Arizona weekly citizen., 1889-07-27
OPINION
Upon the ConstitutiOnality of the
 Territorial Authorship.
PHENIx, ARIZONA,
 a- 1OOO
By ArroGNEY-GENERAL CHURCHILL.

June -O. looJ. HoN. LEWIS WoLFLEY,
 Governor of Arizona.
 Sir In response to the request of your Excellency that my opinion m writing be given to you upon the fol lowing propositions, viz:
 Whether the acts passed by the 18th Legislative Assembly on the 10th day of April, A. D., 1889, are valid laws? Second-Whether Hon. Thos. Hughes is entitled to exercise the duties of the office of Territorial Auditor of the Terri tory of Arizona!
 I have the honor to reply as follows, to wit: The Revised Statutes of the United States (Section 1851 provide that "The Legislative power of this Ter ritory extends to all rightful subjects of legislation, and they do not fall within any of the exceptions made by the terms of the above act of Congress, and they are not inconsistent with any provision of the constitution or laws of the United States; hence they are in my Judgment valid laws. 1t has, however, been con tended that the sessions of the Legisla tive Assembly having been limited to sixty days duration and that the 18th Legislative Assembly having first convened and commenced its labors on the 21st day of January, 1889, that the sixty days during which it was author ized to sit as a legislative body com menced to run then. and continued to run without interruption until the Dist day of March, 1889, when it expired by limitation of law. whether the respec- tive houses were during the intervening period in actual session or engaged Tn the performance of legislative duties or not: and that after the 21st day of March, 1889, all of its proceedings were null ity. or in other words, that when the consecutive sixty days after the day of commencement expired, it became Ipso facto functus officio, and no longer en- titled to be considered as a legislative body, but only an unauthorized assem- bly, of private individuals. 1 cannot, however. entertain this view. It is not in accordance with the spirit of the Act of Congress organizing our system of territorial government. It would seem that Congress, in organizing this terri tory, reserved to itself the exclusive right to annul the laws of our legislative assembly. Section 1850 R. $. U. $. pro vides that All laws passed by the legis lative assembly and governor of the ter ritory shall be submitted to Congress, and if disapproved, shall be null and of no effect" and, of course, the natural intendment is that if not disap- proved. they shall have full force and eff feet In the case of the Miners Bank vs Iowa Q2 Howard D the Supreme Court of the United States made use of the following language, viz:
 Congress, in creating the territorial governments, and in conferring upon them powers of general legislation, did not, from, obvious principles of policy and necessity, ordain a suspension of all acts proceeding from those powers until expressly sanctioned by themselves, whilst for considerations equally strong they reserved the power of disappearing or annuling such acts of territorial legis- lation as might be deemed detrimental. The whole scheme of government of the Territories is based upon the theory that the people are sovereign and should be allowed to govern themselves and they are placed upon probation, and per mitted to try to govern themselves by the organic act, subject at all times to revision by Congress. In the case of Territory vs Scott, 20 N. w. Rep. pp. 405 ct seq. the Supreme Court of Montana says: Ut was never the intention of the framers of our federal union that any
  ever continue to be but political subdi- visions of the outlying dominion Of the United States" bearing a relation to the general government much the same as that which counties bear to the respec- tive states" Nor do we think ..that the above language, qnoted from the opinion of the Supreme Court of the United States in the case of Nat. Bank V. Yank- ton, before cited, is to be extended be- yond its original purpose.
 The principal questions under consi- iteration in that case were as to the pow CT of Congress to legislate specifically for the territories, and the effect to be given to such legislation, and to those questions the language quoted was apt and pertinent. But 1t IS unnecessary to presume that language was intended by the court as an accurate judicial defini- tion of the political status of the territo- ries applicable to all cases. Such a pro position would not command the assent of any diligent student of constitutional law. and we think no such construction can be placed upon that opinion.
 The controlling basilar idea of our rep1blc is that of our organic union of republican states; noble building ''fitly joined together, and com pacted with that which every joint sup plieth." The ultimate purpose is that every portion of its territory shall, as soon as practicable, be organized into states which shall take their equal place and part in the union. The territorial condition is but necessary incident of immaturlty.
 Every essential element of statehood is there, and the policy of the govern I,o o1, 4o xl: period as one of preparation by clothing the territories with the paraphenalia and investing them with many of the duties and privileges of statehood.
 Let us see what has been done In this respect. The ordinance of 17S7 for the the government of the Northwestern territory has been already alluded to- and although that was enacted prior to the adoption of the constitution and is not now in force, (Strader vs. Graham 10 How. 52) the general policy of Con gress in reference to the government of the Territories has remained as therein expressed. We do not wish to be under stood as affirming any right in the inhabitants of any portion of the public domain to demand admission into the un ion as state. The hand that created can destroy. and the boundaries of any Territory may be entirely altered by Congress at its pleasure. We are mere ly stating what we understand to have been the general policy of the govern ment.
 The acts under which the several ter ritories have been from time to time or ganized, are all drawn after the sam, general pattern, and are in all essentia particulars similar *
 And after proceeding to state the pro visions of the organic act of Dakot; which are the same as those of Arizona the court proceeds further, as follows "Here, it will be observed, is no code o laws, civil or penal. This organic act is in all its essential generic features, sim liar to the constitutions of the severa states, and there can be no doubt that i WAS designed to serve a similar purpose