Lead Opinion
This was an action in the nature of a proceeding of quo warranto, brought to prevent the defendants from exercising certain duties as commissioners for selecting a site for the permanent seat of government, and erecting the capitol building of the territory of Dakota, under appointment of an act of the legislature of the territory, approved March 8, 1883.
The complaint alleges the appointment by the then Governor of the territory, February 11, 1862, of the city of Yankton as the place for the first meeting of the legislative assembly; the meeting of the legislative assembly at the time and place so appointed; the location and establishment by said Governor and legislative assem
It further alleges that the defendants, as a pretended board, under said pretended act, have usurped said office of commissioners, and the right, privilege, and franchise of naming the seat of government, and are proceeding to change and permanently locate the capital and seat of government at some place other than the city of Tankton, in violation of law and the Organic Act. After some further allegations, not material to the present inquiry, judgment is demanded that defendants are not entitled to said office, and that they be ousted therefrom, and that the said pretended act, and all acts done or performed by said commissioners, be declared illegal and void.
The answer of the defendants, admitting the facts to be substantially as charged in the complaint, avers their due qualification as commissioners by giving bonds and taking the oath as prescribed in the act of 1883, and insists upon the validity of said act, and the regularity of all their proceedings thereunder. ,
It being considered by the court that no material issue of fact was raised, the cause was heard upon motions by both parties for judgment upon the pleadings. The motion of the plaintiffs pre
Passing by as not necessary to be considered, certain questions of practice raised by the appellants, the errors assigned are the refusal of defendants’ motion for judgment, the granting of plaintiff’s motion, and the judgment rendered thereupon.
The provisions of the act, quoted in full so far as necessary to the proper consideration of this case, are as follows:
“ Section 1. The seat of government of the territory of Dakota “ is hereby removed from the city of Yankton, in the county of “ Yankton and territory of Dakota, and is located and established “ as hereinafter provided.”
“ Sec. 2. That Milo ~W. Scott, Burleigh F. Spaulding, Alex- “ ander McKenzie, Charles H. Myers, George A. Matthews, Alex- “ ander Hughes, Henry H. DeLong, John P. Belding, M. D. “ Thompson, be and they are hereby appointed commissioners for “ the purpose of locating the permanent seat of government and “ the capitol building of the territory of Dakota.”
Section 3 provides for the qualification of the commissioners by giving bonds in the sum of $40,000 each, and the taking of the customary oath, their organization by the election of president, secretary, and treasurer, and the giving of a bond by the latter in the sum of $100,000.
“ See. 4. On or before the first day of July, A. D. 1883, the “ commissioners, or a majority of them, shall select a suitable site “ for the seat of government of the territory of Dakota, due regard “ being had to its accessibility from all portions of the territory,
Sections 5, 6, and 7, provide for the laying off into lots, blocks, streets, alleys, and public squares, and for sale and conveyance of the residue of the lands not occupied by the capitol buildings and improvements.
“ Sec. 8. All moneys received by the commissioners for the “ sale of lots shall be forthwith deposited by them in the territorial “ treasury, and said money shall be held by 'the treasurer as a terri- “ torial building fund, and shall be kept by him separate from “ other funds and be separately accounted for.”
Section 9 provides for the expenses of the commissioners, and for their compensation at the rate of six dollars for each day actually employed, (such compensation not to exceed in the aggregate $10,000,) all to be paid out of the territorial building fund. Sections 10, 11, and 12, provide for the erection of the necessary buildings; section 12 concluding as follows: “ As soon as the cap- “ itol building, provided for in this act, is erected and completed,
“ Sec. 13. The title to all lands secured by the commissioners “ for the location and erection of capitol buildings shall be con- “ veyed to the territory of Dakota.”
Section 14 requires the commissioners to make a full and complete report of all their doings to the next legislature, declares that they and their sureties shall be held responsible on their bonds for-all their acts until the legislature shall order the bonds delivered up to them, and prohibits them from purchasing or acquiring any. interest in any real estate, within 10 miles of the site selected, within one year from the passage of the act, and from being interested in any contract made under the provisions of the act.
Section 15 prescribes penalties for violation of the foregoing section.
“ Sec. 16. Until the territorial capitol buildings shall be ready “ for occupancy as provided by this act, the territorial officers shall “ temporarily keep their offices, archives, books, records, and “ papers at the city of Yankton, unless the Governor shall desig- “ nate some other place by written order, in which case the said “ officers shall remove their respective offices, together with the “ archives, books, records, and papers pertaining thereto, to the “ place so designated within the time prescribed in such order.”
<£ Sec. 18. This act shall take effect and be in force from and after its passage and approval.”
We are not informed by anything in the records, or by any written opinion of the learned Chief Justice before whom the case was tried, of the grormds upon which the j udgment of the District Court was based; but the principal reasons urged in-this court in support of that judgment are:
First. — That the act of 1883 is in conflict with those provisions of the Organic Act of the territory, under and in pursuance of which alone the power to change the seat of government can be exercised, in that it delegates to these defendants the duty of selecting a suitable site for the location of the seat of government,— a duty which, it is claimed, could be lawfully performed by the Governor and legislative assembly only.
Second. — That said act is also in conflict with the Organic Act, in that it appoints these defendants by name as commissioners, whereas, if any lawful appointment could be made for the purposes indicated, such appointment should have been made by the Governor, by and with the advice and consent of the legislative council, upon the Governor’s nomination.
These are the questions, therefore, which are presented for our consideration, — questions whose just determination is to be sought in the line of established principles of legal interpretation and construction, guided only by the purpose to ascertain and declare the law.
The first inquiry which suggests itself is as to the nature and extent of the general powers conferred upon the territorial legis-
We shall not attempt to follow counsel in their interesting discussion of the various theories of ultimate sovereignty, and the sources and nature of the power of the Federal and State legislatures. We shall limit ourselves to as brief an expression of our views as may be consistent with an intelligent statement of the reasons which have led the court to its judgment.
We think it must be regarded as a settled principle of constitutional interpretation in this country, that the people are the sovereigns, and that in the people resides ultimate sovereignty.
If we consider the several State organizations, it is evident that' the legislature is not the State, nor is the judiciary, nor the executive, nor are all combined, the State. The people organized into a political society are the State, and the various departments mentioned are but the machinery through which the popular will finds expression, interpretation, and execution. To these several departments the people have committed — nr, in other words, delegated— the exercise of the various powers and duties appropriate to each, and as limitations thereupon have formulated and adopted those organic instruments which we call constitutions; and the power that thus created, conferred, and limited, may, within certain limitations, alter, amend, and even abrogate. -And it is to be observed that these limitations last referred to are either self-imposed, or such as inhere in the very nature and constitution of human society; they are never imposed upon the people by any of the departments of the State government, nor can they be. The servant cannot control the master.
Nor does it militate against this view to suggest, as do respondents’ counsel, that no body of the people, however numerous, even though comprising all the citizens of a State, would have any more
Passing now to the Federal government, we find here a like commission or delegation of power from the sovereign, to-wit: the people; only here it is the people of the United States who are sovereign. The language of the preamble to the constitution is: “ We, the people of the United States.” Here, too, we have the three departments of government framed for the expression, interpretation, and execution of the sovereign will, to each of which have been committed or delegated its appropriate powers. And here, also, we find an Organic Act or instrument, called a constitution, containing within itself an expression of the conditions and methods, self-imposed by the sovereign, under and in accordance with which it may be altered or amended. This is sometimes spoken of as a surrender of power by the people to the general government; but ean it be so regarded? The only true view of our system of government, both State and National, is that which regards the people as still sovereign, and every lawful act of every department of any of these governments, State or National, as but the will of the sovereign, expressed by and through their chosen instruments.
It may, perhaps, be conceded that there is this difference between the State and the Federal constitutions: that while the former are
The preamble to the constitution recites the sovereign purpose. The first section of article 1 declares that “all legislative powers herein granted shall be vested in a Congress of the United States.” The eighth section of the same article prescribes what this Congress shall have power to do. And article X of the amendments declares that “ the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Among the powers conferred upon the general government in its various departments are those of declaring war and making treaties. Implied in these powers is that of acquiring territory by conquest or purchase; and a necessary consequence of such implied power would seem to be the power to dispose of and make all needful rules and regulations respecting the territory so acquired. This latter power, however, has been expressly conferred upon the Congress by section 3, of article IY, of the constitution. From whatever source derived, the possession by Congress of the
It is manifest, also, from the considerations already advanced, that this power, like all others possessed by Congress, is a delegated one. In the language of the.opinion just cited, “ Congress * * * has all. the powers of the people of the United States ” in the matter. If, therefore, the maxim, delegatus non potest delegare, invoked by respondent’s counsel, be applicable, it may appear .somewhat strange that, instead of any question as to the power of Congress to legislate for the territories, there has never been raised the question whether such delegated power could be redelegated; in other words, whether it could be lawfully exercised in any other way than by the enactment by Congress of a system of laws complete in all details of government for the territories. For, beginning with the ordinance of 1787, the practice of Congress has been to establish in all the territories complete systems of local self-government similar in all essential respects to those of the States of the Union, and to commit to the various departments of these local governments the exercise of all the functions appropriate to each, reserving either expressly, as in some instances, or impliedly, as in others, a supervisory and revisory power over all territorial legislation.
It would be a vain task for this court or any other court to
The principal questions under consideration in that case were as to the power of Congress to legislate specifically for the territories, and the effect to be given to such legislation, and to those questions the language quoted was apt and pertinent. But it is unnecessary to presume that that language was intended by the court as an accurate judicial definition of the political- status of the territories applicable to all cases. Such a proposition would not command the assent of any diligent student of constitutional law, and we think no such construction can be placed upon that opinion.
The controlling basilar idea of our republic is that of an organic union of republican States; a noble building “ fitly joined together, and compacted with that which every joint supplieth.” The ultimate purpose is that every portion of its territory shall, as soon as practicable, be organized into States which shall take their equal place and part in the Union. The territorial condition is but a necessary incident of immaturity. Every essential element of
Let us see what has been done in this respect. The ordinance of 1787 for the government of the northwestern territory has been already alluded to, and although that was enacted prior to the adoption of the constitution and is not now in force, (Strader v. Graham, 10 How., 82,) the general policy of Congress in reference to the government of the territories has remained as therein expressed. "We do not wish to be understood as affirming any right in the inhabitants of any particular portion of the public domain to demand admission into the Union as a State. The hand that created can destroy, and the boundaries of any territory may be entirely altered by Congress at its pleasure. "We are merely stating what we understand to have been the general policy of the government.
The acts under which the several territories have been from time to time organized, are all drawn after the same general pattern, and are in all essential particulars similar. That organizing this territory was passed March 2, 1861: 12 Statutes at Large, 239. Its title is: “An act to provide a temporary government for the territory of Dakota, and to create the office of surveyor general therein.” The first declaration of the act is, that the territory therein described “ is hereby organized into a temporary government by the name of the territory of Dakota.” Section 2 vests the'executive power in a governor, and prescribes in very general terms his powers and duties, among which we note here, for future reference, that “ he shall approve all laws passed by the legislative assembly before they shall take effect.” Section 4c vests “ the legislative power and authority of said territory in
Here, it will be observed, is no code of laws, civil or penal. This Organic Act is, in all its essential generic features, similar to-the constitutions of the several States, and there can be no doubt that it was designed to serve a similar purpose, (Ferris v. Higley, 20 Wall., 375, 380;) the power to amend, alter, or repeal, however, remaining in Congress, which may exercise such power in a summary way, either directly or indirectly, by adyerse legislation.
If the provisions of the Organic Act pertaining to legislation are to be regarded as a mere delegation to the territorial legislature of the law-making power, ample and complete as it is, and extending as it does, in general terms, to all rightful subjects of legislation, they might seem obnoxious to the well-settled rule that powers strictly and exclusively legislative cannot be delegated: Cooley, Const. Lim., 116; Wayman v. Southard, 10 Wheat., 1. But such a view of the Organic Act is manifestly a too narrow one. The same author just quoted, referring to the rule that legislatures cannot delegate the power to make laws, says, (5th Ed. p.
"We have quoted these words of this learned author merely for the purpose of showing that not every creation by the legislature of subordinate legislative bodies is to be regarded as a delegation of law-making power, although, for reasons already stated, we think that the analogy between the relations borne by counties and other municipal organizations to the State legislatures and those borne by the territory to the Congress of the United States is by no means complete. There is a wide and, as it seems to us, an essential difference in the conditions and purposes of their existence. The relations between the territories and the general government may indeed be said to be sui generis, having no complete analogy in any other political organizations.
So, then, we must either boldly affirm that the whole scheme of territorial government is unlawful, and that the established policy of Congress in this regard is an abdication of the trust committed to it by the people; or, taking a broader and more comprehensive view, we shall conclude that the power reposed in Congress to make needful rules and regulations for the government of the territories comes fairly within the scope of those administrative functions of legislative bodies which it is generally conceded they may either exercise themselves in detail or by statutes containing general provisions only, and that in erecting within the prospective
And since the investiture of the territorial legislature with leg- ' islative powers is, as we have seen, general in its terms, extending to all rightful subjects of legislation, we think this is to be regarded as a delegation of authority in the same general sense only in which the powers of Congress are considered to be delegated to it by the people, and that such powers are, within their proper scope, to be exercised in the same manner as like powers may be exercised by other legislative bodies, state and national.
Sanction for the views thus expressed will be found in several decisions of the Supreme Court of the United States. In the case of Miners’ Bank v. Iowa, 12 How., l,the court says: “ By what “ may be termed the Organic laws, creating the governments of “ both the territories above mentioned, it will be seen that those “ governments were vested with general legislative power, and “ were subjected to no enumerated or specific limitations of that “ general power, save in certain exceptions relating to the lands or “ other property of the United States,” etc.
Language of like import was employed by the court in the case of Trustees of Vincennes University v. Indiana, 14 How., 273.
Again, in the case of Clinton v. Englebrecht, 13 Wall., 434, the court says, (p. 441:) “ The theory upon which the various govern- “ ments for portions of the territory of the United States have “ been organized has ever been that of leaving to the inhabitants “ all the powers of self-government consistent with the supremacy “ and supervision of national authority, and with certain funda- “ mental principles established by Congress.” And after referring
So, also, in the case of Hornbuckle v. Toombs, 18 Wall., 648, the court says, (p. 655:) “ As a general thing, subject to the general scheme of local government chalked out by the Organic Act “ and such special provisions as are contained therein, the local “ legislature has been intrusted with the enactment of the entire “ system of municipal law; subject also, however, to the right of “ Congress to revise, alter, and revoke at its discretion. The pow- “ ers thus exercised by the territorial legislature are nearly as ex- “ tensive as those exercised by any State legislature.” See, also, Ferris v. Higley, supra. We might add that in the District of Columbia, over which, by the express terms of the constitution, (article 1, Sec. 8,) the power to exercise exclusive “ legislation in all cases whatever ” is given to Congress, Congress at one time provided a Governor and legislature, and a complete system of government: Revised Statutes relating to District of Columbia, pages 1 to 149.
Having thus defined the relation of the territory to the general government, and the general powers of the territorial legislature under the Organic act, the next inquiry which presents itself is, what provision is made in the Organic Act for a change of the location of the seat of government of the territory? Section 12 of that act, is as follows: “ That the legislative assembly of the terri- “ tory of Dakota shall hold'its first session at such time and place
It is contended by counsel for respondents that in this section • alone is to be found the power to change the location of the seat of government, and that such power is a special trust conferred upon and reposed in -the Governor and legislative assembly, by which they are charged with the duty of personal selection of a new location. In support of this view it is insisted by counsel for respondents that the words, “ as they may deem eligible,” contained in the section just quoted, not only impose upon the Governor and legislative assembly the personal duty of determining the eligibility of the place at which the seat of government was to be first located, but that these words are to be transferred, and relate with like force to the last clause of the section, which contemplates a subsequent change or changes.
It would be a sufficient answer to this contention to say that the section referred to was long since superseded by section 1944 of the Revised Statutes, in which these words are not found; but, inasmuch as what we regard as the only provision of the original section pertinent to the circumstances is preserved in the present . act, it will be convenient to take a general view of both.
In the first place, let us see to what a result such a construction as that contended for would lead us. This territory is, in round numbers, some 400 miles square, with a population said to be nearly 350,000, distributed over a great portion of its surface. A number of important and growing towns were contending for the
In order to ascertain the powers and duties.of the legislature in this respect we must look, not alone to any isolated section of the Organic Act, but to every part of it, considering its whole scope and purpose. We have already seen that the purpose of that act,
An examination of the Revised Statutes of the United States will show that this provision is now repealed. This was effected by an act passed March 2,1863, relating primarily to the territory of Colorado, but made applicable, in part, to this territory: 12 Stats, at Large, 700. This last-mentioned act gave the Governor the usual veto power, but provided for the passage of bills by the assembly over the veto, thus recognizing the usual distinction between the legislative and executive .departments, and assimilating the system of legislation to that of the states and of the United States: Rev. Stats., Sec. 1842.
It will be noticed, however, that the original provision of the Organic Act, by which the legislative power is vested in the Governor and a legislative assembly, is still retained in the Revised Statutes, (section 1846,) whence we must conclude that these two •sections are not repugnant, but are to be read together, if possible, which, it is manifest, may be readily done.
Let us now examine the provisions of section 12 of the Organic Act, already quoted. Obviously it was necessary that some provision should be made for the first meeting of the legislature. Hence we find that the Governor was authorized to designate the
Realizing, however, that in such a vast territory the center of population and commerce would, in all probability, shift from its original location, and thus render a further change or changes desirable, and with the purpose, no doubt, of avoiding any question which might arise as to the power of the legislature to make such change, the further clause is added: “ Which place, however, shall thereafter be subject to be changed by the said Governor and legislative assembly.” This seems to us to be the full scope and purpose of the section referred to. We do not regard it as either an enlargement or limitation of the general legislative powers already conferred, but as a declaratory provision inserted by way of precaution; and, whether considered as pertaining to the strictly law-making functions of the legislature or to those administrative functions belonging to every legislature, this power could, at least, be properly exercised in the form of a legislative act, as such functions are usually exercised by legislative bodies.
In accordance with this view was the action of the territorial legislature, which, by enactment in the usual form, passed by the legislative assembly, and approved by the then Governor, April 8, 1862, located and established the seat of government at Yankton. Strangely enough, however, all the counsel who have presented printed briefs in this case seem to have overlooked the fact that
Eor the reasons already stated, however, we do not think any substantial change in the law was effected by this enactment; it merely re-enacted so much of the former act as was then applicable to the territories named. What we have said, therefore, in considering the former act, is in the main applicable to the present one.
With this general review of- the powers of the legislature in respect of the subject-matter of this controversy, we are now prepared to consider the act in question, and to ascertain whether ,. such of its provisions as are assailed in this proceeding are in conflict with any of the principles by which legislative bodies possessing general powers of legislation are governed in similar cases; for to this point, as we think, is the discussion brought by the views already, expressed- Over 20 years have elapsed since the passage of the first act locating the seat of government, during which vast tides of immigration have been flowing in upon these broad and fertile plains. Yankton, once the practical center of population, has become, to by far the greater part of this new population, remote and inconvenient of access, and at its last session the legislature, deeming the time to have arrived when it was
Upon the argument before this court a considerable portion of the discussion was devoted to the inquiry whether, the exercise of the power of changing and relocating the seat of government pertains to the administrative or to the purely law-making functions of the legislature. Possibly it may involve both. Prescribing by law that a change shall be made and a new location selected, and the mode in which this shall be accomplished, would seem to pertain closely to the law-making function. But, whether so or not, the actual selection of a suitable location, and the erection of buildings and improvements thereon, are clearly, as we think, acts of an administrative character. Undoubtedly there maybe combined in one section, as has sometimes been done, a declaration of the legislative will that a change be made, and a selection and designation by the legislature of a new location. Or, as has also frequently been done, the former may be expressed in one portion of the act, while in other portions thereof provision is made for the latter.
We are of the opinion that, if not wholly administrative, so much at least of the act in question as relates to the selection of a new site, and the erection of suitable buildings and improvements thereon, is clearly of an administrative character. The legislative will that the seat of government be removed, that it be located and established as in the act provided, and that the site selected and determined upon by the commissioners, in pursuance of the provisions of the act, shall be the permanent seat of government of the
Legislative precedents in such cases are of great' value. As remarked by Justice Oaton in the case of The People v. Reynolds, 5 Gilman, 1: “In determining what is legitimate and proper legislation we feel warranted in looking at the past to see what kind of laws legislative bodies have been in the habit of passing.”* And an examination of such precedents will show, that the provisions in question are in harmony with the long-established and well-nigh universal practice of legislative bodies, federal, state, and territorial.
Only alluding in passing to the unchallenged legislative practice of this territory, in common with many other states and territories,, of delegating, to commissioners and others the power to locate county seats, and do many other administrative acts which the-legislature might undoubtedly do 'itself, we shall cite but a few of' the more important of the legislative precedents just referred to.. Tbe territory of Iowa furnishes one of these. In its essential features the Organic Act of that territory was the same as that of Dakota. I very much regret that the statutes of the territory of Iowa are not accessible by me at this time. Though cited at some length upon the supplemental brief of counsel for respondents,, some facts'which I deem of importance are omitted. Briefly
Counsel for the. respondents, however, claim that because, by the terms of a supplemental act passed at the same session, no further steps were to be taken after the selection and report thereof to the Governor until the consent of. the United States should be. obtained, and a donation of the land made by them, this precedent is to be regarded as opposed to, rather than one in favor of the legislation in question. But upon examination of the supplemental act it will appear that the consent which was to be obtained Was not to the method adopted for making the selection, but to the appropriation of the land selected for the purpose designated, and that such consent was to be obtained, if possible, in the form of a grant or donation of the laud. And such seems to have been the view taken of it by Congress, for we find that by an act 'passed March 3, 1839, Congress “ appropriated and granted to the terri- “ tory of Iowa one entire section of land, of arvy of the surveyed “ public lands in said territory, for the purpose of erecting thereon “ the public buildings for the use of the executive and legislative • u departments of the government of said territory: Provided, “ That the said section of land shall be selected wader the authority “ of the territorial legislature, the seat of government located “ thereon, and notice of said selection officially returned to the reg- “ ister of the land office in the district in which the land is situated, “ within one year from the passing of this act.”
In the case of Clinton v. Englebrecht, supra, in which the validity of the jury laws of the Territory of ITtah was in question, the court say: “ The uniformity of construction by so many ter- “ ritorial legislatures of the Organic Act in relation to their legis- ££ lative authority, especially when-taken in connection with the “ fact that none of these jury laws have been disapproved by Oon- “ gress, though any of them would be annulled by such disap- ££ proval, confirms the opinion, warranted by the plain language of il the Organic Act itself, that the whole subject-matter of jurors t£ in the territories is committed to territorial legislation.” And again: ££ In the first place, we observe that the law has received ££ the implied sanction of Congress. * * * The simple dis- “ approval by Congress at any time would have annulled it. It i£ is no unreasonable inference, therefore, that it was approved by ££ that body.”
In the Iowa ease the attention of Congress must have been specially directed to the territorial law.
Another precedent is furnished by the state of Illinois, the site for whose capital was selected by commissioners, appointed in and by an act of the legislature of that state, passed in 1819. ■ The value of this precedent, also, is assailed by counsel for the respondent, on the ground that the Constitution of the state con-
Nut it is the propriety of this kind of legislation which we are now considering, as evidenced by the practice of other legislative bodies, and this provision of the Illinois constitution may, we think, be fairly regarded as an expression of the opinion of the people of that state that the mode of selection therein prescribed was the most suitable and proper one. In Nebraska, also, the present capital of the state was located by a commission composed of the Governor, Secretary of State, and Auditor, named in and appointed for the purpose by an act of the legislature of 1866-67, which removed the capital from Omaha, and located it at a point to be thereafter selected. So, also, was the seat of our Federal government selected and located.
The general power of Congress for this purpose is found in section 8, of Article I, of the Constitution, where the right of exclusive legislation is given “ over such district (not exceeding ten .miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of government of the United States.” By chapter 28, 1 Statute at Large, 130, it was enacted “ that a district of territory not exceeding ten miles square, to be “ located as herei/nafter directed, on the river Potomac, at some u place between the mouths of the eastern branch and Con- “ nogochegue, be and the same is hereby accepted for the perma- “ nent seat of government of the United States.”
By the second section the President was authorized to appoint
It may be worthy of note in this connection, as pertinent to some adverse eritieism upon the provisions of sections 1 and 16, of the territorial act, although we do not deem it essential to a determination of this controversy, that the act of Congress makes a somewhat similar provision.
The seat of government at-that time was the city of New York. Section 5, of. the act of Congress, provides “ that, prior to the first ■“ Monday in December next, (1790,) all offices attached to the “ seat of government of the United-- States shall be removed to, “ and until the said first Monday in December, in the year one “ thousand eight hundred, [the date fixed for the completion o£ “ suitable accommodation at the new seat of government,] shall “ remain at, the city of Philadelphia, in the state of Pennsylvania, “ at' which place the session of Congress next ensuing the present “ shall be held.” Section 6 then provides that on the first Monday in December, 1800, the seat of the government, and all offices attached thereto, shall be transferred to the district and place selected for the permanent site thereof.
Nowhere in the act is Philadelphia designated, in terms, as a temporary seat of government, although such a purpose may be inferred from the title of the act, which is “An act for establishing the temporary and permanent seat of government of the United States.” ^
We do not propose, however, to consider this particular matter further.
Numerous other discretionary powers, which are by the Oonsti-
With this brief view,of some of the legislative precedents, we proceed now to consider lome of the .cases in which judicial sanction has been given to legislation of the same character as that in controversy. It is a difficult task to select, from the great mass of concurrent decisions upon this point, a limited number of those most pertinent to the circumstances, but we shall cite a few which we deem appropriate and decisive.
The case of Upham v. Supervisors of Sutter Co., 8 Cal., 379, was one in which the validity of an act providing for the removal of a county seat upon a vote of the citizens was in question. The court say: “ Providing for a place does not necessarily include “ its direct selection. If the mode of selection is prescribed by “ law, then the place is provided for. By the Constitution the “ legislature is required to provide for many objects which cannot “ be effected by the direct action of the legislature; and while the “ maxim delegatus non potest delegare is, undoubtedly, true, “ the extent of its application to legislative bodies must depend “ upon the nature and design of the legislation, and the means “ necessary to accomplish the design. * * * ” In Hobart v. Butte Co., 17 Cal., 24, a case involving the validity of bonds issued under a statute which submitted the question of issuance to
The case of People v. Reynolds, 5 Gilman, (Ill.) 1, already cited, is very instructive. The court there say: “ If we take the action “ of all past legislators in determining what'may and should prop- “ erly be done in the exercise of legislative powers, we see that “ while they are bound to make the laws, yet those laws need not “ be 'absolute, nor make every provision for doing that which “ they may authorize to be done; while all must be done-under “ their sanction, yet they.need not do all, nor command all,— “ a law may depend upon a future event or’ contingency for its- “ taking effect, and that contingency may arise from the voluntary “ act of others. * * * If we say. that this is an unauthorized “ delegation of legislative power, we forget what is a legitimate- “ and proper exercise of that power. If the saying be true that “ the legislature cannot delegate its powers, it is only so in its “ most general sense. "We may well admit that the legislature “ cannot delegate its general legislative authority, still it may au- “ thorize many things to be done by others which it might prop- “ erly do itself. ■ All power possessed by the legislature is dele- “ gated to it by the people, and yet few will be found to insist “ that,whatever the legislature may do it shall do, or else it shall
In Locke's Appeal, 72 Pa. St., 491, Justice Agnew, speaking for the Supreme Court, says: “ What is more common than to “ appoint commissioners under a law to determine things, upon e- the decision of which the act is to operate in one way or another? “ * * * Then the true distinction, I conceive, is this: — the leg- “ islature cannot delegate its power to make a law, but it can make “ a law to delegate a power to determine some fact or state of “ things upon which the law makes or intends to make its own “ action depend. To deny this would be to stop the wheels of “ government. There are many things upon which wise and use- “ ful legislation must depend which cannot be known to the law- “ making power, and must therefore be the subject of inquiry and “ determination outside the halls of legislation.”
By section 9, of Article I, of the Constitution of the United ■States it is declared 'that “ the privilege of the writ of habeas ■corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.”
The Supreme Court of Wisconsin, (In re Kemp, 16 Wis., 382,) decided that the power to suspend this writ was a legislative power, and was vested in Congress; and that the proclamation of the President suspending the writ was for that reason void. Congress subsequently passed an act (already cited) conferring this power
It is useless to multiply precedents. We cite for reference, without quoting, Burr v. Blanding, 13 Cal., 357; Moers v. City of Reading, 21 Pa. St., 202; C. & W. & Z. R. Co. v. Com'rs, 1 Ohio St., 88; Wayman v. Southard, 10 Wheat., 1; Slack v. M. & L. R. Co., 13 B. Mon., (Ky.) 1; State v. Parker, 26 Vt., 357.
Our conclusion is, that the provisions of this act for the selection by commissioners of a suitable location for the seat of government, and for the erection thereon of the necessary buildings and improvements, are a lawful and proper exercise of legislative authority, and that the act in question is, in these respects, valid and operative.
The remaining question is,, as to whether the designation of the commissioners by name in the act itself was' lawful, being contended by the respondent that such designation is in conflict with section 1857, of the Revised Statutes of the United States, which requires that the Governor shall nominate, and, by and with the advice and consent of the legislative council, appoint, all ofiieers, except certain ones otherwise provided for. This question we shall consider very briefly.
íhe officers contemplated by that section are, in our opinion, those continuously employed in the regular and permanent administration of government; those by whom the territory performs its usual political functions — its functions of government: Sheboygan Co. v. Parker, 3 Wall., 39.
The duties to be performed by these commissioners are of the most temporary character. Their functions wholly cease with the completion of those duties; and we do not think they can be regarded as officers, within the meaning of the section of the Organic Act referred to. Legislative and judicial proceedings for this view
The importance which has been given to this case by the acrimonious contest over the removal and relocation of the capital, and the general interest with which the decision of this court was awaited, have suggested the belief that such a presentation of the legal principles upon which our judgment is based as would render them measurably clear to the popular comprehension, would perhaps be anticipated, and indeed it were well if our citizens generally were better acquainted with the sources and extent of their political powers. These considerations have led to a somewhat more ■extended exposition of our views, and to a fuller quotation from •the precedents cited, than we should otherwise have deemed necessary, since we regard the questions presented, when viewed in their true aspect, as free from any considerable legal difficulties, and have no hesitation in declaring that in our opinion the appellants are lawfully entitled to exercise the duties of their appointment under the act in question.
The judgment of the District Court must therefore be reversed, and judgment given by that court for appellants upon the pleadings. Ordered accordingly.
Dissenting Opinion
dissenting: — I am unable to agree with the majority of the court in the conclusion to which they have arrived
“ Sec. 6. And le itfivrther enacted, That the legislative power '•‘.of the territory shall extend to all rightful subjects of legislation “ consistent with the Constitution of the United States-and the “ provisions of the act;” * * *
“ Sec. 12. And he it further enacted, That the legislative “ assembly of the Territory of Dakota shall hold its first session “ at such time and place in said territory as the Governor thereof “ shall appoint and direct; and at said first session, or as soon “ thereafter as they shall deem expedient, the Governor and legis- “ lative assembly shall proceed to locate and establish the seat of “ government for said territory at such place as they may'deem “ eligible, which place, however, shall thereafter be subject to be “ changed by the said Governor and legislative assembly.”
These provisions remain in force to this day without any material change. In the Revised Statutes passed June 22, 1874, section 12 was substantially re-enacted, except that portion which had been completely executed, and now reads as follows:
“ Sec. 1944. The seat of government of the territories of New “ Mexico, Utah, Washington, Colorado, Dakota, Arizona, and “ Wyoming may be changed by the governors and legislative “ assemblies thereof, respectively.”
In pursuance'of the authority thus conferred by section 12 of the Organic Act, the first Governor of the territory appointed as the place for holding the first session of the legislative assembly w’hat is how known as the city of Yankton. The first legislative assembly, by an act approved by the Governor, April 8, 1862, located and established'the seat of government on section 18, in town
“ Section 1. The seat of government of the Territory of Dakota “ is hereby removed from the city of Yankton, in the county of w Yankton and Territory of Dakota, and is located and established “ as hereinafter provided.”
“ Sec. 2. That ” (naming these defendants), u be, and they are u hereby, appointed commissioners for the purpose of locating the “ permanent seat of government and the capítol building of the “ Territory of Dakota.”
* * * * ******
“ Sec. 4. On or before the first day of July, 1883, the com- “ missioners, or a majority of them, shall select a suitable site for “ the seat of government of the Territory of Dakota, due regard “ being had to its accessibility from all portions of the territory “ and its general fitness for a capital, when at least one hundred “ thousand dollars shall be paid or guaranteed in money. If the “ amount be not paid in money, then its payment to the territory “ shall be secured by a bond, with good and sufficient .sureties, “ payable to the territory, which bond shall be approved by said “ commissioners, or a majority thereof. And after the site is de- “ termined upon as aforesaid, said commissioners shall secure good “ and sufficient title deeds of at least one hundred and sixty acres <c of land, upon which the capitol buildings shall be erected, and*419 41 a sufficient amount of said grounds shall be laid out into squares 41 and suitable landscapes, and the same is hereby declared to be 41 the permanent seat of government of the Territory of Dakota, 41 at which all of the public offices shall be kept, and.at which all 4‘ of the sessions of the legislature shall hereafter be held.”
***** *****
41 Sec. 16. Until the territorial capitel buildings shall be ready 4£ for occupancy as provided by this act, the territorial officers shall 4£ temporarily keep their offices, archives, books, records, and pa-4£ pers at the city of Yankton, unless the Governor shall designate 4£ some other place by written order, in which case the said officers 4£ shall remove their respective offices, together with the archives, 4£ books, records, and papers pertaining thereto, to the place so 4£ designated, within the time prescribed in such order.”
■“ Sec. 17. Chapter 1, of the Political Code, and all acts or 4£ parts of acts in any manner in conflict with this act or repug-4£ nant thereto, are hereby repealed.”
The defendants, having qualified, were proceeding to execute the duties and powers thus enjoined and conferred upon them, when this action was brought by the proper public officer to test their authority to thus act. It will be seen that an elementary question is presented. Can the Governor and legislative assembly delegate to these defendants the right to exercise power and authority expressly conferred by Congress upon the Governor and legislative assembly without power of substitution, express or implied? The question whether Congress derives all of its powers by delegation, or otherwise, may, perhaps, be an interesting one, but it has no application to this case, and indeed both parties admit that Congress derives its powers by delegation. This appellant says in his argument: “ In the United States the sovereignty re- “ sides in the people, and all legislative power is delegated. Con-
The first inquiry which suggests itself is the relation of the territory to the general government and to Congress. This question was at an early day a subject of contention in the highest court of the nation, and has received successive judicial interpretations, from the time of Chief Justice Marshall till now, so that the rule is tolerably well settled.
In American Ins. Co. v. Canter, Chief Justice Marshal says, in delivering the opinion of the court: “ In the mean time, Florida “ continues to be a territory of the United States, governed by “ virtue of that clause in the Constitution, which empowers Oon- “ gress to make all needful rules and regulations respecting the “ territory or other property belonging to the United States. Pe'r- “ haps the power of governing a territory belonging to the United “ States, which has not, by becoming a state, acquired the means “ of self-government, may result necessarily from the fact that it “ is not within the power and jurisdiction of the United States. “ The right to govern may be the inevitable consequence of the “ right to acquire territory. Whichever may be the source whence
The rule is now authoritatively defined and settled in National Bank v. Yankton, which is the latest expression from that court upon the question. The court says: “ It is certainly now too late “ to doubt the power of Congress to govern the territories. There “ have been some differences of opinion as to the particular clause “ of the Oonstitutiomfroin which the power is derived, but that it “ exists has always been conceded. * * All territory within “ the jurisdiction of the United States, not included in any state, must necessarily be governed by or under the authority of Con- “ gress. The territories core but political subdivisions of the out- “ lying dominion of the United States. Their relation to the “ general government is much the same as that which counties “ bear to the respective states, and Congress may legislate for “ them as the state does for its mu/nicipal organizations. The “ Organic law of a territory takes the place of the Constitution as “ the fundamental law of the local government. It is obligatory “ on and binds the territorial authorities, but Congress is supreme, “ and, for the purposes of this department of its governmental “ authority, has all the powers of the people of the United States, “ except such as have been expressly or by implication reserved in “ the prohibitions of the Constitution. -In the Crganic Act of “ Dakota there was not an express reservation of power in Con-u gress to amend the acts of the territorial legislature, nor was it “ necessary. Such a power is an incident of sovereignty, and con- “ tinues until granted away. Congress may not only abrogate “ laws of the territorial legislature, but may itself legislate directly “ for the local government. It may make a void act of the terri- “ torial legislature valid, and a valid act void. In other words, it “ has full and complete legislative authority over the people of
The condition of the territories is one of absolute dependence. The power of Congress over them is supreme, restricted, possibly, by some undefined limitations of the Constitution. Their very political existence may be abolished, or their territory may be carved up and attached to the surrounding states or territories. In the earlier organic acts for the government of the territories the legislative power was frequently, in the first instance, conferred upon the Governor and the Judges, all appointed by the President. See Organic Act for Arkansas, section 5; also for other territories.
I am unable to see that this case necessarily involves the discussion of any serious constitutional question. With great respect for the majority of the court, and for the learned Judge who so elaborately discusses grave constitutional questions in the majority opinion, it seems to me the proposition is so plain and so elementary, and the questions leading up to the principal question so thoroughly settled by judicial decisions, and so uncontested by text writers, there is very little chance for discussion. That Congress possesses the power to legislate for the territory, or to delegate the power of local legislation to the government of the territory, is not open to argument. That Congress might itself select and establish the seat of government, or might delegate that power to the Governor and legislative assembly, or to any other tribunal, is a proposition so well settled, and so plain, that the bare statement is enough to satisfy any intelligent legal mind. The question is not as to the power of Congress over the subject, but, Congress having delegated this power to select and establish and change the seat of government to the Governor and legislative assembly, the question is, in the absence of any express power of substitution, is there any implied authority in those tribunals to
Congress, in almost every act for the organization of the territories, at least for the last 50 years, in addition to the general grant of powers to the territorial legislature, has also provided how the temporary and permanent seat of the territorial g'overnment should be located. Whatever might be the interpretation, had the general power, as expressed in section 1851, (substantially the same as section 6 of the Organic Act,) been the sole expression of the will of Congress, the passage of section 1944 must be considered as a grant or as a limitation of power, An old and correct rule of interpretation's: “Where a charter contains a general clause, “ which afterwards descends to special words which are consenta- “ nfeous to the general clause, the charter is to be interpreted ac- “ cording to the special words.”
It was contended by the appellants upon the argument, and the same view seems to be entertained in the majority opinion, that
The exercise of this duty by the tribunals selected by Congress cannot be. said to be in any just sense the exercise of original powers, or, as applied to government, of sovereign powers. The Governor and legislative assembly are tribunals, the mere creatures of Congress. By Congress they are created and clothed with all the powers which they possess. These powers are in the
It might be instructive to examine how 'Congress, in the different organic acts, has varied the mode of locating capitals in the territories. In some instances it has conferred the power solely upon the Governor and legislative assembly, while in other cases the place where the legislature shall, first meet is fixed in the Organic Act, and the temporary seat of government is located by the Governor and legislative assembly, and the permanent seat is established by law when ratified by the people. See section 13, of the Organic Act of Minnesota.
In the Organic Act for Minnesota the legislature may prescribe by law the manner of locating the permanent seat of government of said territory by a vote of the people. In Dakota, Congress changed the mode of location. Instead of providing that the manner of location may be prescribed by law, it intrusts the power to the Governor and legislature. It is a significant fact that in nearly every Organic Act for the territories Congress has provided in express terms how the place where the legislature shall first meet shall be determined, in what manner the temporary seat of government shall be located, and how and by whom the location may afterwards be changed.
In the Organic Act for Dakota, we find: First, that the Governor shall appoint and direct the time and place where the legislative assembly shall hold its first'session; second, that at the first
Could the Governor, in the first instance, have delegated the power to appoint and direet the place where the legislature should hold its first session to any man or body of men* Could the Governor and legislative assembly, at the first session, have transferred their power to fix the seat of government to any man or tribunal? Can the Governor and legislature, ly act of the legislature, confer this power upon a body of men and invest them with all the discretion and powers conferred by Congress in section 1944, oí the Revised Statutes?
But it is claimed that in Nat. Bank v. Yankton, cited above, the Supreme Court declares also that the organic law of a territory takes the place of the Constitution as the fundamental law of the local government. How.does this change the question? If the Constitution of any state should contain a provision like that in our Organic Act, to-wit: that the seat of government may be changed by the Governor and legislative assembly, would any one claim that the duty thus especially enjoined upon the Governor and legislative assembly by the Constitution, could be by them transferred and placed upon another and different tribunal?
Onr attention has been called to this fact that legislatures frequently delegate certain powers to cities, towns, county commissioners, etc. I think a careful and impartial consideration of this class of cases will satisfy any one that these matters are largely of local and police regulation, and may properly be delegated to each locality; that such questions so delegated do not affect the whole people, but only localities, like local option laws. In referring to
In State ex rel. Sanford v. Court of Com. Pleas, 36 N. J. Law,72, the court say: “ In almost every city charter the right to regulate “ or restrain the sale of intoxicating liquors is expressly conferred; “ and it could be done only upon the theory that it is a police “ regulation, not strictly an exercise of law-making power.” And again: “Such enactments are regarded as police regulations, “ established for the prevention of pauperism and crime, for the “ abatement of nuisances, and the promotion of public health and “ safety.”
In referring to this and a similar class of cases, Mr. Cooley says: “ Such laws are known in common parlance as local option “ laws. They relate to subjects which, like the retailing of intox- “ icating drinks or the running at large of cattle in the highways, “ may be differently regarded in different localities, and they are “ sustained on what seems to us the impregnable ground that the “ subject, though not embraced within the immediate power of “ the municipalities to make by-laws and ordinances, is neverthe- “ less within the class of police regulations, in respect to which it “ is proper that the local judgment should control:” Cooley, Const. Lim., 148.
The language of Judge Catón, so relied upon, refers to local affairs, as a perusal of the whole case shows. The performance of the duty of selecting and locating the seat of government pertains
In a well considered ease recently decided by the Supreme Court of Minnesota the correct rule is declared. It appears that the charter of the city of Minneapolis gave the city council such powers as enabled the council to make reasonable regulations as t© where or within what parts of the city the business of vending spirituous and malt liquors might be carried on. Dnder this
I now arrive at the question: Does this act of the legislative assembly undertake to confer upon these defendants the power to change the seat of government from Yankton, the former location, to some other district of country, to be by them selected and designated? If it does, then it is a clear delegation of the power conferred by Congress upon tile Governor and legislative assembly, and is void, and the duties thereunder cannot lawfully be performed by them. All of the duties to be performed by the defendants other than the selection of the seat of government depend upon such selection, and if the authoritv thus to select is wanting. the
It seems to me that no other view can be taken of this enactment. The attempt was made to evade the act of Congress; to defeat its provisions. This was supposed, no doubt, to be accomplished by the provisions of this act, which declared the seat of government removed from the city of Yankton, and which repealed the former act of the legislative assembly locating and establishing the permanent seat of government at Yankton. But such attempt was futile. Until the minds of the legislators and Governor had, in the forms prescribed by law, concurred in selecting a suitable site for the seat of government, and manifested such concurrence in the legal mode, no removal did or could take place; and there was no more authority to confer upon these defendants the performance of a part of the duty, than there was to confer upon them the whole of the duty prescribed by Congress to be performed by the Governor and legislative assembly. . No one would contend for a moment that, in direct terms, the legislative assembly could by law confer upon these defendants the power to change the seat of government. What cannot be doné directly, can no more be done by indirection. As we have seen, to effect a change in the seat of government,,a determination to remove it from the city of Yank-ton is necessary, and a selection and its location upon or in another district is essential.
Let us illustrate: Suppose these gentlemen had never qualified or'acted, and no others had been appointed in their stead, would the seat of government have been changed? "Would any one contend for a moment that a change.could have been effected without their action? If so, where to? The seat of government could not
It is urged strongly that in determining this question of the legal construction of the organic law of this territory, we should consider/* the convenience of such delegation, the obvious difficulties in the way of a direct selection by the legislature.”
Judge Story lays it down as a rule of great importance, ** not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous:” Story on Const., Sec. 425. “ Courts have nothing to do with the argument of inconvenience: “People v. Morrell, 21 Wend., 583. ** If the right claimed is conferred by implication, such implication must be a necessary, not a conjectural or argumentative, one:” Field v. People, 2 Scam., 83.
Looking to the rules which govern in determining the power of municipal corporations, (and they are authoritative in this case,) we find it stated that ** the reasonable presumption is that the state has granted, in clear and unmistakable terms, all that it has de-. signed to grant at all:” Cooley on Const. Lim., 234, 235.
** It must be taken for settled law that a municipal corporation ** possesses and can exercise the following powers, and no others: ** Fi/rst, those granted in express terms; second, those necessarily ** implied, or necessarily incident to the powers expressly granted;
“ The general rule is, that a delegated power can be redelegated, “ in the absence of an expressed right of substitution, only when u it is customary, necessary, or otherwise fairly to be presumed “ from the circumstances surrounding the transaction:” Story on Agency, Sec. 14,
Judge Bronson says, iu Oakley v. Aspinwall, 3 N. Y., 568: “ Believing, as I do, that the success of free institutions depends ,££ on a rigid adherence to the fundamental law, I have never ££ yielded to considerations of expediency in expounding it. There ££ is always some plausible reason for the latitudinarian construc- “ tions which are resorted to for the purpose of acquiring power; ££ some evil to be avoided, or some good to be obtained, by push- “ ing the .powers of the government beyond their legitimate boun- “ dary. It is by yielding to such influences that constitutions are “ gradually undermined, and finally overthrown. My rule has ££ ever been to follow the fundamental law as it is written, regard- ££ less of consequences. If the law does not work well people can ££ amend it, and inconvenience can be borne long enough to await ££ that process. But if the legislature or the courts undertake to ££ cure defects by forced and unnatural constructions, they' inflict ££ a wound upon the constitution which nothing can heal. One ££ step taken by the legislature or the judiciary, in enlarging the £‘ powers of the government opens the door for another, which will ££ be sure to follow; and so - the process goes on, until all respect ££ for the fundamental law is lost, and the powers of the govern- “ ment are just what those in authority are pleased to call them.”
The following rule is invoked by the appellant, and approved in the opinion of the majority of this court: “ If wisdom is to be
Let this rule be rigidly applied to the determination of this case. Certain precedents are claimed for the location of capitals by commissioners: First, by certain states; second, by territories; third, by Congress. A careful examination of all the cases cited will show whether these supposed precedents support the theory of the appellants or of the respondents. The state cases are Illinois and Nebraska; the territorial cases are Montana, Colorado, and Iowa; and the further case cited is that of the location of the federal capital. The appellant claims that each of these are cases in point in determining the application of the above rule.
In the case of Illinois the facts were these: The constitution of the state expressly authorized and required the legislature to appoint a commission to select certain lands, expected to be donated by Congress, upon which should be located the permanent seat of government. How this case can be twisted into a delegation of delegated powers is more than I can comprehend. The constitution was the expressed will of the sovereign. The legislature acted in accordance with that express will. Congress made the expected cession. The agents, authorized by the principal to be appointed, selected the lands out of such cession, whereon the seat of government was located. In the case of Illinois, then, all that can be claimed for it, and all that it is, treating
In the case of the state of Nebraska its then constitution contained no provision in relation to the seat of government, except that tbe legislative assembly should meet at Omaha at its first session. The state possessed certain lands, situated within tbe limits of-certain counties. These lands were limited in area. Tliey had been granted to tbe state by the general government. It was de--tennined to make them available for tbe erection of public buildings and thé location thereon of the seat of government, and tbe state legislature authorized certain state officers, to-wit: the Governor, Secretary, and another, to select from these lands a section most suitable on which to build a city, and constituted it tbe seat of government for the state; and thereafter, by express provision in the subsequently adopted new constitution, fixed the locality as the permanent seat of government. It will be observed in tbis. instance that no direction or prohibition was contained in tbe con-, stitution governing or prescribing the duty of the legislature in. this regard. They were the representatives of the sovereign power, —the principal; except as limited in the constitution their voice - was the voice of the principal. The powers which they exercised were exercised by them possessing all power which the people-possessed. This is the nearest in legislative precedent of any of' the instances cited, but clearly distinguishable from this legislation, where the Governor and legislative assembly of tlie territory are exercising merely such powers as have been expressly or by necessary implication conferred upon them by the source of power,, the Congress of the United States.
The next case is that of Iowa.. On. -Iannary 21,.1839,.the tern-
It will thus be seen that in the Iowa case, the commission was limited to a single county, and the legislature provided that nothing should be done until the consent of the United States was obtained. Congress did consent, and furnished the means to carry into execution the act of the Iowa legislature before a step was taken towards the location of the site of the capítol. "With the act of the Iowa legislature constituting the commission before Congress, and waiting its approval, Congress approved the mode by furnishing the land to be selected under the authority of the territorial legislature, and not by the Governor and legislative assembly. It was an emphatic and unmistakable approval,which, to that extent, amounted to a modification of the original Organic Act of Iowa.
The next case cited is that of Montana. Section 1945, of the Kevised Statutes of the United States, provides as follows: “ That “ the seat of government shall not be at any time changed except “ by an act of the assembly, duly passed and approved, after due
The appellants’ next case is that of Colorado. In that case the location was restricted by the legislature to the town of Colorado. I-n other words, the legislature designated the town of Colorado as the capital, and appointed commissioners to designate the location of the territorial buildings within such town. Great stress was laid by the counsel upon the act of Congress authorizing the appointment of a commission to survey, limit, and define the boundaries of a district of country 10 miles square, which “ may by cession of particular states and the acceptance of Congress become the seat of government of the United States.” See Article 1, Sec. 8, of Constitution of the United States.
Where this district should be located, and where the permanent seat of government should be established, early attracted the attention of Congress. A partial review of the history of this act may be instructive. Hamilton was Washington’s secretary of the treasury. He was anxious to secure the passage by Congress of certain financial measures, and among them the assumption'by the general government of the debts contracted by the several colonies or states for the maintenance of troops duri'ngthe war. He imagined that the stability of the new government'depended on the passage of these measures. The northern members very generally favored assumption. The Virginia members, with one exception, opposed it, but were anxious to secure the capital on the Potomac. Harrisburg, Baltimore, New York, Germantown, Philadelphia,Wright’s Ferry, on the Susquehanna, and some point near Georgetowm, on
A late biographer of Jefferson says: “ And so the debate went “ on day after day. The Susquehanna men triumphed in the “ house, but the senate sent back the bilL with ‘ Susquehanna ’ “ stricken out and ‘Germantown ’ inserted. The house would not “ accept the amendment, and the session ended before a place had “ been agreed upon. The subject being resumed in the spring of “ 1790, it was again productive of heat and recrimination; again “ the south was outvoted, and the Potomac rejected by a small “ majority. Baffled in the house, southern men renewed their “ efforts over Mr. Jefferson’s wine and hickory nuts in Maiden “ Lane. Two sets of members were sour or savage from the loss of a measure upon which they had set their hearts. Southern “ men had lost the capital and northern men assumption. Then “ it was that the original American log-roller (name unrecorded) “ conceived the idea of this bad kind of compromise. The bar‘■‘-gain was this: Two southern members should vote for assump- “ tion, and so carry it, and in return for this concession Hamilton “ agreed to induce a few northern members to change their votes “ on the question of the capital, and so fix it upon the Potomac. “ It was agreed at length that for the next ten years the seat of government should be Philadelphia, and finally near George- “ town. How much trouble would have been saved if some pro“'phetic member had been strong enough to carry a very simple “"amendment to strikeout ten years and insert one hundred. And in that case what an agreeable task would have been devolved “ upon this generation of repealing Germantown and beginning a “ suitable capital at the proper place. To the last of his public “'life Jefferson never ceased to regret the part he had innocently taken in this bargain:” Parton’s Life of Jefferson, 394.
Chief Justice Marshall says, in his Life of "Washington, vol. 2,
Attention is also called to the works of Madison, to the Life of
The location finally adopted was the result of a trade by which two of the ‘£ Potomac members ” voted for the assumption of the state debts, in return for which northern members voted for the Potomac location. See Jeffersonis Works, IX, 93. This is mentioned to show that when Congress decided to locate the seat of government upon the Potomac it exercised a positive choice and made the selection as definitely as under the circumstances was required. The Susquehanna, the Delaware, and all other localities, were rejected, and the commissioners had nothing to do but to select the best site within the tract designated. When it is considered that the country was at that time but sparsely settled and little known, the limitation to a tract but five or six times the. size of the district to be taken is small enough. When the heat of the contest is considered, displaying as it did the beginning of that sectional feeling between north and south which has raged so long, and when regard is had to the price which the south paid for the location — the voting for the assumption of state debts which had already been rejected by the south — it is hardly possible to claim that this is a precedent for giving to a board of commissioners an unlimited power of selection. Moreover, there are marked differences in the purpose a.nd scope of these two acts. Congress having chosen the locality, and even specified that the buildings should be on the east bank of the Potomac, provided for the appointment of commissioners by the President to carry out the necessary work of detail; in a word, experts, surveyors who should survey, define, and limit a district of territory within the limits named.” These commissioners were not called upon to decide where within the United States the federal seat of government should be, comparing the advantages of various localities as to
In any of these cases would there have been any doubt but the legislature had exercised its j udgment, had approximately fixed the location of the capital, and not delegated to a commission all the discretion which could be exercised? In every case when a commission has been provided for to select the location of a capital, the legislature, or Congress, as the case may be, has designated its choice so definitely as to exclude all contending points for the location, except one, with the sole exception of the state (not territory) of Illinois, where the mode of selection was definitely fixed in the constitution.
From the whole case I must conclude that the act of the territorial legislature creating the capital commission was unwarranted and invalid, and that the j udgment of the District Court should be affirmed.