Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1884-09-20
!; Clinton VS.. Englebrect. 10 Wall, page

original location Of a seat Of govern
ment and had no intent to cover DOS
sible changes in the future: that the
act OF the territorial legislature iu
delegating this power of location to nine
commissioners was not only Lawful
exercise Of its power but was an actual
necessity in view of the limited session.
of the legislature, the vast size Of the
teffitory, the meagerness Of travelling
facilities. the number OF aspirants fol
capital honors. all of which precluded
the possibility of the legislature, as a
BODY, giving the matter OF removal
proper attention. The court then cites
as precedents the location Of the seat Of
government in Iowa. Illinois, Nebraska
and other states and territories, as well
as in the District of Columbia, and con.
cludes as follows:
"Our conclusion is that the provisiops
Ut this act for the selection by comm1s.
sloners of suitable location for the seat
Of i. government and for the erection
thereon OF the necessary buildings and
improvements are lawinl and prone.
exercise of legislative authority and that
the act IN question is in these respects
valid and operative"
Ihe remaining question is as to
whether the designation of the commits.
sloners by name in the act itself was
lawful. The duties OF these
commissioners are of the most Temporary
character. Their functions wholly
cease with the completion of these duties
snd we do not think they can be re-.
sarded as officers within the meaning OF
section OF the organic act referred to
section 1857 which requires that the
governor shall nominate and by and
With the consent OF the legislative coun.
oil appoint all officers There follows
quotations of authorities in support Of
This view. The court then concludes:
"Ihe importance which has been given
to this case by the acrimonious contest
over the removal and relocation of the
capital and the general interest with
which the decision of this court was
awaited, have suggested the belief that
such presentation of the legal princi.
pies upon which our Judgment is based
as would render their measurably clear
to the popular comprehension, would
perhaps be anticipated, and indeed il
we're we'll if our citizens generally
were better q acquainted with
the resources and extent of their politi.
cal powers. These considerations have
led to somewhat more extended expo.
sition of our views and to fuller quota.
ton from the precedents cited than we
should otherwise have deemed necessary
since we regard the questions presented
when viewed in their true aspects, au
free from any considerable legal difficult
ties, and have no hesitation IN declaring
that IN our opinion the appellants are
lawfully entitled to exercise the duties
OF their appointment under the act il
question.
"The judgment of the district cour,
must therefore be reversed and Judgment
given by that court for appellants upor
the pleadings."
Dissenting opinion. 5s,4
EDGEKToN, G. il am unable tc
agree with the majority of the court il
The conclusion to which they have ar
rived on this appeal. The possible faI
reaching results involved require that
shall give the reasons for my dissent.
The case is this; March I'd. 1861, con
sress passed an act organizing Dakota
which contained Che following
-
"Sec. 6. And be IT. further enacted, Tha
The legislative power of the territor,
shall extend to all rightful SUBJECTS o
legislation consistent with the constitu
lion of the United States and the pro
visions of the act" +
"Sec. IL. And be it further enacted, Tha
the legislative assembly of the territor,
Of Dakota, shall hold its first session a
such time and place in said territory al
the governor thereof shall appoint ant
direct; and at said first session, or al
soon thereafter as they shall deem expe
dent, the governor and legislative as
sembly shall proceed TO locate aud es
tablish the seat OF government for sale
territory at such place as they ma,
deem eligible; which place, however
shall thereafter be subject to be changed
by the said governor and Legislative az
sembly."
These provisions remain in force Il
this day without any material change.
In the Revised Statutes. passed June
~, 1874, SEQ. IL was substantially re-en
acted, except that portion which had
been completely executed and now reaG
as follows:
"Sec. 1914. The seat of government o.
the territories of New Mexico. Utah
Washington, Colorado, Dakota, Arizon,
may be changed by the gov
ernors and legislative assemblies there
Of respectively"
In pursuance of the authority thul
conferred by section twelve of the or
ganic act, the first governor OF the terri
tory appointed as the place for HOLDING
the first session of the legislative assem-
bly,, what is now known as the CITY O
Of Yankton. The frat legislative assem-
ply by an act approved by the governor
April 9Th. 1862, located and established
the seat of government on aection Is, ir
township 50. north range SIS, west, which
forms now part of the city of ,Yanktor
and on February 17th, 1877, by the pas
sage of Chapter I OF the Revised Code,
so changed the location as to includ,
the whole of the city OF Yankton.
March 8th, 1883, an act was passed an
pointing these defendants commisslo,
to select, locate and establish seat O
government for the territory, giving t,
them discretion to select any plac,
they should deem suitable, and thereo,
locate and establish ouch seat of govern
ment. That statute 80 far as 1t affect
the questions under consideration is q
follows:
"Section l. The seat of government o
the territory of Dakota ls hereby remov
ed from the city of Yankton, in tn
county of Ysnkton and territory of Ds
kota, and Is located and established a
hereinafter provided"
Sec. 2. That" (naming these defend
snts) "be and they are hereby appointe.
commissioners for the purpose Of locat
ing the permanent seat OF government
and the capitol building Of the territor
of Dakota" 4si
Here are given extracts from the capi