Wessington Springs herald. (Wessington Springs, Aurora County, Dakota [S.D.]) 1883-1891, 1888-02-03
DAKo1A'S INSANE ASYLUM.
Judge Trips Decision Bearing
Upon the Law in the Yank.
ton Trustee Case.
In Removing the Old Board and Appoint
ing the New One. Gov. Church
is Sustained.
Especial Correspondence, Yankton, D. IT.


this decision the court holds:
The questions of law raised by the demurrer
nlnv be divided into two proposition:
/. That ere was no power IN the soSerno,, W, ~
remove tho trustees, Williams Powers and Van
Tassel.
3. THAT If he hnd power to remove them. he had
no over to appoint the defendants, Cox ana
Woolley, without the advice and consent OF INC
council. ,.,o,
had no mower to remove these trustees, the PLAIN
tiff based upon two grounds:
l. That under our organic law the power OF re-
noynl ia judicial and not executive, ind that tho
legislature could not authorize the governor to
exercise such power.
2. That the legislature has not authorized the
exercise of such power, and that its acts do not
admit of such construction
The question then is, ia the power OF removal
under our organic law judicial or executive? ~
the creation of our government we have sought
to distribute the sovereign power, t. take IRON
the legisla. i've department those duties when
in their character are essentially Judicial or eH-
ecutive, and to give to each OF them sovereign
power separate and independents each other,
so that each may be q check, but without power
to encroach upon the Other me theory MS Is si
ficult. Neither congress- legislature OF state
can take from or confer upon either department;
any power of functions not b longing to such
department., except SO tyr as it may b, permitt ID
SO to do by the terms o the constitution itself.
Hence when the legislature has undertaken
political or administrative character
such acts have been declared I'M
constitutional and void. The national gov
eminent has sovereign power over all tho
territories. The organic scts of the sew
eral territories, from the earliest history
OF the country, have been of the same general
char cter. The legislative grant to the err'or-
ial legislature is equal to, and i'll some respects
greater, than TINT allowed to any state Ieslsla-
lures. 1t extends to all rightful subjects of leg
isation, not inconsistent with the constitution
and laws o tie United States subject to very
few limitations, SO that in organizing q territor-
ial government ngress intended such govern
ment to have and exercise All the attributes OF
sovereignty, temporarily, subject My to such
supervision MS congress shall CHI ose from time
to time to exercise over it. With this reslduuln
of power remaining in congress, dormant except
when expressly exercised, the government of
the territ Try is sovereign i'll each department,
and it's organic law is to be construed MS its con-
stitution either in the light OF q grant or linn
itntion of power Perhaps rs to some portions
it is to have the former nrd us to the other it
is to have the latter construction. 1t may be
safely conceded that the power to hear and
determine the rights of property and OF person,
between private parties. is judicial, nnd
can only be conferred by the court The
incumbent of IN office has not, under our sys-
right to exercise it is not based upon any con
tract or grant. 1t is conferred on him MS pub
lie trust, to be exercised for the benefit OF the
public. Such action by ndministratlS' or eX-
ecutive officers is not judicial in the sense that
it belongs exclusively to tho courts. All judi
cial power by the organic acts like the constl-
courts, n prohibition upon its exercise by the
executive legislative department, but the
judicial power therein conferred upon ana nm
tied to the courts is that judicial power which,
in the legal acceptation OF the words, Gun be
exercised by the courts. 1t is the power which
is confined to the courts by the words OF lin
son shall be deprived of life. liberty. or prop
erty without the due process OF law" In
other words, the courts have exclusive power
to hear md determine those matters which
affect liberty the
erty Of the citizen All other rights,
while they may be in nse judicial; are are
courts that their exercise by another de-
parment would be void. Is the right in contro-
versy of that character? Judged by this test 1t IS
removal from office is judicial power and can be
exercised only by the courts based upon the
theory that office is in the nature OF property
right, and that the citizens cNn be deprived OF II
only by due process of law, while the o5her line
OF decisions holds that under our form OF govern
ment there is property in an Office; that ollces
and officers for the benefit of the people, ana
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; ana tnit Tue
only object of the examination necessary 10 deter
mine such forfeiture is such us will estublsh the
fact not to the satisfaction of or for the benefit OF
the incumbent, but to the satisfaction OF the eX-
ecutive department, which is charged with the
execution Of the law, and that hence the removal
may be summary upon such investigation ne
may be prescribed by the legislative department.
gulnet.ts and reasoning Of the courts, aln con
tent to say that in my Judgment those, decisions
which hold the power OF removal to be eNecu-
tive i'll its nature more in harmony with oul
age and our form of government, and if the
officer may be elnoved by the executive he
may be removed either with or without
cho en- to provide the terms Of the consti.
tuition may require. Oar organic law is silent
upon this subject, and it follows thai if power OF
removal in this case is ii ven to the governor
~ would
ut liberty to relnovo su1llnarlly-, upon the
occurrence Of CHI event Us may be pre-.
scribsd b. statute.
9. 1t is further urged by the plaintiff thutth
act under which the executive claimed To re.
move thi sc trustees does not confer sue.
authority i'll terms by fair i'm LEGATION.
The nct found in the lnws of 1887 chapter 12A,
relating to public examiners. lac portion OF
the act relied upon by the executive us pro-
V1dlnG for removals rs ut the close of sec
ton and is continued i'll tho words:
And the governor mny cnuse the re.
sulss OF such examination to be pub
lished or ut his discretion take such uc-
ton for the puo.ie security as the exisency
may demand" What power is he permitted
to exercise by these words? 1t is evidently in
tended to confer upon the executive discre
ton. 1t expressly says SO, and the discre-
ton is unlimited by the words which follow,
but he is at his discl elton to take action
us the eSigency demands. He is made sole
Judge OF the cNigency and what action he VII
take What powers were intended by these
words to allow tho executive to exercise?
There must be limit somewhere. 1t could
not have been intended to authorize him to fine
or lmprison these rccusnnt officers.
such attempted exercise of individual power
would not only be u violation OF fundamental
law, but would hook the layman's view OF
justice and right. 1t evidently the :
tentlon of the legislature to authorize the
governor gov to exercise all such power as it
ander any legislation which it had power to
enact. If it did not authorize him to exercise the
power of removal it conferred upon him no power
tIl01-C ,3,,,i,