Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-11-18

dollars, because the aggregate sum
of the certificates OF Indebtedness
against the funds with which the
buildings are to be paid for is
limited to that sum. What sum shalI
be used for each building? The COM
mission has absolute power under
this law to fix the limits OF the cost
of each Of said buildings. They an
ally determine. We think that such
discretion should have been exercised
by the legislature. 1t Is not proper
" an administrative discretion. what
the several buildings shall cost should
have been limited by the act, as it ID
q substantive matter Of legislative
discretion that the legislature cannot:
delegate. Section II of the Enabling
Act prescribes that the lands donated,
by the United States to the state for.
public buildings shall be disposed &c
as provided by these Enabling Act.
and shall be disposed of in the man
ner provided by the legislature. The
legislature does not comply with the
provisions Of the Enabling Act when
1T leaves It without restriction or
direction to the capitol commission
board to dispose of these lands IN
such manner as 1t deems wise. s,,b-
ject to one limitation only, that q.
capitol building shall be remodeled
and reconstructed and a governors
residence erected. How much Of
these funds should be used for each
OF these buildings pertains to the
manner of the disposition thereof.
The discretion and Judgment to be
used in these matters of relative
amounts are committed to the legisla-s
ture by congress. They are purely
and clearly legislative powers and
cannot properly be delegated to per-
sons or boards II III
The principle that purely legfsla-
tive functions and discretion cannot
be delegated is illustrated in MANY
cases in constituting the powers and
acts OF city councils. The legislature
may delegate to such bodies the
power to make provisions for local
government within constitutional
limitations. In carrying out these
functions, city councils are held not
to have the power to delegate to
others those matters pertaining to.
legislation and requiring for their
execution legislative discretion or
judgment. Hitchcock VS.. Galveston,
.s6 U. s. 541, "a Law Ed. 659; Harri-.
sonberg VS.. Roller, 81 Va. 5S2; Min
neapolis Gas Light Co. VS.. City Of
Minneapolis. SO MINI. 159; Thomp-
son VS.. Schermerhorn, 6 N. Y. 90:
Birdsall vs.. Clark, Is N. Y. 73. IN.
the last case cited, the court said:
1T is well settled principle that
public powers or trusts devolved BY
law or charter upon the council or.
governing body, to be exercised by
1t when and In such manner as it
shall Judge best, cannot be delegated
to others. Dillon on Municipal
Corp. Sec. CO., II discretion and T
judgment are to be exercised either
as to time or manner, the body or.
officer entrusted with the duty must
exercise 1t and cannot delegate It to.
any other officer or person
The council directed, not in a specific
case, but in all cases, that the super
intendent of Streets should cause the,
work to be done, thus delegating the,
precise authority conferred upon it.
The charter conferred the power upon. /
the council to cause 1t. to be done BY
contract or otherwise. This requires
the exercise OF discretion and iudg
ment as to the manner In which the
work should be done. Whose judg-
ment is to be exercised? The legisla-
ture has said that 1t is the Judgment
OF the council, but the latter has at
tempted to invest the superintendent
OF streets with it's exercise. This
they had no power to do. The char
ter clearly contemplates the action
Of the council in each case"
These cases, as well as those cited
as bearing upon the powers Of the
legislature, unite in the general
principle thatsagents or officers cam
not be entrusted with powers Of pure
" governmental or legislative char
acter. They announce Statutory
principle Of constitutional law, which
should not be departed from.
The decision on this point is. con-
elusive and determines the action In
favor Of PLAINTIFFS contention. Other
objections are urged against the
validity OF the law. and against the
proceedings Of the board. but to de-
termine them would serve no purpose
at present.
An order will be entered perma-
nently enjoining further proceedings
OF the defendant hoard