Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-05-12
The Penitentiary Case Comes Up,
Is Argued and Submitted
to the Court.
The Most Interesting Case of the
sess on Presented With vigor
BY Both Sides.
Attorney-a General standish Appears
For the State and General
Hughes For Defendant.
From Saturdays Daily.l

fuSl SA4A
O. Sullivan, was submitted during the
forenoon session. The question involved
concerns the validity of an attorneys on
a Judgment in favor of his client, as
against the right of set-of of the assig-
nee of the judgmeDt-debtor.
THE pEN1rENTIARY CASE.
At o'clock the counsel in the peni-
tiary case announced their readiness to
proceed therein. This is, perhaps, the
matter of the most general interest
coming before the court at this term,
and, as it is to settle finally the relation
of the governor and the senate with re-
ference to the appointing power, a brief
statement of the facts out of which the
present controversy grows is not out of
place. 1t will be remembered that nea
the close of the legislative session, the
governor sent to the senate, among
other nominations, the names Of Messrs..
Ward and Taylor as trustees of the pen
itentiary, in place of Messrs. Donnelly
and Van Horn, whose terms were for
two years. or, in the language of the
statute, "until their successors we're ap-
pointed and qualified" The senate re-
fused to confirm these two nominations
as we'll as those for the new trustees of
the agricultural college at Fargo, whose
position was similar.
Governor Shortridge at the close of
the session, commissioned Messrs.
Ward and Taylor, as he had nominated
them, and they, after qualifying, were
EFusED THE G TO PARTICIPATE
in it's action by the other members, who
joined in selecting N. F. Boucher as
warden of the "pen." One of the old
board, Mr.. Showers, united with the
governors appointees, however, and
elected Dan Williams as warden. Out
of this grew the qestion as to which
warden was the legal officer, depending,
Of course, upon the legality or ~illegality
of the appointment of the new trustees.
Attorney General Standish, in his
brief and oral argument, relied mainly
upon the contention that the statutes
empowering the senate to share in the
appointing power, by requiring con-
frmation of appointments by that body,
was such an addition to the functions of
the legislature and such an encroach-
ment upon those of the executive as to
require a direct and explicit authority
from the constitution. Starting with
the proposition that the
POWER OF APPOINTMENT OF STATE f.
GERS
it is not a legislative power, but is
wholly administrative and therefore
properly within the natural prerogative
Of the executive, he argued that the leg
islature could not take to itself or one of
its branches, any part of such power, un-
less its proper Legislative functions we're
increased to that extent by an unmis-
taxable enactment, embodied in the con
stitution. He claimed that the statutes
upon which is based the power of con
hrmation by the the senate, are not sup
ported by any authority of the constitu-
ton, and are therefore void and inopera.
tive. Referring to the clause of the con-
stltution relied upon by the other side,
which
AUTHORIZES THE GOVERNOR TO VA
CANC1Es
When mo mode is provided by the con
stltution or by law" General Standish
argued that this was not such a law as is
therein contemplated, but is one which
does more than provide a mode of filling
vacancies, and is not warranted by the
clause quoted. He cited authority
from decisions and text-writers in
support of this position. On the ques-
ton of what constitutes a "vacancy"
within the meaning of the constitution
and statutes, he argued that at least a
constructive vacancy exists at the ex-
plration of the time for which an officer
Is Notwithstanding that it was con-
coded that there was at that time q
vacancy which the governor and senate
together could fill, and, if it be held
that the senate was not properly con-
cerned in 1t, then it was as evident that
there was a vacancy which the gov
ernor alone could fill. The attorney
general argued the case with much vigor
and warmth.
General Alex Hughes, for the re-
spondent fortified his position with
abundant citations, strongly supporting
Ills argument that there was no such
vacancy as could be filled by the gov
ernor, without the advice and consent
OF the senate. Dwelling at length upon
Inc examples presented by other states
ana the United States, he cited
case after case to show that
the power of confirmation is
not i'll derogatlon of any inherent
right or prerogative of the executive, but
ID part or incident OF the appoiutive
power which may be vested in the legis-
NH m Ala