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

diverting the fund derived from the
sale of said lands by providing for
the payment of interest on certificates
of Indebtedness out OF said funds.
! 1t is also alleged that the said act
lis unconstitutional because, a. II
contains more than one subject, viz:
the reconstruction of capitol build
ing and the erection of a governors
residences; (2) that it delegates to
the board the power of determining
what sum shall be expended in a
governors residence, and what sum
shall be expended in reconstructing
the capitol building; ca that the
4 law contravenes the provisions of
the Enabling Act by making provis-
ions for the erection of governors
residence.
No objection is urged that this
court is without jurisdiction to en-
terrain the action as an original one.
Whether a residence for the COVER
nor of the state at the capital is q
public building within the terms of
the Enabling Act or not is a matter
OF argument between opposing
counsel in the case. Section IL OF
the Enabling Act grants fifty sections
of land to the state ''for the purpose
of erecting public buildings at the
capital - y for legislative, ex-
ecutive and judicial purposes Sec
ton II of said act grants to the state
fifty thousand acres of land ''for pub
lie buildings at the capital of said
state"
There is no other provision in the
Enabling Act relating to or prescrib-
ing what buildings are to be deemed
public buildings within the purposes
of this act. The legislature is vested
with the power to dispose of said
land and the duty of using the pro-
leeds subject to the terms of said
act. The legislature has enacted that
an executive mansion shall be erected
out of the proceeds of said land, and
thereby declared an executive man
sion to be public building within
the meaning of said act. We deem
that a correct and reasonable con-
struction of the Enabling Act. The
custom is general to provide the gov
ernor with a home at the capital.
Generally this is owned by the state.
The possession is in the state. 1t is
used by the state through its execu-
tive. The governor is present at the
capital of the. state to discharge pub
lie functions. The occupancy of the
executive mansion may be correctly
said to be for public purposes and to
be a public building within the mean
ing of the Enabling Act.
| Section II does not grant this land
solely for capitol building purposes,
Other buildings may be erected out of
the proceeds. Fleckton VS.. Lamber-
ton, So MINI. 1877. The grant under
section II and the grant under sec
ton IL of these public lands may be
appropriated and disposed of for a
capitol building. Whether the grant
under section IL may be used for q
governors residence we need not de.
termine, as section II clearly permits
the erection Of such a residence out
| of the lands thereby granted. (
4 To what extent the lands granted
by the two sections of the Enabling
Act may be used for the same pur.
pose or building, we need not de.
termine. The legislature having en-.
acted that governors residence
shall be one of the public buildings
contemplated by said section II, its
d action is final on that question, ii
within the purposes and terms of said
section.
1t is next contended by the relatol
} that said chapter l66 is void as al
. unWarranted delegation of Legislative
: powers to said board. The basis O.
| such contention is that matters o.
! legislative discretion are to be de
! termined by the board, which should
have been specifically determined b,
! the legislature. 1t is claimed tina
; the sum to be expended on a resi-
: dence for the governor involves !.
, matter Of legislative discretion which
} cannot properly be delegated to tn,
board, but must be limited by tn,
!: legislature to an amount certain
J Under the constitution, all Legislative,
power is vested in senate and
house Of representatives. (sectior
25,) and all constitutional provision
are mandatory unless expressly de
clared to be otherwise (section 21.)
. Whether the power to determine thu
relative amounts Of the fund derived
: from the sale of the lands granted b,
congress that shall be spent for 1
capitol building and for the Cover
. nor's residence is a matter Of legisla
. E Z 1t4 :