The Kansas herald of freedom. [volume] (Wakarusa, Kan. Territory) 1854-1860, 1858-12-25
ATTORNEY GENERALS 0FFIcE,(
November 10th, 1858. {

SIN :-Agreesbly to 5orr request, have
considered the subject referred to; in the
communication addressed to me by the
Governor of Kansas, and the accompany
ing papers and now report to you the
facts gather from them, and the instruc-
tons which, in my opinion, ought to be
based upon them.
By the Organic Act, it was provided
that the seat CT government for Kansas
Territory, should be temporarily located
at Leavenworth. The Executive and the
Legislative Assembly of the Territory
were authorized to use the public build
ings there, which could be spared by the
military authorities. That act contains
nothing more on the subject, except
promise on the part of Congress to appro-
pirate, afterwards, sum equal to what
hadbeen given to other Territories for the
erection of public buildings at the seat of
the Territorial government. On the 9TH
of August, 1854, an appropriation was
made of twenty-five thousand dollars for
public buildings in Kansas, to be paid in
the event that the Secretary of War should
decide it to be inconsistent with the in
terests of the military service, to permit
the use of the public buildings at Fort
Leavenworth. So the subject stood until
the Sd of March, 1855, when another APP
preparation of twenty-five thousand dollars
for public buildings in the Territory of
Kansas was made, coupled with this pro-
viso: "That said money, or any part
"thereof, or any portion of the money
heretofore appropriated for this purpose,
'shall not be expended until the Legisla-
"ture of said Territory shall have fixed,
"by law, the permanent seat of Govern
"mept."
In 1856, after the passage of the last men,
toned act of Congress, the Territorial
Legislature, by law, fixed the permanent
seat ofgovernment at the town of Lecomp
ton, and thereupon, fifty thousand dollars,
the aggregate amount of the two appro-
priations made by Congress, was paid to
the proper authorities of the Territory, and
was expended at Lecompton in the erec-
ton of public buildings On the 9th OF
February last, the Territorial Legislature
undertook to pass another law, removing
the seat of government from Lecompton
to Minneola. Their bill, being vetoed by
the Governor, was passed by a majority
of two-thirds. The question of law is,
whether the Legislature had the power
which they attempted to exercise, of re-
moving the seat of Government.
The Organic Act of Congress is to a
Territory, what the Constitution of State
is to it. The acts of the Territorial Leg
islature are valid and binding, when passed
according to the proper forms, if they are
within the powers conferred by the act
but anything there forbidden is void snd
unauthorized. If Congress passes a sub.
sequent law upon the same subject, limit
ing or extending the power of the loca
Territorial government, it operates like al
amendment to the Constitution. In tn,
case of Kansas, Congress did not decid,
where the permanent seat of government
should be, but located it temporarily a
Leavenworth. The Territorial Legisla
ture, then. had power to remove it as the,
saw proper, either for short time, or 70
all time. But Congress, when the appro
priation of 1856 was made, required, as
condition precedent to the payment of tn,
money, that the seat of government SHOULD
be permanently located, and left the Ter
ritory, through its Legislature, to do tina
for ITSELF Making permanent location
certainly did not mean designation o
the place merely for the purpose of get
ting the money, and then making ano:he
change. The plain words of the law, a
we'll as decent respect for their own goot
faith, required, that before they would asl
for the money, they should indicate, b,
an irrepealable law, the spot at which tn
seat of government should be and remain
at least during the whole existence of tn
Territorial government The Legislator
so understood it themselves, and whe
they decided upon Lecompton, they ex
pressly declared that to be the permanent
seat of government. In my opinion, tn
Territorial Legislature had no right after
wards to repeal that law, and take tn
! seat of government away from Lecomptor
Such removal, if carried out, would de
feat the manifest intention of Congress
violate the spirit of the act and be a frau
upon the United States.
Very respectfully, &C.,
j. s. BLACK.
To His Ercellency, Hon. James Buchana,
President oftbe United Stqtes.