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

upon ali righttul subjects, consistent
With the constitution of the United
States and laws of congress, to enact
specifically that upon this subject the
power to change the seat of government
should rest with the governor and legis.
iative assembly. These powers, whether
legislative or administrative, require the
exercise of discretion, Judgment and
wisdom, and, therefore, in the absence
OF express authority to that end, could
not be re-delegated.
| What rule is palmer than that when
delegated powers involve the exercise of
discretion, of judgement. of wisdom, in
the agent, whether legislative or ad-
ministrative agent, that no implied power
OF substitution exists; but the duties
must be performed by the very agent
upon whom they are devolved.
II the governor and the legislative as.
sembly can delegate to commission
the authority to change the seat of gov
ernment by the selection of new local
lty, and designating it as the future
seat, they may confer that power upon
any person, in their discretion, and such
authority may be again transmitted by
such commission or person to others, or
otner, and from person to person with
ont limit. Where delegated duty is in
VOWED, as IN this case. the exercise of
those qualities of the mind known as
discretion, Judgment, wisdom. patriot
ism, there is but one delegation of
authority recognized in law, that is,
from the source or origin of the power,
the principal to the agent, unless such
agent shall be expressly or by necessary
implication from the appointment,
clothed with the power of selecting and
Commissioning his substitute.
Authorities cited in support of the
line of argument.
Congress in almost every act for the
organization of the territories, at least
for the last fifty years, in addition to the
general grant of powers to the terri
torlal legislature has also provided how
the temporary and permanent seat of
the territorial government should be
located.
Whatever might be the interpretation
nad the general power as expressed in
Sec 1851 Substantially the same as Sec.
q OF the organic act,) been the sole ex.
preston of the will of congress, the
passage OF Sec. 1914 must be considered
as grant, or as limitation of power,
An old and correct rule of interpreta.
ton is, "Where charter contains a
general clause which afterwards decends
to special words which are consen-
taneons to the general clause the charter
is to be interpreted according to special
words"
1t was contended by the appellants
upon the argument, and the same view
seems to be entertained in the majority
opinion that the provisions of section
twelve (l944) cited SO far as they relate
to the location and change OF the seat of
government are included in the grant of
general powers of legislatiop, and that,
therefore, this specific provision is to be
given no force, and is to be regarded as
merged in such grant of authority to
legislate. From this it is argued that
the power to designate these persons to
select new seat of government NAV be
implied.
No doubt in the absence of any other
provisions upon the subject, the right to
change the seat of government of either
state or territory might be included in
tue authority to legislate. But submit
the rule of construction contended for is
not the true rule. All parts of a statute
should be given force if possible, and
must be presumed to have their inst
meaning.
This specific grant of delegation OF
power In addition to the general powers
conferred is not to be ignored or treated
as having no meaning or force. Congress
must be presumed to have intended by
this separate and specific provision re.
latlng to the seat of government Just
what is its plain and manifest meaning
to-Wlt: That the governor and Iegisla.
tive assembly must exercise their 1udg.
ment and their wisdom in selecting, in
locating, in determining the eligibility
\ OF the place for the seat of government
of the territory, and must bring into
play functions in making the change.
This duty thus demanding of them
the exercise of not mere mechanical
force congress took care should be per.
formed by these designated tribunals,
and could not by them lawfully be con.
ferred upon any one else.
The exercise of this duty by the tri.
bunals selected by congress can not be
said to be in any just sense the exercise
OF original powers, or, as applied to gov.
eminent, OF sovereign powers. The gov.
ernor and legislative assembly are tri-
6unals, the mtre creatures of congress.
BY congress they are created and clothed
with all the powers which they possess
These powers are in the largest sense
mere delegated powers. They may at
times be resumed by the authority con.
ferrlng them, or even after they are ex.
erclsed may be repudiated and ignored
When congress has thus said to its
designated agents that they may do this
thing " hIoh kLo A.
higher powers of intellect and spirit,
now can 1t be said that congress has i'm
plledly authorized them to substitute
some other agent to do the act expressly '
enjoined upon them.
It might be instructive to examine
how congress in the different organic
acts has varied the mode of locating
capitals in the territories. In some in.
stances it has conferred the power solely
upon the governor and legislative assem-
bly,, while in other cases the place where
the legislature shall first meet is fixed in
the organic act, and the Temporary seat
OF government is located by the governor
aud legislative assembly, and the Der.
manent seat is established by law when
ratified by the people.
See section Is OF the organic act oi
Minnesota.
In the organic act for Minnesota the
legislature may prescribe by law the
manner of locating the permanent seat
OF government of said territory by q
vote of the people.
| In Dakota congress changed the mode
OF location.
Instead Of providing that the manner
OF location may be prescribed by law, il