Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1884-09-20

construction of q given power beyond
me ialr scope Of its terms, merely be.
pause. the restriction is inconvenient,
or even mischievious.h- Story
On Const., Sec. 425.
Courts have nothing to do with the
Argument Of inconvenience.''-2 Wend.,
"If the right claimed is conferred by
such implication must be a
necessary, not aioon]ectural or argumen-
tative one."-2 Scammon, 83.
Looking to the rules which govern in
determining the power of municipal
corporations, (and they are authorita-
tive in this casel, we find it stated that
"the reasonable presumption is, that the
state has granted, in clear and unmistak-
able terms, all that it has designed to
grant at all."'-Cooley CONT. Linn,
1T must be taken for settled law that
q municipal corporation possesses and
can exercise the followingepowe!vSand
no others: First, those granted in ex-
or 81 neoessariiy incident to the powers ex-
essential to the declared objects and
purposes Of the corporation not simply
convenient. but indispensable"
Iowa, 1s3.
The general rule is that delegated
power in thea absence of an expressed
right of substitution. only. when it ii
customary, necessary, is otherwise fair.
ly to be presumed from the circum.
stances surrounding the transaction
Story on Agency, SEQ. IA.
Judge Bronson says, in Oakley vs.. As
pinwall, 3 N. Y, 500:
L Believing as I do, that the success OF
Tree institutions depends on rigid ad
herence Of, the fundamental law, have
never yielded to consideration Of ex pc
diencY in expounding it. There is al
ways some plausible reason for the lat
itudinarian constructions which are re-
sorted to for the purpose Of acquirin 6
power, some evil toHbe avoided, or some
good to be obtained, by pushing the
powers of the government beyond theil
legitimate boundary. 1t is by yielding
to suoh influences that constitutions
are gradually being overthrown. MY
rule has ever been to follow the funda
mental law ase it is written, regardless
of consequences. If the law does moi
work we'll, people can amend it, and in.
convenience can be borne long enough
to welt that process, but if the legisls.
lature OF the courts undertake to cure
defects by force and unnatural construc-
tions, they infict wound upon the con-
stitution which nothing can heal. One
step taken by the legislature or the judi.
clary in enlarging the powers of the
government, opens the door for another,
which will be sure to follow; and SO the
progress goes on, until all respect for
the fundamental law is lost, and the
powers of the government are just what
those in authority are pleased to coll
them." -
The following rule is invoked by the
appellant, and approved in the opinion
of the majority of this court:
"If wisdom is to be gained from the
teachings of the past, and judicial deci-
sion ls to be made in the light of govern.
mental experience; if, as Caton said, we
may feet. warranted in looking at the
past to see what Kind Of laws legislative
bodies have been in the habit of pass.
lng,' in order to determine what are the
proper limits of legislative authority,
the attention of the court Is now re.
spectfully invited to line of precedents,
upon the specific point IN question,
which is without break or flaw, and alb
authoritative in example"
Let this rule be rigidly applied to the
of this case.
Certain precedents are claimed for the
location of capitals by commissioners.
First, by certain states. Second, by ter
Third, by congress. A careful
of all cases cited will show
these supposed precedents sup-
port the theory of the appellants, or OF
the respondents.
The state cases are Illinois and Ne
braska; the territorial cuses are Montana,
Colorado and Iowa; aud the further case
cited is that of the location of the federal
capital $
The appellant claims that each of
these are cases in point in determining
the application of the above rule.
In the case of Illinois the facts were
these: The constitution of the state ex-
pressly authorized and required the
legislature to appoint commission to
select certain lands, expected 10
be donated by congress-, upon which
should be located the permanent seat of
How this case can be
twisted into delegation of delegated
powers is more than I can comprehend.
The constitution was the expressed will
1f the sovereign. The legislature acted
IN accordance with that express will.
Congress made the expected cession.
The agents authorized by the principal
10 be appointed. selected the lands out
If such cessions, whereon the seat OF
government was located.
In the case of Illinois, then, all that
ian be claimed for it, and all that it is,
reatlng the constitution as the voice OF
he sovereign people, the principal ex-
'ressly conferred upon their agents-the
egislature-the authority to, and made
t their duty, to substitute for the pur-
,ose of the selection of such lands as
hould be granted by the government,
'ther agents of the people.
In the case of the state of Nebraska,
is then constitution contained no pro.
'ision in relation to the seat of govern
nent, except that the legislative assem-.
'ly should meet at Omaha at it's first
ession. The state possessed certain
ands, situated within the limits of
ertain counties. These lands were
United in area. They had
'een granted to the state by
he general government. 1t was deter
mined to make them available for the
rection of public buildings and the
ocation thereon of the seat of govern.
nent; and the state legislature author.
zed certain state officers, to-wit: The
governor, secretary, and another, to SO.
ect from these lands section most sui
able on which to build city, and con-
tituted it the seat of government for
he state, and thearefter, by express pro.
'ision in the subsequently adopted new
fixed the locality as the
seat of government. 1t will
-. l..