Courier Democrat. (Langdon, N.D.) 1891-1920, 1909-01-14
FACE THREE

assembly snail place IN MS I1D
power to comply with the mandate Of
the constitution t. take care that
the laws be faithfully executed. In
other words, there is a moral obliga-
ton on your part to enact such legis-
lation as will give effect to the consti-
tuition. This obligation is implied;
but we are not obliged to rely on the
implication, for it is also expressed
in section 6S, which reads: The leg
lslative assembly shall pass all laws
necessary to carry into effect the pro-
visions of this constitution" This is
a mandatory provision of the consti-
tuition, but we are not obliged to rely
upon the language of the section to
determine whether it is mandatory
or not, for section 81 says that the
provisions of this constitution arc
mandatory and prohibitory unless by
express words they are declared to be
otherwise" 1t follows then that the
legislative assembly must pass all
laws necessary to carry into effect the
provisions of the constitution.
One of the provisions of the consti-
tuition is: The executive power shall
be vested in the governor" Another
is: HE shall take care that the laws
be faithfully executed" The legisla-
ture must, therefore, pass such legis-
ation as will enable the governor to
take care hat the laws be faithfully
executed.
Executive Lacks Power.
There is a general impression that
the governor has this power. Every
day there are letters coming to the
executive office with information thai
the laws are being violated in certain
parts of the state and requesting the
governor to enforce the laws. During
my term of office a great portion of
my time has been employed in trying
to enforce the laws of the state and |
know from experience how inadequate
the present law is in giving force and
effect to the constitutional provisions
to which I have called your atten-
ton.
You enjoin the governor with the
duty of supervising the official con-
duct of executive and ministerial Off
GERS and command him to see that
they perform the duties of their
offices and there you stop so far az
the executive is concerned. There
might be implied power in the gov
ernor to remove officers if you had
not expressly given this power to the
courts. If the governor is to be
charged with the duty of supervision
and of seeing that officers perform
their duties he should be given the
power to compel them to perform
their duties or remove them from
office. In fact he must be given his
power if effect is to be given to sec
lions II and 75 of the constitution.
Section 1877 of the constitution gives
you the absolute power to provide for
the removal of all officers not subject
to Impeachment. This includes all
officers except the governor, state
officers and judges of the supreme
court and district courts.
Prohibition Enforcement.
Under section 1855 if the states at
Torney of any county is notified by
officer or other person that has knowl-
edge himself OF any violation of the
prohibition law it is his duty to in
nuire into the facts and he is author
lied and required to Issue a subpoena
for such person or persons as he may
have reason to believe have informa-
ton to appear before him at a time
and place and testify. The testimony
is reduced to writing and if the evi-
dence discloses an offense committed
the states attorney is authorized to
File an information. This is an ex-
ceedingly effective way of detecting
violation of the prohibition law; but
because its constitutionality has been
questioned it is seldom reSorted to
and many states attorneys refuse to
proceed under it On the theory that
it is unconstitutional in giving to the
states attorney judicial power, name
ly. in giving him power to issue sub
poenaes and compel witnesses to ap-
pear and testify before him. This law
has been on the statute books for
eighteen years and while it has never
been tested in the courts 1t has be-
come practically a dead letter.
recommend. as additional leg1sla-
tion upon this subject, the enactment
of a e law, not one to take the
place of this law but as additional
legislation giving the same power to
a magistrate, which, according to sec
ton 9629 of the revised code of 1905.
means any judge of the Supreme court.
district, court, justice of the peace.
police magistrate and such other of
1icer or officers as are authorized and
empowered to issue warrants for the
arrest of persons accused of crime,
and make it the duty of the states
attorney, the assistant states attor-
ney, the attorney general or assistant
attorney general, upon notice, to APP
pear before the magistrate and exam
inc the witnesses. If the testimony
showed that an offense had been com
n.itted the states attorney Or attorney
general be authorized to file an in.
formation. There would be no ques-
ton about the constitutionality of
such law on the question @. judicial
authority.