Weekly hawk-eye and telegraph. [volume] (Burlington, Iowa) 1855-1857, 1855-08-08

Il. ii ,,on,snis 10 aers.6 e. he Relasor sets
-. &; h;sj r,I,t.t,ui, r,ssrs Of the &C Of JAM
ostb. 1855. session Lsws +. 1857 entitled
tan ,cs to relocate the Seasof 1osern-
men, ard annexes a enev Of the wboirtaes,
nrayinr TINT Il my be taken rs a part OF his
npti.inn. The last publication Of Ibis act
was on The 9Th March. 1850
The answer sets out the whuie OF the act,
emitted AN net ID relation IN the taking ct
| feet Of general laws which WIS approved
| jim. 24th, 1855, and was las published
Jan. 3ls., 1855.
The answer does not show when the de-
fenaants were appointed, but thu petition
AYERS that they were appointed previous 10
the FIRST of April.
! The answer AYERS that the principal act,
| u at under which they We're appointed, as
welt as that authorizing the Governor to
publish certain nets, was Published on or
aboa. the 18th JAM, 1855. There was de-
murrer to the answer. which was over -ruied,
| and the plaintiff replied. denying that the
act of the 18th of Jan. was IN force when
| the Commissioners acted.
The cause was submitted TO the Court upon
| the petition, answer and replication accord
! ing to the record, without other evidence.
| The court finds land this finding is entered
1 q X
act Of 18th of JAN, that that net provided
for the appointment. OF Five Commissioners,
Sr.. &c. that this act was published on or
about the 18th Jan. 1855, that it was so
/ published by order OF the Governor, who
was authorized so to publish it by vir'ue of
an s.act in relation to the taking effect OF
| qeneral laws,,---that the Commissioners were
about to relocate the Seat of Government
of the State of Iowa-and that they had at
| that tine. and still have, q lawful right to
| re- locate the same.
The counsel for the defendants claim
that this cause is to be tried by the same
| rule that other causes are, and that the same
| nresumptions in favor of acourt of general
| Jurisdiction are to be entertained; and he
saws that there was fair trial upon issues
! ioined and finding upon all the issues for
| the defendants, &c. Why are we thus ex-
borted? We will certainly endcayor to APP
| uly the same rules Of law to this cause, that
we do to others.
1t will be noticed that the only issues are
issues of ld,p. The relator AYERS that the
principal act was not in force. and the de-
/ PENDANTS deny that it was not in force
| The one party claims that therefore the
| Commissioners had no authority to act, and
the other that they had. The cause Is not
! here upon the demurrer, as counsel seems TO
suppose, but upon the petition, answer and
/ repiv, with the public laws of the land, and
4 these Incorporated in the pleadings. In other
words it is here upon the finding of the court
upon those plcadings and laws. There is no
call for the exercise Of q presumption in fa-
vor of the court. except in relation to the
time Of the appointment of the Commission
ers, which does not appear in the pleadngs.
1t is not shown that they were appointed af-
ter the Goth of March, the day on which the
principal act took effect according to de-
| PENDANTS reasoning. But we will presume
the court had proper evidence in relation to
this, Notwithstanding the record says the
cause came on for hearing on petition, an
swer and replication. But how shall we
mana &c this doctrine of presumption, when
the court finds that the principal act t25th
Jan was published on or about the 18th Of
Jan, while the Sccretary's certificate says 1t
was published on the 2Sth of Feb. and 9th
Of March? Shall the presumption fail, or
the certifcate? If the latter, then there is
no evidence that it was published at all. 1t
will therefore be more favorable to the de-
PENDANTS to follow the certificate.
We then approach the principal question
thus: The act empowering the Governor to
publish acts. was published on the 3lst Jan.
aud was to take effect from and after such
publication. The act to relocate the Seat
Of Government (undcr which d PENDANTS
were appointedD was Published on the 9th OF
March, and by the Code, Sec. q, took effect
on the 26th of The same month, If tbe publ
cation was authorized. Its own llth Sec
ton provides that it shall take effect from
and after its passage, but this is not war
ranted by the Constitution. .
We come then to the main question, was
the Governor constitu,ionaily empowered to
publish the act of 18th Jan. in the Newspa-
pers, and by so doing, did he giveit effect p
The act of Oath of Jan. which is supposed
to give him this authority, says he may so
publish laws of a''9encra" nature. Is the
act so published by him one of general ma
turc? The usual legal distinction Of acts,
is into public and private. But there is a
distinction of Il legislative character be-
tween the general and special, winch is re-
| cognizcd bv Sec. Is of the Code, and sec I
Bac. Alb. (lS32,) p. 444 noe. of the src-
cial character, hire the two acts we are now
considering. They are without doubt public,
but not general. Then this is not one OF the
class of acts which he WIS authorized to
publish But we do not prefer to leave the
cause resting upon this point, but pass to
that on which both sides have rested it main
ly, and on which it is manif silly the object
to have decision; namely, whether this
power can be conferred upon the Governor
constitutionally. We are united in the opin-
ion that it cannot.
The Constitution says, elf the General
Assembly shall deem an law Of immediate
Importance, they may provide that the same
shall take effect by publication III newspapers
in the State.' Now it seems as though ev
cry word uttered to explain, or argue upon
this passage, would obscure its simple clear
ness. s'If the General Assembly shall deem,
&c. They may provide, &C." How can it be
pretended that any one else can judge
whether it is important. The discretion. the
Judgment is vested in them. The time of its
taking effect is as much a part of the act as
any other provision. and it may be as i'm
portant. But counsel ask. have they not
provided that the same shall take effect by
publication? We answer no. They have
first given to the Governor the judgment
whether it is of immediate Importance, and
then if he thinks it is, they have provided
that he may provide that it take effect by
publication.
The counsel in arguing that this is not n
delegation of Legislative power says. Sthe
law was fully formed, & adopted and ap-
proved by the Governor. All its principles,
its rules, its provisions were complete. No
legislative action or power was necessary
| further, and of course none could have been
delegated.'' SO trae is this in the light in
which we view it, that they provided that it
should take effect from its passage. But in
this they exceeded their powers, and the eff
feet is, that the act passed over under the
general provision of law, and went into ef-
feet on the first of July. Const. Art. 3, Sec.
/ q, Code Sec. %, Laws of lS47 Page 202--
Resolution 2l-Calkin VS.. State &. Green
Rep. Sc.
We are not willing to be led away by the
argument that the time of the taking effect of
this act is placed upon contingency. 1t is
placed upon discretion, Judgment
There is not much analogy between the
question before us and thar relating to the
submission of laws to the people, SO far as
those cases have arisen within our knowl-
| edge, and it seems unnecessary to enter into
that much mootcd subject. We are in con.
clusion clearly of the opinion that the afore-