The Bottineau pioneer. (Bottineau, N.D.) 1885-1895, 1888-01-19

encrOaCh upon the other. The theory is
The application of the theory ts
often difficult Neither congress nor the
Legislature of d state can take from or confer
upon either department. any power Of func-
lions not. belonging to such department. ex-
cept SO far as 1t may be permitted 30 to dc
by the terms OF the constitution itself.
Hence, when the legislature has undertaken
to confer upon the judiciary duties OF u po-
litical or administrative character, such
have been declared unconstitutional
and void. The national government has
sovereign power over all the Territories The
organic acts of the territories, from. the
earliest history Of the country. have been Of
the same general character. The legislatiye
grant to the territorial legislature isequal
to and in some respects greater than that
to any of the state legislatures Ir
extends to all rightful subjects Of legislation
not in consistent with the consultation and
laws OF the United States, subjsctFto very
territorial government "a r ss%
CONGRESS
such government to have and exercise all
the attributes of sovereignty temporarily.
subject only to such supervision as congress
shall choose from time to time to exercise
over it, with this residnum Of power remain
ing In congress dominant except when ex-
pressly exercised. The government Of the
territory is sovereign in each department.,
and it's organic law is to be construed as it's
constitution, either In the light of q grantor
portions it IS to have the former.
and as to others it ~ is to have
the latter CONSTR uction. It may be safe
conceded that power to hear and determine
rights of property and of person between
conferred by the courts The incumbent of
an Office has not, under our system of gov
eminent, any properly in 1t His right to
exercise it is not based upon envy contract or
grant 1t IS conferred on, him as o public
trust, to be exercised for the benefit Of the
public. such action by administrative or
executive officers is not judicial in the sense
chat it belongs exclusively TO the courts
All judicial power by the organic act, like
the constitutions OF the states and nation, is
vested in the courts, a prohibition upon its
exercise by the executive or legislative de-
,partment; but the judicial power therein
conferred upon md limited to the
courts is that judicial power which
in the legal acceptation Of the word can be
exercised by the courts. It Is the power
whichiis confined to the courts by words vof
limitation in, the constitution itself. that no
person shall be deprived Of life. liberty or
property, without due process Of law. In
other words, the courts have exclusive
power to hear and determine those matters
which effecG life or liberty or the property of
the citizen. All other rights, while they may
be in a sense judicial, are not SO far within
the Jurisdiction Of the courts that their ex-
ercise by another department. would be void.
The right in q contl oversy Of that character
judged by this test is not q judicial power; the
authorities holding that removal from Office
is q judicial power and can be exercised only
by the courts, are based on the theory that
an Office is In. the nature Of a.property right
and that the citizen can be deprived Of 1t
only BY
S& DUE PROCESS OF LAW,
while the other line Of decisions hold that
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