Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-14

aWU-E 4fGEg E-H1ErFA
him the executive PC wers Of the terri,
torial government nnbisct to legislative
control as 80 tine ard manner OF excr-
else, etc. IL is too we'll settled TO need
citation OF authority that ell matters of
appointment and removal, except
so far as legislation has been had
under the constitution itself, is
. proper subject Of Legislation by
the legislative department Of the govern
mont, but how far the Legislature may
go in controlling the action OF the execn-
tive by legleiatIve enactment IS by no
means clear;she omaipetsns power of our
own Legislative bodies so often asserts
itself that courts hesitate often in draw
ing the boundary line of their power.
Says Chief Justice Marshall in Fletcher
Y Peck, 6 Cranch 1856: SIT ia the peculiar
province OF the legislature to prescribe
general rules for the government OF
society the application of those rules 10
individuals 10 society would seem TO be
the duty to other departments. How
far the power Of giving the law may
involve every other powerin cases where
the constitution is silent never has been
and perhaps never can be definitely
stated" It is sufficient for our present
purpose that 1t is conceded that the field
10 far as it is clear of constitutional or
organic legislation is open to state and
territorial legislation. Our legislature is
vested with power Of legislation as we
have seen more ample than most state
Legislatures; that power is extended to
"ail rlghtful subjects of legislation not
inconsistent with the constitution and
the laws of the United States" Sec.
1851 U. 8. r.. s.. That this is an right
full subject OF legislation is conceded It
remains only to ascertain whether it Ee
10 conflict with the constitution or any
law OF the United States; to be ''incon-
siBtent With any law means inconsistent
with any law then or thereafter existing
IN q subsequent eecti0n OF the came or
OF o subsequent act In other words, the
organic act gave to the Legislature full
power TO leglslate upon Gll rightful sub
lects OF legisletion except az congress II
the same act or existing acts had or
thereafter by subsequent acts, should
limit such Legislative power. Uuder
sCeh interpretation, which seems to me
TO be the only reasonable one, SEQ. 1867
contained in the organic aot oil 1851,
must be construed as q Limitation upon
the Legislative power contained in Sec.
1901 and upon the executive power con.
tanned in Sec. 1641 OF that same act, and
not as . grant Of power, and should,
therefore, receive a strict rather than q
liberal construction. As 9 limitation OF
power, Was it intended that the govern
or should In all cases make appoint
mentB only with the advice and consent
OF the councli? The same organic act of
1851 limited the session of the council to
forty days, and it must have been pre-
sumed to know what hiss peeu several
times held by the departments and the
courtss shat the session Of the council
was at an end Of the expiration of that
time, II was extinct, and could mot
be reasembled by order OF the executive
or otherwise; and 10 ID to be presumed
that congress intended by giving the
executive power to appoint by and with
the advice and consent OF the council,
to prohibit the Legislature from provid-
ing Tor vacancies occurring after the ses-
sion OF the council had ended2 Is it
not more reasonable to hold that the
section was intended to apply to ap-
pointnents made for the full term Dur
ing the session of the Legislative aesem-
:h.ss,rs.3-1I;H=sz:rE :s;r:t=r-ersr5m0a
providing for such vacancies be lEconels
tent with itf Our legislature enacted
as early as 1877 q law giving the govern
or the power Of filing ell vacancies 90.
curring in the territorial offices. Such
statute has remained upon our statute
books Cnchallanged TO the present
time, (6eo. 1891 complied laus), and it
is safe to say that sonae such statute
WILDE found in the legislative enact.
ment.
Eonnlndaa Mordar