But what is meant by a law presumptively valid? If it is meant that the court will enter upon the consideration of every law or act passed by the Legislative Assembly with a disposition to consider it good unless the contrary is manifest, presuming that the legislature will exercise due care in enacting laws that are good, then I agree with the doctrine. But if presumptively valid means what it seems to be used for, namely: that void acts passed by a Legislative Assembly have a sort of prima facie validity that it requires action to overthrow, then it is not used in any sense warranted by legal authority. A void act is of no force upon any one. tion by a court may declare it so, but it was just as lifeless and inoperative before the declaration by the court as after. It is a well established principle of law, as well as common sense, that you cannot kill a dead thing, so as to render it more lifeless.

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If this doctrine of presumptive validity is correct, and every man is bound to act upon a law as valid until it is decided invalid by a court, suppose a legislature having jurisdiction of the subject matter of crimes and punishments should pass a law making the killing of a hog punishable by death, and commanding every man who saw the offence committed, to shoot down the offender without judge or jury; the subject matter of crimes is within the jurisdiction of the legislature, and they have a right to punish hog killing with death. To be sure there is a little informality in the mode of execution, and depriving an American citizen of the right of trial by jury; but what of that, the law is presumptively valid-no court has said it was not so, and it must be obeyed. What would be the effect if the lawobeying citizen was brought up charged with murder, and tried by a court where justice was administered according to law? I opine that such an excuse would only avail on the plea of insanity.

But the case in question shows the utter absurdity of this doctrine of presumptive validity, about as clearly as any case we can suppose. Had the members of the court gone to Salem, entertaining their present opinion of the law, they must have pronounced that the law was void and never had any force or validity. The question would then rise to the mind of every one, is the law so unreasonable and absurd as to require the judges to come so far from the place where the law compelled them to assemble, merely for the purpose of declaring that they were in the wrong place, which they knew very well before? Such a construction cannot be correct. The last argument I shall notice-if argument it may be called-is rather an affectionate appeal to the sympathy of the court. It is said that very many members of the legislature have been befogged by the law on their road to the seat of government, and are huddled together in some improper place where they have made up their minds to remain unless the supreme court shall go to that place and officially and judicially shed light upon their pathway, which will enable them to see their way clear to the seat of government, and that we ought to go there by way to compromise, and enable those who have come to such a determination to retreat with honor. An act like this on the part of the members of the court would be a void act, not having the force of a legal decision, and would in effect be placing upon the records the fact that the judges knew that they were not acting according to law. Personally, I should very much desire to gratify the feelings of any such, if any there are, but the obligations of an official oath to act according to law, forbids a court to be governed by mere questions

of feeling or expediency, and we must do our duty, leaving to others to act as they shall answer to the people whose agents we all are.

The entire want of time to refer particularly to all the authorities which go to support the position I have taken, compel me to omit that branch of the case, which I do cheerfully, knowing that his honor the Chief Justice is entirely competent to show that our decision is as clear upon authority as I deem it on principle.

I have said thus much and said it plainly, because upon a question of this importance I desire not to be misunderstood, and I deemed it my duty.

It is my opinion that Oregon city is at this time the legal seat of government, and the only place where the supreme court can legally convene, and that therefore, the application to suspend proceedings in this cause must be refused.

Chief Justice Nelson's Opinion.

The supreme court of Oregon Territory is required to hold a term on the first Monday of December in each year, at the seat of government, and the question is now raised-Where is the seat of government?

Under the act of Congress organizing the Territory, the governor appointed Oregon city as the place where the Legislative Assembly was required to hold its first session. By the fifteenth section of that act, the assembly at its first session, or as som thereafter as it should deem expedient, was empowered to locate and establish the seat of government for the Territory, at such place as it should deem eligible.

The assembly, at its first session, adjourned without fixing any time or place for its next session. Shortly afterwards an extra session of the legislature was held at Oregon city, pursuant to a call of the governor. In May, 1850, this body passed a joint resolution in these words:

"Resolved, That the Legislative Assembly will meet on the first Monday of December next."

The last legislature assembled on the first Monday of December, 1850, at Oregon city. A short time previous to its adjournment, and on the 7th day of February, 1851, a resolution passed both houses in these words:

"Resolved by the council, the house concurring therein, That the Legislative Assembly of Oregon Territory will meet annually on the first Monday of December in each year, at the seat of government.'

Now the seat of government is the place where the legislative body may lawfully assemble and enact its laws. I am of the opinion, therefore, that a fair construction of the language used by Congress, in the 15th section of the act referred to, joined to the action of the legislature itself, requires us, in the absence of any proper legislation by the Territory, to regard the seat of government as continuing at Oregon city. The language used by Congress is by no means explicit, but any other interpretation of it would leave the legislature without any place fixed by law for holding its session, unless resort should be had to the law of the provisional government on the subject. The 14th section of the act of Congress, organizing the Territory, contains a provision in these words: "And the existing laws now in force in the Territory of Oregon, under the authority of the provisional government established by the people thereof, shall continue to be valid and

operative therein, so far as the same be not incompatible with the constitution of the United States and the principles and provisions of this act, subject," &c. By the law of the provisional government, the legislative body was required to meet at the Williamette falls, now Oregon city. So that whether we fall back upon the law of the provisional government, or repose upon the act of Congress, and the course of action pursued by the territorial legislature under the same, Oregon city must be considered as the seat of government, unless by some legal enactment it has been fixed at some other place.

The Legislative Assembly at its last session passed "An act to provide for the selection of places for location and erection of the public buildings of the Territory of Oregon."

This act is composed of ten sections, the first of which locates and establishes the seat of government at Salem-the second locates and establishes the penitentiary at Portland, and the third locates and establishes the university at Marysville, and declares that the property granted to the Territory for the establishment of a university shall be applied to the erection of suitable buildings at that place. The other sections of the act relate to the appointment of commissioners to superintend the erection of the buildings at Salem and Portland, regulate their official duties, and provide for vacancies occurring in their offices.

If this enactment has been rightfully made, then the assembly, in pursuance of the power conferred upon them by Congress, has changed the seat of government from Oregon city to Salem. But the validity of this act is questioned, as being repugnant to the act of Congress establishing the territorial government. Was this act, then, passed by the assembly in the legitimate exercise of the powers granted to it, and in the mode prescribed by Congress?

In order to answer this question we must refer to the law of Congress passed on the 14th day of August, 1848, establishing the territorial government of Oregon. This is the fundamental law of the Territory. By it the different departments of the government-executive, legislative, and judicial-are created, and their respective powers limited and defined. It holds substantially the same place in the regulation of affairs of the Territory that a constitution does in a State. Neither of the departments can assume greater powers, nor exercise those powers in any other way than the supreme law, either in terms or by necessary implication allows. Any attempt to do so would be an act of usurpation. If we should hold otherwise, we should be saying in effect that the agent is superior to the principal, and had the right to destroy the foundation on which his own power rests. A course of action in accordance with such views would be revolution.

The organic act gives to the assembly the right to legislate upon all rightful subjects of legislation not inconsistent with the constitution and laws of the United States, in the mode, subject to the conditions, and with the exceptions provided for in section 6th. That section is in the following words:

"And be it further enacted, That the legislative power of the Territory shail extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the Legislative Assembly shall be submitted to the Congress of the United States, and if disapproved shall be

null and of no effect: Provided, That nothing in this act shall be construed to give power to incorporate a bank, or any institution with banking powers, or to borrow money in the name of the Territory, or to pledge the faith of the people of the same for any loan whatever, either directly or indirectly. No charter granting any privilege of making, issuing, or putting into circulation any notes or bills in the likeness of bank notes, or any bonds, scrip, drafts, bills of exchange or obligations, or granting any other banking powers or privileges, shall be passed by the Legislative Assembly; nor shall the establishment of any branch or agency of any such corporation, derived from other authority, be allowed in said Territory; nor shall said Legislative Assembly authorize the issue of any obligation, scrip, or evidence of debt by said Territory, in any mode or manner whatever, except certificates for services to said Territory; and all sach laws, or any law or laws inconsistent with the provisions of this act, shall be utterly null and void; and all taxes shall be equal and uniform, and no distinction shall be made in the assessments between different kinds of property, but the assessments shall be according to the value thereof. To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title."

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It will be perceived from this section, that there are certain subjects upon which the territorial legislature is expressly forbidden to act. quence of doing so is declared in the act itself: "Any law or laws inconsistent with the provisions of this act shall be utterly null and void.”

Again, all legislation must be in conformity with the rule which requires every act to embrace but one object, and that to be expressed in the title; otherwise it would be inconsistent with the law, and therefore, according to the declared will of Congress, utterly null and void. Even if the Legislative Assembly should pass a law in relation to a subject over which they have jurisdiction, or should in their action observe every direction prescribed by Congress, it is still subject to be disapproved of by Congress, in which event it would become null and void from the time it was disapproved of. But an act of the territorial legislature, either in relation to a subject over which Congress has given no power to legislate, or passed without an observance of the rules prescribed in the act, requires no disapproval of Congress to strike it with death. It can never, owing to its repugnance to the superior law, have any vitality. It is, if I may so speak, repealed beforehand. It is entitled to no more obedience nor respect, than is an act of the Legislative Assembly, rightfully passed, after it is disapproved of by Congress.

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Chief Justice Marshall, in the 4th vol. of Com. Rep. of Supreme Court of the United States remarks, "when repugnancy exists the authority which is supreme must control, and not yield to that over which it is supreme. law absolutely repugnant to another, as entirely repeals that other as if express terins of repeal were used."

In each case the act becomes null and void, or of no effect. Void things are no things. Null, means of no binding force or validity. An act that is null and void is, in its legal signification, precisely the same as if it had never been passed, and is of no more obligation than if all traces of it were expunged from the records of the body which passed it-than if it were a blank upon the statute book.

Does the act of the Legislative Assembly contravene the law of Congress, as contained in the section before quoted?

It is at all times a delicate task for the judiciary to call in question the validity of the acts of one of the co-ordinate powers of government. It is, however, their duty to declare what the law is, when the question fairly arises, from which neither their oaths nor their regard for the true interests of the people will permit them to shrink. If the question is doubtful, every presumption is to be indulged in favor of the virtue or validity of the act; but if it be made clearly to appear that the legislature has transgressed its powers or has failed to observe the requisites of a paramount law, no alternative is left to the court but to decide its acts to be void. Entertaining the most unfeigned respect for the body that passed this act, I am constrained to say, that in my judgment the act was passed in violation of the law of Congress and therefore has no force, and is entitled to no obWithout noticing other objections, the act clearly embraces at least three different objects, viz: the seat of government, the penitentiary and the university. It is equally within the letter and within the mischief of the law of Congress sought to be prevented. The whole act is, therefore, a nullity.

servance.

It has been stated, however, that every act of the legislature should be observed and obeyed, until it is set aside by the court. How an act that has no more force than so much blank paper can require any observance, it is difficult to comprehend. But the court has no power to set aside any law. That is a legislative function. It is the province of the court simply to declare what the law is. If a question arises as to the validity of an act of the legislature, the power to settle it is lodged in the judiciary; and if that body should hold it to be void, anything done under it would be void-not because the court sets aside, but because, according to the decision of the tribunal appointed to determine the question, it never had any binding force as a law. A void act is none the more void because the court has so judicially determined. The court does not make the law void; it only settles the question and removes the uncertainty.

But let us see to what consequences this novel and extraordinary doctrine-that a void act deserves obedience until set aside by the court-will lead us. If it deserves respect and obedience, it is just as much a violation of duty to resist it through the channels of the courts, as it is to resist it in any other way. That is one mode only of opposing it—and all opposition to it, according to this theory is wrong, until the courts have made an adjudication. In such a case, how will the court ever be called upon to decide the question? It never adjudicates upon the validity of a legislative act, unless in some suit or judicial proceeding it is sought to be enforced on the one side and resisted on the other. Obey the illegal statute, say the advocates of this doctrine, in effect, until the court adjudge it to be void, and yet the course recommended will forever prevent an adjudication from being made. If this principle be correct, the consequences will inevitably ensue, that unauthorized enactments will always have the effect of unquestionable laws, and the legislature becomes omnipotent. What security exists then for the liberty of the citizen, when all power is consolidated in one body?

But if the court should arrogate to itself the right of sitting in review upon the proceedings of the legislature, and should assume, without any question arising before it, to pronounce upon the legality or illegality of its proceedings, the evil of the doctrine would not be obviated. The property of the citizen might be stripped from him by an unconstitutional act, and