ited to sixty days' duration." Said section, being in its terms mandatory, must be so construed. It therefore remains for us to determine which of the two views as to the proper construction to be placed upon said section contended for at the hearing of the case we should adopt, viz., upon the one hand that the session of the legislative assembly is limited therein to 60 consecutive days from the day upon which the assembly convenes; or, upon the other hand, that the session is limited to 60 legislative or working days, exclusive of Sundays, public holidays, and days of intermediate adjournment. After the careful consideration the great public interests involved in this controversy demands, we have arrived at the conclusion that the latter view must prevail. nulled by such disapproval, confirms the opinion warranted by the plain language of the organic act itself, that the whole subjectmatter of jurors in the territories is committed to territorial regulation.' A provision in the organic law of New Mexico, which by the act organizing the territory of Arizona was made applicable to the latter, was to the effect that no session of the legislative assembly could exceed the term of 40 days. The first legislative assembly of the new territory convened, by proclamation of Gov. Goodwin, on the 26th day of September, and remained in session until the 10th day of November, 1864, a total of 46 consecutive days. Deducting 10 Sundays that intervened between the day upon which the assembly first met and the day upon which it finally Said section is part of the organic law of adjourned, and we find that it was in session the territory. It is proper to consider, there- 40 working or legislative days. After 40 fore, the relation which the organic act, and consecutive days had expired, the more imother acts of congress amendatory or supple- portant acts of the session were passed; mentary thereto, bear to the government of among them being what was known as the the territory. It was argued at the hearing "Howell Code." Under the provisions of of this case that congress had granted to the this Code of laws, the government of the terlegislature of a territory certain limited pow-ritory was for the most part administered uners, and restricted their exercise to the particular mode and manner expressed in its grant; that this grant is in every instance to be strictly construed; and that, the legislature having acted in a particular manner, no inference is to be drawn therefrom that it has theretofore acted within the limit of its delegated powers. We think the true view is that the organic law of a territory bears the same relation to the government of the territory as the constitution of a state sustains to the people of the state. The supreme court in Bank v. County of Yankton, 101 U. S. 129, say: "The organic law of the ter ritory takes the place of the constitution as the fundamental law of the local government." If the view we have given be correct, then it follows that the same rules of construction apply, and like effect must be given to any part of the organic law as would apply and be given to a similar provision in the constitution of a state. A well-established rule is that the contemporaneous construction of a constitutional provision put upon it by the authority for whose guidance it was intended, particularly if acquiesced in for a long term of years, should be followed by the courts. See J. S. v. Bank, 6 Pet. 39; Caldwell v. Carrington, 9 Pet. 103; Edwards v. Darby, 12 Wheat. 206. That this rule applies to the construction of the organic acts of the territories is asserted by Chief Justice CHASE in the case of Clinton v. Englebrecht, 13 Wall. 434. In speaking of the power of the legislature of Utah to legislate with reference to the practice of the courts in the matter of juries, he said: "This uniformity of construction by so many territorial legislatures of the organic acts, in relation to their legislative authority, especially when taken in connection with the fact that none of these jury laws have been disapproved by congress, though any of them would be an | til it was superseded by the Code of 1887. The validity of these laws was never questioned, and the courts, as well as subsequent legislatures, recognized them as equally operative and binding with the other acts of this session. If it be contended that the act of 1880, amending section 1852, Rev. St., is to be construed differently from the provisions of the organic act of New Mexico on the same subject, and that legislative construction upon the latter provision cannot, therefore, be considered, we find that the first legislative assembly to meet after said act took effect, viz., the eleventh legislative assembly, convened upon the 3d day of January, 1881, and finally adjourned upon the 12th day of March following, a total of 69 consecutive days. Deducting, as before, the intervening Sundays, and we find that the assembly was in actual session upon 60 working or legislative days. Sixty consecutive days from the beginning of the session ended with March 3d. After said date an act was passed fixing the date for the convening of subsequent legislatures. This act was followed and acquiesced in by succeeding assemblies, until the act of 1887 again changed the date of the beginning of the sessions. Among other acts was one creating the county of Graham; another, providing for the issue of bonds and the levy and collection of taxes; others were passed amending the revenue laws and the statute of limitations. During the session the council directly gave its assent to this legislative construction in rejecting a resolution to adjourn at the end of the 60 consecutive days. Thus the legislative construction from the beginning has been uniform that the sessions are limited to 60 days of actual session. In the case of Moog v. Randolph, 77 Ala. 608, the supreme court of Alabama distinctly recognized the rule that the practical construction of the legislature will govern in a case of this kind, and gave a like construction | fundamental law of the territory, then most upon the term "days," in a similar provision of the constitution of that state. In construing the constitutional provision that the general assembly shall not remain in session longer than 50 days, Justice SOMERVILLE in that case said: "I am satisfied that 'fifty days' means fifty legislative working days, exclusive of the Sundays and other days upon which the senate and house concur in refusing to sit by joint resolutions of adjournment. This question has been repeatedly considered by the judiciary committees of the senate and house of representatives at successive sessions of the general assembly since the adoption of the constitution; and other reports concurring in this view have in each instance been adopted by those bodies. Even if we regard the question a doubtful one, we would hesitate to depart from this settled legislative construction of the fundamental law, especially in view of the serious consequences which would necessarily flow from it. " But, aside from the legislative construction, we think a consideration of the subjectmatter, as well as the evident purpose and intent of the act of 1880, warrants the interpretation we put upon it. Congress certainly contemplated that emergencies might arise that would render legislation between fixed dates practically impossible. At any rate, that upon Sundays and holidays no legislation could or would be done. If the purpose was to include these, other language more clearly expressing this intent would very probably have been used. A distinction should be made between statutes which restrict the number of days upon which acts may be performed and those which merely fix the ulterior limit of time within which a single matter may be transacted. In the former, Sundays and other days when labor or business cannot be transacted are usually excluded; in the latter, these are usually included, unless expressly excepted. Thus it has been held that Sundays, not being judicial days, are not to be considered as days of a term of court. Read's Case, 22 Grat. 924; Bank v. Williams, 46 Mo. 17; Chicago v. Iron Works, 93 Ill. 223. There appears no good reason why the same rule should not apply to the construction of the term "days," when applied to matters to be transacted by legislative assemblies. Were we in doubt as to the correctness of the above construction, what would be the duty of the court in the premises? The legislative assembly, a co-ordinate branch of the government of the territory, acting under like solemn obligations and responsibilities with ourselves, has passed the act the validity of which is in question, which act has been approved by the governor, who has taken a like oath to support the constitution and laws of congress, and now are we to declare it invalid? If we believe that the legislature, in attempting to legislate after March 21st, clearly, palpably, and plainly violated the | unquestionably it is our duty to so declare. While this is true, we must bear in mind that among the fundamentals of the law almost, is the proposition that "we can declare an act of assembly void only when it violates the constitution (or organic law) clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on our minds." Sharpless v. Mayor, etc., 21 Pa. St. 164. In Adams v. Howe, 14 Mass. 345, the court say: "We must premise that so much respect is due to any legislative act solemnly passed and admitted into the statute book that a court of law which may be called upon to decide its validity will presume it to be constitutional until the contrary clearly appears, so that in any case of the kind substantially doubtful the law would have its force. The legislature is in the first instance the judge of its own constitutional powers, and it is only when manifest assumption of authority or misapprehension of it shall appear that the judicial power will refuse to execute it." In Kentucky it has been held that if it be doubtful or questionable whether the legislature has exceeded its limits the judiciary cannot interfere, though it may not be satisfied that the act is unconstitutional. City of Louisville v. Hyatt, 2 B. Mon. 178. To the same effect, among others, are the following cases: City of Lexington v. McGuillan's Heirs, 9 Dana, 514; Cooper v. Telfair, 4 Dall. 14; Tyler v. People, 8 Mich. 333; State v. Cummings, 36 Mo. 277. In view of this well-settled rule recognized in the foregoing cases, apart from the view we take of the organic law, viz., that the legislature is limited in its sessions to 60 working or legislative days, and not to 60 consecutive days, as contended, we would hesitate before holding that the legislature had in this instance transcended its powers, and violated the fundamental law of the territory, especially when we consider that this, in effect, would be to annul many of the laws now in force, and thus disturb and unsettle the public credit, destroy private rights, and bring disaster upon the territory. From the foregoing considerations, we hold that, the appropriation bill passed by the fifteenth legislative assembly, and approved April 10, 1889, is a valid law, and that the plaintiff is entitled to his writ. The writ will issue. KIBBEY, J., concurs. WRIGHT, C. J., (dissenting.) The court, in the majority opinion, rightly hold that section 1852 of the United States Revised Statutes, as amended, is mandatory in its terms; but the opinion holds that, when congress said in said section that the sessions of the said legislative assemblies of the various territories should “be limitsd to sixty days' duration," it meant 60 legislative working days, and not 60 consecutive days. We are unable to concur in this view; and we now proceed to analyze this section, and endeavor to The decision then construes the language to mean 60 legislative working days, exclusive of Sundays, holidays, and days of intermediate adjournment. It seems to us that, if this construction is correct, it makes the language necessarily directory, and not mandatory; for the reason that 60 legislative working days, exclusive of Sundays, holidays, and days of intermediate adjournment, would necessarily make the session endure longer than 60 consecutive days; and therefore, as the greater includes the less, while the session might endure for 70 or 80 consecutive days, counting Sundays and other days of intermediate adjournment, in order to consume 60 legislative working days the limitation might also be construed to mean 60 consecutive days. In other words, the real point of difference is plaintiff's counsel contend that the above language is directory only, and admits of discretion, while the defendant's counsel, and the friend of the court, contend that it is mandatory, and admits of no discretion. For it is here to be observed that the most earnest and strenuous arguments of plaintiff's learned counsel, including the very able argument of Asst. U. S. Atty. Gen. Shields, filed herein, were that the said language is directory only. So that it seems to us to be primarily essential to a satisfactory solution of the problem in hand to first determine absolutely, if possible, whether this language is mandatory, or directory only. show that the language employed by congress necessarily limits sessions of territorial legislative assemblies to 60 consecutive days; and therefore that the fifteenth legislative assembly of this territory, having begun its session on the 21st day of January, 1889, was not, and could not have been, without permission of congress, in legal session on the 10th day of April, 1889. There is no dispute as to the facts. The said fifteenth legislative assembly having begun its regular session at the time fixed by law, viz., on the 21st day of January, 1889, 60 consecutive days from that date expired on the 21st day of March, 1889; and it is admitted that the act in question was passed on the 10th day of April, 1889. So that the only and vital question is, was said assembly in legal session on the said 10th day of April, 1889? Clearly, it was not. That assembly was wholly and simply a creature of the national legislature. It was the nursling of congress, drawing the milk of its existence from congressional maternity, and living, moving, and having its being in the will of congress, as expressed in the federal statutes. It therefore had no real legal being outside of those statutes. Necessarily it existed, if at all, according to their provisions. To those statutes, then, to the expressed will of congress, the creator, must we look for the definition of the rights and powers of the creature. The section of the federal statute containing the principal and expressed limitation upon the duration of the sessions of territorial legislative assemblies is, of course, Now, at the outset, we say this language said section 1852, as amended in 1880. There is so clearly mandatory that it is really surare other sections of that statute, however, prising that any one should question its true which shed light upon the true meaning of import. It might be observed that no manthis one. The purpose, the intention, of the datory phrase or sentence was ever employed law-maker is of the first importance. We that was not also, in a measure at least, dishall have obtained a true solution of the rectory. When God said, "Let there be main question involved in this case, when we light," He both directed and commanded, and determine correctly, if we may be able to do the glory and blessing of that subtle agent so, precisely what congress meant by the lan- covered the void earth. If the teacher says guage it employed in this section. It reads: to the pupil, "Get your lesson," it is both a The sessions of the legislative assemblies direction and command. If the father says of the several territories of the United States to the son, "Go to the stable and bring my shall be limited to sixty days' duration." Is horse, by the back gate, into the yard," the the latter clause mandatory or directory? language is also a direction and command; The court incidentally say it is mandatory in but if the son should bring the horse into the its terms, but the conclusion arrived at indi- yard by the front, instead of the back, gate, cates that a discretion is implied. We are we apprehend there would still be a substanunable to perceive how this can be; because, tial execution of the power or authority conif the meaning of this language is clear and ferred. We mean there is quite a difference indubitable and is mandatory, it admits of between the power conferred and the exerbut one true construction, being susceptible cise of that power. The grant of power is of but one true meaning. Yet the court say: generally mandatory, while the phraseology "It remains for us to determine which of the indicating the manner of its exercise is often two views, as to the proper construction to be construed to be only directory, and therefore placed upon said section, contended for at the the irregular exercise of a power would not hearing of the case, we should adopt, viz.: necessarily render the act performed void. Upon the one hand, that the session of the We think most of the cases, where language legislative assembly is limited therein to 60 apparently mandatory has been construed to consecutive days from the day upon which the be directory, will be found upon critical exassembly convenes; or, upon the other hand, amination to be where there has been an irthat the session is limited to 60 legislative or regular or improper exercise of the power working days, exclusive of Sundays, public granted, rather than the attempt to exercise holidays, and days of intermediate adjourn- a power not conferred. For instance, the ment." election cases referred to by the learned 66 bly shall fix by law the day of the commencement of its regular sessions. The members of the council and of the house of representatives shall reside in the district or county for which they are respectively elected." Here we have the use of the word "shall" recur counsel for the plaintiff. In the case at bar the power granted to the legislative assembly by congress was to hold a biennial session for only 60 days, and the attempt to hold longer than 60 days was attempting to exercise a power not conferred. Mandatory language may be, and is often held to be, direct-ring seven different times in this one section; ory; directory language seldom is, and rarely is held to be, mandatory. The one is used generally in a permissive sense; the other, in a prohibitive or negative sense. "Thou mayst be saved" is permissive; "Thou shalt not kill," is prohibitive. The one imports discretion, the other does not. Mandatory language is generally that which superiors employ in addressing inferiors. It is generally used where the party using it has the power to control the action of the party to whom it is addressed. Hence the intention of the party using the language should control the construction put upon it, unless the language employed is so absurd or dubious in meaning as to render such intention absolutely uncertain and indefinite. It is the language of the parent to the child, of the teacher to the pupil, of the master to the servant, the principal to the agent. Now, congress is the principal or master,--the superior; the legislative assembly is the agent or servant, the inferior. It is for the principal or master-the superior-not only to direct, but to command; and it is for the agent or serv ant the inferior-not only to follow, but to obey. Wherever congress has intended to give this agent-this inferior-a discretion in action, its language is so clearly directory as not to admit of doubt. This, however, has rarely happened, and but few instances can be found, for now we assert that, with almost unbroken uniformity, wherever congress, in legislating for the territories, has spoken with reference to the various powers, duties, sessions, etc., of the territorial legislatures, it has used the word "shall" in not simply a directory, but in a mandatory, sense. Let us see: Section 1842, Rev. St. U. S., says: "Every bill which has passed the legislative assembly of any territory shall, before it becomes a law, be presented to the governor," etc. Is this not plainly maudatory? Would any one pretend that, if the legislative assembly were to attempt to pass a law without presenting it to the governor, it would be worth the paper upon which it was written? Again, section 1846 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 discretion here? May the legislative power exist elsewhere? Further, we read in the same section: "The legislative assembly shall consist of a council and house of 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 shall be biennial. Each legislative assem and all referring directly to the qualifications, powers, duties, sessions, etc., of the members of the territorial legislative assemblies; and is there any possible room for the faintest doubt that, in each instance, the word is used in its absolute, mandatory sense? It is not that the assembly may consist of a council and a house, but it shall so consist; not that the members of both branches may have the qualifications of voters, etc., but they shall have such qualifications; not that they may be chosen for two years, but they shall be; not that the sessions may be biennial, but that they shall be; not that each legislative assembly may fix by law the day of the commencement of its regular sessions, but it shall fix the day; not that the members may reside in their respective. districts or counties, but they shall reside therein. Again, the latter part of section 1886, Rev. St. U. S., reads: "No session of the legislature of a territory shall be held until the appropriation for its expenses has been made." Does this mean that such session may be held, whether the appropriation be made or not? On the other hand, is not the inference irresistible that, unless such appropriation were first made, such session would be void? In other words, is not the appropriation a condition precedent to the legal existence of the session? And still again, section 1888 of said statutes reads: "No legislative assembly of a territory shall, in any instance or under any pretext, exceed the amount appropriated by congress for its annual expenses. Here, again, congress has clearly indicated its purpose to be to limit the sessions of the legislative assemblies to a definite period of 60 days' duration; for appropriations are made upon a basis of 60 days; and we know of no instance where the per diem of members, or expenses incurred for longer periods than 60 days,' have been paid. This section, then, sheds light upon the meaning of congress, when it employed the language, "shall be limited to sixty days' duration,” and we think it, and other instances referred to, clearly indicate the legislative intent; that congress said just what it meant, and meant just what it said, when it declared, in plain, unambiguous language, that the sessions of the legislative assemblies of the several territories of the United States shall be limited to 60 days' duration. If it had been the intention of congress to rest any discretion; if its purpose had been that the session might be indefinite in duration, but that congress would only pay for 60 days of it, would not the language of the statute have been something like this: "The sessions of the territorial legislative assem This is fundamental. Mr. Blackstone says: "An adjournment is no more than a continuance of the session from one day to another, as the word itself signifies." [1 Bl. Comm. 186.] If Sundays, days of temporary adjournment, etc., were not to be counted as days of the session, then for those days the session would not endure. Is it not plain that, if Sundays, holidays, and all other days of temporary adjournment are not to be counted as parts of the session, the legislature would not be in session during such days, and that it would necessarily have to possess the power to hold any number of distinct sessions? But congress has only conferred | power to hold one session, of 60 days' duration. How, then, can it hold more than one session? Again, to state it a little differently, if Sundays, days of intermediate adjournment, etc., are not included as parts and parcels of the session, the time measured by these days being no part of such session, the session necessarily ceases for that time; but the only and true meaning of the language used by congress is that, when the session begins, it endures, continues to exist, for 60 days only from said beginning. So that it is simply impossible that there could be but one regular, legal session of the territorial legislative assembly; and it is just as impossible that that session could legally exist, endure, for a period longer than 60 days from its beginning. blies may continue longer, but in no event | sions go on. will the United States pay the expenses thereof for more than sixty days?” And is it not in a measure a reflection upon the wisdom and intelligence of the federal law-makers to impute a doubt to the meaning of the simple, but significant, language they employed? Congress was passing a fundamental law for the guidance of one of the three co-ordinate branches of youthful governments, whose people, being of the frontier in a large measure, were not supposed to be so critical in their civilization and learning as in the older communities. Is it reasonable to suppose that congress, in passing this fundamental law, which in its operation was to so seriously affect the people in these frontier governments, would use language of intricate, doubtful, ambiguous, or double meaning? Rather, is it not most reasonable to suppose that congress intended to use language of the simplest, most certain, and unequivocal meaning? And is this not exactly what congress has done? Is there any possible room for construction in determining the true meaning of the phrase, "Shall be limited to sixty days' duration?" Is it not, therefore, clear and certain, beyond reasonable doubt, that congress intended to use the above language, not simply in a directory, but in a mandatory, sense? It will be observed that there are two words in this phrase which are controlling, and which make its meaning absolute, viz., the words "limited" and "duration." The word "limited" means narrow, restricted. It is synonymous with the word "circumscribe;" and that word means to inclose within a certain limit; to hem in; to confine; to bound; to limit; to restrict, etc. Mr. Webster defines the word "duration" to mean the power of enduring; continuance in time; "the portion of time during which anything exists." Adding the latter definition of the word "duration" to the phrase, it then would read: "Shall be limited to an existence of sixty days." Is it not evident that the great primal purpose of congress was to control within' fixed, definite limits the sphere of legislative action in these territories? And that when the session began it should continue to exist, to endure, for only 60 days from the day of beginning? Is there any room for construction here? Or, rather, can there be but one true construction? Is the true meaning of this section at all doubtful? Does it not necessarily mean that, whatever the time fixed by the legislative assembly for the session to begin, it could not continue to exist, as a legal organized body, longer than 60 days from said beginning? Sixty days of lawful session; 60 days of legal, organized existence, that is all. It means 60 days, counting one after another, including Sundays, holidays, and any days of temporary adjournment. If congress had meant to exclude these days from the limit of 60 days' duration, it would have said so. How plain the language; how simple, how certain the meaning. Although adjournments are had, the ses Another, and we think a potent, reason why congress intended by the language used to limit the duration of the session of the legislative assembly to 60 days from its beginning, is that the history of the times, at and recently before the passage of the act, was rife with complaints of extravagance and reckless expenditure in more than one of these legislative assemblies; so that, construing this statute in the light of surrounding circumstances and contemporaneous history, we say that it is evident that the purpose of congress was to absolutely control, to circumscribe, to hem in, to restrict within fixed definite limits, these legislative assemblies as to the period of their existence; and to fix beyond the line of cavil or discussion the fact that the session could only exist, endure, for 60 days from its beginning. Hence the days of its possible existence were with unerring certainty numbered. By the volition of the members of the legislative assembly its session might die before the expiration of the full number of days; but, at all events, it could not live, endure, beyond them. The measure of its existence, the day, the hour, of dissolution, was marked upon the dial-plate in unmistakable phrase. Hence we say again that congress not only used the language of said section in a directory, but more emphatically in a mandatory, sense. To us the language used imports no possible discretion as to the limitation of the period beyond which the session cannot exist. It has but one true meaning. It means the actual hours, days, weeks, etc., elapsing-the one after the other |