cited at some length upon the supplemental brief of counsel for respondents,, some facts'which I deem of importance are omitted. Briefly *408•stated, however, it appears that in January, 1839, the territory of Iowa passed an act providing for the location of the seat of gov-•emment through the agency of three commissioners who were appointed to select a site, lay out the grounds, sell lots, and from the proceeds erect suitable buildings. My recollection is that these commissioners were appointed by joint* resolution, and that they were required to report their proceedings to the Governor; but I •cannot affirm this with certainty. The territorial capital was selected and located pursuant to the provisions of the act.

Counsel for the. respondents, however, claim that because, by the terms of a supplemental act passed at the same session, no further steps were to be taken after the selection and report thereof to the Governor until the consent of. the United States should be. obtained, and a donation of the land made by them, this precedent is to be regarded as opposed to, rather than one in favor of the legislation in question. But upon examination of the supplemental act it will appear that the consent which was to be obtained Was not to the method adopted for making the selection, but to the appropriation of the land selected for the purpose designated, and that such consent was to be obtained, if possible, in the form of a grant or donation of the laud. And such seems to have been the view taken of it by Congress, for we find that by an act 'passed March 3, 1839, Congress “ appropriated and granted to the terri- “ tory of Iowa one entire section of land, *of arvy of the surveyed “ public*lands in said territory, for the purpose of erecting thereon “ the public buildings for the use of the executive and legislative • *u*departments of the government of said territory: Provided, “ That the said section of land shall be selected *wader the authority “*of the territorial legislature, the seat of government located “ thereon, and notice of said selection officially returned to the reg- *“*ister of the land office in the district in which the land is situated, “ within one year from the passing of this act.”

*409It is especially noticeable that the selection was directed to be made, not. “ by the-G-overnor and legislative assembly,” but “ under the authority of the territorial legislature.” No other authority for the selection of a site appears to have been given by the territorial legislature than that already referred to. It must be presumed that' these acts were before Congress at the time of the passage of the donation act, and this legislation must, therefore, be considered to have received the sanction of. that body, and to. furnish an important precedent for the legislation in question.

In the case of *Clinton v.*Englebrecht, *supra,*in which the validity of the jury laws of the Territory of ITtah was in question, the court say: “ The uniformity of construction by so many ter- “ ritorial legislatures of the Organic Act in relation to their legis- ££ lative authority, especially when-taken in connection with the “ fact that none of these jury laws have been disapproved by Oon- “ gress, though any of them would be annulled by such disap- ££ proval, confirms the opinion, warranted by the plain language of *il*the Organic Act itself, that the whole subject-matter of jurors t£ in the territories is committed to territorial legislation.” And again: ££ In the first place, we observe that the law has received ££ the implied sanction of Congress. * * * The simple dis- “ approval by Congress at any time would have annulled it. It i£ is no unreasonable inference, therefore, that it was approved by ££ that body.”

In the Iowa ease the attention of Congress must have been specially directed to the territorial law.

Another precedent is furnished by the state of Illinois, the site for whose capital was selected by commissioners, appointed in and by an act of the legislature of that state, passed in 1819. ■ The value of this precedent, also, is assailed by counsel for the respondent, on the ground that the Constitution of the state con-*410tamed an express provision for the selection of the site in this mode. The fact is as stated. The Constitution of Illinois, after directing the general assembly to petition Congress for a grant of land, did further direct that if such petition should be granted, the general assembly, at their next session thereafter, should provide for the appointment of five commissioners to make the selection of the land so granted.

Nut it is the propriety of this kind of legislation which we are now considering, as evidenced by the practice of other legislative bodies, and this provision of the Illinois constitution may, we think, be fairly regarded as an expression of the opinion of the people of that state that the mode of selection therein prescribed was the most suitable and proper one. In Nebraska, also, the present capital of the state was located by a commission composed of the Governor, Secretary of State, and Auditor, named in and appointed for the purpose by an act of the legislature of 1866-67, which removed the capital from Omaha, and located it at a point to be thereafter selected. So, also, was the seat of our Federal government selected and located.

The general power of Congress for this purpose is found in section 8, of Article I, of the Constitution, where the right of exclusive legislation is given “ over such district (not exceeding ten .miles square) as may, by cession of particular states and the *acceptance of*Congress, become the seat of government of the United States.” By chapter 28, 1 Statute at Large, 130, it was enacted “ that a district of territory not exceeding ten miles square, *to be*“ *located as herei/nafter directed,*on the river Potomac, at some *u*place between the mouths of the eastern branch and Con- “ nogochegue, be and the same *is hereby accepted*for the perma- “ nent seat of government of the United States.”

By the second section the *President*was authorized to appoint *411three commissioners, who, under his direction, “ should survey, define, and limit a district of territory within the limits named,” “ and the district so defined, limited and located *shall he deemed the district accepted hy this act*for the permanent seat of government of tlie United States.”

It may be worthy of note in this connection, as pertinent to some adverse eritieism upon the provisions of sections 1 and 16, of the territorial act, although we do not deem it essential to a determination of this controversy, that the act of Congress makes a somewhat similar provision.

The seat of government at-that time was the city of New York. Section 5, of. the act of Congress, provides “ that, prior to the first ■“ Monday in December next, (1790,) all offices attached to the “ seat of government of the United-- States shall be removed to, “ and until the said first Monday in December, in the year one “ thousand eight hundred, [the date fixed for the completion o£ “ suitable accommodation at the new seat of government,] shall “ remain at, the city of Philadelphia, in the state of Pennsylvania, “ at' which place the session of Congress next ensuing the present “ shall be held.” Section 6 then provides that on the first Monday in December, 1800, the seat of the government, and all offices attached thereto, shall be transferred to the district and place selected for the permanent site thereof.

Nowhere in the act is Philadelphia designated, in terms, as a temporary seat of government, although such a purpose may be inferred from the title of the act, which is “An act for establishing the temporary and permanent seat of government of the United States.” ^

*We*do not propose, however, to consider this particular matter further.

Numerous other discretionary powers, which are by the Oonsti-*412tuition expressly vested in Congress, have been from time to time delegated by that body to the President and other executive officers; as, for instance, “ to raise and support armies,” (1 Stats, at Large, 223, 243, 558;) “-to grant letters of marque and reprisal,”' (2 Stats, at Large, 755;) “ to borrow money on the credit of the United States,” (1 Stats, 'at Large, 187, and elsewhere;) “ to^ make rules for the government and regulation of the land and naval forces,” (1 Stats, at Large, 569;, 2 Stats, at Large, 819;) daring the rebellion, “ to suspend the writ of *habeas- corpus*whenever, in his judgment, the public safety may require it,” (12 Stats, at Large, 755.)

With this brief view,of some of the legislative precedents, we proceed now to consider lome of the .cases in which judicial sanction has been given to legislation of the same character as that in controversy. It is a difficult task to select, from the great mass of concurrent decisions upon this point, a limited number of those most pertinent to the circumstances, but we shall cite a few which we deem appropriate and decisive.

The case of *Upham v. Supervisors of Sutter Co.,*8 Cal., 379, was one in which the validity of an act providing for the removal of a county seat upon a vote of the citizens was in question. The court say: “ Providing for a place does not necessarily include “ its direct selection. If the mode of selection is prescribed by “ law, then the place is provided for. By the Constitution the “ legislature is required to provide for many objects which cannot “ be effected by the direct action of the legislature; and while the “ maxim *delegatus non potest delegare*is, undoubtedly, true, “ the extent of its application to legislative bodies must depend “ upon the nature and design of the legislation, and the means “ necessary to accomplish the design. * * * ” In *Hobart v. Butte Co.,*17 Cal., 24, a case involving the validity of bonds issued under a statute which submitted the question of issuance to *413a popular vote, tlie court say: “Every attribute of a law is im- “ pressed upon the act of 1860. The legislative will is complete “ in itself and in its expression. It is by force of the law that “ the bonds are authorized and issued. It is true that the issuance “ depends upon the will of the electors, but this condition is affixed “ by law, and is as much an emanation of the sovereign authority “ as is the grant of power.” Elsewhere in the same opinion it is said: “ Laws are passed every day which depend for validity upon “ the acts of individuals; *for example, such acts as the removal of*“ *capitals,- court-houses, etc., upon donations or other advantages*“ *"being*secured.”

The case of *People v. Reynolds,*5 Gilman, (Ill.) 1, already cited, is very instructive. The court there say: “ If we take the action “ of all past legislators in determining what'may and should prop- “ erly be done in the exercise of legislative powers, we see that “ while they are bound to make the laws, yet those laws need not “ be 'absolute, nor make every provision for doing that which “ they may authorize to be done; while all must be done-under “ their sanction, yet they.need not do all, nor command all,— “ a law may depend upon a future event or’ contingency for its- “ taking effect, and that contingency may arise from the voluntary “ act of others. * * ***If we say. that this is an unauthorized “ delegation of legislative power, we forget what is a legitimate- “ and proper exercise of that power. If the saying be true that “ the legislature cannot delegate its powers, it is only so in its “ most general sense. "We may well admit that the legislature “ cannot delegate its general legislative authority, still it may au- “ thorize many things to be done by others which it might prop- “ erly do itself. ■ All power possessed by the legislature is dele- “ gated to it by the people, and yet few will be found to insist “ that,whatever the legislature may do it shall do, or else it shall *414“ go undone. To establish such a principle in a large state would “ be almost to destroy the government. **** * 'We see, then, “ that while the legislature may not divest itself of its proper “ functions, or delegate its general legislative authority, it may “ still authorize others to do those things which it might properly, “ yet cannot understanding^ or advantageously, do itself. * * * “ The object to be accomplished may be specified, and the' rest “ left to the agency of others, with better opportunities of accom-*u*plishing the object or doing the thing understandingly.”'

In *Locke's Appeal,*72 Pa. St., 491, Justice Agnew, speaking for the Supreme Court, says: “ What is more common than to “ appoint commissioners under a law to determine things, upon e- the decision of which the act is to operate in one way or another? “ * * * Then the true distinction, I conceive, is this: — the leg- “ islature cannot delegate its power to make a law, but it can make “ a law to delegate a power to determine some fact or state of “ things upon which the law makes or intends to make its own “ action depend. To deny this would be to stop the wheels of “ government. There are many things upon which wise and use- “ ful legislation must depend which cannot be known to the law- “ making power, and must therefore be the subject of inquiry and “ determination outside the halls of legislation.”

By section 9, of Article I, of the Constitution of the United ■States it is declared 'that “ the privilege of the writ of *habeas ■corpus*shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.”

The Supreme Court of Wisconsin, *(In re Kemp,*16 Wis., 382,) decided that the power to suspend this writ was a legislative power, and was vested in Congress; and that the proclamation of the President suspending the writ was for that reason void. Congress subsequently passed an act (already cited) conferring this power *415upon the President, and the same court, *(In re*Oliver, 17 Wis., 681,) sustained the validity of that act.

It is useless to multiply precedents. We cite for reference, without quoting, *Burr v.*Blanding, 13 Cal., 357; *Moers v. City of Reading,*21 Pa. St., 202; *C. & W. & Z. R. Co. v. Com'rs,*1 Ohio St., 88; *Wayman v. Southard,*10 Wheat., 1; *Slack v. M. & L. R. Co.,*13 B. Mon., (Ky.) 1; *State v. Parker,*26 Vt., 357.

Our conclusion is, that the provisions of this act for the selection by commissioners of a suitable location for the seat of government, and for the erection thereon of the necessary buildings and improvements, are a lawful and proper exercise of legislative authority, and that the act in question is, in these respects, valid and operative.

The remaining question is,, as to whether the designation of the commissioners by name in the act itself was' lawful, being contended by the respondent that such designation is in conflict with section 1857, of the Revised Statutes of the United States, which requires that the Governor shall nominate, and, by and with the advice and consent of the legislative council, appoint, all ofiieers, except certain ones otherwise provided for. This question we shall consider very briefly.

íhe officers contemplated by that section are, in our opinion, those continuously employed in the regular and permanent administration of government; those by whom the territory performs its usual political functions — its functions of government: *Sheboygan Co. v. Parker,*3 Wall., 39.

The duties to be performed by these commissioners are of the most temporary character. Their functions wholly cease with the completion of those duties; and we do not think they can be regarded as officers, within the meaning of the section of the Organic Act referred to. Legislative and judicial proceedings for this view *416might readily be multiplied, but we deem it unnecessary to do more than cite a few, for reference, in addition to the one above mentioned: *Shepherd v. Com.,*1 Serg. & R., 1; *Com. v. Sutherland,*3 Serg. *&*R., 145; *State v. Kennon,*7 Ohio St., 546; *Branham v. Lange,*16 Ind., 497; *People v. Nichol,*52 N. Y., 478; *In re Attorneys' Oaths,*20 Johns., 493; *U. S. v. Hatch,*1 Pinn., (Wis. Terr.) 182; *People v. Middleton,*28 Cal., 604. In this respect, also, we must uphold the validity of the act in question.

The importance which has been given to this case by the acrimonious contest over the removal and relocation of the capital, and the general interest with which the decision of this court was awaited, have suggested the belief that such a presentation of the legal principles upon which our judgment is based as would render them measurably clear to the popular comprehension, would perhaps be anticipated, and indeed it were well if our citizens generally were better acquainted with the sources and extent of their political powers. These considerations have led to a somewhat more ■extended exposition of our views, and to a fuller quotation from •the precedents cited, than we should otherwise have deemed necessary, since we regard the questions presented, when viewed in their true aspect, as free from any considerable legal difficulties, and have no hesitation in declaring that in our opinion the appellants are lawfully entitled to exercise the duties of their appointment under the act in question.

The judgment of the District Court must therefore be reversed, and judgment given by that court for appellants upon the pleadings. Ordered accordingly.

Edgerton, C. J.,

*dissenting:*— I am unable to agree with the majority of the court in the conclusion to which they have arrived *417on this appeal. The possible far-reaching results involved require that I shall give the reasons for my dissent. The case is thus: March 2, 1861,' Congress passed an act organizing Dakota Territory, which contained the following provisions:

*“*Sec. 6. *And le itfivrther*enacted, That the legislative power '•‘.of the territory shall extend to all rightful subjects of legislation “ consistent with the Constitution of the United States-and the “ provisions of the act;” * * *

“ Sec. 12. *And he it further*enacted, That the legislative “ assembly of the Territory of Dakota shall hold its first session “ at such time and place in said territory as the Governor thereof “ shall appoint and direct; and at said first session, or as soon “ thereafter as they shall deem expedient, the Governor and legis- “ lative assembly shall proceed to locate and establish the seat of “ government for said territory at such place as they may'deem “ eligible, which place, however, shall thereafter be subject to be “ changed by the said Governor and legislative assembly.”

These provisions remain in force to this day without any material change. In the Revised Statutes passed June 22, 1874, section 12 was substantially re-enacted, except that portion which had been completely executed, and now reads as follows:

“ Sec. 1944. The seat of government of the territories of New “ Mexico, Utah, Washington, Colorado, Dakota, Arizona, and “ Wyoming may be changed by the governors and legislative “ assemblies thereof, respectively.”

In pursuance'of the authority thus conferred by section 12 of the Organic Act, the first Governor of the territory appointed as the place for holding the first session of the legislative assembly w’hat is how known as the city of Yankton. The first legislative assembly, by an act approved by the Governor, April 8, 1862, located and established'the seat of government on section 18, in town*418ship 93 N., range 55 W., which' forms now a part of the city of Yankton; and on February 17, 1877, by the passage of chapter 1, of the Revised Codes, so changed the location as- to-include the whole of the city of Yankton. March 8, 1883, an act was passed appointing these defendants a commission to select, locate, and establish a seat of government for the territory, giving to them a discretion to select any place they should deem suitable, and thereon ioeate and establish such seat of government. That statute, so far as it affects the questions under consideration, is as follows:

> “ Section 1. The seat of government of the Territory of Dakota *“*is hereby removed from the city of Yankton, in the county of w Yankton and Territory of Dakota, and is located and established “ as hereinafter provided.”

> *“*Sec. 2. That ” (naming these defendants), u be, and they are *u*hereby, appointed commissioners for the purpose of locating the “ permanent seat of government and the capítol building of the “ Territory of Dakota.”

> * * * * ******

> *“*Sec. 4. On or before the first day of July, 1883, the com- *“*missioners, or a majority of them, shall select a suitable site for *“*the seat of government of the Territory of Dakota, due regard *“*being had to its accessibility from all portions of the territory “ and its general fitness for a capital, when at least one hundred *“*thousand dollars shall be paid or guaranteed in money. If the “ amount be not paid in money, then its payment to the territory “ shall be secured by a bond, with good and sufficient .sureties, *“*payable to the territory, which bond shall be approved by said “ commissioners, or a majority thereof. And after the site is de- *“*termined upon as aforesaid, said commissioners shall secure good “ and sufficient title deeds of at least one hundred and sixty acres *<c*of land, upon which the capitol buildings shall be erected, and *41941 a sufficient amount of said grounds shall be laid out into squares 41 and suitable landscapes, and the same is hereby declared to be 41 the permanent seat of government of the Territory of Dakota, 41 at which all of the public offices shall be kept, and.at which all 4‘ of the sessions of the legislature shall hereafter be held.”

> ***** *****

> 41 Sec. 16. Until the territorial capitel buildings shall be ready 4£ for occupancy as provided by this act, the territorial officers shall 4£ temporarily keep their offices, archives, books, records, and pa-4£ pers at the city of Yankton, unless the Governor shall designate 4£ some other place by written order, in which case the said officers 4£ shall remove their respective offices, together with the archives, 4£ books, records, and papers pertaining thereto, to the place so 4£ designated, within the time prescribed in such order.”

> *■“*Sec. 17. Chapter 1, of the Political Code, and all acts or 4£ parts of acts in any manner in conflict with this act or repug-4£ nant thereto, are hereby repealed.”

The defendants, having qualified, were proceeding to execute the duties and powers thus enjoined and conferred upon them, when this action was brought by the proper public officer to test their authority to thus act. It will be seen that an elementary question is presented. Can the Governor and legislative assembly delegate to these defendants the right to exercise power and authority expressly conferred by Congress upon the Governor and legislative assembly without power of substitution, express or implied? The question whether Congress derives all of its powers by delegation, or otherwise, may, perhaps, be an interesting one, but it has no application to this case, and indeed both parties admit that Congress derives its powers by delegation. This appellant says in his argument: *“*In the United States the sovereignty re- *“*sides in the people, and all legislative power is delegated. Con- *420“, gress itself takes authority by delegation. The legislature of “ every state takes authority only by popular investiture, and the “ legislature of the territory stands ■ upon the same footing, with “ the qualification that sovereignty over the territories rests in “ Congress, instead of the people in them.” And the respondent says, alluding to this proposition: “.If I understand this argu- “ ment, it is that the people have delegated to Congress and that “ Congress *has delegated powers to the territories. So that the “ legislature of Dakota takes her powers two degrees removed from “ the people, — one step further in the descending scale. So that “ 1 take it as conceded that all the pqwers possessed by the Da- “ kota legislature and by the executive of Dakota are delegated “ powers.”

The first inquiry which suggests itself is the relation of the territory to the general government and to Congress. This question was at an early day a subject of contention in the highest court of the nation, and has received successive judicial interpretations, from the time of Chief Justice Marshall till now, so that the rule is tolerably well settled.

In *American Ins. Co. v.*Canter, Chief Justice Marshal says, in delivering the opinion of the court: “ In the mean time, Florida “ continues to be a territory of the United States, governed by “ virtue of that clause in the Constitution, which empowers Oon- “ gress to make all needful rules and regulations respecting the “ territory or other property belonging to the United States. Pe'r- “ haps the power of governing a territory belonging to the United “ States, which has not, by becoming a state, acquired the means “ of self-government, may result necessarily from the fact that it “ is not within the power and jurisdiction of the United States. “ The right to govern may be the inevitable consequence of the “ right to acquire territory. Whichever may be the source whence *421“ the power is derived, the possession of it is unquestioned. * * * “ In legislating for them, Congress exercises the combined powers “ of the general and state government:”- 1 Pet., 542, 543.

The rule is now authoritatively defined and settled in *National Bank v. Yankton,*which is the latest expression from that court upon the question. The court says: “ It is certainly now too late “ to doubt the power of Congress to govern the territories. There “ have been some differences of opinion as to the particular clause “ of the Oonstitutiomfroin which the power is derived, but that it “ exists has always been conceded. * * All territory within “ the jurisdiction of the United States, not included in any state, must necessarily be governed by or under the authority of Con- “ gress. *The territories core but political subdivisions of the out-*“ *lying dominion of the United States. Their relation to the*“ *general government is much the same as that which counties*“ *bear to the respective states, and Congress may legislate for “ them as the state does for its mu/nicipal organizations.*The “ Organic law of a territory takes the place of the Constitution as “ the fundamental law of the local government. It is obligatory “ on and binds the territorial authorities, but Congress is supreme, “ and, for the purposes of this department of its governmental “ authority, has all the powers of the people of the United States, “ except such as have been expressly or by implication reserved in “ the prohibitions of the Constitution. -In the Crganic Act of “ Dakota there was not an express reservation of power in Con-u gress to amend the acts of the territorial legislature, nor was it “ necessary. Such a power is an incident of sovereignty, and con- “ tinues until granted away. Congress may not only abrogate “ laws of the territorial legislature, but may itself legislate directly “ for the local government. It may make a void act of the terri- “ torial legislature valid, and a valid act void. In other words, it “ has full and complete legislative authority over the people of *422“ territories, and all the departments of the territorial govern- “ menta:” 101 U. S., 132, 133.

The condition of the territories is one of absolute dependence. The power of Congress over them is supreme, restricted, possibly, by some undefined limitations of the Constitution. Their very political existence may be abolished, or their territory may be carved up and attached to the surrounding states or territories. In the earlier organic acts for the government of the territories the legislative power was frequently, in the first instance, conferred upon the Governor and the Judges, all appointed by the President. See Organic Act for Arkansas, section 5; also for other territories.

I am unable to see that this case necessarily involves the discussion of any serious constitutional question. With great respect for the majority of the court, and for the learned Judge who so elaborately discusses grave constitutional questions in the majority opinion, it seems to me the proposition is so plain and so elementary, and the questions leading up to the principal question so thoroughly settled by judicial decisions, and so uncontested by text writers, there is very little chance for discussion. That Congress possesses the power to legislate for the territory, or to delegate the power of local legislation to the government of the territory, is not open to argument. That Congress might itself select and establish the seat of government, or might delegate that power to the Governor and legislative assembly, or to any other tribunal, is a proposition so well settled, and so plain, that the bare statement is enough to satisfy any intelligent legal mind. The question is not as to the power of Congress over the subject, but, Congress having delegated this power to select and establish and change the seat of government to the Governor and legislative assembly, the question is, in the absence of any express power of substitution, is there any implied authority in those tribunals to *423again delegate this duty to any other tribunal, body, or person? And, second, have they attempted to do so in this instance * Whether the selection and location of a new seat of government involved in a change are in their nature legislative or administrative, or partake of both, does not affect the question. Congress saw fit, in the exercise of its authority over the territorial government, in addition to the general grant of power to legislate upon all rightful subjects, consistent with the Constitution of the United States and the laws of Congress, to enact specifically that upon this subject the power-to change the seat of government should rest with the Governor and the legislative assembly. These powers, whether legislative or administrative, required the exercise of discretion, judgment, and wisdom, and therefore, in the absence of express authority to that end, could not bé redelegated. What rule is plainer than that when delegated powers involve the exercise of discretion, of judgment, of wisdom, in the agent, whether a legislative or an administrative agent, that no implied power of substitution exists; but the duties must be performed by the very agent upon whom they are devolved. If the Governor and the legislative assembly can delegate to a commission the authority to-change the seat of government by the selection of a new locality, and designating it as the future seat, they may confer that power upon any person, in their discretion, and such authority may be again transmitted by such commission or person to others, or other, and from person to person, without limit. Where a delegated duty involves, as in this case, the exercise of those qualities of the mind known as discretion, judgment, wisdom, or patriotism, there is but one delegation of authority recognized in the law; that is, from the source or origin of the power, the principal to the agent, unless such agent shall be expressly, or by necessary implication from the appointment, clothed with the power of selecting and commissioning his substitute. “ *Delegaba potestas non potest*delegwri.” ■

*424In *Maxwell v. Bay City Bridge Co.,*41 Mich., 453, the court say: “ It is familiar law that no trust can be delegated by “ the person or body on whom it is conferred, but that very “ person or body, and no other, must execute it. * * * ” Cooley says, in his Constitutional Limitations, page 139: u One of the settled maxims in constitutional law is that the “ power conferred upon the legislature to make laws cannot be “ delegated by that department to any other body or authority. “ Where the sovereign power of the state has located the authority, “ there it must remain, and by the constitutional agency alone the “ laws must be made, until the Constitution itself is changed. “ The power to whose judgment, wisdom, and patriotism this high “ prerogative has been intrusted, cannot relieve itself of the re-u sponsibility by choosing other agencies upon which the power “ shall be devolved, nor can it substitute the judgment, wisdom, “ and patriotism of any other body for those to which alone the “ people have seen fit to confide this sovereign trust.”

Congress, in almost every act for the organization of the territories, at least for the last 50 years, in addition to the general grant of powers to the territorial legislature, has also provided how the temporary and permanent seat of the territorial g'overnment should be located. Whatever might be the interpretation, had the general power, as expressed in section 1851, (substantially the same as section 6 of the Organic Act,) been the sole expression of the will of Congress, the passage of section 1944 must be considered as a grant or as a limitation of power, An old and correct rule of interpretation's: “Where a charter contains a general clause, “ which afterwards descends to special words which are consenta- “ nfeous to the general clause, the charter is to be interpreted ac- “ cording to the special words.”

It was contended by the appellants upon the argument, and the same view seems to be entertained in the majority opinion, that *425tlie provisions of seetion 12, (1944) cited, so far as they relate to the location and change of the seat of government, are included in the grant of general powers ®f legislation, and that, therefore, this specific provision is to be given no force, and is to be regarded as merged in such grant of .authority to legislate. From this it is argued that the power to designate these persons to select a new seat of government may be implied. No doubt, in the absence of any other provisions upon the subject, the right to change the seat of government of either state or territory might be included in the authority to legislate. But I submit the rule of construction contended for is not the true rule. All parts of a statute should be given force, if possible, and must be presumed to have their just meaning. This specific grant .or delegation of power, in addition to the general powers conferred, is not to be ignored or treated as having no meaning or force. Congress must be presumed to have intended, by this separate and specific provision relating to the seat of government, just what is its plain and manifest meaning, to-wit: that the Governor and legislative assembly must exercise their judgment-and their wisdom in selecting, in locating, in determining, the eligibility of- the place for the seat of government of the territory, and must bring into play like functions in making the change. This duty, thus demanding of them the exercise of not mere mechanical force, Congress took care should be performed by these designated tribunals, and could not by them lawfully be conferred upon any one else.

The exercise of this duty by the tribunals selected by Congress cannot be. said to be in any just sense the exercise of original powers, or, as applied to government, of sovereign powers. The Governor and legislative assembly are tribunals, the mere creatures of Congress. By Congress they are created and clothed with all the powers which they possess. These powers are in the *426largest sense mere delegated powers. They may at any time be resumed by the authority conferring them, or even after they are exercised may be repudiated and ignored. When Congress has thus said to *its*designated agents that they may da this thing which requires the exercise of the higher powers of intellect and spirit, how can it be said that Congress has impliedly authorized them to substitute some other agent to do the act expressly enjoined upon them?

It might be instructive to examine how 'Congress, in the different organic acts, has varied the mode of locating capitals in the territories. In some instances it has conferred the power solely upon the Governor and legislative assembly, while in other cases the place where the legislature shall, first meet is fixed in the Organic Act, and the temporary seat of government is located by the Governor and legislative assembly, and the permanent seat is established by law when ratified by the people. See section 13, of the Organic Act of Minnesota.

In the Organic Act for Minnesota the legislature may prescribe *by law the manner*of locating the permanent seat of government of said territory by a vote of the people. In Dakota, Congress changed the mode of location. Instead of providing that the *manner of location may be prescribed by law,*it intrusts the power to the Governor and legislature. It is a significant fact that in nearly every Organic Act for the territories Congress has provided in express terms how the place where the legislature shall first meet shall be determined, in what manner the temporary seat of government shall be located, and how and by whom the location may afterwards be changed.

In the Organic Act for Dakota, we find: *First,*that the Governor shall appoint and direct the time and place where the legislative assembly shall hold its first'session; *second,*that at the first *427session, or as soon thereafter as they shall deem expedient, the Governor and legislative assembly shall proceed to locate and establish the seat of government for said territory at such place as they may deem eligible; third, that the seat of government may be changed by the Governor and legislative assembly.

Could the Governor, in the first instance, have delegated the power to appoint and direet the place where the legislature should hold its first session to any man or body of men* Could the Governor and legislative assembly, at the first session, have transferred their power to fix the seat of government to any man or tribunal? Can the Governor and legislature, *ly act of the*legislature, confer this power upon a body of men and invest them with all the discretion and powers conferred by Congress in section 1944, oí the Revised Statutes?

But it is claimed that in *Nat. Bank v.*Yankton, cited above, the Supreme Court declares also that the organic law of a territory takes the place of the Constitution as the fundamental law of the local government. How.does this change the question? If the Constitution of any state should contain a provision like that in our Organic Act, to-wit: that the seat of government may be changed by the Governor and legislative assembly, would any one claim that the duty thus especially enjoined upon the Governor and legislative assembly by the Constitution, could be by them transferred and placed upon another and different tribunal?

Onr attention has been called to this fact that legislatures frequently delegate certain powers to cities, towns, county commissioners, etc. I think a careful and impartial consideration of this class of cases will satisfy any one that these matters are largely of local and police regulation, and may properly be delegated to each locality; that such questions so delegated do not affect the whole people, but only localities, like local option laws. In referring to *428the delegation of legislative powers to municipalities, Judge Cooley says: “The legislature, in these cases, is not regarded as dele- “ gating its authority, because the regulation of such local affairs “ as are commonly left to local boards and officers is not under- “ stood to belong properly to the state; and when it interferes, as “ sometimes it must, to restrain and control the local, action, there “ should be reasons of state policy, or dangers o'f local abuse, to “ warrant interposition:” Cooley, Const. Lim., 229.

In *State ex rel. Sanford v. Court of Com.*Pleas, 36 N. J. Law,72, the court say: “ In almost every city charter the right to regulate “ or restrain the sale of intoxicating liquors is expressly conferred; “ and it could be done only upon the theory that it is a police “ regulation, not strictly an exercise of law-making power.” And again: “Such enactments are regarded as police regulations, “ established for the prevention of pauperism and crime, for the “ abatement of nuisances, and the promotion of public health and “ safety.”

In referring to this and a similar class of cases, Mr. Cooley says: “ Such laws are known in common parlance as local option “ laws. They relate to subjects which, like the retailing of intox- “ icating drinks or the running at large of cattle in the highways, “ may be differently regarded in different localities, and they are “ sustained on what seems to us the impregnable ground that the “ subject, though not embraced within the immediate power of “ the municipalities to make by-laws and ordinances, is neverthe- “ less within the class of police regulations, in respect to which it “ is proper that the local judgment should control:” Cooley, Const. Lim., 148.

The language of Judge Catón, so relied upon, refers to local affairs, as a perusal of the whole case shows. The performance of the duty of selecting and locating the seat of government pertains *429to the whole territory, and the right to delegate those duties bears no analogy to the delegation of the right of local legislation or the performance of some duty pertaining to mere local concerns. In regard to- mere local concerns the right to delegate authority is undoubtedly and necessarily infei’red from the power to legislate upon all rightful subjects. But while that implication is held to exist, and nowhere denied, no court extends such implication to matters affecting the whole state. If the authority thus conferred upon the Governor and legislative assembly to change the seat of government is legislative in character, then clearly it is legislation pertaining to the welfare of the whole commonwealth. The power to delegate authority for general legislation or authority to legislate upon any subject general to the entire people of the state is everywhere denied: Cooley, Const. Lim., 116; *State v. Young,*29 Minn., 474-551; *Barto v. Himrod,*8 N. Y., 483; *Santo v. State,*2 Iowa, 203; *Ex parte Wall,*48 Cal., 279; *Brown v. Fleischner,*4 Or., 132; *State v. Wilcox,*42 Conn., 364; *Locke's Appeal,*72 Pa. St., 491; *Rice v. Foster,*4 Harr., (Del.) 479; *Lambert v. Ledwell,*62 Mo., 188; *Lord v.*Oconto, 47 Wis., 386; *Meshmeier v. State,*11 Ind., 482; *State v. Swisher,*17 Tex., 441. If such authority is to be deemed administrative rather than legislative, the rule is equally uniform and unquestioned that it cannot be -delegated: Cooley, Const. Lim., 205. “A trust created for any public purpose cannot be assignable at the will of the trustee.” See *Maxwell v. Bay City Bridge Co.*cited above.

In a well considered ease recently decided by the Supreme Court of Minnesota the correct rule is declared. It appears that the charter of the city of Minneapolis gave the city council such powers as enabled the council to make reasonable regulations as t© where or within what parts of the city the business of vending spirituous and malt liquors might be carried on. Dnder this *430power the mayor was authorized-by the city council and did designate the districts or parts of the city where the sale should be allowed, which acts of the mayor were approved by the city council. A case involving this question was taken to the Supreme Court, and in the opinion the court say: “But this power to “ regulate is vested in the city council. It is a power which they “ cannot delegate to any person or officer. It is a legislative act “ which they must perform themselves, and they can only exercise “ it by ordinance enacted in the manner prescribed in the charter. “ Of course, they may impose mere executive or ministerial duties, “ such as approving the bond, receiving license fee, and issuing “ the license, on certain officers, as they have done in the present “ case. These are mere executive and ministerial acts to be per'- “ formed in the execution of the ordinance; but they cannot dele- “ gate their legislative powers. The ordinance, in that respect, “ must be complete when it leaves the hands of the city council. “ The limits within which the sale of liquor should be confined is “ a matter which the council must determine: It calls for the “ exercise of legislative discretion. They canno more remit to the “ mayor the riglit to determine this than they can the question of “ the amount of the license fee. But this is, in effect, what they “ have done in this case:” *In re*Wilson, 19 N. W. Rep., 725.

I now arrive at the question: Does this act of the legislative assembly undertake to confer upon these defendants the power to change the seat of government from Yankton, the former location, to some other district of country, to be by them selected and designated? If it does, then it is a clear delegation of the power conferred by Congress upon tile Governor and legislative assembly, and is void, and the duties thereunder cannot lawfully be performed by them. All of the duties to be performed by the defendants other than the selection of the seat of government depend upon such selection, and if the authoritv thus to select is wanting. the *431whole statute fails — there will remain no duty which the defendants’ can perform under the act. "We are to give this, like other statutes, a reasonable interpretation. "We are to view it in the light of common sense. We should endeavor to discover its real intent and meaning, upholding it, if we can, but unhesitatingly pronouncing its invalidity, if it shall be so found. First, let us inquire what is its purpose? For wliat purpose was it framed and proposed? Clearly for the purpose of effecting a change in the seat of government. It so declares. The Governor and legislative assembly were authorized to change the seat of government from Yankton, the then location, to some other place; they were seeking to do so. Did such enactment effect the change? If it did, then the change was made by the tribunal authorized to make it, but if the enactment left it to these defendants to effect such change, then it was merely an enactment clothing them with the power to do what suck tribunal had been selected and empowered to do. We may gain some light in seeking the proper construction of this statute by ascertaining the meaning of the term “may be changed,” used in the law of Congress. Webster defines the-verb change ”-as “to put one thing in the place of another,” “ to exchange,” “ to alter or make different,” “ to cause to pass, from one state or place to. another.” To effect a change in the seat of government necessitated the substitution of another place for Yankton, the then seat. No change would or could be effected without and until such other place was thus substituted. Declaring the seat of government removed from the city of Yankton did not effect a change. *A*removal could only be made by the substituting of some other district of country in lieu of the city of Yankton. The very gist and essence of the change was the selection and location of another place or district other than the city of Yankton. Now, by this enactment the defendants were appointed, for the purpose of doing that very thing which was essential and *432absolutely requisite to effect a change in the seat of government. Section 4, in express terms, provides that “ the commissioners, or “ a majority of them, shall select a suitable site for the seat of “ government of the Territory of Dakota, due regard being had to “ its accessibility from all portions of the territory, and its general “ fitness for a capital.” Undoubtedly, this was conferring upon these defendants powers which required the exercise of discretion, of judgment, of wisdom, of patriotism; and it was putting upon them the performance of duties expressly enjoined upon the Governor and legislative assembly.

It seems to me that no other view can be taken of this enactment. The attempt was made to evade the act of Congress; to defeat its provisions. This was supposed, no doubt, to be accomplished by the provisions of this act, which declared the seat of government removed from the city of Yankton, and which repealed the former act of the legislative assembly locating and establishing the permanent seat of government at Yankton. But such attempt was futile. Until the minds of the legislators and Governor had, in the forms prescribed by law, concurred in selecting a suitable site for the seat of government, and manifested such concurrence in the legal mode, no removal did or could take place; and there was no more authority to confer upon these defendants the performance of a part of the duty, than there was to confer upon them the whole of the duty prescribed by Congress to be performed by the Governor and legislative assembly. . No one would contend for a moment that, in direct terms, the legislative assembly could by law confer upon these defendants the power to change the seat of government. What cannot be doné directly, can no more be done by indirection. As we have seen, to effect a change in the seat of government,,a determination to remove it from the city of Yank-ton is necessary, and a selection and its location upon or in another district is essential.

*433In this act the legislative assembly went so far as to determine upon its removal, but failed to select a place to which it should be removed. This latter duty, essential as it is to effect a change, was put upon these defendants. It would have been just as valid for the Governor and legislative assembly to have delegated to these defendants the power to determine whether it should or should not be removed, as to confer upon them .the other duty — of selecting a suitable site to which such removal could be made. There was no power conferred upon the legislature and Governor to repeal the act locating the seat of government, and thus to cause an inter-regnum to exist, during which no seat of government was designated whereat the governmental functions were to be performed. The power given was to change; that is, to substitute another place for the place theretofore fixed upon. Now, necessarily, such change required the location of a new seat of government, and, necessarily preceding that, there must have been the selection of such new seat. Such selection involved the exercise of those qualities which could not be delegated. Still, we find in this act that these defendants are appointed-for the express purpose of locating the seat of government — the new seat. Therefore, they are appointed to do the precise thing which the Governor and legislative assembly are authorized and empowered to do. This is a clear and unquestioned attempted delegation of such powers as cannot, by any rule of law, be delegated. It is an evident attempt at evading the plain letter as well as the spirit of the law of Congress, and ought to be barren in its results.

Let us illustrate: Suppose these gentlemen had never qualified or'acted, and no others had been appointed in their stead, would the seat of government have been changed? "Would any one contend for a moment that a change.could have been effected without their action? If so, where to? The seat of government could not *434have been, changed from Yankton into space. It would not have been changed by annihilating the seat of government. Again: Suppose the commission had selected Yankton as the most eligible place, in their judgment, — which, under the law, they might do,— would there have been a change? This illustrates how strange and singular is the construction sought to be put upon this statute, in 'an attempt to sustain it, by the argument that the seal: of government was by the law changed, and not by these defendants. It would be a bolder, if not a more conclusive, legal proposition, *to*claim the right to delegate these delegated powers.

It is urged strongly that in determining this question of the legal construction of the organic law of this territory, we should consider/* the convenience of such delegation, the obvious difficulties in the way of a direct selection by the legislature.”

Judge Story lays it down as a rule of great importance, ** not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous:” Story on Const., Sec. 425. “ Courts have nothing to do with the argument of inconvenience: *“People v.*Morrell, 21 Wend., 583. ** If the right claimed is conferred by implication, such implication must be a necessary, not a conjectural or argumentative, one:” *Field v.*People, 2 Scam., 83.

Looking to the rules which govern in determining the power of municipal corporations, (and they are authoritative in this case,) we find it stated that ** the reasonable presumption is that the state has granted, in clear and unmistakable terms, all that it has de-. signed to grant at all:” Cooley on Const. Lim., 234, 235.

** It must be taken for settled law that a municipal corporation ** possesses and can exercise the following powers, and no others: ** *Fi/rst,*those granted in express terms; *second,*those necessarily ** implied, or necessarily incident to the powers expressly granted; *435“ *third,*those absolutely essential to the declared objects and pur- *“*poses of the corporation — not simply convenient, but indispen- £< sable:” *Merriam v. Moody,*25 Iowa, 163.

“ The general rule is, that a delegated power can be redelegated, “ in the absence of an expressed right of substitution, only when u it is customary, necessary, or otherwise fairly to be presumed “ from the circumstances surrounding the transaction:” Story on Agency, Sec. 14,

Judge Bronson says, iu *Oakley v. Aspinwall,*3 N. Y., 568: “ Believing, as I do, that the success of free institutions depends ,££ on a rigid adherence to the fundamental law, I have never ££ yielded to considerations of expediency in expounding it. There ££ is always some plausible reason for the latitudinarian construc- “ tions which are resorted to for the purpose of acquiring power; ££ some evil to be avoided, or some good to be obtained, by push- “ ing the .powers of the government beyond their legitimate boun- “ dary. It is by yielding to such influences that constitutions are *“*gradually undermined, and finally overthrown. My rule has ££ ever been to follow the fundamental law as it is written, regard- ££ less of consequences. If the law does not work well people can ££ amend it, and inconvenience can be borne long enough to await ££ that process. But if the legislature or the courts undertake to ££ cure defects by forced and unnatural constructions, they' inflict ££ a wound upon the constitution which nothing can heal. One ££ step taken by the legislature or the judiciary, in enlarging the £‘ powers of the government opens the door for another, which will ££ be sure to follow; and so - the process goes on, until all respect ££ for the fundamental law is lost, and the powers of the govern- *“*ment are just what those in authority are pleased to call them.”

The following rule is invoked by the appellant, and approved in the opinion of the majority of this court: *“*If wisdom is to be *436“ gained from the teachings of the past, and judicial decision is to *“*be made in the light of governmental experience; if, as Catón “ said, we may ‘ feel warranted in looking at the past to see what *u*kind of laws legislative bodies have been in the habit of passing,’ “ in order to determine what are the proper limits of legislative “ authority, the attention of the court is now. respectfully invited “ to a line of precedents upon the specific point'in question which “ is without break or flaw, and absolutely authoritative in exam- “ pie.”

Let this rule be rigidly applied to the determination of this case. Certain precedents are claimed for the location of capitals by commissioners: First, by certain states; second, by territories; third, by Congress. A careful examination of all the cases cited will show whether these supposed precedents support the theory of the appellants or of the respondents. The state cases are Illinois and Nebraska; the territorial cases are Montana, Colorado, and Iowa; and the further case cited is that of the location of the federal capital. The appellant claims that each of these are cases in point in determining the application of the above rule.

In the case of Illinois the facts were these: The constitution of the state expressly authorized and required the legislature to appoint a commission to select certain lands, expected to be donated by Congress, upon which should be located the permanent seat of government. How this case can be twisted into a delegation of delegated powers is more than I can comprehend. The constitution was the expressed will of the sovereign. The legislature acted in accordance with that express will. Congress made the expected cession. The agents, authorized by the principal to be appointed, selected the lands out of such cession, whereon the seat of government was located. In the case of Illinois, then, all that can be claimed for it, and all that it is, treating *437the constitution as the voice of the sovereign people, the principal expressly conferred upon their agents — the legislature — the authority to, and made it their duty to substitute, for tbe purpose of the selection of such lands as should be granted by tbe government, other agents of tbe people.

In the case of the state of Nebraska its then constitution contained no provision in relation to the seat of government, except that tbe legislative assembly should meet at Omaha at its first session. The state possessed certain lands, situated within tbe limits of-certain counties. These lands were limited in area. Tliey had been granted to tbe state by the general government. It was de--tennined to make them available for tbe erection of public buildings and thé location thereon of the seat of government, and tbe state legislature authorized certain state officers, to-wit: the Governor, Secretary, and another, to select from these lands a section most suitable on which to build a city, and constituted it tbe seat of government for the state; and thereafter, by express provision in the subsequently adopted new constitution, fixed the locality as the permanent seat of government. It will be observed in tbis. instance that no direction or prohibition was contained in tbe con-, stitution governing or prescribing the duty of the legislature in. this regard. They were the representatives of the sovereign power, —the principal; except as limited in the constitution their voice - was the voice of the principal. The powers which they exercised were exercised by them possessing all power which the people-possessed. This is the nearest in legislative precedent of any of' the instances cited, but clearly distinguishable from this legislation, where the Governor and legislative assembly of tlie territory are exercising merely such powers as have been expressly or by necessary implication conferred upon them by the source of power,, the Congress of the United States.

The next case is that of Iowa.. On. -Iannary 21,.1839,.the tern-*438torial legislature passed an act authorizing a commission to select a location for the seat of government, restricting them to the county of Johnson. On the same day a supplemental act was passed, which provided that no further steps should be taken, after the selection and report thereof to the Governor, until the’ consent of the United States should be obtained, and also authorized the Governor to apply to Congress for a donation of four sections of land on which to locate the seat of government; and also, on the same day, by -resolution, instructed the Delegate to Congress to ask for such donation of land on which to locate the seat of government, tobe selected by the commissioners; thus showing beyond . controversy that nothing could be, or was intended to be, done *until Congress had acted and consented to this mode*'of locating the seat of government.

It will thus be seen that in the Iowa case, the commission was limited to a single county, and the legislature provided that nothing should be done until *the consent of the United States was obtained.*Congress did consent, and furnished the means to carry into execution the act of the Iowa legislature before a step was taken towards the location of the site of the capítol. "With the act of the Iowa legislature constituting the commission before Congress, and waiting its approval, Congress approved the mode by furnishing the land to be selected under the *authority of the territorial*legislature, and not by the Governor and legislative assembly. It was an emphatic and unmistakable approval,which, to that extent, amounted to a modification of the original Organic Act of Iowa.

The next case cited is that of Montana. Section 1945, of the Kevised Statutes of the United States, provides as follows: “ That *“*the seat of government shall not be at any time changed except “ by an act of the assembly, duly passed and approved, after due *439“ notice at the first general election thereafter, by a majority of “ the legal votes cast on that question.” When the capital of that territory was changed, no commission was created, or sought to be created, but an act to change the location passed the assembly which was approved by a majority of the legal votes cast on that question, in exact accordance with the provisions of the Organic Act.

The appellants’ next case is that of Colorado. In that case the location was restricted by the legislature to the town of Colorado. I-n other words, the legislature designated the town of Colorado as the capital, and appointed commissioners to designate the location of the territorial buildings within such town. Great stress was laid by the counsel upon the act of Congress authorizing the appointment of a commission to survey, limit, and define the boundaries of a district of country 10 miles square, which “ may by cession of particular states and the acceptance of Congress become the seat of government of the United States.” See Article 1, Sec. 8, of Constitution of the United States.

Where this district should be located, and where the permanent seat of government should be established, early attracted the attention of Congress. A partial review of the history of this act may be instructive. Hamilton was Washington’s secretary of the treasury. He was anxious to secure the passage by Congress of certain financial measures, and among them the assumption'by the general government of the debts contracted by the several colonies or states for the maintenance of troops duri'ngthe war. He imagined that the stability of the new government'depended on the passage of these measures. The northern members very generally favored assumption. The Virginia members, with one exception, opposed it, but were anxious to secure the capital on the Potomac. Harrisburg, Baltimore, New York, Germantown, Philadelphia,Wright’s Ferry, on the Susquehanna, and some point near Georgetowm, on *440the Potomac, were the contending places for the seat of government.

A late biographer of Jefferson says: “ And so the debate went “ on day after day. The Susquehanna men triumphed in the “ house, but the senate sent back the bilL with ‘ Susquehanna ’ “ stricken out and ‘Germantown ’ inserted. The house would not “ accept the amendment, and the session ended before a place had “ been agreed upon. The subject being resumed in the spring of “ 1790, it was again productive of heat and recrimination; again “ the south was outvoted, and the Potomac rejected by a small “ majority. Baffled in the house, southern men renewed their “ efforts over Mr. Jefferson’s wine and hickory nuts in Maiden “ Lane. Two sets of members were sour or savage from the loss of a measure upon which they had set their hearts. Southern “ men had lost the capital and northern men assumption. Then “ it was that the original American log-roller (name unrecorded) “ conceived the idea of this bad kind of compromise. The bar‘■‘-gain was this: Two southern members should vote for assump- “ tion, and so carry it, and in return for this concession Hamilton “ agreed to induce a few northern members to change their votes “ on the question of the capital, and so fix it upon the Potomac. “ It was agreed at length that for the next ten years the seat of government should be Philadelphia, and finally near George- “ town. How much trouble would have been saved if some pro“'phetic member had been strong enough to carry a very simple “"amendment to strikeout ten years and insert one hundred. And in that case what an agreeable task would have been devolved “ upon this generation of repealing Germantown and beginning a “ suitable capital at the proper place. To the last of his public “'life Jefferson never ceased to regret the part he had innocently taken in this bargain:” Parton’s Life of Jefferson, 394.

Chief Justice Marshall says, in his Life of "Washington, vol. 2, *441page 190: “At length a compact respecting the temporary and “ permanent seat of government was entered into between the “ friends of Philadelphia and the Potomac, stipulating that Congress should adjourn to and hold its sessions in Philadelphia for “ ten years, during which time buildings fur the accommodation “ of the government should be erected at some place on the Poto- “ mac, to which the government should remove at the expiration “ of the term. This compact having united the representatives of “ Pennsylvania and Delaware with the friends of the Potomac in “ favor of both the temporary and permanent residence which had “ been agreed on between them, a majority was produced in favor *“*of the two situations, and a bill which was brought into the sen- “ ate, in conformity with this previous arrangement, passed both *“*houses by small majorities. This act was immediately followed “ by an amendment to the bill, then pending before the senate, for *(C*funding the debt of the Union. The amendment was similar in “ principle to that which had been unsuccessfully proposed in the “ house of representatives. By its provisions twenty-one millions “ five hundred thousand dollars of the state debts were assumed in “ specified proportions, and it was particularly enacted that no cer- “ tificate should be received from a state creditor which could be “ ascertained to have been issued for any purpose other than com- “ pensations and expenditures for services or supplies towards' the “ prosecution of the late war and the defense of the United States, “ or of some part thereof during the same. When the question “ was taken in the house of representatives on this amendment, “ two members, representing districts on the Potomac, who in all “ the previous stages of the business had voted against the assump- “ tion, declared themselves in its favor, and thus the majority was “ changed.”

Attention is also called to the works of Madison, to the Life of *442Hamilton, by Lodge, page 123, and a very exhaustive review of this legislation will be found in ScbaiFs History of Maryland, commencing on page 564.

The location finally adopted was the result of a trade by which two of the ‘£ Potomac members ” voted for the assumption of the state debts, in return for which northern members voted for the Potomac location. See Jeffersonis Works, IX, 93. This is mentioned to show that when Congress decided to locate the seat of government upon the Potomac it exercised a positive choice and made the selection as definitely as under the circumstances was required. The Susquehanna, the Delaware, and all other localities, were rejected, and the commissioners had nothing to do but to select the best site within the tract designated. When it is considered that the country was at that time but sparsely settled and little known, the limitation to a tract but five or six times the. size of the district to be taken is small enough. When the heat of the contest is considered, displaying as it did the beginning of that sectional feeling between north and south which has raged so long, and when regard is had to the price which the south paid for the location — the voting for the assumption of state debts which had already been rejected by the south — it is hardly possible to claim that this is a precedent for giving to a board of commissioners an unlimited power of selection. Moreover, there are marked differences in the purpose a.nd scope of these two acts. Congress having chosen the locality, and even specified that the buildings should be on the east bank of the Potomac, provided for the appointment of commissioners by the President to carry out the necessary work of detail; in a word, experts, surveyors who should survey, define, and limit a district of territory within the limits named.” These commissioners were not called upon to decide where within the United States the federal seat of government should be, comparing the advantages of various localities as to *443accessibility and general fitness, but simply to select within the prescribed territory such a district as was best fitted for the site of public buildings and for the laying out of acity. "When Congress passed that act it practically fixed the location of the capital of the United States.- Had this bill been equally definite it would have confined the location to some county; for illustration, say the county of Beadle, or Davison, or Spink, or to a point on the east bank of the Missouri river, between the mouth of Medicine ereek and Fort Sully, in Dakota; or, perhaps, on the east bank of the Missouri river above the mouth of Apple creelc.

In any of these cases would there have been any doubt but the legislature had exercised its j udgment, had approximately fixed the location of the capital, and not delegated to a commission all the discretion which could be exercised? In every case when a commission has been provided for to select the location of a capital, the legislature, or Congress, as the case may be, *has designated its choice so definitely as to exclude all contending points for the*location, *except*one, with the sole exception of the state (not territory) of Illinois, where the mode of selection was definitely fixed in the constitution.

From the whole case I must conclude that the act of the territorial legislature creating the capital commission was unwarranted and invalid, and that the j udgment of the District Court should be affirmed.