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

sovereign power of the state has
located the authority there 1t must
remain; and by the constitutional
agency alone the laws must be made
until the constitution itself is
changed. The power to whose judg-
ment, wisdom and patriotism this
high prerogatiye has been intrusted
cannot relieve itself of the RESPONSE
bility by choosing other agencies up-
on which the power shall be devolved,
nor can 1t substitute the judgment,
wisdom, and patriotism of any other
body for those to which alone the
people have seen fit to confide this
sovereign trust" Cooley's Constitu-
tional Limitations, 9Th 3D. page 1879.
See also Bowling, ct al, VS.. Insur-
ance Co., 90 Wis. So; O'Neill VS.. In
surance COL 66 Pa. st. u; State VS..
Simmons, SO Mimi. $40; State VS..
Ashbrooke, 154 Mo. 375.
The exceptions to this general rule
are not material to be here consid-
cred. If this power be purely legisla-
tive, defendants concede that no dele
cation Of the duties is permissible.
If purely administrative, the plaintiff
comedies that they may be delegated.
The line dividing these two powers
is not always readily seen, and to
determine when the line is crossed is
an extremely delicate duty in many
instances. Unless the delegation of
the power is clearly a violation of the
constitutional provision that all leg
islative power is vested i'm the legis-
lature, the plaintiffs contention on
this point should be upheld. The
will of the legislature should not be
thwarted except in clear case of
violating the mandate of the CON
stitution. Cooley's Constitutional
Limitations, 18th Ed Chap Z, pages
1872 to 200; Cincinnati, ETC., Ry. Co.
VS.. Clinton Co., Ohio st. s8.
It will NOT be doubted by any one
that the legislature alone can legally
determine when the proceeds of the
congressional grant shall be expended
in public buildings at the capital.
The language of section II of the
Enabling Act is conclusive upon the
question. When that act provides
"and the lands granted by this sec
ton shall be held, appropriated and
disposed of exclusively for the pur-
poses herein mentioned in such man
ner as the legislatures of the respec-
tive states may severally provide, !"
no room is left for debatet on the
question that the legislature shall de-
termine when these funds shall be
used for public buildings, and what
these public buildings shall be. The
power to control these lands and the
funds derived therefrom was dele
gated by congress to the legislature
and that delegation was accepted and
confirmed in the constitution by its
adoption by the people. Hence it is
clear that the general disposition Of
these funds for use in public build
ings must be done by the legislature.
+ It is claimed that the legislature
has fully performed this general duty
by the provisions of section 1, of
chapter 166, wherein it is enacted
what the duties of the board of
capitol commissioners shall be, In the
following words: "And whose duty
it shall be to remodel and reconstruct
upon its present site the capitol
building of the state Of North Dakota,
at Bismarck, and erect suitable
residence for the governor on the
yots now owned by the state accord
| ing to the provisions of this act
The law contains as to how much
shall be expended for each of said
buildings. That is left entirely to
the commissioners. Nor does the
law definitely specify when these
buildings shall be completed, nor
when the duties of the commissioners
shall end. It cannot be reasonably
disputed that the legislature has
power to delegate to a board the
work Of experimenting the erection
OF public buildings. The legislature
cannot act upon every detail arising
In the course Of the erection of public
buildings or in preparation therefor.
This power must necessarily be dele
gated to some person or body. These
duties are deemed executive. al
though they often involve discretion,
and some Of these could properly
have been specifically provided for
by legislative enactment. Duties
that relate to acceptance of plans and
specifications. making contracts, re-
lecting materials, and other similar
ones, relate to the execution OF the
law enacted blythe legislature, and
are deemed administrative. State vs.
McGraw, Is Wash. 81; Fleckten vs..
Il "a