The Fargo forum and daily republican., 1907-05-30
Law
Unconstitutional
Continued from Paae one.

in state VS.. F'aussett, 1 N. d. 1sa, recEi
ognized the distinction between con-
stitutionai officers and those created
by the legislature. Speaking Of the.
latter kiffd Of 0ffice, he says: The
office is not ifnbedded IN the consti-
tuition These are constitutional Of.
fees. The other Offices, fflcluging that
lof county assessor, are offices which,
under the express provisions Of Sec
tion 1z3, the legislature may abolish
by creating other offices to take their
place" If these offices, "are imbedded.
in the constitution" it inevitably fol-l
lows that they cannot be stripped by
the legislature of the important duties
inherently connected Herewith, for il
this can be done, then these offices
were Embedded in the constitution for
no purpose. And if the legislature, as
before stated, can provide that a part
of the duties attached to these con-
stitutional Offices shall be performed
by persons appointed by the enforce
1nent commissioners, why can they not
provide also that the duties pertaining
to the enforcement Of all criminal laws
be thus performed?
The court of appeals of New York in
People VS.. Tax Commissioners, liza N
X, AT had under Consideration a.
somewhat similar question, and after
referring to the provisions Of the con-
stitution of that state . similar
to our section 173 took oc-
casion to say: "These and other
commands of the different constitu-
tions, when read in the light of prior
ana conteinporaneous history, shows
that the object of the people in enact
ing them was to prevent Capitalization
of power in the state and to continue,
preserve and expand local self -gov1
ernment.
This was effected through a ju-
dicious distribution Of the power of
selecting public officers by assigning
the choice of local officers to the people
OF the local division, and to the people
generally, those belonging to the state
at large. The management of the local
political business of localities, whether
as large as a county or as small as a
village in entrusted to local officers
elected by the communities where
those officers act and through
which their jurisdiction extends. The
principle of home rule is to preserve by
continuing the right of these divisions
| to select their own officers with the
general functions which have always
| belonged to the office. Unless the of
| flee, by whatever name 1t is known, is
protected, as the courts have uniformly
held, the right to choose the officer
AN0Rld be losta,4 for With his former
1 functions gone, he would not be the
officer contemplated by the constitu-
tion, even If the name were retained.
| Unless the Office or officer is mentioned
co nomine in the constitution the
name may be changed or the Office
abolished, provided the functions If re-
| tained at all, remain in some officer
chosen by the locality. Local func-
\ tions, however. cannot be transferred
to state officer, The legislature has
i the power to regulate, increase or di-
minish the duties of the local officer,
but it has been steadfastly held that
this power is subject to the limitations
1 that no essential or exclusive func-
tion belonging to the office can be
transferred to an officer appointed by
central authority The Office may go,
but the function must be exercised lo-
cally if exercised at ALL While no
I arbitrary line is drawn to separate the
powers of~local and state officers, the
integrity of the local Office is protected,
with it's original and inherent functions
nnimpaired 1t is interference, whether
l direct or indirect with the vital in
trinsic and inseparable functions. Of the
Office as thus defined and understood
| that the constitution prohibits"
/ The foregoing doctrine Is supported
by MANY previous f1eciSiOnS in New
York cited in the foregoing opinion,
! and we understand that such Is the
rule everywhere in this country
| Other points win be covered in the
ing being intended merely as a brief
memorandum of the courts decision.
The application for the writ is de-
MED Spaulding, J., dissents