The pioneer express. [volume] (Pembina, Dakota [N.D.]) 1883-1928, 1888-03-02

writ Of habeas corpus, alleging his ilnprtson-
mcnt to te illegal upon the grounds, first,
that said act Of the Legislative assembly
Is unconstitutional und void; second, that
said nci was never enacted BY
the legislative assembly of the territory un-
der the first head. 1t is sufficient now to
say that the organic act of the territory is
30 tnr constitution in character, and the
temporary governments thereby created is
so far sovereign that 1t has the power
to enact any and all laws in the
nature Of police regulations not in conflict
with tho statutes and constitution of the
United States; that the power of legislation
winch extends to MI rightful subjects of
prohibition of the sale of Intoxicating liquors
lsa r:ghtfal subject Of LEGISLATION and is
included within the general grant Of legisla-
tive power granted the territories; that
ponce regulations are necessarily local
In their character and could not
outlying territory; that ft intended to and
must necessarily have placed somewhere
outside Of congress, but subject to its ulti-
mate control, the power of regulating the
affairs OF municipal concerns in II manner
and by means adap,cd to aud IN conson-
Of the different localities and people to be
Affected thereby. This law is not open to
tbe ObjectsOns tnat ilnpaira the right OF pri-
vote property farther than all prohibition
laws may be open 10 n similar objection. sit
rests upon the fundamental principle that
every one shall 20 use his own as not to
wrong and iniure another" (Muglcr vs State
Ssup rep 3OO) We have only to inquire US
10 tho legality and not the expediency of
leglslaiivc enactments, and that the laws
regulating or prohibiting the sa'e of intoxi-
eating liquors are within the class OF right
full subjects of legislation is now too firmly
estnb lisiicd by uniformity OF action
both by the legislature and the courts to be
now denied by this tribunal. Nor IL it, as
sugsertru, in cOntravertiOn of the revenue
law which grant licenses TO sell Intoxicating
liquors: They were never presumed to grant
authority to do the Hc-s licensed. but con
template
A RAISING OF REVENUE
merely through the lneans employed for it's
collection. 1t is not n delegation of iegisla-
tive power. nor is the law within the rrohi-
bition OF congress upon spccia! legislation.
Under our theory Of government the mnnici-
pality always had the mower of local gov
ernMeni. General legislation is often
unsuised to the requirements of
a large and sl'arscly settled country. and
when such Legislation is purely police i'll
character, it is not in violation of congress
sional legislation, but is general in character
though local in execution. Nor is the claim
open to the last and final objection that
it was not enacted i'll conformity with the
organic act and laws of the
Ouilcu OEatcH IL Is LluC tUaG luc tufnniS
are silent ms to some steps which it is urged
the court must say were necessary to it's en-
actment by the joint action of the two houses
OF the Legislative assembly. The court does
not necessarily take judicial knowledge of
the rules of the Legislative assembly 70 far
as to determine that the act could
not have been passed in accordance there
with. contrary t0tlle certiticatts Of the offi-
Gers vi those bodies. The journals are merely
silent; they do not contradict the authentic
itv OF the acts given thereto hy the sigma
tnrc OF the president Of the council. the
speaker OF the house and the executive
himself: Ii this court can examine
the Journal OF the legislative u.s.
semb'y i'll any case to determine whether un
act was actually passed. it is sufficient for
this case to say ii will not declare the law
Invalid by reason OF the failure of the
III absence Of any Affirmative
record that it did not secure the
concurrence of both houses; we cannot say
that the certificates of the sworn officers Of
the Two departments OF the government do
not upon their f;u:e lmpart verify. The de-
fendant must be remnnded to the custody of
the officer until discharged by due course Of
law.
ONE JUDGE DIsSESTS.
All the judges concur except Judge
Thomas who dissents un the ground that
the law is in conflict with the organic uct of
tho territory, which forbi'ts the legislature
tro'" t'"s-ing any act iml,airing the rights of
private lrvpefly
In the case OF Burton b. Chamr ion, an up
pea! from Miunel,ti,a county from IL decree
granting an injunction against selling liquor
under the Ice option law. the following
decision, which settles the dispute AZ to
special and general laws The Judgment
in this case must be affirmed, following the
opinion OF the court in the case OF the Ter
ritnry, cx rel. Patrick McMal,on vs. Michael
J. OConncl, and the court fur, her holds that
chapter ~. ;he Laws of 1887, is alncnda-
tory ut and must be- construed as IL part
OF cllapttr 2';, of the Laws OF 1879, and
that the latter az amended is subject to
and modified by the local option law
in SO tnl that while the penalties prescribed
by the act of 1879 are continued IN force
the proviso u: the sixth section Of the said
law repeating all acts. special and general,
have the effect tO so FIR inOtliiy the charter
of the city nf Sioux Falls as To make said
local option law operative therein
TIE FEELING; All FARGO.
FARGO, OAK, Special Tn!e"ralm. Feb 21.-
The news from Bismarck announcing
the decision of the supreme court
upon the local option law attract
ru much attention here to day. This
decision destroys the last hope Of the
saIoonkee,,rrs. Many feel that the case has
been push, Il ton rapidly. S.,loon men gem
orally state that they will observe the law.