APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
By § 3 of the organic act of the Territory of New Mexico, act of September 9, 1850, c. 49, 9 Stat. 446, the executive power and authority in and over that Territory was vested in a governor, whose duty was, among others, to "approve the laws passed by the legislative assembly before they shall take effect." By the fourth section it was provided that there should be a secretary of the Territory, who shall "hold his office for four years unless sooner removed by the President of the United States," and that "he shall record and preserve all the laws and proceedings of the legislative assembly hereinafter constituted, and all the acts and proceedings of the governor in his executive department; he shall transmit one copy of the laws and one copy of the executive proceedings, on or before the first day of December in each year, to the President of the United States, and, at the same time, two copies of the laws to the Speaker of the House of Representatives and the President of the Senate, for the use of Congress." By § 5 "the legislative power and authority of said Territory shall be vested in a governor and a legislative assembly. The legislative assembly shall consist of a council and house of representatives.The council shall consist of thirteen members, having the qualification of voters hereinafter prescribed, whose term of service shall continue two years. The house of representatives shall consist of twenty-six members, possessing the same qualifications as prescribed for members of the council, and whose term of service shall continue one year." By § 7 it was enacted "that the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act. . . . All the laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect."
By chapter 1 of title XXIII of the Revised Statutes, provisions were made "common to all the Territories;" and most of those in the organic act of New Mexico were there reproduced, with the addition of certain matters of detail.
By § 1842, it was provided in nearly the identical words, mutatis mutandis, of paragraph two of section seven of article
I of the Constitution of the United States, that every bill which had passed the legislative assembly of any Territory should, before it became a law, be presented to the governor; if he approved it, he should sign it, but if not, he should return it, with his objections, to the house in which it originated, and that house should enter the same on its journals and proceed to reconsider it. If, after such reconsideration, two-thirds agreed to pass it, it should be sent, together with the objections, to the other house, where it should likewise be reconsidered, and, if approved by two-thirds of that house, should become a law."But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the bill shall be entered on the journal of each house." The section then provided for a bill becoming a law in like manner, as if signed by the governor, if not returned by him within three days, Sundays excluded, (or five days in Washington and Wyoming,) after it had been presented, unless the legislative assembly, by adjourning sine die, should prevent its return, in which case it should not become a law.
By § 1844 it was provided that the secretary of such Territory should record and preserve all the laws of the legislative assembly and all the acts and proceedings of the governor in the executive department, "and transmit one copy of the laws and journals of the legislative assembly, within thirty days after the end of each session thereof, to the President," as well as two copies of the laws to the President of the Senate and the Speaker of the House for the use of Congress. And it was further provided that "he shall prepare the acts passed by the legislative assembly for publication, and furnish a copy hereof to the public printer of the Territory, within ten days after the passage of each act."
By the act of July 27, 1868, c. 272, 15 Stat. 239, 240, the organic act was amended, and that amendment was carried forward into § 1921 of the Revised Statutes, which reads: "The secretary of the Territory of New Mexico, upon the convening of the legislature thereof, shall administer the oath of office to the members elect of the two houses and the
officers thereof, when chosen; and no other person shall be competent to administer such oath save in the absence of the secretary; in which case, any one member of either house may administer the oath to the presiding officer elected, and he shall administer the same to the members and other officers."
The acts of the legislative assembly of the Territory of New Mexico at its twenty-sixth session, which covened at the capitol at the city of Sante Fe on Monday, the 18th day of February, 1884, and adjourned on Thursday, the 3d day of April, 1884, were duly certified to by the secretary of the Territory as having been compared with the enrolled originals and original translations thereof, respectively, on file in his office, and that the same were true and correct copies thereof, and published by authority.
Among these acts, as so published, appear "An act authorizing the building of a penitentiary in the Territory of New Mexico and regulating its management," approved March 14, 1884; and an act entitled "An act to amend an act authorizing the building of a penitentiary and regulating its management, approved March 14, 1884," approved March 26, 1884; and "An act to provide for the erection of a capitol building in the city of Sante Fe," approved March 29, 1884. Laws of New Mexico, c. 58, 59, 60.
The legislative journals for that year, to which reference will hereafter be made, show that each of these acts was signed by the president of the council an the speaker of the house, and its approval by the governor reported to the house in which the act originated in each instance.
The question in this case is whether the territorial courts should have gone behind the enrolled bills whose passage was thus duly attested, and which were duly approved, placed in the proper depository, and duly certified to and published, and held them void upon the ground that certain members of the quorum of one of the two bodies by which they were passed were seated without having certificates of election. And this notwithstanding the fact that "all the laws passed by ...