The Kansas herald of freedom., 1855-09-01
NUMBER 35---VOLUME |.

ons to any man. With all due defeFence
to the learned Chief Justice, lam COM
pelled 10 say that it's his argameat which
is trifing. and not the objection OF the
Executive, and that this novel idea of his
stands hinl In no more stead shan his in-
applicable authorities. We BOW pass to
the second proposition and reasons in
support of it, to be found on the sixth,
seventh aud eighth pages of the opinion.
2. That the Kansas Legislature have
the right under the acts Of Congress to
change the temporary seat of govern
ment.
REAsoss.-Becaasc the word s.senpo-
rarily,' in the seth See. of our organic
act implies the existence ofa power some
where to change it. and that s.in the alb
sence of prohibition" that power rests
with the Legislature as one ofthe right
full subjects of legislation" Because the
act of Sd March, 1856, which forbids
the expenditure of the appropriation un-
til the Legislature shall, by law, fix the
permanent" seat of government, is not
grant of the power TO fix it, but . re-
eognition of the previous existence Of the
power. Because, il the Legislature had
this power to locate the .permanent"
seat of government they must necessarily
have the power TO fix the Temporary
seat, upon the principle that the greater
includes the less"
That the use ofthe word temporarily
implies prospective change, and there-
fore powerin in some one to make thechange.
[ can readily admit: and that this power
rests with the Legislature, ] also admit.
The mention of temporary seat of gov
ernment clearly implies that it is 10. be
followed by permanent one, and this
change from the one to the other is in
the power Of the Legislature. Ali this
was admitted in the veto message, and
may be admitted again. Whether that
power is derived from the organic act or
the act of March, 1856, has now become
immaterial.
In the second process of this reason
ing, the opinion passes to the permanent
seat of government, and claims that tho
act of March, 1855, recognizes the pow
er to fix it as already vested in the Leg
islature. Although the Chief Justice
may derive this power from the former
act, and from the latter, that is a matter
of no consequence. have already con-
CURED with him that they have the pow
er, and that is all which is at all material.
Now, however, We come TO the singu-
| lar conclusion that if the Legislature.
have the power 10 locate permanently,
therefore they have the right to locate
Temporarily, because slhegEcslerinclndes
the less Here, then, is the first depart
ure from admitted propositions-and,
therefore, the foundation and basis of tie
judicial opinion, at which, ii might most
logically have commenced, to the great
economy of writing, reading and print
ing. This inference SO essential and i'm.
portant-the Atlas which is to bear upon
its shoulders the whole burden of the
judicial dissent, and therefore, required
all the support that could be furnished it.
is dismissed in six or eight lines, ut the
commencement of page eight deny
confidently the correctness of this infer
ence. The maxim of .'grea.er and less
does not apply. 1t is only TO be applied
where we would say that ''the whole in
cludes the parts" and the two maxims
are identical in meaning. The greater
does not include the less, In law or in
physic, unless both are essentially the
same, excepLin quantity. It's not enough
that they are similar-they must be the
identical A dwelling viii iaclnde a
bedroom, but not manger, and stable
will include manger, but not bed
room, because the one is q part of the
whole and the other is not, although the
relation of greater and less exists as well
in the one case as the other. So con-
Eeysnce of farm viii include the build
ings but not the stock, Notwithstanding
the one is greater and the. other less. A
perjury and a larceny are both greater
than trespess. vet the latter includes a
trespass and the former does not. In
defining the extent Of powers and juris-
dictions it is necessary to attend 10 other
distinctions. A lease for years is part
of the absolute or fee simple title, yet
power TO sell real estate does not include
power 10 lease it. A larceny includes
trespass, yet a power given to a court
10 try the larceny includes no powerto try
a trespass. Even the MAXIM that .'ths
whole includes the parts" is to be most
carefully adopted. or il will lead to error
as will be seen BY the foregoing iIlustra-
tons. Indeed, there could be no greater
error than 10 lay down As a general rule
that superior powers of jurisdictions In
clude inferior ones.'' This may be true.
to a large extent, Of inherent, but never
OF delegated powers, except where the
inferior constitutes q necessary step or
stage in. executing the superior. and il
auxiliary to it. Any other doctrine than
this if incorporated into the action of
Legislature, Court or an Executive,
would produce the most revolutionary
confusion.
To apply these rules to the case in
hand. We lind broad and palpable distinc-
tons on which 10 Fest. A temporary
seat of government must cease to exist
before permanent one comes into exis-
lence. The latter is place where, under
the acts OF Congress. the appropriation
must be expended: the former Is q place
where the expenditure is forbidden. The
twc are not iden:ical--the one is not a
part OF the other. The power 10 locate
the one IS not step or stage iu carrying
out the other, nor is any auxiliary to it.
1t VII not do, then. simply to assert
that every superior power inelndes tbs
aud thai every greater includes
the less. and tEen 70 consider the eass
proven.
But we waste too much time on this
for il is totally irnmaterizl
which side of it is right. because it has
been discussed on both sides without ref
erence to the Congressional prohib;tivn;
and even although the one power were
such an inferior one as would be implied
" included in the superior. yet If It Is
10 the Legislatursbs Congress.
\ II *