-from the time of the beginning of the session till 60 days, of 24 hours each, have passed. For obvious reasons, the time of beginning was immaterial; but, for equally obvious reasons, the time of ending was material. Congress had to pay the bills of expense, which could not be affected by the beginning of these sessions, but would necessarily be seriously affected by their endings, by the periods of their duration. While, therefore, it is evident that a discretion was intended as to the time of their beginning, it is equally evident that none was intended as to the time of their ending. The limit is fixed, definite, and certain. They may stop this side of the limit. They cannot go beyond it. It is not pretended that the legislative assembly had any inherent power to convene, call itself into legal session, after dissolution; and yet, as we have already seen, if this be not so, how can days of intermediate adjournment be excluded from the session, without the session itself becoming necessarily dissolved? And therefore the assembly would necessarily have to possess inherent power to call itself back into legal session. But the principle is quite a general one that no legislative bodies have this inherent power. When the legislatures of the states end their sessions, they can only reconvene by authority of the governor. When congress adjourns, the president alone can call one or both branches of it back into legal session. And even the British parliament itself has no inherent power of convention after dissolution; the queen may prorogue it, and it cannot of itself reconvene. So that, as the supreme court of Dakota says in Treadway v. Schnauber: "The territorial legislature is a creature of congress. Its powers, duties, and sessions are defined and limited by the act organizing the territory, and the amendments thereto, and it derives no life or power from any other source. It is authorized to hold a biennial session of not to exceed forty (now sixty) days, and there is no provision * * to extend the session beyond the time specified." See 1 Dak. 249. The court seem to rely upon the decision of the supreme court of Alabama in Moog v. Randolph. See 77 Ala. 608. But it must be remembered that the limitation there referred to was upon the sessions of a state legislature, which had given repeated legislative constructions to the limitation contained in the constitution of Alabama, all to the effect that the 50 days' limitation meant 50 legislative working days; and that the court followed that construction -as Mr. Justice SOMERVILLE, who delivered the opinion of the court, said-because of the serious consequences that would ensue; the court holding that it would be reluctant to depart from such construction in doubtful cases, the question being no longer res integra. We fully agree with the court, in the case at bar, that, where laws have long been acquiesced in,-where substantial rights have grown up and vested under them,-it is a well-settled policy of the courts not to disturb them, though they may not have been legal or constitutional originally. This was, as we have just seen, the true reason for the decision in the Alabama case; it was also the reason for the Oregon decision. But this doctrine cannot obtain here. The acts of the fifteenth legislative assembly, passed after the expiration of the 60 consecutive days from the beginning of its session, have not been acquiesced in. The validity of those acts has been questioned ever since their passage. The contention over them has superinduced the very litigation at bar. And because it is the policy of the courts not to disturb illegal or doubtful acts, long acquiesced in, for the reason that substantial rights have vested, and evil consequences might ensue, does it follow that the courts ought to uphold illegal or doubtful acts, because substantial rights might vest in the future? We are free to say that in our opinion the various laws, passed by the first and the eleventh legislative assemblies of this territory, after the expiration of 60 consecutive days from their beginning, should not be disturbed simply because they have been long acquiesced in. But should that view control the action of the court in the case at bar? If it should, then the courts could pass upon the validity of no legislation, because evil consequences might follow in futuro. The court is not called upon to give a construction retroactive in its effects, but to say whether or not we will truly decide a living vital issue. Nor will it do to say there has been a uniform legislative construction on this subject by our legislative assemblies. If the first and eleventh legislative assemblies of this territory construed the limitation to be 60 legislative working days, presumably the other 13 legislative assemblies of the territory construed it to mean 60 consecutive days; for we must infer that, if any of the remaining 13 legislative assemblies had construed the limitation to be 60 legislative working days, this resource would have been drawn upon to strengthen the position taken. At all events, it is absolutely certain that a number of those assemblies did construe the limitation to be 60 consecutive days. And therefore the territorial legislative construction put upon the limitation lends neither force to the argument, nor strength to the position. For the first time the supreme court of this territory is called upon to put its construction upon the purview of that limitation. That construction should be according to the true tenor and effect of the statute, unaffected by past illegal acts, acquiesced in, or rights to be hereafter affected under them. This is plainly so, for all legal questions and rights, arising under the acts of the fifteenth legislative assembly, passed after the expiration of the 60 consecutive days, are still res integra. But, even to the modified extent to which the Alabama case goes, it seems to stand alone. Every other state legislature, so far as we have been able to learn, whose of the session, till the 60 or other number of days elapse. See Territory v. Clayton, (Utah,) 18 Pac. Rep. 628; Territory v. Scott, (Dak.) 20 N. W. Rep. 401; Stevenson v. Moody, (Idaho,) 12 Pac. Rep. 902; Treadway v. Schnauber, 1 Dak. 249. See also, State v. Arrington, (Nev.) 4 Pac. Rep. 735; Bank v. County of Yankton, 2 Dak. 365, 101 U. S. 129; and Bank v. State of Iowa, 12 How. 1. But if the question were doubtful, if the courts had expressed or intimated views that are conflicting, we should unhesitatingly hold that the opinions of the attorney general of the United States, delivered on the 16th days of March and July last, have put the question beyond the line of discussion. This it the great law officer of the government. In passing upon federal statutes, his opinions, next to the positive judicial determination by the great tribunal of final resort, (the supreme court of the United States,) are entitled to the highest consideration, and should have the binding force of exalted authority. In an official opinion rendered to the honorable the secretary of the interior, on the 16th day of July last, the Honorable W. H. H. Miller, attorney general of the United States, referring to letters of the governor and secretary of Arizona, bearing dates of June 24 and 26th, respectively, said: "I am unable to find in either any question of law which is not covered by the opinions of this department rendered to you under dates of March 16, May 29, and June 19, 1889. The first of these opinions was to the effect that, under the act of congress, which is the organic law of the territory, the session of the legislature of Arizona is limited to sixty consecutive days. The corollary to this conclusion seems clear, that any attempted legis sessions have been, or are, limited by their constitutions to a certain number of days, seems to have entertained no doubt that the limitation meant consecutive days. The constitution of Missouri (article 4, § 16) provides that "the members of the general assembly shall severally receive from the public treasury such compensation for their services as may, from time to time, be provided by law, not to exceed five dollars per day for the first seventy days of each session, and after that not to exceed one dollar per day for the remainder of the session," etc. This constitution was adopted in 1875, and every general assembly of Missouri, that has held a legislative session since, has construed the 70 days' limitation to mean 70 consecutive days from the beginning of the session. Section 17, art. 5, of the constitution of the state of Arkansas, adopted in 1874, provides that "the regular biennial sessions [of the general assembly] shall not exceed sixty days in duration, unless by a vote of two-thirds of the members elected to each house of said general assembly," etc. It will be observed that the words of limitation in this section are very similar in their import to the words of limitation upon the session of the territorial legislative assemblies, contained in section 1852 of the United States Revised Statutes as amended. The one says "shall not exceed sixty days in duration," the other says, "shall be limited to sixty days' duration." Every general assembly of Arkansas that has held a session since the adoption of this constitution, has construed this limitation to mean sixty consecutive days. And in Trammell v. Bradley, 37 Ark. 374, the supreme court of that state have passed directly upon the meaning of this limitation; and they use this emphatic language: "The regular biennial session of the legislature had be-lation after that time would be nugatory." gun on the 10th of January, 1881. During the session by concurrent resolution, not signed by the governor, the session was extended and continued' until twelve o'clock M. on the nineteenth of March, 1881. The session, if not properly extended, expired on the ninth of March, and the act having been passed after that period, would be invalid." To say that the words, "shall not exceed sixty days in duration, are mandatory, and mean 60 consecutive days, including Sun-ready indicated, we regard these opinions by days, holidays, and any days of intermediate adjournment, and that the words "shall be limited to sixty days' duration," are not mandatory, and mean 60 legislative, working days, is to make a judicial distinction without a judicial difference. And it must be further observed that, wherever the courts of last resort in the territories have incidentally passed upon this question, they have indicated their view to be that the limitation was intended to be 60 or other number of consecutive days; i. e., that when the session begins every day must be counted as a part This language was uttered subsequently to the reception by the attorney general of the "memorandum" of the assistant attorney general, Shields, filed with the argument of the learned counsel for the plaintiff herein. This is apparent from the face of each. It must therefore be regarded as a reassertion' and indorsement of the views expressed by the attorney general in his opinion of March 16, 1889, on the same subject; and as al the attorney general as decisive of the main question involved in the case at bar. With the attorney general, we hold that any attempted legislation, after the expiration of the 60 consecutive days, was nugatory. The fifteenth legislative assembly of this territory, having by operation of the law of its being been dissolved after the 21st day of March, 1899, on the 10th day of April, 1889, it had ceased to have a legal, organized existence, and could therefore pass no valid acts. Hence it is our conclusion that the prayer of the petition should be denied. (1 Wash. St. 73) BROTTON. LANGERT et al. Under Act Wash. T. 1879, entitled "Property Rights of Married Persons," community real estate cannot be sold to satisfy a personal judgment recovered against the husband for having, as constable, wrongfully sold property under execution. STILES, J., dissenting. Appeal from superior court, Pierce county; FRANK ALLYN, Judge. E. W. Taylor, for appellant. Judson, Sharpstein & Sullivan, for appellees. This erty, but protects it from acquisition by others, excepting in the manner specified. It also lays down its own rule of construction, and the language of the act itself is: "The rule of common law, that statutes in derogation thereof are to be strictly construed, has no application to this chapter. chapter establishes the law of this territory respecting the subject to which it relates, and shall be liberally construed with a view to its provisions, and all proceedings under it, effect its object." Then the pertinent and vital question becomes, what was the object sought to be effected? Section 2396 of the Code provides that "every married person shall have the same right and liberty to acquire, hold, enjoy, and dispose of every species of property, and to sue and to be sued, as if he or she were unmarried;" and section 2398 abolishes all laws imposing civil disabilities upon a wife which are not imposed upon a husband; and succeeding DUNBAR, J. The appellant, by her complaint filed in the district court of Pierce county, sought to prevent a judgment lien being extended over community real estate, and to obtain a writ of injunction to prevent the appellee from selling the community property of appellant under and by virtue of judgment obtained by the appellee Charles Langert, in a suit against appellant's hus-sections define what separate property is, and band as constable, he, as said constable, having sold personal property in which appellee had a special property, in execution against a person other than appellee. The appellant obtained a temporary restraining order. On the hearing of the case, appellee demurred to the petition, and assigned as grounds of demurrer that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the case dismissed, from which orders and decrees the appellant appealed to this court. In this case it is conceded that the property is community property, and that the judgment obtained against M. Brotton was a personal judgment for a tort. Hence the primary question involved is whether or not community real estate is exempt from execution on a judgment rendered against an individual member of the community, when the debt for which the judgment was obtained was not incurred for the benefit of the community. The community, composed of husband and wife, is purely a statutory creation, and to the statute alone must we look for its powers, its liabilities, and its exemptions. Nor are we much enlightened by quotations from the common law in relation to the property rights and liabilities of husband and wife; for, while we ordinarily look to the rules and maxims of the common law to aid us in the construction and analysis of statutes, it was plainly the intention of the legislature, in the session of 1879, in the passage of the chapter denominated "Property Rights of Married Persons," to depart from the common law, and breathe into legal existence a distinc. and original creation, partaking somewhat of the nature of a partnership and of a corporation, but differing in some essentials from both, and this creature is termed a "community." The statute alone determines who the members of the community shall be, the manner in which it shall acquire property, and defines and limits, not only the powers of the members of the community over said prop provide how it may be acquired, and in what manner disposed of. So far the evident object of the law is to place husband and wife on an equal footing in relation to property matters. Section 2409 is as follows: "Property not acquired or owned, as prescribed in sections 2400 and 2408, acquired after marriage by either husband or wife or both, is community property. The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof." This section discriminates in favor of one spouse, only so far as is actually necessary for the transaction of ordinary business. Section 2407 provides that the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. Section 2410 reads as follows: "The husband has the management and control of community real property, but he shall not sell, convey, or incumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance, by which the real estate is sold, conveyed, or incumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife: provided, however, that all such community real estate shall be subject to the liens of mechanics and others. for labor and materials furnished in erecting structures and improvements thereon, as provided by law in other cases, to liens of judg ments recovered for community debts, and to sale on execution issued thereon." Construing all the provisions of the chapter together, we cannot escape the conclusion that the object of the law was to absolutely protect (so far as is consistent with the transaction of ordinary business, as we before observed) one spouse from the misdeeds, improvidence, or mismanagement of the 3 Wash. T. 286, 14 Pac. Rep. 68, the court says: "So long as there is only a judgment or a judgment lien confessed or suffered by the husband alone, the community interest in real estate is not affected, unless in fact the debt upon which the judgment was given was a community debt. The force and qualification of the lien of a judgment to which the husband only is a party, as affecting community real estate, is given in section 2410 of the Code, by way of proviso to the restriction on the power of the husband to alienate or incumber such property. In the statute itself, the wife and all the world had notice of the limitation of such a lien as regards such property. Indeed, the judgment not being determinative of any issue as to the character of the property which is to be included in its lien, the husband himself would be at liberty to contest the extension of the lien over community real estate." But we are met by arguments in the brief of counsel for appellee, asserting that this construction of the statutes will lead to unsettling business relations, and many suppositious cases of hardship to creditors are earnestly dwelt upon; but this is a branch of the subject entirely within the jurisdiction of the legislature. Once it is conceded that this is a rightful subject for legislation, which will scarcely be denied, there is no limit to legislative authority, and it is not the province of a court to speculate or theorize upon the practicability or impracticability of the laws, or the good or bad effects which may result from such laws. These are subjects for legislative consideration, and not for judicial determination. We think the judgment obtained against Brotton was not a judgment for a community debt; that the petition did state facts sufficient to constitute a cause of action; and that the sale should have been restrained. It follows that the judgment will be reversed, and the cause remanded to the court below, with instructions to proceed in accordance herewith. other, concerning property which is the prod- | family. In the case of Andrews v. Andrews, uct of their joint labors. It is in the nature of an exemption, and, as has been well said, "exemption laws are upheld upon principles of justice and humanity." The statute provides the ways in which this property can be alienated: (1) The voluntary alienation by the husband and wife joining in the deed; (2) by making it responsive to certain demands constituted liens by the statute; and there is no other way contemplated. In fact, the very object of the law is to prevent its alienation in any other way. It expressly provides that the husband shall not sell, convey, or incumber it, and he will not be allowed to do by indirection or fraud that which he is directly prohibited from doing. The practical result to the non-contracting spouse would be the same whether the law allowed the other spouse to directly convey the property, or allowed the title to pass through the medium of a sale on an execution flowing from a judgment to which he or she was not a party. It is the results the law regards; the modes are not important. If the theory of the appeilee is correct that a personal judgment against the husband will become a lien on the community real estate, then certainly there is no meaning to the proviso to section 2410; for the liens there specified would attach without the proviso. If a judgment which is not obtained for a community debt becomes a lien upon community real property without any special proviso, why make a special proviso for a judgment which is obtained for a community debt? It is very evident that the intention of the statute was that community real estate should not be subject to liens on any judgments, excepting those mentioned in the proviso and for the causes mentioned in section 2407, and these exceptions are founded in reason and right; because the labor and material furnished by mechanics in erecting structures on the land enhance the value of the community realty, thereby benefiting the community, and becoming practically a community debt; and the reason for charging the expenses of the family, or the education of the children to the community, are too obvious for discussion. It was held by the supreme court of Oregon in the case of Smith v. Sherwin, 11 Or. 269, 3 Pac. Rep. 686, that the wife could not be held liable in an ordinary action for goods sold and delivered, when such goods were sold upon the order of the husband, although the same were devoted to family use, under a statute which provides: "Contracts may be made by a wife, and liabilities incurred, and the same enforced, by or against her to the same extent, and in the same manner, as if she were unmarried;" and which further provides that the property of both husband and wife shall be chargeable with family expenses,-being substantially the same as sections 2396, 2407, Code. This decision was based on the ground that the complaint did not affirmatively show that the goods were sold for the benefit of the v.23p.no.11-44 ANDERS, C. J., and HOYT and SCOTT, JJ., concur. STILES, J. I dissent. It was contended in this case that the "community debts" mentioned as chargeable upon community real property in the act of 1881 (Code, § 2410) do not include a judgment against a husband who was a constable, and who, while acting as such officer, took property in execution upon which there was a chattel mortgage, and sold the property so that it became scattered and lost to the mortgagee, the judgment being for damages for that wrong. The act in question nowhere undertakes to say what a community debt is, nor does it use any language by which it can be said that a community debt is to be anything different under this act from what it was under the previous community property statutes of 1869, 1871, 1873, and 1879. "Debts" are spoken of in all these acts as liabilities to pay, with out any regard to the technical difference between "debts" and "torts." In numerous instances in each of them, there are negative provisions like these: "The earnings of the wife are not liable for the debts of the husband;" "the separate property of the husband (or wife) is not liable for the debts of the wife (or husband) contracted before marriage;" and, in sections 2400 and 2408 of the act in question, the separate property of husband and wife is not subject to the “debts or contracts" of the other. Would it be con tended that, because these terms "debts" and "contracts" are used, and no reference is made to "torts," therefore the separate property of the husband and wife would be liable for the torts of the other? In section 25 of the act of 1879, the term "debts" was used as synonymous with "judgment or decree," no matter for what cause of action rendered. And so here, while there may possibly be some purely personal wrongs by a married person that should be first compensated out of the separate property of the wrong-doer, where, as in the case at bar, the constable was pursuing his usual avocation for the benefit of the community, and not maliciously, but through a mistaken idea of his duty, he incurred a liability to recompense the mortgagee, I see no reason whatever for holding this not to be a liability or debt for which the community real estate is, by the statute, answerable. The fact that the result of the liability has not been to the pecuniary advantage of the community certainly can make no difference in a court of justice, where advantages are not material. A good or a bad bargain cannot make the difference between right and wrong, and the community of husband and wife has not yet become so helpless a thing that we need presume in its favor, as though it was a minor or an imbecile. Under all former community property acts this judgment could have been made out of community property, without any statute provision on the subject. Section 19 of the act of 1871, which was the least liberal of all these acts, had this provision: "When real estate, common property, shall be sold for indebtedness of the wife or the husband only, no more shall be sold than shall be necessary to satisfy the indebtedness and cover costs," etc. Yet under that act the husband could not sell community property without the wife's joinder. By the act of 1879, no real property, either separate or community, could be sold, incumbered, or in any way disposed of without the joinder of the husband and wife in the instrument; but I have never heard or read a suggestion that under that act a separate debt of either husband or wife could not be collected out of the separate real property of either, without the consent or deeds of the other. Obviously, it was considered by the framers of that act that the matter of the voluntary alienation of lands had nothing to do with the rights of creditors, and while they hampered the husband and wife to an excessive degree, as be tween themselves, they placed no restrictions against the collection of just debts. Yet if we were to hold in this case that because the husband cannot sell, convey, or voluntarily incumber without the wife's joinder, no liability incurred by him, as this one was, can be charged against community property, then we should be bound to hold, in any case arising under the act of 1879, that without the wife's consent, by deed, the husband's debt incurred before marriage could not be collected out of his real property acquired before marriage, for the language of the two acts is precisely alike. The only ground urged for the decision of the majority seems to be under the claim that the wife has a veto upon voluntary conveyances and incumbrances of community real estate for her protection against her husband, and that the husband must not be allowed to do that by fraud or indirection which he cannot do directly. The same argument would apply to the incurrence of every debt under the act of 1879, and to the collection of antenuptial debts as well. But there is no question of fraud in this case, and there is now no propriety in using that argument. Here the question is simply whether the wife shall, while she is fully protected in the possession of her separate property, and of her earnings, take her share of the risk that her husband will conduct the business of the community without loss; nay, it is not that only, but whether the husband himself shall be allowed to hide behind the ample skirts of his wife, in case of his "torts," to the ruin of the victim of his illadvised action. So far as the proviso at the end of section 2410 is concerned, I fail to see what importance it has there. It is merely declaratory of what would be the law without it, and adds no force to the section of the act. It is a literal copy of a section in the act of 1879, and had all the force in that act which it has in this. It has been argued, however, that since this proviso says that liens for labor and materials and judgments for community debts are chargeable upon community real estate, it is to be taken as an instance of expressio unis, alterum excludit, and therefore no other obligation is to be recognized. But let it be remembered that the maxim quoted is a common-law maxim, and the argument is one for strictness of construction; whereas it is one of the requirements of the act in question that the common-law rules of construction are not to prevail here, and that all its provisions are to be construed liberally, but liberality can certainly not be predicated of a ruling that shields property from levy for a debt of the owner. A community debt, within the meaning of the act of 1881, ought to be any liability incurred by either husband or wife during their marriage, and which is not a separate debt by its express terms, or by reason of its being patently for the exclusive benefit of the separate property of the party contracting it. |