Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-13
A JUDICIAL DECISION.
Chief Justice Tripp on the
Removal aud Appoint
ment OF Officers.
Opinion in the Dakota Insane Hos
pitaI Quo Warranto Action.

The following is the opinion OF
BARTLETT Tripp, judge of the second
judicial district court and chief Justice
of the supreme court of Dakota, over
ruiing demurrer in the quo warranto
action brought to oust board OF trustees
OF the Dakota insane hospital;
OPINION OF THE COURT.
Territory OF Dakota On the information
OF l.. b. French district attorney v,
Robert COX ct al. Bartlett Tripp, j.
Ihis Is an action in the nature of quo
warranto, brought on the information OF
the district attorney OF Yankton county,
to oust the defendants, Robert Cog /,
Miles I. Wooley, w. Y. Quigiey and
+. ID. Gale from the office OF trustees of
the insane asylum located at Yankton.
Dakota. asss3
The defendants answer separately and
the plaintiff demurs to answers of de-
PENDANTS COX and Wooley, which raises
the questions OF law presented to the
court for its determination. From the
complaint and from the answsrs OF the
defendants Coz and Wooley, which for
the purposes of this hearing sre admit.
ted to be true, it appears that b. 3.
Williams, VIM. M. Powers, Frank L..
VanTassei, Martin j. Lewis and Uhas
II. Brown, were during the last seg ion
oi the legislature OF Dakota appointed
trustees of said asylum by the governor:
that they were duly confirmed by the
council, and shat they duly qualified anu
entered upon the dIscharRe OF thsir
duties on or about March 25, 1887. That
subsequently and on or about Sept. 80,
1888, said Lswis and Brown resigned ,and
tho defendants Gale and Qaigley were
appointed by the governor to fill the
vacancies occaaioned by their resigna-
tien; that on or about the 30th, OF Sept.
1887, while on examination was pending
before the public examiner OF the district
comprising said asylum, the governor
Rnspended said Williams, Po .ers and
Van Tassel from further performance OF
their duties as trustee6, and that there
after on the second day of November,
1887, upon the conclusion OF such ex.
| animation he removed th m from Office
and appointed in the place OF SAID VIII.
linms and Powers, the defendants Cox
ard Woollsy.Tha dananrsats .n the
answers OF Cox and Woolley present sub.
atantially the same questions oi fact IN
each case and involve thesanae uessions
OF law for the determination OF the court.
The questions of Law raised by the
dennurrers may be divided into two
propositions: Is
/. That there was no power 10 the
governor TO remove the trustees Will
liame, Powers and Van passel.
2. That If he had no power TO remove
| them he had no power TO appoint che
defendants Cox and Woolley without the
advice and consent Of the con1oil. The
first proposition to- wit: That the govern.
or had no power to remove these
trustees, the plaintiff basis upon I wo
grounds. saj I.
/. That under our organic law the
power OF removal is judicial and not
| executive, and that the legislature could
not authorize the governor TO exereise
such power. o
2. That the legislature has not au-
thorizsd the exercise OF such power, and
taas Its acts do not admit of such con-
struotiop 81 5 sJ
will consider these propositions il
the order presented. though may bs
unable to follow counsel over the entire
field OF inquiry entered upon by them in
the learned discussion at the bar. Tht
subject OF constitutional law Ia fruitful
and tempting one when once enterec
upon in legal discussion or judicial in
lauiry. shall content myself, how.
ever, with stating results which deem
i pertinent to the discrimination of the
Iquestion before me, and which L thinI
ere arrived at by the decision of th.
highest courts OF our country.
Is then thespower of removal unae
our organic law judioini or executive
The school boy early learns that tb,
government of our country is diyidee
into three great departments--the exc
cutive, the Legislative and the iad;o:a al
and that each department is so7ereisl
/ and dtindependent of the other, but dur,
ing bis whole hfe, aided by the works o
the bust elementary writer's and th.
decisions OF the highest courts, he viii
be in frequent donbt as to which depart
ment some OF the more commonly exer
cIsed powers OF the government proper.
ly belong. And we are more in doub
from lack OF precedent in the past
Our country was in many respects ney
u creation. II is even more unlike the re
publics il is supposed to have initiated
thsn the monarchies IL is presumed t,
have opposed. Sc il will be found tha
while in theory our government in man,
OF its fundamental theories is exactly th
1opposite of the mother government, We
IL will be found upon comparison tina
notwithstanding the extreme republi
can views of the trainers OF the constisu
| tion, and the bitter enmity existing
against England and her pc ople. we hay
not only copied iuto onr uFispruienc
i the great body OF her common law bu
! we have sotramed our orfarir laws II
consonKiee with The uIwriItsL L eoAstitu
!, tion Of that government that We ar
obliged continually to be governed b
her political preoedents and her juiicie
decisions. 1t is true that we hay
/ denied the divine. right of kings and The
with as all ultimate sovereignty is in th
people; yet when that sovereignt,
whether derived from the people or til
kIsg, in the foundation OF governmen
a Estate or nation becomes lodged in ,th
1 executive, legislative or judicial depart
ment, its exercise ia the same in eithe
:. case, except 30 for az by grants OF,
limitations of our written consultation
Z We have taken from one and added 1
: the other Of sovereign power. In Emf
: land We have Witnessed the entire exc
!, cutive and legislative exchange Q
{ sovereign power and transition fror
: absolute monarchy when the bold baron
q OF Englsnd wrested from King john th
-timmortal rnaeia charter to ths omnipo
p ttent pariiament under Charles the first
q when the Legislative over rode an
81 absorbed all the Judicial and the execu
!. tive powers and broke down the barrie,
which had guarded the royal pretoga
e. n. rat 10y