The Kimball graphic. (Kimball, Brule County, Dakota [S.D.]) 1883-1905, 1884-10-03
THE CAPITAL QUESTION.
Decision Of the Supreme Court Of
the Territory, Affirming the
constitut1onality ofthe Act
Creating the Capital
Commission.

Creating the Capital
Commission.
The Decree Prepaped by Judge Church,
and Chief Justice Edgerton's Dissent
ing Opinion, Covering all Points.
Yankton, Oak, Special Telegram, Sept 90
This morning Judge Edserton opened the ter
ritorial supreme court for the purpose Of filing
the opinion of the different justices on cases
argued at the last term. The most important
was the celebrated capital commission case, in
which Judges Hudson, Church and Palmer re-
yersed Judge Edgerton's decision and declared
the law a good and valid one. The opinion of
the majority was prepared by Judge Church
and is an interesting document, covering sixty
three pages of legal cap. Judge Church says
the importance Of the case and great interest
felt in it in all sections of the territory, caused
him to go into the matter fully and make the
opinion of the majority SO clear that the popular
mind would readily understand it. Judge Ed
gerton's dissenting opinion 70 not quite 30 long,
respondents view of the case. Both opinions
are we'll fortified with references to confirm
various points made. While these opinions
are different in form from the argument of tho
respective attorneys, they are much the same
in substance, and in running them over the
reader is forcibly reminded of the brilliant
arguments made by Col. Villas for the appellant
and Moody, Trip and Gallagher for the re-
spondent Judge Church first defines the re-
lation of a territory TO the general government
and the general power of the territorial legis-
lature under the organic act, and then dis
cusses the provision made in the organic act
for changing the location of the seat of govern
mept
The organic act provides q temporary seat of
government, vests legislative power in the
tends such power over all rightful subjects Of
legislation. Recognizing that the center of
population and m might shift, con-
gress wisely provided that the seat of govern
nient, after having been located, was still sub
assembly. If is admitted, therefore, that the
location could be changed had the place been
named in the bill; but the change made by the
new commissioners is objected to on the
ground of the delegation of delegated pow
the legislature limited to sixty days. 1t was
therefore inexpedient for the legislature, either
IN Q body or by committee, to select a new To-
cation. As its power extended over all rightful
subjects of legislation, and as the full scope
and purposes of pertinent sections of the Re
ylsed Statutes of congress was to delegate to
the people of the territory power to legislate
upon matters pertaining to their own local
self-government-powers which, by the way,
the people had first delegated to congress-the
passage of the capital removal bill cannot be
regarded as an enlargement of the general leg
tslatlve power conferred
references were given showing how capitals
OF states and territories and county seats had
been located aud howc congress had delegated
70 the president of the United States authority
TO raise armies, grant letters of marque and re-
pr,sal, borrow money and to do other acts of q
slmilar nature.
"But this" says the judge, 'tcannot be con-
sldered a case of delegated authority as it was
complete. The law as passed merely provided
agents to perform certain administrative acts
which the legislature could not itself conven-
!ently perform. In regard to the objection
mat the commission having been named in the
Dill had not been regularly appointed, it was
enough to say that the commissioners were not
strictly officers. Their duties were specific and
limited. Having performed the work designated
they ceased to be in Office"
H CHIEF JUSTICES DISSENT.
From Judge Church's opinion Chief Justice
Edgerton dissents. He says he IL unable to
see that the case nessasily involves a discus
SION OF any serious constitutional question to
hlm the proposition seems so plain, SO elemen-
tary and tho questions leadlngu up to the princi-
pal question 80 thoroughly settled by judicial
decisions and 80 uncontested by text writers,
there IL very little chance for discussion.
The question is not as to the power of con
gross over the subject, but having delegated
this power to select and establish and change
the seat of government, to the governor and
legislative assembly, the question is, is there
any implied authority in those tribunals to
again delegate this duty to any other tribunal,
body or persons.
The chief justice then proceeds atsome length
TO show that in the passage of the capital bill
such delegation of power was made, and that
there was no authority for SO doing. He ar
sued that the bill as passed was not of itself q
perfect law, as no change could be made until
the commission ers had decided upon some place
rs the future capital, thus clearly exercising
powers delegated to the governor and lcgisla.
hive assembly; that the commissioners were APP
pointed for the purpose of doing that very thing
which was essential and absolutely requisite to
effect a change in the seat of government
Undoubtedly" he says, ''this was comforting
these defendants powers which required
the exercise of discretion of judgment, OF wis
dom, Of patriotism, and it was putting upon
them the performance Of duties expressly en-
joined upon the governor and Legislative assem-
bly,"
The chief justice then discusses fully the
question OF delegated powers, after which he
takes up various cases oflocation of capitals OF
states and territories, which he maintains are
not parallel to the case. From the whole
case he concludes that said act of the terri
torlai Legislature was unwarranted and invalid.
and that the judgment of the district court
should stand. These two papers were both
ably prepared and bound 10 attract wide at
tention. The case seems to have two sides and
each side has strong advocates.