St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-01-14
THE ASYLUM CASE.
An Abstract Of Judge Trips Decision
in the Yankton Halter.
GOV. CHURCH WAS RIGHT.
The Demurrer Is 0verruled on Both
the Questions of Law Submitted
by the Trustees.
Special to the Globe.

Special to the Globe.
YANKToN, OAK. Jan. 13.-Judge
Trips decision in the asylum quo war
ranto case contains more than 10000
words. A synopsis is herewith pre-
Sented. The questions of law raised
may be divided into two propositions:
First-There was no power i'm the
governor to remove the trustees.
SecOnd-That if he had power to re-
move them he had no power to appoint
the defendants to fill the vacancies.
The court here reviews the case at
length. and cites numerous authorities,
concluding his opinion in the following
language: Plaintiff contends that the
organic act has pointed the way in
which appointments are to be made
and what vacancies can be filled by the
governor alone, and it having stated
the manner OF appointment and emu
merated the cases III which the COVER
nor can fill vacancies, such statements
and enumeratlOnS are exclusive and the
This is a general proposition true of all
constitutional legislation, that when the
constitution has spoken such utteranceS
are exclusive and that upon a given
subject matter the expression of one
thing is exclusive of all others,
and this rule has been adhered to very
vigorously by our own supreme court.
Sections 1857 and 1855, United States
statutes, are relied upon by plaintiff.
Under section 1858 congress has given
to the governor the right to fill vacan-
eies in two cases only, by death or res
ignatiOn. Plaintiff contends that these
two sections are grants of power to the
governor to appoint, and that the only
IN 10
pointmentS was given him by these sec
lions. If the premises of the plaintiff
are correct, that these sections are to he
construed as
GRANTS OF POWER,
and that they contain all the power OF
appointment that the executive of this
territory has OF can exercise. The re-
suit cOntended for would seem to fol-
low, but under the view l have taken,
| the powers of appointment and removal
are executive powers conferred upon
the governor by the organic act, which
tive control as to the time and
manner of exercising. How far the
legislature may go in controlling
the action of the executive is by no
| means clear. The omnipotence of our
| legislative bodies so often asserts itself
that courts hesitate often in drawing
the boundary line of their power. That
| this is rightfui subject of legislation
| is conceded. Section 1857, contained in
| the organic act, must be construed as
| limitation upon the legislative
power and upon the executive
power contained in section 1S41, and
not as a grant of power, and should
| therefore receive strict rather than a
liberal construction. Is it to be presumed
| that congress intended by giving the
executive power to appoint by and with
| advice and consent of the council to pro-
hibit the legislature from providing for
vacancies occurring otter the session of
the council had ended? Does it not APP
| ply to appointments for the full term,
and would legislative enactment pro-
| Viding for such vacancy be inconsistent
with it? Our legislature as early
as 1877 gave the governor the power of
filling vacancies, and such statutes will
be found in every territory. The length
| of time it has renamed upon our stat
| ute books gives it an implied sanction
of congress. The legislation of the ter
| ritory in providing for filling vacancies
! is not legislating in conflict with sec
| ton 1857. am of the opinion that the
demurrer should be overruled and it is
ordered accordingly.