Territory ex rel. Smith v. Scott

• Decision Date: 20 September 1884
• Parties: Territory ex rel. Smith, Dist. Atty., etc., v. Scott and others.
• Court: South Dakota Supreme Court

20 N.W. 401

3 Dak. 357

Territory ex rel. Smith, Dist. Atty., etc.,

v.Scott and others.

Supreme Court of the Territory of Dakota.

Filed September 20, 1884.

On appeal from the district court for Yankton county.

Edgerton, C. J., dissenting.Alexander Hughes, William F. Vilas, and W. P. Clough, for appellants. Bartlett Tripp, Gamble Bros., and G. C. Moody, for respondents.

CHURCH, J.

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 assembly of the seat of government at Yankton by act approved April 8, 1862; that Yankton has ever since been the lawful seat of government; that all sessions of the legislative assembly have been held there; the territorial offices held thereat; and all the public books, records, and archives kept there; and that said seat of government has never since been changed by the governor and legislative assembly, as provided by the organic act. The complaint then alleges the appointment of the defendants as commissioners for the purposes above mentioned “under and by virtue of a pretended act of the legislative assembly of the territory of Dakota, *** approved March 8, 1883, which said appointments were and are in violation of said act organizing the territory of Dakota.”

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 Yankton, 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 prevailed, and on August 27, 1883, judgment was given “that said defendants and each of them be, and they are hereby, forever ousted and excluded from said office of commissioners mentioned in said act in the complaint described, and from all franchises and privileges named, enumerated, or included therein.” From that judgment this appeal is taken.

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 plaintiffs' 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, Alexander McKenzie, Charles H. Myres, George A. Matthews, Alexander Hughes, Henry H. De Long, 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.

“Sec. 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, and its general fitness for a capital, when at least one hundred thousand dollars ($100,000) shall be paid or guarantied 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 determined upon as aforesaid, said commissioners shall secure good and sufficient title deeds of at least one hundred and sixty acres of land, upon which the capitol buildings shall be erected, and a sufficient amount of said ground shall be laid out into squares and suitable landscapes, and the same is hereby declared to be the permanent seat of government of the territory of Dakota, at which all of the public offices of the territory shall be kept, and at which all of the sessions of the legislature shall hereafter be held.”

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 territorial 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 capitol building, provided for in this act, is erected and completed, it shall be the duty of said commissioners to report such facts to the governor, who shall thereupon issue his proclamation setting forth the action of the commissioners, and declaring said building ready for occupancy. And it shall then be the duty of all the territorial officers, whose offices are properly kept at the capitol, to remove, within thirty (30) days thereafter, their several offices, together with the public property, archives, records, books, and papers to the building and place so declared ready for occupancy, and all sessions of the legislature shall thereafter be convened in the said building at the said place.”

“Sec. 13. The title to all lands secured by the commissioners for the location and erection of capitol buildings shall be conveyed 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, and records, and papers at the city of Yankton, unless the governor shall designate 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. 17. Chapter 1 of the Political Code, and all acts or parts of acts in any manner in conflict with this act or repugnant thereto, are hereby repealed.

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 grounds upon which the judgment 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 of 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 counsel, upon the governor's nomination.

These are the questions,...