Seat of Government Case

1 Wash. Terr. 115

• Court: Washington Territory
• Decided: December 15, 1861
• Status: Published

Opinions

Opinion by

Oliphant, Associate Justice.

This is a grave and important question. It comes before us laden and freighted with high national, territorial and individual interests, and it has been argued on both'sides with marked ability. The issue arises by virtue of certain acts of the territorial legislative assembly, passed at the session of 1860 and 1861, and contained in the printed laws of those years. There is no dispute as to any discrepency between the printed and the enrolled laws remaining in the office of the secretary of the Territory. These laws are as follows, viz:

“ An Act to Permanently Locate the Seat oe Government eor the Territory oe Washington.

“ Seo. 1. From and after the passage of this act, the seat of government for the Territory of Washington, shall be, and remain at the city of Yancouver, in Clarke county.

“ Sec. 2. The Capitol commissioners are hereby empowered and directed to locate the grounds and erect the Capitol buildings thereon, at the city of Yancouver, according to the instructions from the government of the United states, and the laws of this Territory, in relation thereto.

“Sec. 3. The present session of the legislative assembly shall remain at Olympia until the close thereof.

Lyman Shaeeer,

Speaker of the House of Representatives.

Paul K. Htjbbs,

President of the Council.”

“ The Legislative Assembly of the Territory of Washington do enact as follows:

“Sec. 1. The qualified voters of the Territory of Washington, at the next annual election, are hereby requested to vote in their respective preeinets, naming their choice of the place of location of the seat of government for said Territory.

“ Sec. 2. In voting, it shall be sufficient to print or write the name of the place so designated as the choice of the person voting, as ‘Olympia,’ ‘Yancouver,’ or any other place, in accordance with the preference of the voter.

“ Sec. 3. The judges of election shall cause to be counted the said votes, and due return make thereof, in the same manner as returns are made for delegate to Congress, and the governor shall publish by proclamation, immediately after the returns are made, the number of votes given for each place voted for.

Speaker of the House of Representatives,

Paul K. Hubbs, ’

The first of these acts comes to us “ in such a questionable shape,” that we “ must speak,” at least, of it. It is born into the world without date, without an enacting clause, and without paternity. Owing to this anomalous legislation, this Court is placed in the position of finding out and determining as best it can, where is the seat of government of Washington Territory, thus changing the plmse of its ambulatory character, and giving to it a “ local habitation and a name.”

This Territory owes its existence to what is called the “Organic Act,” passed by Congress the 2d of March, 1853.

The portions of that act bearing on this case, are contained in sections four, nine, and thirteen. By section four, the legislative power is “ vested in a legislative assembly, to consist of a Council and House of Representatives.” The same section fixes the number of each, and the manner of their election. By section nine, the Judicial power is vested in a Supreme Court, District Courts, Probate Courts, and Justices of the Peace. The Supreme Court, as the act in this section further declares, is to consist of a Chief Justice, and two Associate Justices, and shall hold a term annually, at the “ seat of government.” Section thirteen enacts “that the legislative assembly of Washington Territory shall hold its first session, at the time and place in said Territory, as the Governor shall appoint and direct; and at the said first session, or as soon thereafter as they shall' deem expedient, the legislative assembly shall proceed to locate and establish the seat of government, at such place as they may deem eligible, which place, however, shall thereafter be subject to be changed-by said legislative assembly.” The same act appropriates the sum of “five thousand dollars for the erection of public buildings at the seat of government.”

The first legislative assembly did not, as it seems, avail themselves of the powers granted to them by Congress, to “ locate and establish” the seat of government for the Territory. It was, howevei’, subsequently, in the year 1855, located and established by the legislative assembly, at Olyn^pia. After this location, Congress, at its session of 1856 and ’57, made an appropriation of thirty thousand dollars, for the erection of a Capitol, etc.

Commissioners were appointed by the Territorial legislature, and a portion of the money has been expended in pursuance of the provisions of this act of Congress.

This is a brief outline of the first branch of the history of what is termed the “ Capital ease,” by the citizens of this Territory.

At the same session of the legislative assembly, the act called, in common parlance, “ the submission to the vote of the people act,” was passed. On our arrival in the Territory, with these two acts on the statute book, with their apparent imperfections, inconsistency and repugnance, it was impossible to close our eyes to the fact that if matters remained as herein stated, without further legislation, the question of the removal of the “ seat of government” for Washington Territory would come before and have to be passed upon, by the Supreme Court, in some way, and at some place. It has been forced upon us, and we have not shrunk from the responsibility of its decision. In our opinion, Olympia was prima facie the seat of government. Here were the Capitol buildings, the archives of the government, the library, and here also, before the close of the first week in December, 1861, were assembled an unorganized quorum, awaiting the action of the Supreme Court, of the council and house of representatives. At Olympia the Court was opened in due form, all the J udges being present. Upon calling the case above stated, (Rodolph vs. Mayer et al.,) the plea to the jurisdiction is interposed. To dispose of that plea, in which were embarked the interests of all parties on the docket, the entire merits of the public question, involved in the controversy have been passed in review before the Court, and occupied more than three entire days in the discussion. This is the second branch of the history of this case.

A conflict of opinion between the legislative and judicial branches of the government is always to be regretted. Both have separate and distinct duties to perform. The one makes, the other expounds the law when made. An act may be passed and published by legislatures, national, state, and territorial, with all the usual formalities and appendages, and yet pronounced no law when put to the judicial test. Such is the fate of all laws considered by Courts unconstitutional, on account of their being ex post facto, impairing the obligation of contracts, or ■otherwise. If, therefore, an enactment, upon a full examination by the Court, aided by the research and argument of learned counsel, be found, in the opinion of the Court competent to try the question, to be either unconstitutional, or wanting in the requisite elements to give vitality, force and power, that Court, (humble as may be its pretentions,) is bound to declare it void, and of no binding effect as a “rule of action,” or of “civil conduct.”

It is urged by the counsel sustaining the plea to the jurisdiction, that this act is one of construction, and if from its provisions, and other outward attractions and sanctities, the intention of the legislative assembly of the Territory be palpably manifest, then it must be enforced, and the seat of power of this Court is at Yancouver, and not at Olympia. The counsel in opposition to the plea entered, contend that it is not a law, or, in other words, that it is void per se, wanting all the requisites to give it vitality as a law.

"While the title, or preamble, to an act is no part of the act itself, it is a well settled rule of law, that resort may be had to both, by Courts, in determining what was the intention of the legislature, as attempted to be conveyed through the body of the act. Here there is no preamble. The pu/rview and title of this act substantially agree. What aid then do we derive from the title? Like “vaulting ambition, it has o’erleaped itself,” and passed beyond the barriers erected by the organic act to restrain within proper limits, legislative action. The organic act, called with emphasis the constitution of the Territory, confers only on the legislative assembly the power to “ change” the seat of government, not to “ permanently locate,” as is declared in both the title, and the body of the act. In the - latter, the words are, “ that from and after the passage of this act, the seat of government for the Territory of Washington shall be and remmn at the city of Vancouver, in Clarke county.”

The time of the passage of the act, is not disputed. The date is admitted in the argument to be the 11th of December, 1860. Where, then, after this date, was the seat of government for Washington Territory, if this act has the force and validity of law? Manifestly at the city of Vancouver. It is at the seat of government that the Supreme Court is required by the organic act, to hold its sessions. It was not so done. The session of the Supreme Court for 1860, as their record shows, was holden at Olympia, business transacted, and decrees made, from the 11th of December to the 22d of December of the same year.

• This fact is not introduced for the purpose of casting-any reflections upon that learned and honorable Court, but for the object of showing that this act was considered, practically at least, by that tribunal, of no binding effect.

At the same session, the act “ requesting” the vote of the people as to their choice as to locating the “ seat of government” was passed by the legislative assembly. The qualified voters did, by vote, express their choice, in the way and maimer pointed out by the act. The majority of the votes cast indicated and made known as directed in section three, was in favor of Olympia. How this act certainly meant something. It is hardly to be presumed that grave and wise legislators would, under the forms and apparent sanction of law, call upon their constituents to do an act, the result of which was to be an idle and unmeaning ceremony, thus “holding the promise to the ear and breaking it to the hope.” Though this act be couched in such terms as to carry with it no binding force, a preference or choice of the people, as to the location of the “seat of government” is invited, and when that preference is expressed, under the forms of law, it is entitled to respect from Courts, as well as legislators. These acts are in pari materia. They go hand in hand. They must stand or fall together. Both cannot justly survive. Obey the one, and violence is done to the will of the people; obey the other, and violence is done the legislative will. In a doubtful issue, therefore, of the kind which this legislation presents, a majority of this Court is in favor of giving the people the benefit of that doubt, instead of giving it to their agents and servants. To act otherwise would be to render this and all other Courts undeserving of the eloquent eulogy pronounced upon them by the learned counsellor from Vancouver, as being the shield and ark of safety, in the last resort of those from whom all power emanates.

"We are told in the argument of the advocates of this first, or “removal act,” that we must not lay profane hands on this legislative idol, and then, almost in the same breath, we are solemnly called upon not only to disregard this second act, known as the “ vote of the people act,” but to blot it from the statute book, and treat it as a species of legislative stultification. The mily way these acts can be reconciled, is to give to the legislative assembly in the passage of them, an honest intent. By the first act, the seat of govrenment was to be removed, unless restrained by the popular will. This will, as expressed, in the manner directed, was adverse to removal. Hence we derive from this second act, and the result flowing from it, the fair, strong, and legitimate inference that the seat of government was to remain at Olympia, and that such was the force and effect int ended should be given to it by the legislature at the time of its passage. Any other hypothesis would, involve us in an intricacy and inconsistency from which there is no escape.

*

Mr. Justice Blackstone defines municipal law to be, “ a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.” Chancellor Kent, eminent as a jurist, one of -the highest legal luminaries of the nation, or the world, on page 493 of his commentaries, defines a statute to be, “ the express will of the legislature rendered authentic by certain prescribed forms.”

L. N. Cushing, Esq., in his treatise on the law and practice of legislative assemblies, expressly states, that the constitutions of all the states in the Union, with the exception of Pennsylvania" Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Louisiana, Kentucky, and Arkansas, contain a statement, under the name of the enacting style, of the words with which every act of legislation in those states, respectively, must be introdiiced, sometimes with, and sometimes without, the use of negative words or equivalent language. The constitutions of the states above named, and of the United States, •contain no statement of an enacting clause, though equally requisite to the validity of a law, must depend mainly- on custom.

“ The foregoing considerations,” says this author, “ seem to «all for three remarks:

“ 1. Where enacting words are prescribed, nothing can be law which is not introduced by these very words, even though others which are equivalent are at the same time used.

“ 2. Where the enacting words are not prescribed by a constitutional provision, the enaetmg authority must, notwithstanding, be stated; and any words which do this to a common understanding, are doubtless sufficient, or the words may be prescribed by rule,” Cushing’s Law Practice of Legislative Assemblies, 819, 820.

Strip this act of its outside appendages, leave it “ solitary and alone,” is it possible for any human being to tell by what authority the seat of government of "Washington Territory was to be removed from Olympia to Vancouver?

The staring fact that the constitutions of so many states, made and perfected by the wisdom of their greatest legal lights, contain a statement of an enacting clause, in which the power of the enacting authority is incorporated, is to our minds a strong, and powerful argument of its necessity. It is fortified and strengthened by the further fact, that Congress, and the other states, to say nothing of the English Parliament, have, by almost unbroken custom and usage, prefaced all their laws with some set form of words, in which is contained the enacting authority. Guided by the authority of such eminent jurists as Blackstone, Kent, and Cushing, and the precedents of national and state legislation, (the practice and rules in making laws being called parliamentary to this day,) this Court arrives with satisfaction and consciousness of right in declaring, that where an act like the one now under consideration, is wanting in the essential formalities and solemnities which have been mentioned, it is inoperative and void, and of no binding force or effect, unless it had been acquiesced in by courts, juries, legislators and people, and rights vested and acquired under it, to such an extent that it would be manifest injustice to disturb them. To decide otherwise, would be to mar the symmetry of the frame-work of legislative enactments as “ a rule of action,” and to extinguish the “ gladsome lights of jurisprudence.”

Say not that in this action of the Court it has been governed by a blind adherence to “ musty precedent,” or glued with too much tenacity to those things which have stamped upon them the rust of ages. Those matters which are essential to the rights and interests of individuals and communities, and which have received the impress and sanction of antiquity, are neither to be contemned, nor slightly regarded. Loosed from such anchorage and moorings, where would be.our habeas corpus writ,, our trial by jury, which have come to us through the lapse of centuries?

As to the power of a territorial legislature to “ change” the seat of Government after it has been located and established as directed in the organic act, and an appropriation made by Congress for the erection of the Capitol buildings, and that appropriation expended, in whole or in part, to the purposes designed, without the consent of Congress, this Court expresses no opinion. The point is merely raised.

We have deemed it necessary to notice all the points raised in this issue, and at the same time vindicate the opinion given in a matter that has engrossed and agitated the public mind of the territory to no small extent, for the last year. In doing this, no motives have been impugned, and we have been actuated by no selfish considerations, either as it regards persons or place. As a Court, we have a high, sacred, and sworn duty to perform. As individuals, it is a matter of indifference to us whether the seat of government for Washington Territory be located on the banks of the Columbia river, of “ fame historic,” the Cowlitz, or Chehalis, in the golden regions beyond the Cascade mountains, or on the shores washed by the waves of the ocean. If we have erred in refusing to give binding force and effect to this act, the consolation remains, that it is in the power of Congress, the territorial legislature, or the Supreme Court of the United States to correct the error, and the disappointed are not without remedy. Plea to the jurisdiction overruled.

The vote, as published, stands: Whole number of votes cast, 2,315. Olympia, 1,239; Vancouver, 639; Steilacoom, 253; Port Townsend, 72; Walla Walla, 67; Seattle, 23; Port Madison, 2; Cherburg, 3; Port Ludlow, 2; Coveland, 1; Jefferson, 1; Madison, 7; Rockland, 6; Porks of Touchet, 1.