Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-13

been very rarely exerGiAel ~ tha
territorie und AZ.
sao. saa,s..assGs Der citizens to sop
nly snIss b6nfssions OF to relieye from
Some iuedvertance OF Territorial legisla-
ficn dnriag the recess OF the territorial
usse ntir. The legislative grant to the
terfltvlsAi legislature is equal to and 10
some respects greater than that allowed
to many OF the state Legislatures. II ex-
tends SO ell rightfni subjects OF legis-
lntion not inconsistent with the consti-
tuition and laws OF the United States,
subiect t o the very few limitations
enumerated In the grant; the grant OF
power TO the executive and Judicial de-
pastments is equally broad and compre-
hensive, 60 that in organ'z.c g the item
porary government" congress in
tended suoh government TO have snd ex-
ercise I'LL the attributes of sovereignty
Temporarily" subject only to such
supervision as the congress shall choose
from time 20 time to exercise
over It,, With this residum
Of power remaining in congress,
dormant except when expressly ex-
ercised, the government OF the territory
is sovereign in each department and its
organic law IL TO be construed as its con-
stitution, either in the light OF o grant
or q limitation OF power, perhaps ~ to
some portions is ia TO have the former,
and as to others IL Is to have the lsttof
construction. In Hornbuckls v Toombs
18 Wall 655. Judge Bradley in speaking
of territorial governments says:
Az . general thing, subject to the gem
eral theme of local government ohalked
ont by the organic act, and such special
provIslons ~ are contained therein, the
local legislature has been intrnsted with
the enactment OF the entire system OF
municipal law, subject also, however,
to the right of congress- to revise, alter,
and revoke at Its discretion. The
powers thus exercised by the territorial
legislature are nearly IS extensive as
those exercised by any state legislature"
And in Clinton Y Englebrecht, Chief
J1stice Waite upon the same subject
says: 'The theory upon which the
various governments for portions OF the
territory Of the United States have been
organized, hiss ever been that OF leaving
to the inhabitants all the powers OF self
governments consistent with The u
premacy and supervision of the national
authority and with certain fundamental
principles established by congress-"
10 Wall. AL. Onr district conrts have
in fact held the territorial governments
sovereign, and have denied to suitors the
right Ok action against the territory.
Judge shannon 30 held after IN elaborate
argument ct the bar in ths action OF
Harris Y Territory OF Dakots, IN
which the plaintiff brought suit for fees
as oodifier OF the laws, and 90 far 40
i am aware such has been the view
OF the courts generally. II the terrltor-
ial government ls 8 o far sovereign that
lite organic sct is subject TO the same
rules OF construction rs the constitutions
Of the stnte and the national govern.
Inents, let us proceed TO inquirs in the
light OF the construction gwen by the
courts OF the several states under consts.
tnfion8l powers similar to our own.
whether the power OF removal, claimed
by the executive, was a judicial or an
executive one, and / may premise by
saying that the powers and jurisdictions
OF the great departments OF the govern
mar. "a es.e. s.s.lss s.a l:ke .!:s :clcss
Of the rainbow so intesblend that the
sometimesenlmos INDISPENSABLE even by
the iudieial, eye. Cooley, Cons. Linn.
LOG. Fletcher ' Peck 6 or. 1856. Yet il
tho power be clearly judicial IL cannot
as already shown be conferred upon tho
executive, and any exercise OF such
power by him would be usurpation
and his action illegal and void. What
Then 10 Judicial power? II 10 said to be
nthe power to hear and determine,n but
this definition la to comprehensive; every
administrative and executive officer is
required to hear and determine many
facts upon which his action is based.
Ali the POLITICAL and executive depart
mentB OF the government are required to
pass upon controverted questions OF fact,
boards OF canvasEerH, boards OF equiiiza-
ton, boards o2county commissioners and
other administrative officers are contin-
ually passing upon questions OF tue
greatest moment TO the citizen, inyolv-
Ing the right OF oficc, the disbursement
OF the public revenues in the erection
OF bridgea and public buildings and the
opening OF highways, in. fixing the
values Of property and in lesying and
collecting Of taxes, often involving civil
rights and sometimes, where the admin
istration OF the government 10 concerned,
rights OF persons and property; and
while the dissemination OF such ques-
tionH involves judgment and discretion
and the examination OK difficult aud
c~ontroverted questions OF fact, and
while the diclsion OF such admin
istrative officer upon such hearings ia
fnal. yet his action 10 not iadioial. In
the case Of State Hswkins lately de-
termined in the supreme court OF Ohio
where the governor OF that state had re-
moved the police commissioners OF Gin
ninnatti, and il was urged that his action
was illegal and void npon the ground
that the power OF removal was judicial
and could not be conferred upon che
executive, that court In an able review
OF the American authorities upon this
question holding that the power OF re-
uaoval is executive and not Judicial says
The hrst claim Ia upon the assumed
ground thai the power conferred upor
the governor by the statute to remove
ms OF them for official misconduct il
Judicial is its nature, and, Though con.
rerred BY the act, . not be exercised
as the judicial power OF the state is, By
section |, art. 4, of the constitution, con-
ferrtd upon the courtE OF tho stata only
This 10 not 10 be regarded ga nm entirely
new question. Il has been much dis
Cussed by courts and writer's wishou
being able to formulate any general rul,
upon the subject. What Ia judicial o we
cannot be brought within ring fence o
q definition. L is. undoubtedly powe
to hear and determine; but this lie no
pecnliar ~ she judicial Office. Many o
the acts Of the administrative aud axe,
cutive officers, involve the exercise Of lii
same power. Boards for the eqnalza
ton OF taxes, OF pnblio works, q