Devils Lake inter-ocean. (Devils Lake, Ramsey Co., Dakota [N.D.]) 1884-1905, 1888-02-25
coNsr1rur
Local Option Decided SO by the
Supreme Court.

Local Option Decided SO by the
Supreme Court.
BISMARCK, Feb. 81. 49, 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: Territory OF Dakota OK. rel. Pat.
rick Mcmahon vs.. Michael J. O'Connor,
a deputy sheriff Of Grand Forks county:
The petitioner, Patrick Mcmahon, was
arrested upon q warrant issued by JUS
tice of the peace of Grand Forks county,
upon complaint filed charging the said
petitioner with violation of the provis-
ions of the local option law, and he hav.
ing been'held to answer at the next term
Of the district court Of said county, he
has sued out of this court a writ Of ha-
beas corpus. alleging his imprisonment
to be illegal upon the grounds-frst, that
said act Of the legislative assembly il
unconstitutional and void; second, that
said act was enacted by the legis-
lative assembly of the territory. Under
the first head numerous objections are
urged against the validity Of tho law. It
would be we'll to note that it is 80 con-
stituted that states have power IN their
sovereign capacity to enact such laws as
police regulations, but 1t is denied that
such powers were granted to the terrific.
rles. 1t is sufficient now to say the or
ganic act Of the territories is so tar q con.
stitution, and the temporary government
thereby created is so far sovereign that
it has the power to enact any and all
laws in the nature Of police regulations
not in conflict with the statutes and cor.
s%titution of the United States; that The
power of legislation which extends to
all righttul subjects of legislation, in
cludes police powers that the prohibition
of the sale of intoxicating liquors is q
rightful subject OF legislation, and is in
Guided within the general grant of legis.
lative power granted the territories; that
police regulations are necessarily local
In their character. This Law is not open
to the objection that it impairs the right
of private property farther than all pro-
hibition laws may be open to a similar
objection. ut rests upon tho fundament-
al principle that every one shall so use
his own as not to wrong and injure an
other" (Muglcr VS.. State, 8 Sup. Rpt.,
3Oo.) We have only to inquire as to the
legality, and not the expediency, of legis-
lative snactnents. and that tho laws reg
ulating or prohibiting the sale of intoxi-
eating liquors are within tho class of
rightful subjects Of legislation is now
too firmly established by uniformity of
action, both by tho legislatures and the
courts, to be now described by this trib.
una. Nor is it, as suggested, in contra
vention Of the revenue law which grants
licenses to sell Intoxicating liquors.
They were never presumed to do the
acts licensed, but contemplate u raising
OF revenuc merely through the means
employed for its collection. 1t is not a
delegation Of legislative power. nor is
the law within tho prohibition OF con-
gress upon special legislation. Under
our theory Of government, municipality
always had the power of local govern
mont. 1t is in a certain sense enforcible
in h town, in the city, in the county,
and the subdivisions of the sovereign
government. In Il sense it is dormant,
but it is brought into life and allowed to
be exercised by Legislative will. NUM-
cipal governments have from the very
existence Of the nation been permitted to
exercise their police powers in their own
way. Tho munipal charters of the terri
tory have always granted police powers,
varying III character according to the
wishes or necessities Of the locality, and
unchallenged by tho courts. General
legislation is often unsuited to the re-
quirements ola largo and sparselv settled
country, and when such legislation is
purely police in character, it il not in vi
olation Of congressional gsstulation, but
Is general in character, though local in
execution. Nor is the claim open to the
final objection, that 1t was not enacted in
conformity with the organic act and laws
OF the United States. 1t is true that the
journals are silent rs to some steps. The
court does not necessarily tako judicial
knowledge of tho rules of tho legislative
assembly 30 far as to determine that the
act couldn't have been passed in accord
ance thorowith, contrary to certificates
of the officers of those bodies. The
Journals are merely silent; they do
not contradict the authenticity of acts
given thereto by tho signature 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 assembly in any case, to de-
termine whether an act was passed, ii
is sufficient for this case to say it will
not declare the law invalid by reason OF
the failure of the Journals to record its
passage and the absence of any af1rma-
tive record that it did not secure tho con-
c0rrence of both houses. We cannot say
that the certificates of the sworn officers
OF the two departments of the govern
ment do not upon their face impart
verify. The defendant must be remand
ed to custody OF tho officer until dis
charged by due course Of law. All the
judges concurring except Judge Thomas,
who dissents on the ground that the law
is in conflict with the organic act of the
territory, which forbids tho legislature
from passing any act imparing tho rights
of private property.
In tho case Of Burton L. Champion, on
appeal from Minnehaha county, from a
decree granting an injunction against
selling liquor under the local option