Cheyney v. Smith , 3 Ariz. 143 ( 1890 )

SLOAN, J.

The plaintiff herein applies to this court for a peremptory writ of mandamus to compel the defendant, as territorial treasurer, to pay the amount of a certain warrant drawn by the territorial auditor in favor of plaintiff, as authorized by subdivision 15 of section 1 of an act commonly known as the “Appropriation Bill,” passed by the fifteenth legislative assembly, and approved by the governor on the tenth day of April, 1889. This action is brought for the purpose of having a judicial determination as to the validity of said act, it being contended that at the date of the passage and approval thereof the' fifteenth legislative assembly had no legal existence, for the reason that the limit of time within which it could by the organic law lawfully remain in session had expired, and therefore it hai become at said date functus officio. The journals show that the fifteenth legislative assembly began its session on the twenty-first day of January, 1889, and adjourned sine die upon the tenth day of April, 1889, being the date of the approval of said act. The journals further show that the assembly was in actual session but forty-eight working or legislative days, the last day being denominated the forty-eighth day of the session. The restriction upon the length of the sessions of the legislative assembly is found in section 1852 of the Bevised Statutes of the United States, as amended December 23, 1880. Said section, as amended, reads as follows: “The sessions of the legislative assemblies of the several territories of the United States shall be limited to sixty days’ duration.” Said section being in its terms mandatory, must be so construed. It therefore remains for us to determine which of the two views as to the proper construction to be placed upon said section contended for at the hearing of the case we should adopt, viz., upon the one hand that the session of the legislative assembly is limited therein to sixty consecutive days from the day upon which the assembly convenes; or, upon the other hand, that the session is limited to sixty legislative or working days, exclusive of Sundays, public holidays, and days of intermediate adjournment. After the careful consideration the great public interests involved in this controversy demand, we have arrived at the conclusion that the latter view must prevail.

Said section is part of the organic law of the territory. It is proper to consider, therefore, the relation which the organic act, and other acts of Congress amendatory or supplementary thereto, bear to the government of the territory. It was argued at the hearing of this case that Congress had granted to the legislature of a territory certain limited powers, and restricted their exercise to the particular mode and manner expressed in its grant; that this grant is in every instance to be strictly construed; and that, the legislature having acted in a particular manner, no inference is to be drawn therefrom that it has theretofore acted within the limit of its delegated powers. We think the true view is that the organic law of a territory bears the same relation to the government of the territory as the constitution of a stata sustains to the people of the state. The supreme court in National Bank v. County of Yankton, 101 U. S. 129, say: “The organic law of the territory takes the place of the constitution as the fundamental law of the local government.” If the view we have given be correct, then it follows that the same rules of construction apply, and like effect must be given to any part of the organic law as would apply and be given to a similar provision in the constitution of a state. A well-established rule is that the contemporaneous construction of a constitutional provision put upon it by the authority for whose guidance it was intended, particularly if acquiesced in for a long term of years, should be followed by the courts. See United States v. State Bank, 6 Pet. 39; Caldwell v. Carrington, 9 Pet. 103; Edwards v. Darby, 12 Wheat. 206. That this rule applies to the construction of the organic acts of the territories is asserted by Chief Justice Chase in the case of Clinton v. Englebrecht, 13 Wall. 434. In speaking of the power of the legislature of Utah to legislate with reference to the practice of the courts in the matter of juries, he said: “This uniformity of construction by so many territorial legislatures of the organic acts, in relation to their legislative authority, especially when taken in connection with the fact that none of these jury laws have been disapproved by Congress, though any of them would be annulled by such disapproval, confirms the opinion warranted by the plain language of the organic act itself, that the whole subject-matter of jurors in the territories is c.ommitted to territorial regulation.” A provision in the organic law of New Mexico, which by the act organizing the territory of Arizona was made applicable to the latter, was to the effect that no session of the legislative assembly could exceed the term of forty days. The first legislative assembly of the new territory convened, by proclamation of Governor Goodwin, on the twenty-sixth day of September, and remained in session until the tenth day of November, 1864, a total of forty-six consecutive days. Deducting ten Sundays that intervened between the day upon which the assembly first met and the day upon which it finally adjourned, and we find that it was in session forty working or legislative days. After forty consecutive days had expired, the more important acts of the session were passed; among them being what was known as the “Howell Code.” Under the provisions of this code of laws, the government of the territory was for the most part administered until it was superseded by the code of 1887. The validity of these laws was never questioned, and the courts, as well as subsequent legislatures, recognized them as equally operative and binding with the other acts of this session. If it be contended that the act of 1880, amending section 1852 of the Revised Statutes is to be construed differently from the provisions of dhe organic act of New Mexico on the'same subject, and that legislative construction upon the latter provision cannot, therefore, be considered, we find that the first legislative assembly to meet after said act took effect, viz., the eleventh legislative assembly, convened upon the third day of January, 1881, and finally adjourned upon the twelfth day of March following, a total of sixty-nine consecutive days. Deducting, as before, the intervening Sundays, and we find that the assembly was in actual session upon sixty working or legislative days. Sixty consecutive days from the beginning of the session ended with March 3d. After said date an act was passed fixing the date for the convening of subsequent legislatures. This act was followed and acquiesced in by succeeding assemblies, until the act of 1887 again changed the date of the beginning of the sessions. Among other acts was one creating the county of Graham: another, providing for the issue of bonds and the levy and collection of taxes; others were passed amending the revenue laws and the statute of limitations. During the session the council directly gave its assent to this legislative construction in rejecting a resolution to adjourn at the end of the sixty consecutive days. Thus the legislative construction from the beginning has been uniform that the sessions are limited to sixty days of actual session. In the case of Moog v. Randolph, 77 Ala. 608, the supreme court of Alabama distinctly recognized the rule that the practical construction of the legislature will govern in a ease of this kind, and gave a like construction upon the term “days,” in a similar provision of the constitution of that state.

In construing the constitutional provision that the general assembly shall not remain in session longer than fifty days, Justice Somerville in that case said: “I am satisfied that ‘fifty days’ means fifty legislative working days, exclusive of the Sundays and other days upon which the senate and house concur in refusing to sit by joint resolutions of adjournment. This question has been repeatedly considered by the judiciary committees of the senate and house of representatives at successive sessions of the general assembly since the adoption of the constitution; and other reports concurring in this view have in each instance been adopted by those bodies. Even if we regard the question a doubtful one, we would hesitate to depart from this settled' legislative construction of the fundamental law, especially in view of the serious consequences which would necessarily flow from it. ’ ’

But, aside from the legislative construction, we think a consideration of the subject-matter, as well as the evident purpose and intent of the act of 1880, warrants the interpretation we put upon it. Congress certainly contemplated that emergencies might arise that would render legislation between fixed dates practically impossible. At any rate, that upon Sundays and holidays no legislation could or would be done. If the purpose was to include these, other language more clearly expressing this intent would very probably have been used. A distinction should be made between statutes which restrict the number of days upon which acts may be performed and those which merely fix the ulterior limit of time within which a ^single matter may be transacted. In the former, Sundays and other days when labor or business cannot be transacted are usually excluded; in the latter, these are usually included, unless expressly excepted. Thus it has been held that Sundays, not being judicial days, are not to be considered as days of a term of court. Read’s case, 22 Gratt. 924; Bank v. Williams, 46 Mo. 17; Chicago v. Iron Works, 93 Ill. 223. There appears no good reason why the same rule should not apply to the construction of the term “days,” when applied to matters to be transacted by legislative assemblies.

Were we in doubt as to the correctness of the above construction, what would be the duty of the court in the premises? The legislative assembly, a co-ordinate branch of the government of the territory, acting under like solemn obligations and responsibilities with ourselves, has passed the act, the validity of which is in question, which act has been approved by the governor, who has taken a like oath to support the constitution and laws of Congress, and now are we to declare it invalid? If we believe that the legislature, in attempting to legislate after March 21st, clearly, palpably, and plainly violated the fundamental law of the territory, then most unquestionably it is our duty to so declare. While this is true, we must bear in mind that among the fundamentals of the law almost, is the proposition that “we can declare an act of assembly void only when it violates the constitution (or organic law) clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on our minds.” Sharpless v. Mayor etc., 21 Pa. St. 164, 59 Am. Dec. 759. In Adams v. Howe, 14 Mass. 345, 7 Am. Dec. 216, the court say-. “We must premise that so much respect is due to any legislative act solemnly passed and admitted into the statute-book that a court of law which may be called upon to decide its validity will presume it to be constitutional until the contrary clearly appears, so that hi any case of the kind substantially doubtful the law would have its force. The legislature is in the first instance the judge of its own constitutional powers, and it is only when manifest assumption of authority or misapprehension of r; shall appear that the judicial power will refuse to execute it.” In Kentucky it has been held that if it be doubtful or questionable whether the legislature has exceeded its limit! the judiciary cannot interfere, though it may not be satisfied that the act is constitutional. City of Louisville v. Hyatt, 2 B. Mon. 178, 36 Am. Dec. 594. To the same effect, among others, are the following eases: City of Lexington v. McGuillan’s Heirs, 9 Dana, 514, 35 Am. Dec. 159; Cooper v. Telfair, 4 Dall. 14; Tyler v. People, 8 Mich. 333; State v. Cummings, 36 Mo. 277.

In view of this well-settled rule recognized in the foregoing cases, apart from the view we take of the organic law,—viz., that the legislature is limited in its sessions to sixty working or legislative days, and not to sixty consecutive days, as contended,—we would hesitate before holding that the legislature had in this instance transcended its powers, and violated the fundamental law of the territory, especially when we consider that this, in effect, would be to annul many of the laws now in force, and thus disturb and unsettle the public credit, destroy private rights, and bring disaster upon the territory. Prom the foregoing considerations, we hold that, the appropriation bill passed by the fifteenth legislative assembly, and approved April 10, 1889, is a valid law, and that the plaintiff is entitled to his writ. The writ will issue.

Kibbey, J., concurs.