Arizona weekly citizen., 1889-07-27

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-:natter of jurors in the Terri tories is committed to Territorial regulation"
 Mir. Story in his work on the Constitution says: 'Ihc most unexceptionable source of collateral interpretation s from practical exposition of the government itself in its various departments upon particular questions discussed and settled upon their own single merits
 MT. Cooley expresses like view in the follow ing language: When there has been practical construction which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with plausibiity and force which it is not easy to resist"
 Cooley, Const. Linn. s1.
 This principal was acted upon by the Supreme Court of the United States in Stuart vs. Laird, Cranch, 29 where that court sustained the author ity of its members to sit circuit judges On the ground of a practical construction commencing with the organization of tie government"
 The case of Smith vs. Foster action brought for the usurpation of the office of Terri torial Treasurer. The plaintiff sought to recover on the ground that he had been appointed by the Governor by and with the advice and consent of
 
 that he had been subsequently, appointed by the Governor alone. On the trial ii appeared that the Governor had, on the Sth of April, 1889, nom- mated plaintiff to the Territorial Council for the office in question and that the Council had con- fiTIned the nomination; that thereafter the Gov ernor had issued his commission to plaintiff as Territorial Treasurer; that he had qualified and demanded the office but that Mr. Foster refused i11do1 of the court was to the effect that plaintiff was en- titled to the office and that he be put in posses sion thereof, and that defendant cease to exer- else the duties of tine office or assert any right to the same. The logical force of this judgment is to sustain my views upon the question under con- sideration.
 But the learned judge before whom the case was tried in rendering his decision, filed written opinion giving his views upon the questions in controversy in the course of which he made use Of the following language: "Ihe law is that tine session should be limited to sixty days duration. If any days were to be excepted it would have been 50 declared, for the organic act speaking of the time a bill is to be with the Governor, men, tions Sunday excepted It must mean sixty consecutive days; otherwise the legislature might sit month after month for few days at a time till
 
 fence, security and welfare of the people. With this view it follows that the councils action in conferring the plaintiff as Territorial Treasurer was nugatory and any laws passed by the Legis- lature after the expiration of sixty days null, unless Congress act upon them and make them valid" And it has been asserted that this is a | decision of the question by the District Court, and entitled to be accepted as authority upon rca hp val Off of | the legislature.
 | But consider these expressions merely obi | ter dictum and not as a solemn adjudication of | the question referred to because the determina- ton of this question entirely unnecessary to | the determination of the case before the Court, | and hence these expressions, while they are en- titled to great respect emanatiI from the Hon. Judge of the highest court of original general jur isjiction in the Territory they are still only the | voluntary expression of opinion, and are only entitled to that weight in the present considera- ton of the subject which their logic entitle them | to upon close analysis. In other words, regard the question as still open to discussion and deter imitation in the same manner as though said ex- pressions of opinion had not been made by the | District Judge
 | deem it proper in this connection to consider and discuss the propositions therein enuciated in | the same manner though said expressions had not been made. except in so far as the above lan- | suage is sustained by reason and for the purpose of testing their weight by that standard let us | carefully examine and compare them with other expressions in the same opinion bearing upon the | same subject.
 The learned Judge of the District Court in that Il opinion makes use of the following language: | If any days were to be excepted it would have been so declared" Why may it not as well be said that if the days mentioned were to be cOnse | cutive it would have been declared! There | seems as much reason to infer the one sequence as the other. The language of the act leaves it tirey open for the legislature to decide for iself | Again: The learned judge in that opinion makes | use of the following language: ''The Supreme | Court of Arizona in Atlantic and Pacific railroad vs. Lesseur, says ''Sec. 1850 Revised Statutes of | the United States enacts that all laws passed by the legislative assembly shall be submitted to Con- gress. and if disapproved shall be void and "f no effect.'' And may not add, Otherwise shall have full force and effect. These l quotations from the statutes are made to l meet the contention that a previous legislature | had fixed the time for meeting of the Leg islature on the first Monday of January, and that | the statute that fixes it on the second Monday, | and other laws of the Revised Code were passed sixty days after the first Monday, and it is conce ded that these laws would be made imperative ii the legislature is to be confined to sixty days ses | sion The revised code has been submitted to Congress, and one session of Congress has passed since such submission, and there being no adverse action the revised code entirety is the law of | the land.
 Counsel for plaintiff do not, however. contend that the legislative assembly can sit longer than | sixty days but insist that the session must con- | sist of sixty working days. l think not. The pay | roll introduced shows that members received on the 2lst day of March their pay for sixty days" This argument was evidently made use of to show that the laws passed by the legislatures which have sat prior to the 18th were valid; and believe the argument is good, but if it be good, it defeats the claim that the laws passed by the 18th are void. These two propositions cannot stand together-if one is good the other is bad. If the acts passed by the 14th Legislative Assembly after the expiration of the consecutive sixty days are valid then those passed by the 18th after such ex piration are equally so, for Congress has not in either case expressly approved any of those acts. If there was no Legislature in session on March 1Oth 1887, when large part of the Code was passed and if the men who acted as such were an unau- thorized body, then there can be no presumption that their acts were presented to or approved by Congress. The act of Congress provides only that All laws passed by the Legislative Assembly and Governor shall be submitted to Con gress and if disapproved shall be null and void, and this provision does not apply to any proceed ing nor to any body of men who do not legally constitute Legislative Assembly," The only theory upon which such acts can be sustained is that they were passed by legal Legislative As sembly, and the only theory upon which the 14tll Legislative Assembly can be held to be legal, is by construing the act of Congress limiting the days of its duration applicable to working and not consecutive days. The allusion to the pay roll and the fact that that instrument shows that | on the 21st of March the members were paid for sixty days can have no bearing upon the case un-
 less it be upon the question of fact as to the length