The pioneer express. [volume] (Pembina, Dakota [N.D.]) 1883-1928, 1888-01-27


Chief Justice Tiipp's opinion in the Yank-
ton asylum trustee matter, as already stated,
'ustains the act of the governor in removin.
.he old board and continues the new board
IL office. The case will hardly be appealed.
The court says:
The question of law raised by tho de-
murrcrs may be divided into two PROPOSE
tions
Flrst-That there was no power in the
governor to remove the trustees, Williams,
Powers and Van TasseL
Second-1hat If he had the power to re-
move them nc had 10 power to appoint tho
defendant Cox and Wolcy without tho nd.
vice md consent OF the council
The first proposition the plaintiff bases
upon two grounds:
First-That under our organic law the
power Of removal is judicial and not cx-
ecutivc. and that the legislature could not
authorize the governor to exercise such
power.
SecOnd-That the Legislature has not
authorized the exercise of such power and
that Its acts do not admit Of such con-
struction.
Tile question then is, is the power of re-
moval under our organic law judicial or cX-
ecutive? In the creation of our government
We have sought to distribute the sovereign
power to take from the Legislative depart
mcnt those duties which in their character
are essentially judicial or executive. and to
give to each OF Them sovereign power scrar-
ate ami independent of each other, so that
each may be check, but without power to
cncioach upon the other. The theory is
simple. The application of tho theory is
often difficult. Neither congress nor the
legislature of q state can take from or confer
upon either department any power of func-
tions not belonging to such department Gx-
ccpt so far us it may be permitted so to do
by the terms of the constitution itself
Hence, when the legislature has undertaken
to confer upon thn Judiciary duties OF II po-
lItlcal or administrative character, such
acts have been declared unconstitutional
and void. The national government has
sovereign power over all Tho territories The
organic acts of tho territories, from the
earliest history of the country. have been of
The same general character The legislative
grant to tho territorial legislature is equal
TO ana III some respects greater than that
allowed to any of the state legislatures 1t
extends to al rishlful subjects OF Legislation
not inconsistent with the constitution anu
laws OF the United States. subject to very
few limitations, SO that in organization OF q
territorial government
CONGRESS INTENDED
such government to have ami exercise ali
the attributes OF sovereignty temporarily,
subject only to such supervision as congress
Shall choose from time to time to exercise
over it, with this residuum of power remain
ing IN congress dominant except when cX-
prcssly exercised. The government of the
territory is sovereign in each department.
and its organic law liz to be construed as it's
constitution. either in the light of Il grant or
limitation of power. Perhaps as to some
portions it is to have the former
and as to Others it is to have
tho latter construction 1t may be safe
conceded that power to hear ana determine
rights of property and of person between
private parties IL judicial, and can only be
conferred by the courts The incumbent OF
nn office has not, under our system of gov
crnment, any property in it. His right to
exercise 1t is not based upon any contract o,
grant. 1T Il conferred on him as Il public
trust. to be exercised for the benefit Of the
public. such action by administrative or
executive officers Ia not judicial in the sense
that it belongs exclusively to the courts
All judicial power by the organic act. like
vested III the courts, prohibition upon its
exercise by the executive or legislative de-
partment; but the judicial power therein
conferred upon and limited to the
courts is that judicial power which
In the legal acccptation of the word can be
exercised by the courts 1t is the power
which is confined to the courts by words nf
limitation in the constitution itself. that no
person shall Dc deprived OF life, liberty or
property, without due process of law. In
other words, the courts have exclusive
power to hear and determine those matters
the citizen. All other rights, while they NAV
III: in sense judicial, are not so far within
the Jurisdiction OF the courts that their eX-
crcs,: by another department would be void.
The right in Il controversy of that character
Judged by this test is not u judicial power; the
authorities holding that removal from Office
IL Il judicial power and can becxcrcsed only
by the courts, are based on the theory that
an Office is in the nature OF u property right
and that the citizen can be deprived of it
only by
DUE PROCESS OF LAW,
while the other line of decisions hold that
under our form Of government there is no
property in an Office; that office and Of
ticcr are for the benefit of the people aud not
for the benefit OF the officer, and that when
ever the officer fails to perform the duties of
the office the office becomes forfeited and
that the only object OF the examination nee
cssary to determine such forfeiture is such
as will establish the fact not to the satisfac.
ton or for the benefit of the incumbent, but
to the satisfaction OF the executive depart
nent which is charged with the execution
OF the laws, and that hence the removal may
Dc summary or upon such investigation as
may be prescribed by the legislative
department. Without stopping to notice
further the learned arguments nnd
reasoning of the courts, am
content to say that in my Judgment those
decisions which hold the power OF removal
to be executive in its nature are more in
harmony with our age and our form of gov
crnmcnt, and if the officer may be removed
by the executive he may be removed either
with or without notice and hearing, US the
legislature has chosen to provide or as the
terms OF the constitution may require. Our
organic law is silent upon this subject; and
it follows that if power of removal in this
case is given to tho governor with no notice
or hearing provided, iic would be at liberty
to remove sumnarily upon the occurrence Of
such an event as may be prescribed by
by the plaintiff that the act under
which tho executive claimed to remove
these trustees does not confer such authority
in terms nor by fair implication. The act is
found III the Laws OF 1887, chapter ~ re-
lating to public examiners The portion of
the act relied upon b., the executive as pro-
viding for removal is al tho close of section
i. and is contained in the words "Anti the
governor may cause the results of such en-
animation to be published, or at his dscrc-
tiOn take such action
FOR THE PUBLIC SECURITY
as the cxigency may demand" What mower
is he permitted to exercise by these words?
1t is evidently intended to confer upon the
and the discretion is unlimited bv the words
which follow; but he is at his discl ction TO
take such action as the cxigcncy demands.
Beis made sole judge OF the cXi%ency and
what action he will take. What power was
intended by these words to allow the cxecll-
tive to exercise? There must be q limit
somewhere. 1t could not have been intended
toautEolZe him to fine or nlprison the
rccreant officers. Such attempted cxnr-
else Of judicial power would not only be q
violation OF fundamental las. but would