Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-16

Ihe tess 10 IN thls case as in ell others, Is
the legislation inconsistent with the
congressional enactment, If it is not 1t ia
valid; il it is il is invalid. Giving to
section 1857 the construction that 1t Was
intended to apply toappointments made
for the full term durlng the session OF
the Legislature, and not to vacancies oc-
curing during the recess, the legislation
of tUet territory supplements ii, and hup
plies an omission tnAt might otherwise
cause great Inconvenience aud Iriusy.
But IL 10 urged that sec. 1858 has emu
marhted the cases in which The vacancies
Can be filed and 1t must be conclusive.
The same arguments apply to this GEO.
ton as we have already applied to 1857,
baG NJ Is further to be noted In rafeIeuce
to tots secIIon, that it was Rot enacted
until 1872, more han ten years after our
sovereign existence bad begun. 1t was
enacted by congress by virtne of its re-
served power tie legislate direct for the
territories, Nat. bank v Yenkton 10l o..
>. 455 1t contsins no express repeal of
existing enactmeuts, and cannot be IN
strued as repeating existing laws, or as
prohibiting further legislation except aB
they may be in co, fict Herewith. This
enactment has a history. In 1872 the su-
preme court of Montana held-(Ter. v
Potts, l Mon. 252,) that, under the or
ganic act and her statute as it then ex.
listed, which provided in express terms
for filling vacancies by the governor
with the advice aud consent OF the coun.
Oil, the governor alone could not fill
vacancies, and Q death of one of the
territorial officers having occurred dnrinp
q recess of the council, the delegate from
Montana got this act through congress,
general in its character as snch acts
usually are, for the special benefit of
Montana. The act was in aid and not
in restraint OF legislation; that congress
had power to pass the act is not denied;
that it was intended TO limit Legislation
in the sense, that no other legis-
latioa could be had by the terri
torial legislature upon the sub
lect OF vacancies, IL denied.
The section must be construed as a
limitation only upon the general power
OF the legislature II that it takes away
from the legislature the power to fill
vacancies in the two cases mentioned in
any other way than by appointments OF
the governor. Congress by its enact
ment in this as in other cases has given
in the organic acts all the sovereign
power necessary to make Independent
governments. These acts OF creation or
organic laws are constitutions that give
all the powers that congress has to give
them, and subsequent acts are not as .
rule grants OF power but legislation to
correct legislation of the territory or to
supply some omission OF territorial leg
islation, and in that light such congress
sional acts may be supplemented and
filed ont like existing acts of the legis.
iature itself, subject only to the restric.
ton that no part of the congressional
enactment cen be changed or impaired
and the supplement or amendment must
not be inconsistent Herewith. Guided
by this rule the Legislative enactment
for filling vacancies 10 supplementary OF
section 1868 and is not inconsistent with
It, it simply adds other cases OF. vacancy
to those of 1858 which may be filled by
the governor. 1 am aware Of q different
view taken by the oours OF New Mexico
in Ter. Y Stokes g. Mullen, where two
persons, both claimed to be attorney
general. and insisted upon representing
the people. The authorities do not sp-
pear to have been reviewed or examined
with much care and the decision seems
to have been received with so little favor
st home, and was regarded as of such
doubtful authority that the governor
several years thereafter during
the recess of the council,
removed the attorney general and
and appointed another In his place and
the supreme court declining to pass upon
the legality of the appointment because
q proper case was not before them-takes
occasion to say Of that case ''that de.
cision stands as the declared Law, and
We are bound to respect it until over.
ruled or modified in regular proceed
ing )" language generally used by courts
to intimate q doubt Of the correctneRs 81
the ruling, and an iDtimatien that the
court would at least be willing to review
it's former decision. In re attorney gen
eral, s Pac. Rep. 249 and later the sams
judges ia Territory ' Ashenfelter, IL
Pac. Rep. S79-895 refer to this statut.
allowing the governor to appoint and
fill vacancies during the recess OF the
council, for other causes than death OF
resignation, and consider it as III full
force, giving it construction as applied
to the case under consideration. / dc
not care to discuss the peculiar compli
cations that existed in that territory
and which may to some extent have In
huenced the decisions of her courts. I
is sufficient to say that l prefer to adopI
the rule announced by the learned
courts of New York, Wisconsin ani
Minnesota as more in accordance witt
congressional Incense end the exingen-
cies OF territorial legislation. This sam
question has recently come up before
the supreme court of Utah, and the
court there arrived at the conclusion
exactly opposite to that arrived at by
the New Mexico court. The governor
appointed ar auditor during the recesI
of the council, in place of such Office
claimed to have been elected by tn
people and the case Was presented b,
the ablest attorneys at the bar, and tn
court upon the question as to the gov
errors right to appoint without the sd
vice and consent of the council. in case
other than death and resignation says
There being a vacancy in the Office
think there can be no doubt but that th
by appointment. It is provided by SCI
8, act Of 1852 that, vacancies may b
filled by executive appointment in th
foregoing OF any Office when tn
mode of supplying vacancies
not prescribed by law. Nothing can b
palmer than the foregoing, and the ac
of the governor in making the appoint
, ment wGa clearly within his power, an
: strictly within his duties. II he ha
! omitted to make the appointment h
would have failed to have done his dut,
= he simply did that which the law RI
. qnired him to do" People ' Clayt tor
. II Pao. Rep. 211.