Minnesota weekly times. [volume] (St. Paul, Minn.) 1854-1859, 1857-02-21

ra ST. PAUL, Feb. l6, 1857.
To the Honorable the Speaker and Members of
the House Of Representatives Of the Legislative
assembly OF the Territory Of Minnesota.
In obedience to your resolution, requesting my
opinion as to the legality of any act that might
be passed by the present Legislative Assembly,
providing for the removal of the Capitol of this
Territory, have endeavored to give the subject
the consideration its Importance demands, and
respectfully submit the following:
The act of Congress entitled can act to estab-
fish the Territorial government" approved March
3rd, lS49, is the authority under which the Legis-
latve Assembly assumes to legislate, and all Ter
ritorial laws must be warranted by that act or
they are utterly void. We have not yet arrived
at the point where the people put on the mantle
OF sovereignty and assume to act for themselves,
independent of Congress; and it is therefore
unnecessary to discuss the validity of laws passed
by them in that capacity. The theory of our
Territorial government is, that Congress, having
certain jurisdiction over the Territories of the
United States, and the to legislate for them,
limited only by the constitution of the United
States, has delegated that power to certain per-
sons, chosen by the people Of the Territory, with
the consent of Congress, and has, at the same
time, annexed such copditons and limitations to
the exercise of the powers conferred, as at the
time deemed expedicnt. The idea of sovereign
the passage of the very law under which the
members of the Legislative Assembly were elect
ed, and assume to act. Our Territorial govern
ment is, therefore, deprivative, and Scan claim
no powers which are not granted to it by the Or
ganc act, either in express terms or by necessary
implication" The organic act is not limitation
upon powers already existing in the people of the
Territory, but is mere delegation of authority
from Congress, comforting powers where none be-
fore existed. Such would undoubtedly be the
judicial construction of the law in question.
We are, however, here met by the oft repeated
declaration, "that judicial decisions are binding
upon courts but do not bind legislative bodies.o
If by this it is meant that Legislature can con-
strue its own acts, and disregard the construction
put upon them by the courts, cannot assent to
the proposition. Legislatures make laws, but
courts expOund and cOnstrue them and should
a Legislature pass an unconstitutional act, and it
should be so decided by the proper courts, the
act is not law but is wholly void. No legisla-
the construction could give it the least vitality
If Legislative exposition of constitutional
restriction upon Its powers is to receive so
"much respect as to be of controlling force, bind
cling and authoritive upon those whose duty it
may be to pass upon the constitutionality of
"particular legislative act, or is to be received
"as evidence OF true construction, then the
constitutional restriction imposed, may by the
"mere force of construction, be rendered inef-
fectual in restraint Of those upon whom it was
intended as check. This would be carrying
"the doctrine of illegal notification to an ex-
"treme, unprecedented in the history of any gov
"ernment. If we concede to the Legislature
g this judicial attribute, and make it exercise
"evidence of what the constitution is, then the
"power restricted has only to pronounce several
successive erroneous judgments, and thus to
"elude the restriction by Legislative exposition.
"This would be carrying the doctrine Of Legis-
| I" lative competence to a greater extent than
"was ever claimed even by British parliament
(Smith's commentaries on statutory and constitu-
tional construction, page 442.)
The spirit, genius, and policy of our politi-
ical institutions rest upon principles which are
sat war with the doctrine of legislative omnipo-
tence; ours is government founded upon an
"express written compact, reduced to exactitude
Sand certainty, expressive of the sovereign will
"of the people, fixing the limit and marking the
| bounds OF legislative authority and power, in
"stead of being omnipotent. must yield to its
"force, submit to its restraint, and bow to it's
authority" (Cted ID 443.)
Ii the principles contained in the foregoing
extracts are applicableto the legislative power in
| our Federal and State governments, with how
much greater force do they apply to the powers
| of Territorial Legislature? A.
The following are the sections of the organic
act, bearing most directly on the question SUBJ
mittel. 49, 49,.
.'Section 6. And be it further enacted, That
the Legislative power of the Territory shall ex-
tend to all rightful subjects of Legislation, con-
sistent with the Constitution of the United States
and the provision of this act but no law shall
be passed interfering with the said no tax shall
| be imposed upon property of the United Ststes,
nor shall the lands or other property Of non-res-
idents be taxed higher than the lands or other
property of residents and the laws passed by
the Legislative Assembly and Governor shall be
submitted to the Congress Of the United States,
and # disapproved shall be null and of no eff
feet. A9t @e1t
"Section Is. And be it further enacted, That
the Legislative Assembly Of the Territory of
and at said first session the Governor and Le-
gisativs Assembly shall locate and establish ..
temporary seat Of government for said TERRITORY,
at such place as they may deem eligible, and
shall at such time a. they shall see proper, pre-