The Warner weekly sun. (Warner, Brown Co., Dakota [S.D.]) 1883-1885, 1884-09-26
THE CAPITAL QUESTION.
Decision OF the Supreme CcSrt of
the Territory, Affirming the
Constitutionality cfthe Act
Creating the Capital
Commission.

Yapkton. Oak, Special Telegram, Sept 20
This morning Judge Edgerton opened the ter
ritorial supreme court for the purpose OF filing
the opinion of the different justices on cases
.roped at the last term. The most important
was the celebrated capital commission case, IN
which Judges Hudson, Church and Palmer re-
versed Judge Edgerton's decision and declared
the law a good and valid one. The opinion Of
the majority was prepared by Judge Church
and il an interesting document, covering sixty
three pages of legal cap. Judge Church says
the Importance of the case and great interest
feIt in It in all sections of the terr1tory, caused
him 10 90 into the matter fully and make the
oninion of the majority SO clear that the popular
mind would readily understand it. Judge Ed
certon's dissenting opinion is not quite so long,
but is a strong paper, and well represents the
respondents view OF the case. botn Opinions
are well fortified with references 10 coniirm
varions points made. While these opinions
are different in form from the argument OF the
respectiye attorneys, they are much the same
in substance, and in running them over the
reader Is forcibly reminded of the brilliant
made by Col. Villas for the appellant
and Moody, Trip and Gallagher for the re-
epondent Judge Church first defines the re-
Iatiou 20 a territory to the general government
and the general power of the territorial legls-
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
ment
The organic act provides a temporary seat of
government, vests Legislative power in the
governor and Legislative assembly, and ex-
lends such power over all rightful subjects OF
legislation. Recognizing that the center of
population and commerce might shift, con-
cress wisely provided thatthe seat of govern
nlent. after having been located, was still sub
iect to change by the governor and Legislative
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
ers. The territory is large, and the session OF
the legislature limited to sixty days. 1t was
therefore inexpedientfor the Legislature, either
in a body or by committee, to select a new To-
cation. As it's power extended over all rightful
subjects of legislation, and as the full scope
and purposes of pertinent sections of the Re-
vised Statutes of congress was to delegate to
the people of the territory power to legislate
upon matters pertaining to their own local
observation-disclosures 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
islative power conferred
References were given showing how capitals
of states and territories and county seats had
been located aud how congress had delegated
to the president of the United States authority
to raise armies, grant letters OF marque and re-
prisal, borrow money and to do other acts of a
similar nature.
i0But this" says the Judge, s'cannot be con-
sidered a case of delegated authority as II was
complete. The law as passed merely provided
agents to perform certain administrative acts
which the legislature could not itself conven-
iently perform. In regard to the objection
that the commission having been named in the
hill had not haap YaOrEarly ann0intad III was
enough to say that the commissioners were not
strictly officers. Their duties we're specific and
limited Having performed the work designated
they ceased to be in Office"
THE CHIEF JUSTICES DISSENT.
From Judge Church's opinion Chief Justice
Edgerton disssnts. He says he Is unable TO
see that the case n~essasily involves a discus
sion of any serious constitutional question; TO
him the nroposition seems SO plain, 80 elcmen-
tary and the questions leading up to the prlneir
pal question so thoroughly settled by Judicial
decisions and so uncontested by text writers,
there is very little chance for discussion.
The question is not as to the power OF con-
gress 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
gued that the bill as passed was not of itself a
perfect law, as no change could be made until
the COMMISSIONS rs had decided upon some place
as the future capital, thus clearly exercising
powers delegated to the governor and legisla-
tive assembly; that the commissioners we:esp-
pointed for the purpose Of doing asat very thing
which was essential and absolutely requisite to
effect q change in the seat Of government
Undoubtedly" he says, Hthis was comforting
upon these defendants powers which required
the exercise of discretion Of judgment, OF wis
dom, of patriotieni, and it was putting upon
them the performance Of duties expressly en-
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
lot parallel to the case. From the whole
case he concludes that said act Of the terri
torial Legislature was unwarianted and invalid
and that the Judgment OF the district coui.1
should stand. These two papers We're boil
ably prepared and bound 10 attract wide at
tention. The case seems 10 have two sides ana
each side has gfrnnv advocates.