The Warner sun. (Warner, Brown Co., Dakota [S.D.]) 1885-1???, 1888-02-24
THE LAW STANDS.

Law,
BISMARCK, Oak, Feb. 21-The supreme
court today rendered its decision in the
famous local option case, sustaining the
law in the following terms:
In the habeas corpus case from Grand
Forks, or territory of Dakota ex rel Pat
rick Mcmahon VS.. Michael j. O'Connell, a
deputy sheriff of Grand Forks county:
The petitioner, Patrick lMcMahon, was
arrested upon a warrant issued by a jus
tice of the peace of Grand Forks county
upon complaint filed, charging the said
petitioner with violation of the provisions
of the local option law, and he having
been held to answer at the next term of
the district court of said county, he has
issued out of the court a writ of habeas
corpus alleging his imprisonment to be
. illegal on the grounds: First, that said
act of the Legislative assembly is uncon-
stitutional and void; second, that said act
was never enacted by the Legislative as
sembly Of the territory. Under the first
head numerous objections are urged
against the validity of the law. 1t would
be well to note that it is considered that
the states have power in their sovereign
capacity to enact such laws as police reg
~ulation, but it is denied that such powers
were granted to the territories. 1t is suf-
icient TO say that the organic act of the
territories is so far a constitution, and the
temporary government thereby created is
so far sovereign that it has the power to
ENACT ANY AM L LAWS
in the nature of police regulations not in
conflict with the statutes and constitution
of the United States; that the power of
legislation5which extends to all rightful
subjects of legislation includes police
powers; that the prohibition of the sale of
intoxicating liquors is a rightful subject
oflegislation and is included within the
general grant of Legislative power granted
the territories; that the police regulations
are necessarily local in their character.
Thislaw is not open to the objection that
it impairs the right of private property
further than all prohibition laws may be
open TO similar objection. 1t rests upon
the fundamental principle that everyone
shall so use his own as not to wrong and
iniure another. (Mugler VS.. State, 8 Sup.
Rep. 500. VIZ have only 70 inquire as to
the legality and not the expediency ofleg-
~islatiye enactments and that the laws reg
ulating the sale of intoxicating liquors
are within the class Of rightful subjects of
legislation is now too ermly established
by uniformity of action, both by the leg
- A1.A. AKrwN 81 10 w~ru 1aFNAA .
by this tribunal; nor is it as suggested in
eontravention of the revenue law which
grants licenses to sell intoxicating liquors.
They were never presumed to grant III
thority TO do the acts licensed, but cor
template a raising Of revenue merely
through the means employed by its collec-
ton. 1t is not a delegation of Legislative
DO yer. nor is the law within the prohibit
ton of congress upon special legislation.
Under our theory Of government the mum
icipality always had the power of local
government II is in a certain sence i'm
herent in the town, in the city, the county,
and the subdivision of the sovereign gov
eminent. In a sense it is dormant,
q Is BROUGHT II LIFE
and allowed to be exercised by the legis-
lative, and municipal governments have
from the existence of the nation been per-
mitted 10 exercise their police powers in
their own way. Inc municipal charters
of this territory have always granted
police powers varying in character ac-
cording TO the wishes or necessities of the
locality and unchanged by the courts.
General legislation is often unsuited tothe
requirements OF a large and sparsely set
tied country, and when such Legislation is
purely police in character it Is not in vio-
Iation Of congressional Legislation, but is
general in character, though local in exc
cution. Nor is the claim open to the
final objection that it was not enacted in
conformity with the organic act and laws
Of the United States. II is true that the
Journals are silent as to some steps, but
Che. court does not necessarily take judiC-
ial knowledge Of the rules Of the legisla-
tive assembly so far as to determine that
the act could not have been passed In. az
cordance Herewith. Contrary to the GER
tifcates Of the officers of these
bodies the journals are merely
silent. They do not contradict the
authenticity Of acts given thereto by the
signature Of tie presidential the council,
the seaaker Of the houseiand the execu-
tive himself. If this eourt can examine
~thejourna Of the Legislative assembly Ia
my case 70 determine whether an act was
actually passed, it Is sufficient for the
court to say it will
N0T DECLARE THE LAW
BY reason of the failure of the Journals to
record lis passage, and In the absence Of
any affirmative record that 1t did not SCI
cure the concurrence Of both houses we
cannot saw that the certificate of the
sworn oficerE Of the two departments Of
the government do not upon their face
impart verify. The defendant must be
remanded TO the custody Of the Aoficer un-
til discharged by DIE course Of law, all
the Judges ~concufring except Judge
Thomas, who dissents on the ground that
the law IS in conflict with the organic act
Of the territory, which forbids the legis-
lature from passing any act impairing the
rights Of private property.
In the case of Burton b.. Champion, an
appeal from Minnahaha county from a
decree granting an injunction against
selling liqaor under the local option law,
the Judgment was affirmed following the
opinion Of the court il the case of the teri
rftory * rel Patrick Mcmahon VS.. Michael
n. OConnellthue settling the dispute as TO