St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-09-22
BISMARCK WINS.
The Supreme Court of Dakota Affirms
the Validity of the Capitol
n0.,,Tr,;ocio,,

pTcIHc cOurI Vi DahOIa IN Gne case Oh Gne Ter
ritory against the capital commissioners, in
yolving the location of the seat of govern
ment. The opinion is written by Justice
Church, OF the Deadwood district, and covers
sixty-three pages of closely written legal cap.
Justice Church is sustained in ruling by
Justices Hudson and Palmer, Justice Edger-
ton dissenting.
This was an action in the nature of a pro-
ceeding quo warranto brought to prevent
the defendants from exercising certain
duties as commissioners for selecting a
site for the permanent seat OF government
and erecting the capitol building Of the
territory of Dakota under appointment of
an act of the legislature of the territory, APP
proved March s, 1888. All questions in
volved are discussed by Justice Church,
and authorities cited in defense thereof.
After citing the several counts in the COM
plant which alleges the act in question is
in conflict with the organic act of the terri
tory, and after reciting the points in the
answer Of the defendants, the judge passes
over certain questions of practice involved
in bringing the action, quotes the provi-
sions of the bill itself, and sets out the
points in dispute He then goes on to say:
The first inquiry which suggests itself is as
to the nature and extent OF the general pow
ers conferred upon the territorial legislature
by the organic act, since upon this founda-
ton rests whatever claim to validity may be
possessed by the act in question. < x
We think it must be regarded as a settled
principal OF constitutional Interpretation
in this country that the people are the
sovereigns, and that in the people resides
ultimate sovereignty. II we consider the
1cfr
the Legislature is not the state, nor is the ju-
dietary, nor the executive, nor are all com
bined the state. The people organized into
political society are the state, and the var
ious departments mentioned are but the ma
chinery through which the popular will finds
expression, Interpretation and execution
To these several departments the people have
committed, or in other words, delegated the
exercise OF the various powers and duties APP
propriate to each, and as limitations there
upon have formulated and adopted those or
ganic Instruments which we call onstitu-
tions. \ Passing now to the federal
government we find here a like commission
or delegation of power from the sovereign,
to-wit, the people; only here 1t is the people
of the United States who are sovereign. y
The only true view of our system of
government both state and national is that
whichregards the people as still the sovereigns
and every lawful act of every department of
any Of these governments, state or national,
as but the will of the sovereign expressed by
and through their chosen instruments.
After citing authorities to show that from
the formation of the government and the
framing of the constitution all power has
been delegated and re-delegated. and that
local self government has been given to ter
ritories from the first, Judge Church con-
tinues;
at was never the intention of the trainers
Of our federal union that any portion of the
public domain should forever continue to be
but political subdivisions of the outlying
dominion of the United States, bearing a re-
lation to the general government much the
same as that which counties bear to the re-
spective states.'n < X After quoting
from various authorities ON the question of
powers of territories under their organic acts
he goes on to say: "We have quoted these
words = merely for the purpose of
showing that not every creation by the legis-
lature of subordinate legislative bodies is to
be regarded as a delegation of law-making
power, although for reasons already
stated we think that the analogy
between the relations borne by counties
and other municipal organizations, to the
state legislatures, and those borne by the
territories TO the congress of the United
States is by no means complete. There is
q wide and essential difference in the condi-
tions aud purposes of their existence. The
relations between the territories and the
general government may indeed be said to
be sal geIaeriS having no complete analogy in
fny other political organization. So then
we must either boldly affirm that the whole
scheme of territorial government is unlawful
and that the established policy Of congress
in this regard is an abdication of the trust
committed to it by the people, or taking a
broader and more comprehensive view we
shall conclude that the power pro-
posed in congress to make
needful rules and regulations for
the governments of the territories comes fairly
within the scope Of those administrative
functions of legislative bodies which it is
generally conceded they may either exercise
themselves in detail, or By statutes contain
ing general provisions only; and that in
erecting within the prospective state, the full
machinery of state government with all
its departments, congress has discharged to
that extent the trust reposed in it in mode
which was not only demanded by the ext
gencies of the situation, but which is also in
entire harmony with our Republican system
Of government.
"And since the investiture, of the terri
torial legislature with legislative powers is
as we have seen general in its terms,
extending to all rightful subjects OF
legislation, we think this is to be re-
garded as a delegation of authority in the
same general sense only in which the pow
ers OF congress are considered to be dele
gated to 1t by the people, and that such pow
ers are within their proper scope TO be exer.
cised in the same manner as like powers
may be exercised by other legislative bodies,
state and natonaL'' Here follqw quota
tions from supreme court decisions in sup
port OF this position, notably In the case of
the Miners Bank VS.. Iowa, II Howard; page
/; Clinton VS.. Englebrect, 13 Wall, page
434.
The court then passes on TO discuss the
provisions in the organic act for changing
the seat of government Of the territory, aud
after quoting the section bearing
on this subject, argues that the
organic act simply provided for the
original location of a seat of government aud
had no intent 10 cover possible changes in
the future; that the act of the territorial leg
isiature in delegating this power of location
10 nine commissioners was not only a lawful
exercise OF its power but was an actual neccs-
sity in view % the limited sessions Of the
legislature, the vast size Of the territory, the
meage.ness of travelling facilities, the num-
Der OF aspirants for capital honors, all of
which precluded the possibility OF the legis-
lature, as body, giving the matter of re-
moyal proper attention. The court then
cites as precedeDts the location Of the seat Of
government in Iowa, Illinois, Nebraska and
other states and territories, as well ss in
the District OF Columbia, and concludes as
follows:
''Our conclusion is that the provisions Of