Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-13


power BY stes organic act, like the. col.
Of the Htatae and OF thu nation
is vested IN the courts; . prohibition
upon ito exercise by the executive or
Legislative department, but the judicial
power thereto conferred upon and limit
ed TO the courts, is that judicial power
which ii the legal acceptstiop OF the
words can be exercised only by the
courts. 1t ia the power which is confin-
ed to the courts by the words Of limita-
ton In the constitution iteelf, Shat no
p rsen shall be deprived of
life, liberty, or property, without
due process of law" Art. b
Amend, to the Cons. In other
words Che courts have exclusive
power to hear aud determine those mat
terra which affect the life or liberty or
the property OF the cisezsn;
all other rights. while they be
In o sense judicial, are not SO tar with.
IN the jurisdiction OF the courts that
their exercise by another department
would be void. Is the right IN contro-
versy OF that character? Does it affect
the life. the liberty or the property OF
the citizen? Judged by this test, II is
not q judicial power. 1t is q power often
conferred upon the courts and Its exer-
else is highly judicial In its character;
1t often involves close and contested
questions OF fact, end nice and delicate
discrimination in tho application OF Law,
but il is the subject matter and not the
procedure that determines Jurisdiction.
/ have examined the cases with much
care which have been collated and
presented to me with commendable zeal
and industry, and an examination OF the
cases here cited, without an attempt at
review, dincloses two distinct lines of
authority, holding opposite and con-
radictory views upon this question We
are discussing; though many OF the cases
may be distinguished as being based
upon the peculiar phraseology OF the
provisions OF the constitution construed.
Tho authorities holding that removal
from office is q judicial power and oan
be exercised only by the courts. are
based upon the theory that an office is
in the nature ofa property right, and
that the citizen can be deprived Of it
only by''due process of law" while the
other line OF decisions holds that under
our form Of government, there is no
property 10 an office, that Offices end
officers are for the benefit of the peo-
pile, and no for the benefit OF the officer,
and that whenever the officer
fails to preform the duties of the
office, the Office becomes forfeited, and
that tho only obiSct OF the examination
necessary TO determine such forfeiture
III such as will establish the fact not TO
tho satisfaction OF or for the benefit OF,
the incumbent, but TO the satisfaction Of
the executive department. which ie
charged with the execution of the laws,
and that hence the removal may be
summary, or upon such investigation as
may be prescribed by the legislative de-
partment. The principal cases which
hold the view that removal from office
10 q judiOial and not an executive
power, are;
Dullam y. Wilson, 5s Mich. 800; Bow.
man Y. Sitter. 20 Penn. st. %; Page v.
Hardin. 9 b. Mon, e72, and State v.
Pritchard, IS M Il. 101,
While among those maintaining the
contrary doctrine may be cited:
People '. Whitlook, o. N. Y. 1911;
Der 254; State Y. Doherty, 13 Am. Rep.
Q, X. Il Rep. $50; Donahae v. OoEnty OF
u III W. NJ IL II &. 81 = u ".
q. Rem. (Ohiol 32S: Honaemnn v. Dom
monwsAith. 100 Pa: st, 300: STATE y.
lOieson is N. u. Ran. fNeh.l 45. south
Y. CONFERENCE.-The. 4 81, " Rep' &
Smith V. Brown, 50 Cal. 672; People v.
Hin. 4 Cal. 81: Attorney General v
Brown, Wis. 6l8: State '. McGarry. al
Wis. 496: State =. Prince. as Wis. s6I0;
Uarland v. Board OF County
Commissioners, 6 Pac. Rep:
Taft =. Adams:3 Gray 1876: Ex parte
Wiley. 81 Ala. 226; Keenan, v. Perry, a
Tex, 253: State Y. Frazier As Ga. 1877:
Dusan y. Dist. OF. Lake Co. (Ool.9 2i
Am. Law Reg. 528; Patton '. YouRhsn,
80 Ark. 2Il.
The court in State v. Hawkins supra
reviewing the decisiors which hold thai
the power to remove officers is judicial
says they shave as O rule, proceeded upor
the ground chat an incumbent has prog.
erty in his Office. and that ha cannot be
deprived OF his RIGHT without the iadr-
mont OF a court, This view Hnds sappor,