Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-05-30
COMMISSIONER Law
DECLARED UNCONSTITUTIONAL
CONTINUED from page II

Continued from page u
er Is made the sole judge, under this
law, Of when and for what length Of
time he and his appointees may take
the place OF the peoples chosen ser
wants in the discharge of such duties,
and dn determining the constitution
ality Of the statute, we must con-
slider what it is possible, not what IT
is probable, may be done under its
provisions.
Meaning Of the Constitution.
Section 173 Of our organic law is
relied upon as upholding this stat
ute. This section; after enumerating
the county officers and prescribing
that they shall be elected by the cleo
tors Of the county, further provides,
that their duties. shall be prescribed
by law. and it Is argued that under
the power to prescribe such duties
the legislative assembly may take
them away. or 8 portion thereon, and
confer them upon other officers, not
3telected BY the people, just as is at.
tempted to be done by the act II
Iiauestion. Such argument, carried to
3its logical and inevitable result, would
Head to the monstrous doctrine that
the constitution means nothing, ana,
Notwithstanding Its plain provisions,
the legislative assembly may provide
that the duties pertaining to all these
Offices, or q portion Of such duties,
shall be discharged BY of1cers APP
POINTED BY them
/ The act IN question does not =
L = purport to prescribe the duties =
ks Of these cons titutional officers, :,
i < but it purports to vest in other =
= persons, not elected, the power =
= to perform such duties. Such =
4 legislation strikes a blow at the =
= very foundation principles of our =
= form OF government. y
Il
During the early history Of this
state Mr.. Chief Justice Corliss in
State VS.. Fanssett, i N. d. 1874, recog-
njized the distinction between consti-
tutional offices and those created by
the legislature. Speaking OF the lat
ter kind OF Office, he says: aThe Of
/ flee is not Embedded in the constitu-
ton, as is the case with respect to
the offices named in section 173 Of
the constitution. These are eonsti-
1tutional Offices The other Offices, in
Il Guiding that Of county assessor, are
Offices which under the express pro-
/ visions OF Section 49,, the legisIat-
ture may abolish by creating other Of
4 fees to take their place. II these
Offices, .are Embedded In the consti-
tuition" 1T Inevitably follows that they
cannot be stripped BY the legislature
1 Of the important duties inherently
connected Herewith, for IT this can
be done, then these offices were i'm
L UCuoSu III Lie COno upIuIIOU LII uO puI.s
pose. And If the legislature, as be-
fore stated, can provide that part
Of the duties attached to these con
stitutional Offices shall be performed
by persons appointed by the enforce
ment commissioner, why can they not
provide also that the duties pertain.
ing to the enforcement Of all crim-
inal laws shall be thus performed?
New York Decisions.
The court OF appeals Of New York
In People VS.. Tax commissioners, 174
n. AT, had under consideration
q somewhat similar question and af-
ter referring to the provisions Of the
constitution Of that state similar to
our section 173, took occasion to say:
These and other commands Of the
different constitutions, when read in
the light OF prior and contemporaries
4