Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1883-09-21


the subject
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WHERE Is THE CAPITAL OF DAkOTA!
1t WAS Henry Clay who SAID, 81 would
rather be right than be president. The
sentiment is good one because always a
safe one. No one can afford to take an
untenahlc position upon question either
for local popularity or selfish motives, for
the right will come to the front sooner
or later, and especially is this true Of
newspapers which are looked to for 1e.
liable information aud correct opinion.
The people of the entire territory have
been in state CT agitation al! summer
over the change of the capital of the ter
r,tory, aud have been waitlng-thc result
Of the quo warranto proceedings against
the commissioners with no little interest
1t is utterly useless now, and a. waste
Of words and time to discuss the merits
of the capital commission bill. A court
of competent jurisdiction has passed upon
that question, anu has decided that the
cnm,nissioners named in and appointed
by that act of the legislature have no
legal official standing, and restraints them
from acting in that official capacity. 1t
renders the law by which they were ap-
pointed void aud all their acts in that
official capacity void. The claim that
they are still de facto officers until other
wise ordered by a higher or the highest
court IS an untenablc position, for 1t would
make the judgment of the court farce
and mockcry of Judicial determination
and would throw the burden Of appeal
upon the side that won the case. The
decision of Judge Edgerton is absolute
and binding until set aside by higher
court, and by it the commissioners are
restrained from actlag in that official Ca
pacity, and to continue TO do sowou!d be
defiance Of the judgment Of the court
and subject them to arrest and punish
.mept for contempt. 1t is not necessary
to discuss the qustlon as to whether a
court can enforce Its judgment in the
territory of Dakota or not.
The law under which the commission
ers were appsiated and have been acting
being void, their official acts are void,
and their selecting Bismarck as the site
and locating the capital there, is of no
more force, so long rs this decision
than If they had done, it as pri.
vate individuals. But it is claimed that
the capital commission bill, as 1t IS called,
repealed the act locating the capital at
Yankton and removed the capital from
that place. and that Judge Edgerton's
DECISION does not in any event affect these
provisions of the law, and by "analogy"
the capital must now be located Tempo
rarily by the governor as before 1t was
10 :a,ed at Yankton. 1t requires long
stretch Of Imagination to see the ''an-
aiogy" of the two cases. The first section
of the capital commission act IS as fol-
lows:
The seat of government Of the territory
of Dakota is hereby removed from the
~ L
ton and territory of Dakota, ,and is located
The court says in effect that the manner
provided for locating the capital at Bis
marck was illegal aud void. The move
ment, then, was contingent upon an ille-
gal location somewhere else. A scat Of
government cannot be removed from one
place until another is legally provided,
aud until such time as another is legally
psvv,ded it must by necessary implication
reusin unmoved, aud ne one will contend
that seat of government can be abol-
nshed. Neither can 1t be, like Absal"m,
suspended between heaven and earth,
while the legislative mule which was
carrying 1t from Yanktou went away to
leave it suspended in the boughs OF
court decision.
There has been too much loose and ex
traosdinary legislation done by tue law
makers of this territory, and 1t IS high
time the courts begun to set the judicial
foot down upon 1t. There are some other
laws OF the last Legislature that Will very
likely meet the same fate when the courts
con.e to pass upon them The conse
queues of such legislation must inevitably
lie vexa&iops aud almost interminable liti :
cation. Tha territorial board Of cqualiza-
tiou, which Is required to meet at The
capital Of the territory. met at Bismarck,
aud by the decision of Judge EdgertOn,
the neetiug and their acts were illegal
aud vssd because not held according to
law, unless the courts weuld give great
.er latitude sf construction upon that pro.
vision Of the law thaa they do In others
Tia next generation will psobsbly finally
adjust the complications that vail as,ol
1sca he capital commission blu.