The Warner weekly sun. (Warner, Brown Co., Dakota [S.D.]) 1883-1885, 1885-03-20
Governor Pisrce's Veto of the Territorial
Capital Removal Bill.

lSS5.-To the Speaker OF the hOuseoL hepICSSh-
~tatives: Sir-I have the honor to return here
with House Bill Nc. r, which has been submitted
me for my concurrence and approval. This blll
provides for the removal of the capital from the
citv of Eismarck to the city Of Pierre. II there
are questions of equity involved in this measure
will not now discuss them. III there
Is something like retributive justice In thls
measure growing out Of past wrongs, either ran
cied or real, / do not here and now consider
Them, / pass by the question OF expense ana
taxation in the construction or new buildings III
Pierre. pass by the fact that $500, 600 worth
Of property now belonging to the territory Is
donated by this act TO private individuals. l pass
by all allegations of impropriety and charges OF
corruption which may have been made, to come
TO the consideration of the one question: Is
this measure legal? We have all taken an oath
to support the constitution Of the United States.
Section 10 of article l Of that constitution pro-
hibits the passage Of any law impairing
THE OBLIGATION OF CONTRACTS.
Ia the arrangement contaminated between
agents of the last legislature and The city OF Bis
marck a contract in the meaning OF this sectlonT
If it is, and if legislatures as well as individuals
come in the constitutional prohibition, Their
zone Of lis could break it if we would, and none
Of us would break it in violation of our Oaths II
we could. In the case Of Mills vs.. Williams, IL
lred, lO5 Justice Pearson declares that while
there are some grants conferred at the mere Will
Of the legislature, and subject at all times to be
modified or repealed, there are Others which as
sumo the nature Of contracts and cannot be
molested.
"The legislature" saws the learned justice, us
not the only party interested. for although it
has a public purpose TO accomplish, 1t chooses
to do it by the instrumentality of a second
party. These Two parties make a contract. The
legislature, for and in consideration OF certain
labor and outlay of money, cOnfers on the party
Of the second part certain powers and capacities,
The expectation of benefit to the public Is the
moving consideration on one side; that or eX-
peCted remuneration for the outlay on the
other. II is a contract, and, therefore, cannot be
modified, changed or amended without the con-
sent of both parties.
The Legislature Of 1888 directed a commits
sion to select a site for a capitol, and declared
that in consideration of a large amount Of
money to be paid and land to be given, such a
site should become the permanent seat of gov
ernment." The wisdom Of that law has been
questioned, and it is not my duty to modify, to
Justify or defend it. 1t is sufficient to know that
Bismarck was chosen: that it accepts tne propo-
sition made by authority Of the Legislatures:
that 1t paid the money demanded and contri-
buted the land required. There is no allegation,
I believe, that the city has not complied with
the spirit and letter of its agreement. If the
contract were between individuals no one would
question the binding force of the objection for d
moment. Shall the rule be changed because one
of the parties is a great territory with honor to
defend and dignity to maintain2 Such an in
depreciation, in the words Of the judge above
quoted, would ,
SHOCK THE PUBLIC CONSCIENCE"
There is not one law for the sovereign and
another for the subject" says Judge Allen I'll
n. Y, $40; but when the sovereign engages in
business enterprises and contracts with individ-
uals, the rights and obligations of the parties
must be adjudged on the same principles as IL
l~N . mona r1pnt nStf-orn stat -nA
repudiate It's contracts. 1t may refuse to per-
form them; but its sovereign right to destroy or
impair them is limited by the federal constitu-
ton. 1t may refuse to respond in damages and
leave a claimant without any remedy, as it may
Iefuse To nay TIE bonds; hut the Obligation re-
mains. No legislative fiat can destroy that. "
fSee Duncide VS.. The State, 80 N. Y, 360.) The
court says: 1t has been settled so as 90 &c beyond
controversy that the constitutional provision
which denies to a state power to pass laws i'm
pairing the obligation OF contracts applies to all
laws passed within its limits, contracts made by
the state as we'll as contracts made by individ-
uals. The sovereign can contract and has
many occasions to do SO. IL must be governed
by the same rules of common honesty which
bind individuals. It is true that as a rule the
legislature Is sovereign and may modify or
abolish the act Of it's predecessors, but this rule
has a plain exception and this exception seems
70 be itself, without an exception. There
10 no mode" says the court in a case
reported in 9th MCLEAN, l61, Shy which
0 legislative act can be made irrepealable except
that 1t assume the form and substance of a
contract: and, commenting on this, Judge
Cooley says: Legislative acts are sometimes
In substance contracts between the state and
the party who is TO derive some right under
them, and they are not the less under the pro.
lection OF the constitution because Of having as.
iumed that form CSee Work on Constitutional
Limitations, 1863 The books seem to be full Of
such cases, but Judge Cooley has laid down a
principle in his great work on the constitution
which
SEEMS TO COVER THE MEASURE
under consideration, entirely and completely.
Story on the Constitution: at has been made
q question whether it THE constitutional pro-
hibitionl applies to contracts and grants created
directly by law or made by some authorized
agent in pursuance or law. IL has been sug-
gested that in such cases 1t Is to be deemed an
act Of the legislative power. and that all laws
are repealed by The same authority that enacted
them. But IL has been decided upon solemn
agreement that contracts or grants made by q
state are not less within the reach OF the prohi-
bition than contracts and grants OF private per-
sons. The legislature may make q contract with
individuals by law, and when 1t ID
accepted IL is equally under the pro-
lection Of the constitutions; and 1t may be
law is in its own nature a contract. and absolute
iigiits have vested under ft, q repeal Of that law
cannot divest those rights or annihilate Grim
pair the title so acquired No court o. Justice IN
this country" continues Judge Storey, would
be warranted In assuming that any state iegis-
latnre possessed the power to violate and disre-
gard such q contract. so that such q
cipies OF Justice and civil liberty, lurked
under any grant or ought to be implied
from any general expression Of the will
Of the people fSee also sections 1889, 1855,
1893. 1894 and 1881 In my mind there is no
doubt but that this bill plainly violates the CON
stitution we have sworn to support. The rule
| may be a hard one In some cases and under some
| circumstances, but we did not make it and we
did not enact the law which makes its appiica.
tion necessary. Our only duty Is co take the
case as we hud Ii anu act with a solemn regard
for our oath. But it may be asked. has the ter
sitory no power TO
CHANG THE LOCATION OF IT'S CAPITAL?
Undoubtedly. There are certainly ways BY
which a state can resume its sovereignty, IL be-
ing in the interest of public policy that thi.
should be done: but It must do Justice before II
asks justice. There is another phase Of The
question which seems important TO be consid-
| cred. It greatly adds to the difficulties sur,
rounding this bill. The act provides that tn.