The Warner weekly sun. (Warner, Brown Co., Dakota [S.D.]) 1883-1885, 1884-05-30

The effect of the decision is TO affirm the law. In
general terms 40 iis%r rsseesea = essis.a 81
marck the moment Of the selection Of the site by
the commissioners. What figure Will the appeal
70 the supreme court OF the United States cut
Whv, the only judgment which will be
rendered by the supreme court OF the
UniCed States will be that the action
be dismissed and plaintiffs respondents
pay the costs of suit. Probably these costs will
amount to 500, and the only effect of the ap.
peal is that plaintiffs viii have about three years
time in which TO raise that hundred dollars. Inc
federal supreme court will surely sustain the de-
cision Of the Dakota court. Meanwhile the cap
ital, in accordance with the highest judicial an-
thority in the territory, remains at Bismarck.
where 1t has been since May, 1883. The SUI
preme court Is the highest authority in the ter
ritory for the interpretation OF that terrltorys
laws, aud its decisions are binding upon all the
other departments of the territorial government
until reversed by the highest tribunal IN the
dand. This includes the legislative, as wei a.
the executive branch.
. The removal act, while IL located the capital at
the site to be selected by the commissioners,
permitted the temporary retention OF the execu-
tive offices at Yankton until snch time as the
completion of the capitol building, or until the
governor should, in his discretion, require their
removal to some other point Soon after the Sc
lection OF the site by the commissioners last
year, the governor decided that public conven-
fence demand the removal OF all the executive
Offices of the territory to Bismarck, and issued
an executive order to that effect. In obedience
to this order the offices Of governor, attorney
general and auditor forthwith removed 70 Bis
marck, where they have since remained. The
secretary and treasurer of the territory nave thus
far failed to comply with the order and have
retained their respective offices at 1anktOn.
Since the recent decision of the supreme court
it is not supposed these officials will openly deny
the law and persist in their disobediSnce OF the
executive order mentioned. The capitol build
ing has been completed in all respects, except as
to interior finish and the putting in or the doors
and windows. Preparations for this work have
been in progress for several wceks, the work VIII
be commenced within the next few DAYS and the
building ready for occupancy by all the depart
ments, of the territorial government, including
the legislature, within the next thirty days. As
soon as the building is sufficiently finished TO
admit of occupancy, 1t will become the duty
of the governor. under the law, to
issue a proclamation declaring that TACT,
and upon the issuance OF such proclamation the
teEJitorial officers will be required 70 obey II,
Should any refuse-which is wholly improbable
proper judicial proceedings TO compel obedt-
ence will be promptly resorted to. Runors have
been industriously circulated by the enemies or
the capital removal to the effect thet the build
ing at. Bismarck has not been paid for. j have
the best authority for totally denying these
statements. The contribution by the citizens
Of BismrIck and the proceeds of the sales of lots
already made have been sufficient to pay Tor the
work as far as it has progressed, and sufficient
real estate, at the disposal ofthe commissioners,
remains unsold to finish and furnish the build
ing in q durable and handsome manner, so that
the capitol, when turned over to the territorial
government, will not have cost the people one
penny. might add, further, that a weeks stay
at Yankton has convinced me that the greater
portion, even Of the residents OF that place,
have acquiesced in the removal and t1at only a
few noisy mischief makers, who wish TO create
and continue q state of uncertainty in the pub
lie mind. are inclined to bring further resist
ance.
THE LEGAL STATUS AND DECISION.
Originally there were two objections made 10
the validity Of the removal act; first, that the
act designated the commissioners instead OF
providing for their appointment by the gov
ernor, by and with the advice and consent or the
territorial council; second, that the legislature
was required by the organic law OF the territory
to specifically designate the site Of the capital
and could not avail itself of the services OF q
commission to make such selection. The nrst
objection was the one most ~strenuousiy urKed
against the act in the district court tDeIore
Judge Edgertonl, but in tks supreme court that
point was virtually abandoned and the EFFORTS OF
counsel for Yankton were concentrated upon tine
second objection, relating TO the delegation OF
power. No adyices are vet at hand as TO whether
OF not the opinion OF the court has been wrltten.
From the usual procedure OF the court IN the
disposition of cases, 1t Is Improbable tnaU Inc
opinion has as vet been written. Most prob
ably the decision was announced IN open court
and the case assigned TO one OF !he
Judges composing the majority, for preparation
OF the opinion. The opinion must necessarily
set forth that the legislature was authorized 70
employ a commission to select a SITE TOT the
capital and to designate the members OF such
commission by name, as commissioners for doing
administrative acts OF this character are not
treated by the courts as officers Wlthin the Ia,
JGnL Oh COfSblOhJtoltti ptONk oAOho S40NAA 80
officers of a state or territory, as the case may
be, to be appointed. This question, IN fact, was
no longer open for consideration In tue Dahota
supreme court, as the supreme court or the
United States, it's Immediate superior, settled
IL some years since. Upon the other propssl-
tion. namely, the use OF q commission 20 seiect
the site, the court must have felt itself bound
by the very respectable number OF precedents
which have been set by the congress OF the
United States and by the legislatures OF indi-
vidaal states and territories.
Wr WANfffNffTDN AS A CASE IN POiNT.W
The capital OF the United States was located
in this way. Congress provided for a commis-
sion which should select a tract OF ground, not
exceeding ten miles square. and declared that
the district SO selected should be the seat OF
government of the United States. The commits
sion was afterward appointed and performed It's
duties by selecting the tract of ground, ten
miles square, afterward designated The Dis
trict OF Columbia" THE act. fixing the seat OF
subsequently designated by q commission, re-
NAMED the sole act locating the seat OF the
federal government until the enactment OF TIE
United States revenue statutes III 1878 Inc
example thus set by congress has been copied
by several of the states and territories In re-
spect TO their capitals, and has been resyrted 20
probably q thousand times in the location OF
state institutions and county seats. In con-
clusion. I may say the decision OF the supreme
court at YEnkton hxes the seat OF the govern
ment OF Dakota Territory at Bismarck, there TO
remain until it shall have been removed else
where by the legislature. or until the supreme
court OF the United States shall have decided
otherwise. The former Is wholly mpr0Danle,
the latter impossible.
VIEWS OF ATTORNEY GENERAL. HUGHES.
To q reporter OF the Sioux City Journal,
Attorney General Hughes. OF Dakota. said:
1t was claimed that the law on which the com
| mission was appointed was unconstitutional. To
this the counsel OF the commissioners answer
that from the location OF the capital Of the
United States at Washington BY commission
| down to the location of the capital Of Dakota at
Bismarck there is an unbroken line OF prece-
dents on the side Of the commission. The selec-
| ton OF washington as the capital Is q case
| directly in point. There are q thousand cases,
| all involving the same principle, and all In favor
| Of the commission.
ION what grounds did Judge Edgerton decide
| AGAINST the legality of the declsionf-
-Onlv Judge Edgerton knows. He gave no
| reasons for his decision There are no Kr01iiss
| on which any air-minded court could render