The Fargo forum and daily republican., 1907-05-30

official appointments and employment
he had been employed by private indi-
yiduals to prosecute certain criminal
cases against one Edward G.. Patter-s
son for alleged violation Of the pro-
shibitory law Of this state and that said
official appointments and official ern-
ployment were made for the purpose
of investing him with legal authority
in said criminal prosecutions and to
authorize him to attend before said
grand jury in the interest of such
private employers. Petitioner con-
cedes that his appointment as assist.
ant states attorney was and is void
for the reason that he is a non-resi-
dent of Burleigh county. His em-
ployInent by the board of county COM
missioners was concededly for nom-
inal consideration 1t was not good
faith employment for the purposes Of
assisting the states attorney in the
discharge of his public duties, but was
as conceded by him. as above stated,
for the purpose of gaining admission
to the sessions of the grand jury for
the purpose Of disClarging his duties
under such private employment. Even
if a good faith employment by the
county commissioners would legally
quality him to visit the grand jury
session, which we seriously question,
we are clear that he had no such right
under the employment in question. as
he comedies, as before stated, that it
was merely to enable him to fulfill
a contract Of employment entered into
with private individuals. Under such
facts 1t was manifestly improper for
him to appear before such grand jury,
and the district judge properly exclud-
ed him therefrom.
Petitioners right to enter such room,
therefore, necessarily depends upon
his official character of deputy en-
forcement commissioner and deputy
enforcement commissioner being Sem
ate Bill 10, recently passed
by the legislative assebly, Is
unconstitutional and void for
several reasons, only one Of which
we viii at this time mention, as it is,
is the fact that the statute in ques-
tion violates a most sacred right Of
the people reserved by them in the
constitution, which Is the right of To-
cal self government. The people in
framing the constitution were careful
to safeguard this right in unmistak-
able language by providing in effeet
that certain public duties should be
perfoFned by persons eleetea shS tAlan1a
and among the public duties to be
only thus performed are those Of
states attorneys and sheriffs, and the
courts Of this country in an unbroE=
en- line of authorities have ever pro-
tected such right and have never hes
Aated, when occasion required 1t, to
declare such legislation null and void
as being violative of the fundamental
principles Of our republican form Of
government.
BY the express provisions of the
law in question it Is enacted that the
enforcement commissioner, who is a
mere appointee and not elected by the
people, may, whenever in his Judgment
he thinks it is necessary or advisable,
appoint any number OF so-called en-
forcement sheriffs in an county in the
state without even consulting the
wishes OF the citizens OF such county
and even against their win, and such
appointed officials are clothed with all
the powers and duties in the enforce
ment of the prohibition law possessed
by the sheriff whom the people have,
by their constitution, expressly said
shall be elected by them. The same
lis true with reference to states at
torneys and the performance of their
duties.
If this can be done as to these con-
stitutional officers and as TO the en-
foreement Of this particular statute it
can be done as to all such officers and
the enforcement Of all criminal sta
tutes, and thus the cherished and care
fully guarded constitutional right Of
local self government would become a
nlockery. We venture the assertion
that no American court ever upheld
such law The fact that but a
small portion of the duties OF these
constitutional officers would be per-
formed by these appointees of the en-
forcement commissioner, and only at
such times as he may deem advisable,
Is no answer to this argument. The
enforcement commissioners is made the
sole Judge. under this law, Of when and
for what length of time he and his ap-
pbintees may take the place of the
peoples chosen servants In the dis
ining the cDnstitutionality Of the sta
tute, we must consider what Is pos
sibIe, not what 1t II probable, may be
done under Its provisions.
Section ITS OF our organic law Is re-
lied upon as upholdng this statute.
This section, after enumerating the
county officers and prescribing that
they shall be elected by the electors Of
the county, further provides, that their
duties shall be prescribed BY law. and
lit il argued that under the power 10
prescribe such duties, the legislative
ASSEMBLY may take them away, or d
| portion thereof and confer them upon
E.otlier 0fficers, not elected BY the pe0-
pie. just ais Is attempted to be done
by the act In question such argu-
mefit, carried to It's logical and newt
able resNlt. would lead to the mon
stfOus doctrine that the constitution
means nothing and, notwithstanding
It's plain provisions, the Legislative as.
sefrbly may provide that the duties
pertaining To AN these Offices
or a portion of such duties
shalI be discharged By 6fflcers appoint
cd BY them The act III question does
not purport 10 prescribe the duties
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