New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1888-01-18
iDGE Trips DICIUM
fuli Abstracts of the Decision in the Case of
the Yankton Insane Asylum
Trustees.
Long Argument Sustaining the Right of the
Governor to Remove the
Officials.

JIG OH DOdEu anu continues the new board
In Office. The case will hardly be appealed.
The court says:
Ihe question of law raised bv the de-
murrers may be divided into two PROPOSE
tionS.
tIrst-Ihat there was no power in the
governor to remove the trustees. Williams.
Powers and Van Tassel
Second-That if he had the power to re-
move tnem ne had no power to appoint the
defendant Cox and Wolley without the ad-
vice and consent of the council
Iha first proposition the plaintiff bases
upon two grounds
FlrSt-That under our organic law the
power OF removal is judicial and not ex-
ecutIve, and that the legislature could not
authorize the governor to exercise such
power.
Second-That the legislature has not
authorized the exercise of sucn power and
that | S acts do not admit OF such con-
struction.
The question then is, is the power of re-
moVal under our organic law judicial or eX-
ecublYe? lii the creaCion7of our government
we have sought to distribute the SOVEREIGN
power to take from the legislative depart
ment those duties which in their character
are essentially judicial or executive and to
give to each of them sovereign power serar-
ate and independent of each other, so that
each may be check, but without power to
encrOach upon The other. The theory is
often difficult Neither congress nor the
Legislature OF state can take from or confer
upon either department any power OF func-
lions not belonging to such department ex-
eepG 50 Tar as IL may be permitted so to do
by the terms OF the constitution itself.
Hence, when JAe legislature has undertaken
to confer upon the judiciary duties OF po-
lltlcal or administrative character, such
acts have been declared unconstitutional
ana Vold Inc 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 legislative
grant to the territorial legislature is equal
to and in some respects greater than that
allowed to any OF the state legislatures. It
extends to all rlghlful subjects Of Legislation
not inconsistent with the constitution and
laws OF the United States. subject to very
few limitations, so that in organization of
territorial government
CONGRESS INTENDED
such government to have and exercise all
the attributes OF sovereignty temporarily
subj ct only TO such supervision as congress
shan choose from time to time to exercise
over IL. with this residuum OF power remain
ing in congress dominant except when eX-
press.v exercised. The government of the
territory is sovereign in each department.
and Fs organic law Is to be construed as it's
constitution, either in the light of grant or
a limitation of power Perhaps as to some
portions it is to have the former
and IS to others it is to have
the la1Uer construction. 1t may be safe
CONGO led that power to hear and determine
rights of property and of person between
private parties is judicial, and can only be
conferred by the courts The incumbent of
an office has not, under our system OF gov
eminent, any property in it His right to
exercise 1T is not based upon auy contract OF
grant 1t IS conferred on him as q public
trusG to be exercised for the benefit Of the
pubic. Such action by administrative or
executive officers is not judicial in the sense
that 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 it's
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 accepCation OF the word can be
exercised by the courts. 1t 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 or the property of
the citizen. All other rights while they may
be i'll y sense judicial, are not so far within
the jurisdiction of the courts that their ex-
ercIse by another department. would be void
judged by this test is not judicial power; the
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 it
only by
DUE PROCESS OF LAW,
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 examination nee
essary to determine such forfeiture is such
as will establish the fact not to the satisfac-
ton or for the benefit of the Incumbent, but
to the satisfaction of the executive depart
menL which is charged with the execution
of the laws, and Cnat hence The removal NAV
be summary or upon such investigation as
may be prescribed by 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 if 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
terms OF the constitution may require Our
organic law is silent upon this subject; and
it follows that it power of removal in this
case is given to the governor with no notice
or hearing provided, he would DE at liberty
to remove summarily 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 1897 chapter l24, re-
lating 90 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 sAnd the
governo Tor 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 exicency may demand" What nower
is he permitted to exercise by these words?
It is evidently intended to confer upon the
executive discretion. 1t expressly says SO,
and he discretion is unlimited by the words
which follow; but he is at his disc1 elton to
take such action as the exigency demands
Heis made sole judge Of the exigency and
what action he will take. What power was
intended by these words to allow the execu-