The weekly Minnesotian. [volume] (Saint Paul, Minn. Territory) 1852-1858, 1857-07-18

The Capital Moving Question.
United States ES Relator, A. F. Howes
against Samuel Medary, Governor, Robert A
Smith, Librarian, Julius Georgii, Auditor
and George w. Armstrong, Treasurer of thu
Territory of Minnesota.
An application for Mandamus has beer
made by the RelatOr, Alfred f. Howes, ant
a petition presented to this Court, of which
the following is aacopy: (See the petition
on file.)
An order was made by the Court, for the
defendants, to show cause why peremptory
Mandamus should not be granted as asked
in said petition. (See order on file. At the
hearing of the case, the facts were agrt ed
upon BY the counsel for the Relator, and the
counsel for the defendants, and two questions
of law were presented for the consideration
Of the Court, viz:
lst After the Governor and Legislative
Assembly had established the temporary
seat of government at St. Paul, was there
any authority to change and locate it at an
other place.
Cd. If they, (the Governor and Legisls.
tive Assembly, had the power to change the
temporary seat of government, have they
done so?
Before terminating the merits of the ques-
ton presented, it may be proper to say that
we have Doubts, as to Mandamus being the
proper remedy in this case : but as no Objec-
tions have been made by the Attorney Gen
eral, we shall assume that the Reator is en-
titled to the remedy by such writ, provided
he sustained his case.
The Organic Act of our Territory was
passed by Congress and approved April Sd,
lS49. BY Section four, of said Act, he Leg
islative authority of the Territory was vest
ed in the Governor and Legislative Assem-
bly,, consisting Of Council and House OF
Representatives. The Legislative power ex-
tends " to all rightful subjects of legislation
consistent with Constitution of the United
States, and the provisions of this Act"
The 18th SECTION provides "that the Leg
islative Assembly of the Territory shall hold
its first session at St. Paul, and as said first
session the Governor and Legislative Assem-
bly, shall locate and establish a temporary
seat of government for said Territory at such
place as they may deem eligible, and at such
time as they shall see proper, prescribe by
law, the manner of locating the permanent
seat of government of said Territory by a
vote of the people," &c. AT the first session
Of the Legislature general law was passed,
establishing the temporary seat OF govern
ment at ST. Paul, and at the second session an
act was passed, providing for the election OF
Commissioners, to locate the particular place
in st. Paul where the building should be
erected and to superintend the erection OF
the same. The temporary seat Of gov
eminent has ever since remained at st.
Paul.
The Territorial Government acts under
powers delegated by Congress, and are gov
erned by the same laws that control other
agents They cannot therefore rightfully 60
beyond the authority that has been conferred
upon them. The Organic Act authorizes the
Governor and Legislative As sembly. to locate
and establish both temporary and perma-
nent seat of government. They have acted
upon that branch of the power in relation to
a temporary seat of government, and have ex-
hausted their authority in regard to it. This
is not case where power has been
partly executed and may be completed
at another time. Here there has been full
and perfect exercise of power in the first in
stance. The whole thing authorized to be
done has been done, and nothing further is
necessary to be done by the Legislative pow
cr upon that branch of the subject.
1t was urged upon the argument, by the
council for the Relator, that the l3th sec
ton of the Organic Act in regard to the To-
cation of the temporary seat of government
is mandatory, and was merely inserted by
Congress in order that there should be no
failure of the organization Of the Territory.
That the location of public institutions was
a subject connected with the eternal regula-
ton of the Territory and consequently a
rghtful subject of legslation, and unrestrict-
ed also, that the Legislature could change
the temporary seat of government from time
to time, although it might be an abuse Of
power. We cannot subscribe to this position.
A continuing power may exist, when from
the very nature of the thing to be done, it
can be inferred that the grantOr of power,
intended to permit the exercise of it from
time to time, or more than once. AS for in
stance, had special provision been inserted
in the Organic Act, authorizing the Legisla-
tive power, at o particular session, to levy
taxes for the support Of the Government,
there could be no doubt that such power
could have been exercised more than once
But this is not power of that description.
There is nothing in the nature OF the thing
to be accomplished, from which it can be fair
ly inferred that q repetition of the act was
authorized. Besides the terms upon which
the power is given exclude any such infer
ence. The power is to DO particular thihg
at g. spcctsed t;me-"t4at said aIst session the
Governor and Legislative Assembly shall To-
cate and establish the temporary seat OF gov
eminent, &C. There can certainly be no
principle of Interpretation which would con-
strue an authority to do single act at a
particular time, into power to do the thing
more than once.
The fact hat particular time was pre-
sorined for doing The ACT, is conclusive esvvi
dence that Congress- intended the authority
should be exhausted BY the first exercise Of
power.
> Again, tho 9th Section of the Organic Act
comforting Legislative power" does not
change this view of the subject. The au-
thority given there is in general terms, and
must be construed with reference to other
portions of the same statute. The DOCTRINE
that general word; usad in Que clause may
be restricted or qualified by particular words
used in another clause of the same statute, is
too familiar to be controyerted.
Applying this rule to the fssa 10 hand, VIC
find that Congress speciallY prescribed Wbal
might bs a9ns IN regard to a Iart'-'-' ;,
seat of o. Fishing Temporal,
ouyernmcnt-and had the hroadac
terms been used in the general clause grant
ing legislative powar, the general words woul,
be llmtct or qualified by the special PROV
SION for legislation, concerning the temporar,
seat Of government.
1t was urged that there was no restriction
or limitation 10 the Section comforting legis
iSs've power, in regard to the location of
TEMPORARY seat of government. We thin
there is. The general grant Of legislativ
power is expressly limited and restricted. l
extends only to subjects of legislation, con
s1stent with the Constitution of the Unite
States, and the provisions of this act" An
exercise of legislative power in relation to
temporary seat of government, which is no
authorized by the special provisions of Sec
ton ID, on that subject is not "consisten
with the provisions Of this act" and is nc
| embsace0 il the general powers of legisla
ton.
We now come to the second point mad
upon the argument; and although it may b
unuec ssary for us to examine this part of th
subject, we shall do so for the purpose of sal
isfying ourselves as 10 what constitutes legiI
Lattice enactueat, and to what extent a co-ol