Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-16
9ailg gresa anil 9akotaiaa
A JUDICIAL DECISION.
Chief Justice Tr:pp ON the
Removal u d Appoint
ment cf Officers.

Opinion in The Dakota insane hos-
pital Quo Warranto Action.
tOoncluded from Saturday,
of every s%erritory. lhe length of
time that 1t bias remained upon
Statute books gives it sn implied sanction
OF congress. says the supreme court OF
the United States. in Clinton y Enel-
brecht Is wall, g.: sin the first place
We observe hat the law has reoelv-
ed implied sanction OF congress-. 1t was
adopted in 1869 Ii mas been apon the
statute book Tor more than twelve years
Ii must have been transmitted to CON
gress oon after it was enacted, for It
WAS the duty OF the secretary of the ter
ritory to transmit to that body copies OF
ell laws, on or before the first OF the next
December IN each year. The simple dis
approval OF congress at any time would
have Rnnuled it. 1t was no unreasonable
Inference, therefore. that 1t was approy-
ed by that body" Ii would In my judg.
meDt be q very strict. construction OF this
section to hold that congress intended
TO leave this and other territories with
no power of filling vacancies during the
recesa Of the Legislative council; that no
matter how soon after the adjournment
of the Legislature or in how many OF the
territorial offices the vacancies occurred,
there was intended 10 be no power of fill-
ing such Offices until the next legislature
should meet, and that nearly two years
~ s<vhk aia~oo NTH m a~ksra cscnN~a:~-
of some or ailof the executive functions
of that department, unless aid GOULD be
had through the tar9y action of CON.
gress itself. Upon q hasty examination
of the decisions of the states where SINH
lar provisions of the constitution
obtain. / am strengthened in the view /
have taken Of this question. In New
York, nnuer their constitution il was
provided that '.Sheriffs and clerks OF
courts shall be designated by the ele-
otors Of the respective counties once in
every three years, and as often as
vacancies shall happen" Cart. A. SEQ
a. The legislature enacted q law pro-
ylding for filing vacancies by the gov
ernor TO hold until the next general
elnction, whom the vacancies should be
Allied by election, and this same ques-
tion WAS there raised to the court, that
the constitution had spoken and tbs
legislature must bs silent, that the con.
stitution itself having provided for fill
ing vacancies, that method was exclu.
sive, but the supreme court OF New
York denying the proposition and sus-
tanning the validity of the Law, speaking
through Judge Bronson, says:
nBut / feel ne great difficulty in say
ing that the law is valid. There must
of necessity be an interval between the
death, resignation or removal OF the In.
cumbeRt and the filing Of the Vacancy
by the electors; and it Is essential to the
public welfare that some person should
:: ss.srFfs mo iIs,srr
the Office. The legislature has provided
thas the vacancy shall be supplied By
the people At the next general election
after it happens, Il. r. s.. 1913 Sec. 8;
and that in the meantime the duties OF
the Office shalt be discharged either b,
the deputy OK by o person appointed by
the governor, or by both OF them. Thii
spaoe IN which the Office may not be fllee
by election q never exceed one year
tSnd may sometimes amount only to
few days. bow. long 1t may happen Il
be, provided 1t do not extend beyono
the next annual election, is question
/ think, fairy within the discretion o
the Legislature. The Language OF til,
constitution 10 mos, thes the office ehai
be filled by election in every possible
cAse, nor that q vacancy shall be sup.
piied in that manner as soon as it hap
pens; but the language is, that vacancie
shall be supplied by election as often a
\ thar harron that aN5 ja foi,lp oSka,-ad +,
referring the matter to the people at thu
next stated period for exercising tn,
elective franchise" People v Fishe
a. Wend. 2l9.
This game question came before til
court of appeals in the People
Sne eker I'm. 7. 81, in which JSdg
Denio delivering the opinion OF thecons
ana quoting the above language o
Judge Bronson and affirming tht
doctrine Of that case Gays: .This view
is 40 reasonable as to command the as
sent OF every person"
Theasame question arose in Wisconsin
where the constitution makes ~provisiol
for the election OF sherlffs, and no pro
vision 10 made for the appointment b,
the governor in any Gaze. The cas-
seems 10 have been one of frst impress
sion and the court without reference t
New York or other decisions arrives a
the same conclusion and gives the sam
reason and uses language similar TO tina
of Judge Bronson. "Moreover, we ar
clearly of the opinion that the statut
which authorizes the governor TO ep
point some suitable person TO perforr
the DATES OF sheriff for the time being
when there ia no ioficer duly authorize
to perform the same 10 q valid law; not
w~ithBtandinR the constitution, Art. 10
SEQ. 4 provides that the sheriff shall b
chosen by electors. and fails to comic
the power of appointment on the go,
ernori in any case. It would be to
strict q construction of the constitntio
that in cases where 1t is silent the legil
lature has no power to provide againI
the entire suspension OF the functions
any public office, when the Office has b
come vacant, and there is no of1c,
authorized by lay to perform thes
functions. Such q obstruction would
3lintolerable; and We cannot believe thl
10 was contemplated by the conventiC
which formed or the people, who adop
ed the constitution" 6pragus ct OIL
Brown. 40 WIS. 612.
In Minnesota, Soc /. Art. IL Of the
eonBtitution declares that ~aprovisic
tshall be made by law for the election
such county or township officers 40 ms
be necessary" The courts say 'und'
a this section il is claimed that count
offices can he filed only by electior, ar