Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1883-06-09
A CONSTITUTIONAL POINT AR
GUED.
TO the Pye,s and DakeksIoa.

j. Campbell for the valuable articles up.
on constitution and state making lately
published in the Press and Dakotaian.
but few expressions in one or two OF
them seem to advocate not only the
preparation of state machinery but put
ting Itn motion, whether congress admits
Dakota or not. The ultimate right to do
this must be conceded, but it is the right
of revolution and I assume that we do
not yet suffer such endurable wrongs as
justify that. We desire to govern our
selves and can do it. We have had enough
of the paternal oversight of the United
States and are now, through the Huron
meeting of June 10Th, about to initiate
steps for declaring our competency to
take care of ourselves, but if the impress
sion is conveyed that it is designed to
oust the territorial government except
by consent of congress it is to be feared
that the voters of Dakota will take little
interest in the legitimate preliminary
work of preparing and adopting state
constitution.
As advocates of constitutional con-
vention for part OF Dakota are without
an enabling act of congress and without
an act of the legislature We have load
enough to carry to convince the whole
people that the action is legal,and secure
hearty and general cooperation, with
out assuming the burden of teaching
that the installation of state govern.
ment on top of the government of the
United States is legitimate. Neither does
it appear to be legitimate. We must be
admitted to the union or remain terri
tory. An independent state made of the
territory OF the United States would not
be tolerated by the great government
and we could not sustain it. "God is on
the side of the strongest battalions." We
all surely understand this.
Why is it announced that the supreme
court of Dakota will sustain the state
before admission? Is it menace to
congress? Dakota is great enough to
abstain from threats. Her success in
her appeal to the next congress must de-
pend not upon the favorable disposition
of that body but upon the support Of
the enlightened public opinion of the
people of the United States pressing up
on congress. We are entitled to that
support and may have 1t if we are
wise.
The supreme court of Michigan did
hold in l Doug. 1l9, as claimed by Gen.
Campbell, that the state Of Michigan had
the power to incorporate the Detroit
Young Mems society ten months before
Michigan was admitted into the union.
For the decision of the question before
the court it seems, (may be it is mis-.
take) that it was sufficient to hold that
the legislature of Michigan by which the
society was incorporated was de facto
legislature; this was sufficient for the
decision, since the case before the court
was an action OF ejectment brought by
the society; color of incorporation,
or de faeto incorporation was all the plain
tiff was required to show. The existence
of the body as corporation could MOI
be collaterally attacked. Ifa quo soar
ranto proceeding had been instituted
against the society the legality of it
charter could have been probed to th,
bottom.
But this case was decided by an in
terested court within short time afte
Michigan was organized as state and i
is probable that the tenure of Office o
the judges of that court, o
some of them was involved
Judges must sustain the laws by virtu
of which they hold their positions. Th
act Of assuming to sit as judge is q de
cision that the act which made the judg
is law. have not access to the histor,
of that court 80 as to be able to deter
nine how far the tenure of Office of th
judges was involved, if at all, in til
question of the validity of the acts of th
state government prior to admission
the union. That case was taken by wri
of error to the supreme court of th
United States and dismissed by tn,
court fer want of jurisdiction, Justic
Mclean dissenting, claiming jurisdi,
tion and holding that until the sta,
shall be admitted into the union by Q
act of congress, the territorial goverl
ment remains unimpaired.
The supreme court of Ohio dcnie
the validity of the state government
, Michigan before the state was admitte
Myers VS.. Manhattan Bank, 90 o., 2s3.)
Here We have one state court again
I the other and Ohio wholly disintereste
and certainly as good authority as Micl
igan.
b But the ordinance of 1887 under whie
. Michigan claimed statehood provide
that whenever any of the said states {
, the northwest territory shall have 600
free inhabitants therein, such state shs
be organized" SO.
Dakota does not claim any rights n
der that ordinance but under the trea
with France OF 1903. the language
which is different. That treaty provid
that ''the inhabitants OF the ceded ter
tory shall be Incorporated in the uni,