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

overnor and legislative assembly, aud
void and the duties Hereunder CANNOT
awtully be performed by them,
All OF the duties to be: performed by
ne defendants other than the selection
d the seat OF government depend upon
such selection and il the authority thus
70 select is wanting, the whole statute
TAILS, there will remain no duty which
the defendants can perform under the
act. -. 49,
We are to give this ike other statutes
o reasonable Interpretation. We are to
view it in the light of common sense.
We should endeavor to discover its renl
intent and meaning, uphoiding tiff We
can, but unhesltatingly pronouncing its
inyalidity if it shall be so found.
First,let us inquire what is its purpose.
For what purpose was it framed and
proposed? Clearly for the purpose of
erecting o change in the seat of govern.
ment. q,
II SO declares. The governor and
legislatiyeassembly were authorized to
change the seat Of government from
iankton. the athen locatiaa., tossome
othSf pd plsSSshsy ssS xsss sssH ao SO
II it did then the change was made BY
the tribunal authorized to make it, hut
if the enactment left it to these defend
ants to effect such change then it was
merely an enactment, clothing them
with the power 10 e12o what such Tribunal
had been selected and empowered to do.
We may gain SONS lighs, III seeking the
proper construction Of this statute by
ascertaining the meaning of the term
''may be changed" used in the law of
congress. Webster defines the verb
"change" as "to put one thing in the
place of another,p, .ttoI exchanged sto
alter or make different" "to cause to
pass from one state or place to another" /"
10 effect change in the seat of govern
ment necessitated the substitution of
another place for Yankton, the then seat.
No change would or could bo affected
without and until such other. place was
thus substituted.szs Sea ::
Declaring the seat Of sgoyernment re-
moved from the city OF Yankton did not
effect change. A removal could only
be made BY the substituting of some
other district OF country, in lieu of the
city of Yankton. The very eist and
essence of the change was the selection
and location of another place, or district,
other than the city OF Yankton. 49,
Now by this enactment the defendants
were appointed for the purpose OF doing
that very thing which was essential and
absolutely requisite, to effect change
in the seat of government. Section ",
in express terms provides that "the com.
missioners, or majority Of them, shall
select suitable site for the seat OF
government of the territory of
Dakota, due regard being had to its
accessibility from oil portions of the
territory, and its general fitness for a
capital Undoubtedly this was confer.
ring upon these defendants powers which
required the exercise of discretion, of
Judgment, of wisdom, of patriotism, and
it was putting upon them the perform
ance of duties expressly enjoined upon
the governor and legislative Assem- bly,.
It seems to me- that no other view can
be taken of this enactment. The at
tempt was made to evade the act of
congress, to defeat its provisions. This
was supposed, no doubt, to be accom-.
plished by the provisions OF this act
which declared the seat of government
removed from the city of Yankton, and
which repealed the former act of the
Legislative assembly locating and estab.
fishing the permanent seat of govern.
ment at Yankton. But such attempt
was futile, until the minds of the legis-
lators and governor had in the forms
prescribed by law, concurred in select
ing suitable site for the seat of govern
ment and manifested such concurrence
in the legal mode, no removal did, or
could, take place, and there was no more
authority to confer upon these defend.
ants the performance of a part of duty,
than there was to confer upon them the
whole of the duty prescribed by congress
to be performed by the governor and
legislative assembly.
No one would contend for moment
that n direct terms the legislative assem-
bly, could by law confer upon these de-
PENDANTS the power to change the seat
of government. What can not be done
directly can no more be done by indirec.
tion. As we have seen, to effect change
in the seat of government, determine.
tion to remove it from the city of Yank-
ton is necessary and selection of its
location upon or. in another district is
essential.
In this act the legislative assembly
went so far as to determine upon its re-
moval, but failed to select place to
which it should be removed. This latter
duty, essential as it Is to effect change
was put upon these defendants. It
would have been just as valid for the
governor and legislative assembly to
have delegated to these defendants to
determine whether it should, or should
not, be removed, as to confer upon them
the other duty of selecting a suitable |
site to which such removal could be |
made.
There was no power conferred upon
the legislature and governor to repeal the
act locating the seat of government, and |
thus to cause an interregnum to exist,
during which no seat of government was
deslgnated whereat the governmental
functions were to be performed. The
power was given to change, that is, to
substitute another place for the place
thereto fixed upon. Now, necessarily,
such change required the location of q
new seat of government, and necessarily
that there must have been
the selection of such new seat. Such
selection involved the exercise of those
qualities which could not be delegated.
Still, we find in this act, that these
defendants are appointed for the express
purpose of locating the seat OF govern.
ment, the new seat. Therefore, they are
to do the precise thing which
the government and Legislative assem-