Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1884-09-20
territory at such place as they may deem
eligible. Third. That the seat of govern
ment may be changed BY the governor


ment may be changed by the governor
and Legislative assembly.
Could the governor in the first instance
have delegated the power to appoint and
direct the place where the legislature
should hold its first session to any man
or body of men?
Could the governor and legislative
assembly at the first session have trans
ferred their power to fix the seat of
government to any man or tribunal?
Can the governor and legislature, by
act of the legislature. confer this power
upon body of men and invest them
with all the discretion and powers con-
ferred by congress in section 1914 of the
revised statutes?
But it is claimed that in the National
bank vs. Yankton, cited above, the su-
preme court declares also that the
organic law Of territory takes the
place of the constitution as the funda-
mental law Of the local government.
How does this change the question?
1t the constitution of any state should
contain provision like that in our Or
ganic act, to-wit: That the seat of gov
ernment may be changed by the gov.
ernor and legislative assembly by the
constitution. could be by them trans
ferent tribunal.
Our attention has been called to this
fact that legislatures frequently delegate
certain powers to cities, towns, county
commissioners, &c. / think q careful
and impartial consideration of this class
OF cases will satisfy any one that these
matters are largely of local and police
regulation and may properly be rele-
gated to each locality-that such ques-
tions 80 delegated do not affect the whole
people but only localities like local op.
tion laws.
In referring to the delegation of legis.
latlve powers to municipalities, Judge
Cooley says, "The legislature in these
cases is not regarded as deIegatipg Its
authority. because the regulation of
such local affairs as are commonly left
to local boards and officers is not Under
stood to belong properly to the state;
and when 1T lnterferes, as sometimes it
must, to restrain and control the local
action, there should be reasons of state
policy or dangers of local abuse, to war
rant interposition."
Cooley's constitutional limitations, 229.
In state er re Sanford vs. court of COM
mon pleas, Sc N. J. law 70 the courts
say; W. ., :, o.+ o...,. 49,.
IL olmOst SNc1y CITY CuarLCf tQe fl2le
to regulate or restrain the sale of intoxi-
eating liquors is expressly conferred;
and 1t could be done only upon the
theory that it is police regulation; not
strictly an exercise of law making
power"
And again: u...
'Such enactments are regarded as
police regulations, established for the
prevention of pauperism and crime; for
the abatement of nuisances, and the pro.
motion of public health and safety"
In referring to this and similar class
of cases, Mr.. Cooley says:
"Such laws are known in common par.
lance as local option laws. They relate
to subjecte which, like the retailing of
Intoxicating drinks, or the running at
large OF cattle in the highways, may be
differently regarded in different locali-
ties, and they are sustained on what
seems to Us the impregnable ground that
the subject, though not embraced within
the immediate power of the municipal.
tiles to make bylaws and ordinances, is
nevertheless within the class of police
regulations, in respect to which it is
proper that the local judgment should
CONTROL"
Cooley's constitutional limitations,
14s.
The language of Judge Caton, 80 relied
upon, refers to local affairs. as q peri usaI
OF the whole case shows. The perform
ance OF the duty of selecting and locat-
ing the seat of government pertains to
the whole territory and the right to dele
gate those duties bears no analogy to
the delegation of the right of local iegis.
latlon or the performance of some duty
pertaining to mere local concerns.
In regard to mere local concerns the
right to delegate authority ia undoubt.
edly and necessarily inferred from the
power to leglslate upon all rightfui sub
lects. But while that implication is
held to exist and no where denied, no
court extends such implication to mat.
ters affecting the whole state.
1t the authority thus conferred upon
the governor and legislative assembly to
change the seat of government is legis-
latlve in character then clearly it is leg.
lslatlon pertaining to the welfare of the
whole commonwealth. The power to
delegate authority for general legisla-
tion or authority to leglslate upon any
subject general to the entire people Of
the state is everywhere denied.
In we'll considered case recently de-
cided by the supreme court of Minneso.
ia the correct rule Is declared. It ap.
pears that the charter of the city of MIN
neapolis gave the city council such pow
ers as enabled the council to make reason
able regulations as to where or within
what parts of the city the business of
vending spirituous and malt liquors
might be carried on. Under this power
the mayor was authorized by the city
council and did designate the districts
or parts of the city where the sole should
be allowed, which acts of the mayor
were approved by the city council.
A case involving this question was
taken to the supreme court and in the
opinion the court says:
"But this power to regulate is vested
in the city council. 1t is power which
they cannot delegate to any person or
officer. 1t Is Q legislative act, which
they must perform themselves, and they
can only exercise it by ordinance enact
ed in the manner prescribed in the char
ter. Ofcourse they may impose mere ex-
ecntive or ministerial duties, such as ap.
proving the bond receiving license for,
and issuing the license on certain off.
GERS, as they have done in the present
| case. These are mere executive and
ministerial acts to be performed in the
execution of the ordinance, and in that
respect must be complete when it leaves
the hands of the city council.
The limits within which the sale of
liquor should be confined is Q matter
which the council must determine. It
calls for the exercise of legislative dis
cretion. They can no more remit to the
mayor the right to determine this than