Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-02-03

system. TO our mind this is not par
ticularly material as far as making
the bill vulnerable to attack; but
from an economic standpoint to re-
lieve the people of the state from
this burden would be a wise and
wholesome provision, but after care
full investigation Of the bill it occurs
to us that any amendments along the
line of eliminating the appropriation
will still leave it open to attack as
to it's constitutionality.
The legislature of 1909, by Chapter
1877, passed a similar law, creating a
Temperance Commissioner, ldetilAng
his duties and making appropriations
to defray the expenses of carrying out
the provisions of that act. This law
was passed upon by Dur supreme
court and held unconstitutional in the
case of Elk Parte-Corliss, Vol. It,,
mage 40, N. D. Reports. The reasons
assigned in the opinion for holding
that law unconstitutional were briefly
this: That the constitution created
the office of sheriff to enforce all OF
the criminal laws of the state, that
the legislature had no power to au.
thorize a central appointing power IN
the Governor to appoint any person to
assume any OF the powers OF the she
if in making arrests or giving such
party right of search. Our cour IN
that cast cited with approval the fol
lowing quotation from the State VS..
Hastings, II Wis. 44S: The ques'
ton arises whether under the forego-
ing provisions Of the constitution the
legislature have the power to create
a second auditor or otticer authorized
to perform the I'M duties whose
concurrence is necessary before the
acts of tina constitutional auditor
shall take effect. We think they
have not and that the functions OF
that officer cannot, in whole or in
part, be transferred to, or be exer-
cised ccncurrently or otherwise by
any other person or officer" Our
court, speaking, says: 1.-THE forego-
ing opinion fully sustains what we
have heretofore said to the effect,
that the constitution having named
certain officers. the functions essen
TALLY and inherently connected with
such offices must he discharged by
these constitutional officers and none
other"
Our court further state, at page 40
in Elk Parte-Corliss: 1T seems too
obvious for discussion that the franz
ers of the constitution, in providing
for the election of these officers
(meaning sheriffs) by the people
thereby reserved unto themselves the
right to have the inherent functions
theretofor pertaining to said offices
discharged only by persons elected
as therein provided"
House Bill No. II was no doubt
framed to Ievade if possible the decl-
sion Of our supreme court, which
held unconstitutional the old law Gre
ating the office of Enforcement Com
missioner, but the attempt was cen
tainly a failure, as any person may
see by reading Section ) Of said bill,
which provides taht the State I'm
forcement Commissioner and his as
s%istants shall have the same power
to arrest violators of the state law is
a peace officer would have, and oy
section 4 the State Enforcement com
missioner and his assistants have
been given full power Of search eX-
tending to all places of business, fac
tories, farms, buildings, cars, car
riages, vessels, etc. 1t would seem
from this that a casual reading OF
House Bill No. Il and the opinion cit
ed in this article wVuld thor oughly
convince any member of the legisla-
ture that H. b. No. II contains the
same principals upon which our SUI
preme court declared the former
Temperance Commissioner law I'M
constitutional. This being the case,
we can see no reason for any acri-
monious discussion of this bill at this
session, as to pass it would simply b.
placing on our statute books a la"
which would be absolutely unconsti-
%tutional, the same principles having
been declared so by our supreme
court, it would be as worthless as Il
scrap of paper.
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