Arizona weekly enterprise., 1890-04-05

O"oCoI "HCiO AauBudSG apparently mandatory has been construed to be directory, will be found upon critical examination, to be where there has been an irregular, or improper, exer- else of the power granted, rather than the attempt to exercise a power not conferred.
 For instance, the election cases re- ferred to by the learned counsel for the plaintiff. In the case at the bar, the power granted to the legislative assembly by congress was to hold a biennial session for only sixty days and the attempt to hold longer than sixty days was attempting to1 exercise power not conferred. Mandatory language may be, and is often held to be, directory: directory language seldom is, and rarely is held to be, mandatory. The one is used generally in permissive sense; the other, in a prohibitive, or negative sense.
 "Thou mayst be saved" is permis- sive: "Thou shalt not kill" is pro- hibitive. The one imports discretion, the other does not. Mandatory Ian guage is generally that which super iors employ when addressing interiors. It is generally used where the party using it has the power to control the action of the party to whom it is ad- dressed. Hence the intention of the party using the language, should control the construction put upon 1t, unless the language employed is so absurd, or dubious in meaning, as to render such intention absolutly un- certain and indefinite.
 It is the language of the parent to the child, of teacher to the pupil, of master to the servant, the principal to the agent. Now congress is the prin- cipal or master, the superior; the leg islative assembly is the agent or ser want, the inferior It is for the prin- cipal or master, the superior, not only to direct, but to command: and it is for the agent or servant, not only to follow, but to obey Wherever con- gress has intended to give these agents, this inferior, a discretion in action, it's language is so clearly direc- tory, as not to admit ofdoubt.
 This, however, has rarely happened, and but few instances can be found, for now we assert that, with almost unbroken uniformity, wherever con gress in legislating for the territories, has spoken with reference to the var ious powers, duties, sessions &c., of the territorial legislature, it has used the word "shalr' in not simply di- rectory, but in a mandatory sense. Let us see; Sec. 1S42 R. s. U. s. says : "Every bill which has passed the leg islative assembly of territory shall, be fore 1t becomes law, be presented to the governor, &c."
 Is this not plainly mandatory?
 Would any one pretend that if the legislative assembly were to attempt to pass law without presenting it to the governor, it would be worth the paper upon which it was written? Again sec. 1S46, of said statutes in its first sentence, says: "The legislative power in each territory shall be vested in the governor and the legislative assembly" Can there be any discre- tion hereY May the legislative power exist elsewheref
 Further, we read in the same sec ton: "The legislative assembly shall consist of a council and house oi representatives. The members of both branches of the legislative assembly shall have the qualifications of voters as herein prescribed.
 They shall be chosen for the term of two years and the sessions of the respective legislative assemblies shal be biennial. Each legislative assem- ply shall fix by law the day of the commencement of its regular sessions The members of the council and house of Representative shall reside in the district or county, for which they art respectively elected. Here we have the use of the word "shall" re-occur ring seven different times in this ont section; and all referring directly t( the qualifications, powers, duties, ses sions, etc., of the members of the ter ritorial legislative assemblies; and i there any possible room for the faint est doubt that, in each instance, tn, word is used in its absolute, manda tory sensef
 It is not that the assembly ma, consist of a council and a house but i
 shall so consist; not that the mem
 bers of both branches may have tn
 qualifications of voters, etc., but the,
 shall have such qualification not tha
 they may be chosen for two years, bu
 they shall be; not that the session
 may be biennial, but they shall be
 not that each legislative assembly ma
 fix by law the day of the commence
 ment of its regular sessions, but i
 shall fix the day; not that the mem
 bers may reside in their respective dis
 tricts or counties, but they shal
 reside therein. Again the latter par of section 1886, Rev. Stat, U. S., reads
 "No session of the legislature shall b held until the appropriation for tn expenses shall be made, etc."
 Does this mean that such sessio may be held, whether the appropr tion be made or not? On the othe hand, is not the inference irrssistibl , that, unless such appropriation wer
 first made, such session would be void f In other words, is not the appropri; ton condition precedent to the legt : existence of the session? And sti
 again section 1886 of said statute , reads; "No legislative assembly of B territory shall. in any instance or LII : der any pretence, exceed the amour I appropriated by congress for its al s nual expense"
 !. Here again congress has clearly il f dicated its purpose to be to limit tt sessions of the legislative assembli, l to definite period of sixty days dur t tion; for appropriations are made upo | basis of sixty days and we know e no instance where the pertdiem ;, members, or expenses incurred f, s longer periods than sixty days ha, V been paid. This session then, she, light upon the meaning of congees s when it employed the languag it "Shall be limited to sixty days dur q tion," and we think it and other i e stances, referred to, clearly indioa IT the legislative intent; that congre IS said just what it meant, and meal > just what it said, when it declared e plain, unambiguous language, tn l. the sessions of the legislative asser tt plies of the several territories of u