Reporter and farmer. [volume] (Webster, Day County, Dakota [S.D.]) 188?-1946, 1888-01-26
JUDGE rKlPPs DICTUM
full Abstracts Of the Decision In eae oass u
The Yankton Insane Asylum
trustees
A Long Argument Sustaining the Rign. Oh the
Governor to Remove the
officials

/ ~snstains the act of the governor IN renhosAns
the old board snd continues the new ooala
in ofhce. The case will hardly be appeaieo
The court says:
The question Of law raised by tne as-
nurrers may be divided into Two propost
lions. a, tba
FIrst-That there was no power IN tne
governor to remove the trustees, Williams,
Powers and Van Tassel
S~econd-That IL he had the powel - az, ~
defendant Cox and Woiley without tne "o
vice and consent of the council -
TIE first proposition the piaintin bases
upon two grounds: - .ha
First-That under our organic law tne
mower of remoyal Is judicial and not ex-
~ecutive, and that the legislature couia noe
authorize the governor to exercise sueh
power. 10,
authorized the exercise OF sucn power anu
that its acts do not admit OF such con-
Tn question then is, is the power Of re-
moyal under our organic law judicial or ex.
ecutiye: In the creation OF our governments
we have sought to distribute the sovereign
mower TO take from the legislative depart
meut those duties which in their character
are essentially judicial or executive, ana 10
give to each of them sovereign power separ-
ate ana independent OF each otner, SO lnae
each NAV be a clleck, but without power 10
encroach upon the other. The theory Is
simple. The application OF the theory Is
often difficult Neither congress nor the
legislature of a state can take from or confer
upou either department any power OF rune
lions not belonging to such department ex-
cept so far as it may be permitted so 10 40
by the terms of the constitution itself.
Hence, when the legislature has undertaken
TO confer upon the judiciary duties OF u po-
lltical or administrative character, such
acts have been declared unconstitutional
and void. The national government has
sovereign power over all The terr1tories Inc
organic acts OF the territories, from the
earliest history Of the country. have been OF
the same general character. The legislative
grant to the territorial legislature is equal
to aud in some respects greater than that
allowed to any of the state legislatures IL
extends to all rightful subjects or legislation
not inconsistent with the constitution ana
laws OF the United States, subject TO very
few limitations, SO that in organization OF q
territorial government
CONGRESS INTENDED
such government to have and exercise ALI
subject ouly to such supervision as congress
shall choose from time to time to exercise
over 1t, with this residuum OF power remain
| ing in congress dominant except when ex-
pressly exercised. The government of the
territory is sovereign in each department..
and its organic law Is TO be construed as its
constitution, either in the light of a grant or
| a Limitation of power. Perhaps as TO some
portions it is to have the former
and as to others it is to have
the latter constr uction. II may be safe
| conceded that power to hear ana determine
| rights of property and of person between
private parties Is judicial, and can only be
conferred by the courts The incumbent or
an Office has not, under our system OF gov
eminent, any property in It His right TO
exercise it is not based upon rny contract OF
grant 1t ia conferred on him rs q public
trust. to be exercised for the benefit of the
public. Such action by administrative or
executive officers Is not judicial in the sense
that il belongs exclusively 10 the courts
Ali judicial power by the organic act, lii
the constitutions of the states and nation, is
vested in the courts, a prohibition upon its
exercise by the Executive or legislative de-
parGment; but the judicial power therein
conferred upon and limited to the
courts is that judicial power which
in the legal acceptation of the word can be
exercised by the courts IL is the power
which is confined to the courts by words of
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 effect life or liberty OF 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 a controversy OF that character
I luQEtu DF Juib Jctt II uOb a luutCiti pOWEE Ilt
authorities holding that removal from office
is a 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 ie
- DUE PROCESS or ntw,-
while the other line of decisions. hold that
under our form of government there is no
property in an office; that Office and Of
ficer are for the benefit of the people and not
for the benefit of the officer. and that when
ever the officer fails to perform the duties of
the office the Office becomes forfeited. and
that the only object of the examin alton nee
essary to determine such forfeiture is sucn
as will establish the fact not to the saLisfac-
ton or for the beneit of the incumbent, but
to the satisfaction of the executive depart
menL which is charged with the execution
of the laws, and that hence the removal may
be summary or Upon such investigation as
may be prescribed py the legislative
department. Without stopping TO notice
further the learned arguments and
reasoning of the courts, am
content TO say that in my judgment those
decisions which hold the power of removal
TO be executive in its nature are more in
harmony with our age and our form OF gov
eminent, and il the officer may be removed
by the executive he may be removed either
with or without notice and hearing. as the
legislature has chosen to provide or as the
ternls of the constitution may require. Our
organic law Is silent Upon this subject; and
ii follows that IL power of removal In this
case is given to the governor with no notice
or hearing provided, he would be at liberty
to remove summary upon the occurrence of
such an event as may be prescribed by
statute. Secondly, it is further urged
by the plaintiff that the act under
which the executive claimed to remove
these trustees does not confer such AUTHORITY
in terms nor by fair implication. The act is
found IN the Laws OF 1887, chapter l24. re-
lating to public examiners The portion of
the act relied upon by the executive as pro-
viding for removal Is at the close of section
4, and is contained in the words ANT the
governor may cause the results of such ex-
animation TO be published, or at his discre-
ton take such action
FOR THE PUBLIC SECURITY
as the exigency may demand" What mower
is he permitted to exercise by these words?
1t is evidently intended to confer upon the
executive discretion. 1t expressly says so,
and the discretion is unlimited by the words
which follow; but he ia at his discretion to
tax such action as the exigency demands
be is made sole judge Of the exigency and
what action he will take. What power was
intended by these words to allow the execu-
tive to exercise2 There must be a limit
somewhere. 1t could not have been intended
TO anthoiize him to tine or imprison the
recreant officers. Such attempted exer-
else OF judicial power would not only be a
violation of fundamental law, but would
shock the layman's view of justice and
right 1t was evidently the intention Of the
legislature to authorize the governor to exer-
else all such power as It was competent for
him to exercise under any Legislation which
1t had power to enact IL It did not author
ize him to exercise the powers of
removal it conferred upon him no power.
for there is no other executive
or administrative power iu could authorize
him to exercise. That the words could nave
no other meaning than removal. we have al
ready seen Did the legislature intend to
give those words such meaningg Bat a bet
ter and stronger evidence of the intention
of the legislature exists in the amendment
OF this act itself, and other concurrent acts
OF the same session. Two days after the
passage of this examiners act the Legislature
passed al amendatory act giving the
governor absolute power of removal
OF the examiners themselves when
ever they failed to faithfully
discharge the duties of their Office, and on
examination of legislation of that entire SEES
sion reveals the fact that every office created
by it to be filed by the appointment of tho
good provided also for the removal there
from by the governor. 1t is provided in the
school law that he may remove the superin-
tendent and both assistants; he NAV remove
the commissioner OF immigration; he may
remove the veterinary surgeon; no may re-
move all the military officers.
After a careful review of the law to sus-
tain the decision, the court oyerruled the
demurrer and decided that the governor was
right in his removal of the old board men,
bers and appointments to hl the vacancies
WHEAT OR CORN.
Discussion of the Question of which Gro
Is the Most Proftabie-southcrn Dakota
HrRoS, Special, Jan. 6.-There is a great
a. -