Arizona weekly citizen., 1889-07-27

lures are elected by the people, they responsi ble to the people for their official conduct and it is contrary to the whole theory of a Republican form of government to say that the people or their representatives cannot be trusted with power to remain in session so long as in their judgment the public good demands it. They will be paid for sixty days and no more; they may sit and ac- tually do legislative duty for sixty actual work ing days and no more. Thus they are limited and no further.
 The only question before the court in the case of Harpending against Haight (S9 Cal. 1S9) cited by the learned District Judge was whether bill which had been presented to the Governor could be returned to the Senate of California by the Governor with his disapproval when that body stood adjourned over until a future day certain and before the final adjournment, and that court held that under such circumstances it would be compliance with law if the bill should be deliv- cred to the President some other officer, or if no officer could be found then to some member of the Senate and placed beyond the control of the Governor. The very language above quoted from the opinion of the court shows that the legislature was not in session" although it had organized existence when it so stood at recess" or adjourn ed over from the 31st of March until the next day, and that Is direct expression in support of my views upon the question involved in the interroga tories submitted to me. The act of Congress de- clares that the duration of the sessions of the Ter ritorial Legislature shall be limited to sixty days and it does not specify when the sessions shall commence nor when they shall terminate leaving those dates to be fixed by the legislature, but limits the number of days during which they may be in session. Now if they are not in ses- sion when they stand at recess or adjourn over to meet at a specified time then certainly those days are not included in the limitation. for the hmita- tion is confined to the session and does not ex- tend to days when they not in session. While it is admitted that Congress has the power to an nul valid law or declare invalid valid Legisla- tive Assembly or to make valid or invalid a stat ute or an illegal assembly acting as Territorial Legislature and make valid the acts of such illegal assembly yet it cannot do any of these things by silence. If the assembly has no lawful existence its acts must be embodied in an act of Congress or they remain void. The several Territorial Legislatures having for quarter of century SO construed the organic act to entite them to sit for sixty working days without including the time of intervening adjournments if there Is any pre- sumption arising from the fact and the silence of Congress, it is that that construction has been adopted and approved by Congress nothing more.
 The organic act of New Mexico, the provisions of which were made applicable to this Territory as already shown, required that the GovernC should approve all laws passed by the Legislative Assembly before they should take effect, thus mak ing the veto power absolute; but in the year 1881 Congress passed special act regarding the veto power in this Territory, (See Supplement U. $. Rev. Stats. 1874 pp 230 In this special act there appears the following clause: And if the Gov ernor shall not return any bill presented to him for approval after its passage by both houses of the Legislative Assembly within ten days Sunday exceptedI after such presentation, the same shall become a law, etc. and it has been suggested that the express exclusion of Sundays from the computation of time in this clause and the omission of all express words from the pro- vision regarding the length of the session in the original organic act shows an intent on the part of Congress to include Sundays in the computa ton of the time of the duration of the session ac cording to the maxim "expressio unius est exclu- sio alterius."
 But it m ust be apparent from the statement of the case that this maxim has no application be- 
 tirely different times and relate to different sub jects, and there are grave reasons why the great est particula rity should be exercised to time, which is of the essence of the public business in the one case and not in the other. In the case of the special act lapse of time alone without any act on the part of any one may change bill with out vitality into a valid statute of the Territory, while in the other case such result follows the lapse of time. But if this maxim is applicable 1t would only follow that Sundays intervening be tween.the commencement and termination of the session are to be counted, and it does not at all follow that days covered by adjournment are to be included while in the other case under con- sideration the days of actual session of the Eff teenth Legislative Assembly including all inter- vening Sundays were less than those allowed by law-sixty.
 Following in the course and according to the precedents of former Legislative Assemblies and the practical construction given to said provision of the organic act of this Territory by all the de partments of its government sanctioned by the people of the 18th Legislative Assembly con- menced its session at Prescott, which was then the capital of the Territory, on the 2lst of Jan- uary I8S9 and within a few days it passed an act removing the capital from Prescott to Phenix- which act went into immediate effect, and both houses adjourned over a considerable period to meet in Phenix, the new capital, on the 1th ot February, and on that day they re-assembled pur- suant to adjournment and continued their labors adjourning over from time to time until the 10th of April, when they adjourned sine die, but the total number of days during which they were ac- tually in session including all intervening Sun- days were less than sixty. The language of the statute that the duration of the session shall be
 limited to sixty days itself excludes the idea that
 any days when the Legislature was not in session
 should be included in the computation of the
 sixty days. No one would for moment contend
 that the Legislature was in session when 1t stood
 at recess or while it was adjourned over a given
 period of time, as, for instance, when the mem
 bers and and their officers scattered all over
 the Territory or in California their way
 from Prescott to Phenix after the passage of tht
 act removing the capital from Prescott to Phenix To now hold that it had lapsed by the expira
 tion of time would involve injurious consequences
 to this Territory which it is difficult to forecaste
 and the very necessity of the case if other req son appeared for upholding its acts would fur nish sufficient ground therefor. l am clearly oi the opinion that on the 10th day of April A. D.. lSsJ, the l0ln ASSeIuDIy StliA III
 session and that its acts and proceedings are en
 titled to all the respect and consideration of any
 regularly constituted Legislative Assembly of thi:
 Territory. It appears by the records in your office
 and in the office of the Secretary of the Terrtor!
 and the journals of the 18th Legislative Assembl!
 that the Hon. Thos. Hughes was duly appointed
 by your Excellency to the office of Territoria Auditor by and with the advice and consent o
 the Territorial Council on the sth day of April
 1SS9, and that thereafter and on the 11th day o
 April, 1889 the said Hughes duly qualified as sucl Territorial Auditor.
 I am of the opinion that he thereupon became
 the legally constituted Territorial Auditor of th Territory, and entitled to exercise the duties O said office and that he still is Territorial Auditor
 of this Territory, and entitled to exercise the du | ties of said office.
 Respectfully submitted,
 CLARK CHURCHILL, Attorney-General.