Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1895-10-25

leg stature to congress and declares that
'if disapproved they shall be null and Of
no effect
Judge Cooley in his work on Constitu-
tional Limitations, page 81, note, in re-
gard to territorial legislation, declares
"The legislation, of course, must not be
IN conflict with the law of congress con-
ferrlng the power to legislate, but a
variance from it may be supposed to be
by that body il suffered to re-
main without disapproval for a series of
years after being duly reported to it,"
The supreme court of the United States
in passing upon the Utah jury law, says:
"The sim pie disapproval by congress, at
any time, would have annulled it." 1t is
no unreasonable inference therefore, that
it was approved by that body.
Clinton vs.. Englebrecht, ID WALL, 445.
The same tribunal declares "In case
of doubtful and ambiguous law con
temporaneous construction of those who
have been called upon to carry it into
effect is entitled to great respect"
Edwards, Lessee, vs.. Dandy, IL Wheat
on, 2lO, 107 U. s., 406.
In the case of Lyons Va. Wood, 1853 U.
S., $40, the supreme court of the United
States placed the refusal to inquire into
the organization of the 25th legislative
assembly of New Mexico on the ground
that the attention of congress was called
to the circumstances OF its organization.
1t is historical that the territorial leg
islatures have persistently pursued the
practice of creating for their service
subordinates, in addition to those named
by congress, and being cognlzant of this
action, through the submission of their
laws as required by organic acts, con-
it; not denied the right or censured it's
exercise, even if excessive. If wrong. 1t
has been permitted to pass current as
law by competent and controlling au-
thority, and must be accepted as affirma-
ton tantamount to congressional decree.
Says the supreme court of the United
States: "The simple disapproval by
congress, at any time, would have an
nulled it." (Utah jury law. It is no
unreasonable inference, therefore, that it
was approved by that body" Acquies-
cence by party who might have repudi.
ated, is ratification.
Again, the practice of congress in the
premises must be regarded as its law up
on the subject. It's acts indicate it's in.
tention, and are the construction of it's
enactments. "Usages long established
and followed have to a great extent the
efficacy of law in all countries. They
control the construction and qualify and
limit the force of positive enactments."
Sllddels vs.. Grandjean, Ill U. s., 1874.
1t must be conceded that the custom OF
adding to their staff by the territorial
Legislatures has prevailed indefinitely and
without Interruption, with the consent oil
congress, in that it has not dissented, and
it has consequently obtained the force Of
law.
Says Mr.. Justice Story: "The true and
appropriate Office of a usage or custom il
to interpret the otherwise indeterminate
intentions OF parties" We're it admitted
that the intention of congress- in limiting
the subordinetes to be paid by the United
States did not distinctly signify Its pur
pose, rs to the right of the Legislatures tc
increase them and compensate them ont
of the funds under their control, it il
palpable that in failing to disapprov.
such employment for a series of years il
established an undisputed usage which
must be regarded as it's interpretation u
it's measure. Long and continued usage
furnish contemporaneous construction
which must prevail. Legislatures having
assumed, and exercised for a protractee
period, the right to engage additlopa
subordinates, and, congress having con
tinuously acquiesced in its exercise, thu
construction has been practically declared
and doubt can not obtain. Reason ant
practice uniting in conclusion, it would
seem, that it is improbable.
But, for the sake of argument, let it b,
admitted that the construction of tn,
statutes under consideration, notwith
standing the action of congress as abov,
recited, is problematical. 1t is adjudi
Gated that the constitutionality of a Law
is to be presumsd-that reasonable doubts
must be solved in favor of legislativ,
action, and that courts should sustain il
when not clearly satisfied of it's invalidity
Cooley on Constitutional Limitations
in Fletcher vs.. Peck, Oranch, 1913
Chief Justice Marshall declared: "Tht
opposition between the constitution anl
the law should be such that the judg.
feels clear and strong conviction o.
their moon patibilitv with each other"
Mr.. Justice Washington in Ogden vs.
Sanders, IL Wheaton, ala, said: ut il
but decent respect due to the wisdom, the
integrity and the patriotism of the legis
lative body, by which any law is passed
to presume in fax or of its validity unit
its violation of the constitution is proved
beyond all reasonable doubt" If the
legislature conceived any doubts as to the
legality of it's action, it solved them in III
favor, and the courts, if sharing in such
doubts, must similarly determine them
If such is the principle controlling courts
in the construction of statutes generally
fortiori must it prevail as to eractments
personal to the legislatures, their organ.
ization and requirements. Sole judges
of the qualifications Of their members, it
would seem they are not less DOM petent
to settle for themselves the extent O;
their necessities and the number of sub.
ordinates to meet them. It appears,
then, that the right Of the legislature TO
equip itself to its satisfaction ia sustained
by principle and practice, by congress
and the courts. If the practice orlginat.
ed in error, congress Is responsible for
not correcting it, and the error has exist.
ed so long and been 80 common, il must
have the force and effect of law until
legally corrected, not by judicial legisla.
tion, however, not by the intrusion OF
courts into the portals of a co ordinate
department of the government, supreme
in the exercise Of authorized functions;
but by congress-, omnipotent over the
legislatures to control them, either en-
larging or abridging their powers.
In IL Howard, 2, the supreme couY,
says: ut seems to rs that the control o.
these territorial governments appertains
to that branch OF the government which
creates and can change or modify them
to meet it's views of public policy, viz,
the congress of the United States"
Ours is q government of coordinate
departments, each within Its sphere alb
solute and exempt from supervision of
the others, and the invasion of either
within the domain of the other ia ar in.