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

Can the governor and legislative assem-.
bly, delegate to these defendants the
right to exercise power and authority
expressly conferred by congress upor
the governor and legislative assembly,
without power of substitution express OF
implied The question whether congress
derives all of it's powers by delegation OF
otherwise may perhaps be an interesting
one but it has no application to this case
and indeed both parties admit that con.
gress derives its powers by delegation
Inns appellant saysin his argument
I'm the United Statest the sovereignty
resides in the people and all Legislative
power is delegated. Congress itself takes
authority only BY popular investiture
and the Legislature Of the territory
stands upon the same footing with the
qualifications that sovereignty over the
territories rests in congress instead oi
the people in them" Ard the respon.
dent says. alludinp to this proposition.
"lf l understand this argument it is,
that the people have delegated to con.
Rress and that congress has delegated
powers to the territories. SO that the
legislature OF Dakota takes her powers
two degrees removed from the people
one step further In the descending scale.
so that l take 1t as conceded that all the
powers possessed by the Dakota legisla-
ture and by the executive of Dakota are
delegated powers.'
The first inquiry which suggests itself
ls the relation OF the territory to the
general government and to congress.
This question was at an early day q sub.
ject of contention in the highest court
OF the nation, and has received sue.
cessive Judicial interpretations, from the
time of Chief Justice Marshall till now,
80 that the rule is tolerably we'll settled.
In American Insurance Co., vs. Canter,
Chief Justice Marshall says, in delivering
the opinion of the court:
"ln the mean time Florida continues
to be territory OF the United States,
governed by virtue of that clause, IN the
constitution, which empowers congress
to make all needful rules and regulations
respecting the territory or other prop
erty belonging to the United States.
Perhaps the power of governing terri.
tory belonging to the United States,
which has not. by becoming a state,
acquired the means of self-government,
may result necessarily from the fact that
II ls not within the power and jurisdic-
ton of the United States. The right to
govern may be the inevitable conse
quence of the right to acquire territory.
Which ever may be the source whence
the power is derived, the possession of
it is unquestioned.
In legislating for them, congress exer-
clses the combined powers of the general
and state government."-l Peters, 1923.
The rule is now authoritively defined
and settled in National banks vs. Yank-
ton, which is the latest expression from
that court upon the question.
The court says:
1T is certainly now too late to doubt
the power of congress to govern the
territories. There have been some diff.
ferences of opinion as to the particular
Cause OF the conatitution from which the
power is derived, but that it exists has
always been conceded. All
territory within the Jurisdiction of the
United States, not included in any
state, must necessarily be governed by,
or under the authority of congress. The
territories are but political sub.
ions OF the outlying dominion of the
United States. Their relation to the
general government is much the same
as that which counties bear to the re.
spective states, and congress may legis
late for them as the state does for its
municipal organization. The organic
law OF territory takes the place Of the
constitution as the fundamental law o
the local government. It is obligatory
on and binds the territorial authorities
but congress is supreme, and for the
purpose of this department of it's gov
ernmental authority, has all the power
of the people of the United States, ex
cept such as have been expressly or b,
implication reserved in the prl hibition
OF the constitution. In the organic &C
OF Dakota there was not an express res
ervation of power in congress to amepc
the acts of the territorial legislature
but may itself legislate directly for th.
local government. It may make voit
act of the territorial legislature valid
and valid act void. In other words, i
has full and complete legislative au
thority over the people of territories
and all the departments of the territori
al governmental
l0l U. s., 1923.
The condition of the territories is on.
OF absolute dependence. The power O
congress over them ie supreme, restrict
cd, possibly by come underlined limita
tlons Of the constitution. Their very
political existence may be abolished, o
their territory may be carved up and at
tached to the surrounding states or ter
| rltories.
In the earlier organic acts for the
government of the territories, the legis
lative power was frequently, in the frs
instance, conferred on the governor and
the judges, all appointed by the presi
dent.
(See organic act for Kansas, Sec. S
Also for other territories.)
I am unable to see that this case nee
essarily involves the discussion of an,
serious constitutional question. Witt
great respect for tho majority of the
court, and for the learned Judge, wht
so elaborately discussed grave consti
tutional questions in the majority opin
ion, it seems to me that the proposition
ls 30 plain, and 80 elementary, and the
questions of leading up to the principa
question so thoroughly settled in Judi
cial decisions, and so uncontested b,
text writers, there il very little chance
for discussion. That congress possesses
the power to legislate for the territory
or to delegate the power of local legis
lation to the government of the territor,
is not an open argument. That con
gress might itself select and establish
the seat OF government, or might dele
gate that power to the governor ant
the legislative assembly, or to any othe
tribunal, is proposition SO we'll settled
and 30 plain, that the bare stateme mt Il
enough to satisfy any intelligent legal
mind. The question is not as to th,