Field v. Clark, 143 U. S. 649,
would seem to be decisive of this case.
The Council of the Legislature of the Territory of New Mexico
which took part in the passage of the act approved March 14, 1884,
authorizing the building of a penitentiary, and of the act approved
March 29, 1884, to provide for the building of a capitol, having
been recognized by the Governor of the territory, and by the
Secretary of the Territory and by the House of Representatives of
the Territory, and it further appearing that the objections to its
organization now made were brought to the attention of Congress,
and that that body took no action on the subject, and the courts of
the territory having adjudged that those statutes were duly
enacted,
held that considerations of public policy forbid
this mode of attacking the validity of officers
de facto,
whatever defects there may have been in the legality of their
appointment or election.
This was a bill filed by James Lyons and others in the District
Court of the Third Judicial District of the Territory of New Mexico
for the County of Grant, August 27, 1885, against Woods and others,
being the collector of taxes, the assessor, and the county
commissioners for that county, averring
Page 153 U. S. 650
that complainants were taxpayers within said county whose
property was referred to and described in the tax list and
assessment roll in the hands of defendant Woods, collector, which
list and roll were prepared from assessments made by the assessor
of Grant County, compiled under the direction of the board of
county commissioners and approved by that board, and received by
Woods, as collector, August 13, 1885, said list and roll being,
under the laws of the territory, the warrant under and by virtue of
which the collector was about to collect, and was collecting, the
various sums of money making up the several items of taxation as
therein set forth. That among the items of taxation in said tax
list and assessment roll for 1885, and upon which each of
complainants was therein noted as being taxed, were two items
respectively described in said list as "penitentiary taxes" and
"capitol building taxes," set down in columns, headed "Penitentiary
Bonds" and "Capitol Building Bonds," and levied as taxes upon
complainants, and each of them, for the purposes described by said
column heading.
The bill then set forth the several assessments of complainants'
property, respectively, and the amounts severally taxed thereon,
and alleged that the items described went to make up the sums total
which the collector was about to collect from complainants,
respectively, as the amount of taxes due
"from each for various purposes presented to be warranted by law
and pretended to be due and payable for and during the year 1885;
that the amounts of money thus in said list pretended to be due and
payable upon account of penitentiary bonds and upon account of
capitol building bonds and as taxation so levied for and on account
of said items are so claimed and levied and included in said list
by virtue and under authority of pretended acts of the Legislative
Assembly of said territory pretended to have been approved by the
Governor of said territory, which said pretended acts so pretended
to have been approved are entitled and described, respectively, as
follows: '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 to provide for the erection
Page 153 U. S. 651
of a capitol building in the City of Santa Fe,' approved March
29, 1884."
The bill thus continued:
"Your orators further represent that said pretended taxes under
the pretended acts of the said Legislative Assembly aforesaid, and
by the terms thereof, are to be assessed and levied in the same
manner as other territorial taxes are levied and collected. Your
orators further represent that the said pretended special taxes
provided for under said pretended acts of the Legislative Assembly
have been assessed by the tax assessor of the said County of Grant,
passed upon by the board of county commissioners of said county
sitting as a board of equalization as required by law, and are now
on the tax lists in the hands of said defendant Woods, as Collector
of County of Grant, which said tax lists in the hands of said
collector have attached to them the warrant provided by law
requiring said collector to collect the taxes by said lists or
rolls shown to have been levied, and that copies of said lists or
rolls are now on file in the Probate Clerk's office of said County
of Grant, and that all the steps required by law for the proper
levy of taxes with reference thereto have been taken, so that the
said lists and rolls in the hands of said defendant, the collector,
as aforesaid, of said County of Grant, and the copies thereof in
the said probate clerk's office, on their face, and by virtue of
said pretended acts of the said Legislative Assembly aforesaid and
the general revenue law of the territory, are a lien upon the real
and personal property of your orators in said County of Grant, and
are a cloud upon the title of your orators to their property, and
that said taxation pretended to have been assessed under invalid
and pretended laws of said territory, as hereinafter alleged, have
the force and effect of personal judgment against your orators, and
are liens upon their property as aforesaid, and said lists or rolls
are by law given the effect of executions against the property of
your orators so assessed."
"Your orators further represent that said pretended acts of the
Legislative Assembly entitled, as aforesaid, 'An act authorizing
the building of a penitentiary in the Territory of New Mexico, and
regulating its management,' approved
Page 153 U. S. 652
March 14, 1884, and 'An act to provide for the erection of a
capitol building in the City of Santa Fe,' approved March 29, 1884,
under which said assessment of taxation is made, and by virtue of
which said pretended liens against your orators' property are
asserted, and by virtue of which said pretended assessment rolls
are claimed to have the effect of executions in the hands of the
said defendant as sheriff and
ex officio collector of said
County of Grant, are not, and never have become, valid laws of said
Territory of New Mexico for the reason that the same never were
introduced and passed through the Council of said Legislative
Assembly when a legal quorum of said Council was present and
participating in the proceedings thereof, and for the reason that a
majority of a legal quorum of said Council never voted in favor of
said pretended laws so as to legally the same through said body,
and your orators charge the facts to be that an act of Congress of
the United States of America was passed and approved on the 14th
day of February, 1884, and thereby became a law, which said act of
Congress, among other things, provided that a session of the
Legislative Assembly of said territory should be held, and said
assembly convene, on the third Monday of February, A.D. 1884, and
said act of Congress declared that the members elected to the
territorial legislature of said territory in November, 1882, and
all vacancies legally filled since that time, if any, should be the
legal members of the legislature by said act authorized, subject to
all valid contest."
"Your orators further state that in accordance with said act of
Congress, a pretended session of said Legislative Assembly was
held, commencing on the third Monday of February, A.D. 1884."
"Your orators further state the fact to be, and that the same so
appears by the published journal of the proceedings of said
pretended sessions of the Council of said Legislative Assembly,
that upon the convening of said Council on the said third Monday in
February, A.D. 1884, only five members appeared who had regularly
received certificates of election, and were so shown to be elected
by the election returns of the said election held in November, A.D.
1882, to have been
Page 153 U. S. 653
elected members of said Council, to-wit, Jose Armijo y Vigil, of
Socorro County; Pablo Gallegos, of Rio Arribi County; W. H. Keller
and Andrew Sena, of San Miguel County, and John A. Miller, of Dona
Ana, Lincoln, and Grant Counties, and that thereupon the said five
persons qualified as members of said Council by taking the oath of
office required by law and signing the roll of members."
"Your orators further allege that by law the said Council is
composed of twelve members, and that seven thereof are necessary to
constitute a legal quorum for the transaction of business."
"Your orators further allege that after said five members had
been sworn in as aforesaid, a motion was unanimously adopted by the
vote of said five members only, and no more, that Thomas B. Catron,
of Santa Fe County, be declared entitled
prima facie to
the seat from Santa Fe County, and that thereupon the said Thomas
B. Catron took the oath of office as a member of said Council,
signed its roll, and thereafter acted as a member thereof."
"And your orators further allege that said Catron's seat was
claimed by Henry L. Warren, of Santa Fe County, and that said
Warren held a certificate of election as a member of said Council
from Santa Fe County, which said certificate was the first
certificate of election issued by the county commissioners as
evidence of the election of members of said Council from said
county at said election held in said month of November, A.D. 1882,
but that afterwards said county commissioners, acting under
protest, and compelled by an order of the District Court in said
County of Santa Fe, issued a certificate of election to said Thomas
B. Catron."
"Your orators further allege that they are not informed as to
whom the election returns on file in the office of the Secretary of
the Territory show to have been elected as a member of said Council
from the said County of Santa Fe at said election."
"Your orators further allege that afterwards, while said Council
was composed of the said five persons as aforesaid and the said
Thomas B. Catron, and no others, a motion was
Page 153 U. S. 654
therein introduced by the said John A. Miller to the effect that
Charles C. McComas and Jose Manuel Montoya be declared entitled
prima facie to the seats from Bernalillo County, subject
to the right of contest, and that said motion was unanimously
adopted by the vote of the said six members, and no more, who were
then acting, as aforesaid, as members of said Council."
"Your orators further allege that said Charles C. McComas and
Jose M. Montoya held no certificates of election whatever as
members of said body, but, on the contrary, Charles Montaldo and
Francisco Perea held the certificates of election to the seats
therein of the members from said County of Bernalillo, and that all
the election returns of the election held in said month of
November, A.D. 1882, both in the office of the county
commissioners, and in that of the Secretary of said territory,
showed and still show that said Charles Montaldo and Francisco
Perea received a majority of the votes cast in said county at said
election for members of the Council from said county, and that said
Charles C. McComas and Jose M. Montoya did not receive a majority
of said votes so cast, and were not duly elected members of said
Council."
"Your orators further allege that the said Charles C. McComas,
after the said election in November, A.D. 1882, had commenced
proceedings as a contestant for the seat of said Charles Montaldo
as a member in said Council from Bernalillo County, and served his
notice of contest on said Montaldo, and taken testimony under said
notice of contest, and that said Jose M. Montoya had so commenced
contest proceedings against the said Francisco Perea for the other
seat of the member from said County of Bernalillo, and that said
notice of contest so served and testimony so taken were duly filed
with the Secretary of the Territory, and by him were transmitted
and delivered to the said pretended Council so organized as
aforesaid, and at the time of the proceedings aforesaid the said
papers relating to said contest were in possession of the said
Secretary, and that long afterwards, to-wit, on the 3d day of
April, A.D. 1884, the committee on elections of said pretended
Council reported to said body that the said contested election
Page 153 U. S. 655
cases had been referred to them, and that they found that said
McComas and Montoya were entitled to the seats then held by them in
said body, which said reports are stated by the journal published
by said body to have been on said day adopted."
"Your orators further allege that the said six persons aforesaid
and the said McComas and Montoya constituted said Council until on
or about the 25th day of March, A.D. 1884, when the said W. H.
Kellar absented himself from said body and never afterwards
participated in its proceedings."
"And your orators further allege that after the said Kellar had
ceased to act with said body, J. Innocente Valdez, who was elected
a member of the Council from Colfax and Mora Counties, took the
oath of office, and participated in the proceedings; but your
orators allege that at no time during the pretended session of said
body did more than six persons, including the said Thomas B.
Catron, take part in its proceedings, except the said Charles C.
McComas and J. M. Montoya, unlawfully and arbitrarily seated as
aforesaid."
"And your orators further allege that, including the said
McComas, Montoya, and Catron, there were just eight members of said
body present and voting when the said bill aforesaid, entitled 'An
act authorizing the building of a penitentiary in the Territory of
New Mexico, and regulating the management' was introduced and
passed through its several readings in said body; that said
last-mentioned bill, by the journal of said pretended Council, is
alleged to have passed, under a suspension of the rules of said
Council, on the 14th day of March, A.D. 1884, and which said
journal shows that there were present on said day the said Jose
Armijo y Vigil, T. B. Catron, Pablo Gallegos, W. H. Kellar, and
McComas, Miller, Montoya, and Sena, and no more, and that said
journal does not show that said last-mentioned bill was ever passed
on any other day, and that on said day it had never been determined
by any legal quorum or by any other way, except by the illegal and
arbitrary action of the said six persons aforesaid, that said
McComas and Montoya were entitled to said seats in said body. "
Page 153 U. S. 656
"And your orators further allege that, including the said
McComas, Montoya, and Catron, there were just eight members of said
body present and voting when said bill aforesaid, entitled 'An act
to provide for the erection of a capitol building in the City of
Santa Fe,' was introduced and passed through its several readings
in said body; that said last-mentioned bill, by the journal of said
body, is alleged to have passed, under a suspension of the rules,
on the 26th day of March, A.D. 1884, and which said journal shows
there were present on said day the said Jose Armijo y Vigil, T. B.
Catron, and McComas, Montoya, Gallegos, Sena, Miller, and Valdez,
and no more, and that of these, Messrs. Catron, McComas, Montoya,
Gallegos, Sena, and Armijo y Vigil voted in favor of the passage of
said last-mentioned bill, while Messrs. Miller and Valdez voted
against the passage of the same, and that said journal does not
show that said last-mentioned bill was ever passed on any other
day, and that on said day it had never been determined by any legal
quorum or by any other way except by the illegal and arbitrary
action of the six persons aforesaid, that said McComas and Montoya
were lawfully entitled to seats in said body."
"Your orators further represent that said pretended acts of the
Legislative Assembly aforesaid, having been approved by the
Governor's signature, attached thereto and filed in the office of
the Secretary of the Territory and certified by said Secretary as
valid laws legally passed by the Legislative Assembly of the
territory, and that said acts have been incorporated and published
in volumes of the laws of the territory, so that on their face they
seem to be valid laws, so as to give apparent validity to the
assessment of said taxation and to the lien on the property of your
orators aforesaid, when in truth and fact the said pretended acts
of the said Legislative Assembly were never legally passed by said
Legislative Assembly, and are absolutely null and void, and that by
reason of the premises. the said defendant, collector as aforesaid,
has acquired and can acquire no authority in law whatever for
exacting and collecting the said pretended taxes from your orators,
either by virtue of said pretended acts of the Legislative Assembly
or the steps taken as aforesaid thereunder. "
Page 153 U. S. 657
The bill then set up various grounds of equity interposition not
necessary to be repeated, and prayed an injunction and for general
relief. To this bill a general demurrer was filed by the defendants
and sustained, and, the complainants declining to plead further,
the bill was dismissed for want of equity, with costs, December 4,
1885, whereupon complainants prayed an appeal to the supreme court
of the territory, by which the decree was affirmed on the authority
of
Chavez v. Luna, 21 P. 344, Brinker, J., dissenting,
id., 346. The case was thereupon brought by appeal to this
Court.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Page 153 U. S. 658
By § 3 of the Organic Act of the Territory of New Mexico, Act of
September 9, 1850. 9 Stat. 446, c. 49, 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
Page 153 U. S. 659
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, 15 Stat. 239, 240, c. 272, the
Organic Act was amended, and that amendment was carried forward
into § 1921 of the Revised Statutes, which reads:
"The Secretary of New Mexico Territory, upon the convening of
the legislature thereof, shall administer the oath of office to the
members elect of the two houses and the
Page 153 U. S. 660
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 convened at the capitol
at the City of Santa 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 Santa 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 and 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 the General Assembly and Governor" were, as
must be assumed, duly submitted to Congress, and that body did not
see fit to
Page 153 U. S. 661
disapprove any of them under the power reserved by section seven
of the Organic Act, a power which had been exercised affirmatively
in some instances. Act of April 10, 1869, 16 Stat. 44, c. 21; Act
of July 14, 1870, 16 Stat. 278, c. 270; Act of February 3, 1879, 20
Stat. 280, c. 41.
In
Miners' Bank v.
Iowa, 12 How. 1,
53 U. S. 7, a
question arose whether the validity of a certain act of the
Territory of Iowa could be brought before this Court under the
twenty-fifth section of the Judiciary Act, which it was held it
could not, and the Court said:
"It seems to us that the control of these territorial
governments properly appertains to that branch of the government
which creates and can change or modify them to meet its views of
public policy,
viz., the Congress of the United States.
That control certainly has not been vested in this Court, either in
mode or in substance, by the twenty-fifth section of the Judiciary
Act. It has been argued in this case that as Congress, in creating
the territorial governments of Wisconsin and Iowa, reserved to
themselves the power of disapproving, and thereby annulling, the
acts of those governments, and had, in the exercise of that power,
stricken out several of the provisions of the charter of the Bank
of Dubuque, enacted by the Legislature of Wisconsin, assenting to
the residue, therefore the charter of this bank should be regarded
as an act of Congress, rather than of the territorial government,
and consequently the decision of the state court in favor of the
repealing law of Iowa must be held to be one in which was drawn in
question and overruled, the validity of a statute of or an
authority exercised under the United States, and as a decision also
against a right, title, or privilege set up under a statute of the
United States. The fallacy of this argument is easily detected.
Congress, in creating the territorial governments, and in
conferring upon them powers of general legislation, did not, from
obvious principles of policy and necessity, ordain a suspension of
all acts proceeding from those powers, until expressly sanctioned
by themselves, whilst for considerations equally strong they
reserved the power of disapproving or annulling such acts of
territorial legislation as might be deemed detrimental. "
Page 153 U. S. 662
In
Chavez v. Luna, 21 P. 344, the Supreme Court of New
Mexico held, upon a bill of complaint setting up in substance the
same matters as alleged here, that where the constitution of a
state prescribed the mode to be observed by the legislature in
passing bills, there was no doubt whatever about the power of court
to inquire into the question as to whether the constitution had
been violated or not, but that that rule of law did not apply to
the state of facts presented in that case, in which the only
question was one of the organization of the body, and
People v.
Mahaney, 13 Mich. 481, was cited to the point that courts
cannot entertain a bill to review the action of a legislature in
the manner of its organization, or the election or qualification of
its members. Referring to section seven of the Organic Act of the
territory, the court declined to decide whether, in the general
terms therein used, conferring legislative power upon the
Legislative Assembly of New Mexico, it was intended to confer the
usual and ordinarily incidental power to determine finally the
election, qualification, and return of the members, but concluded
that as by that section all laws passed by the Legislative Assembly
and Governor had to be submitted to Congress, and, if disapproved,
were null and void and of no effect, it must be presumed that these
acts were so submitted, and, there being nothing to show that they
were disapproved, that they had received the passive assent of the
Congress, and had been in that way approved, and that therefore
there was nothing upon which to ground the jurisdiction of the
court over the subject sought to be reviewed. In the present case,
the decree below was affirmed on the authority of
Chavez v.
Luna, and the dissent was placed upon the ground that mere
nonaction by Congress was not to be taken as an approval of the
acts of the legislature so as to preclude judicial
investigation.
We need not consider this difference of opinion further than to
say that the fact that resort to Congress was open to those who
objected to the legality of the acts passed by this Legislative
Assembly is not without significance in inquiring into the
jurisdiction of the courts in the premises.
In
Field v. Clark, 143 U. S. 649, it
was held by this Court,
Page 153 U. S. 663
upon great consideration, that the signing by the Speaker of the
House of Representatives and by the President of the Senate in open
session of an enrolled bill is an official attestation of such bill
as one that has passed Congress, and that when the bill thus
attested receives the approval of the President, and is deposited
in the Department of State according to law, its authentication as
a bill that has passed Congress is complete and unimpeachable. That
conclusion was reached in view of the clauses of the Constitution
of the United States bearing upon the subject, and would seem to be
decisive of this case.
It is true that the courts of many of the states under
constitutional or statutory provisions of a peculiar character,
which expressly or by necessary implication required or authorized
the court to go behind the enrolled act when the question was
whether the act, when authenticated and deposited in the proper
office, was duly passed by the legislature, have announced a
different conclusion. These cases are given in the notes to
Field v. Clark, and some of them are referred to and
considered in the opinion in that case; but, as the Organic Act of
New Mexico, taken with the Revised Statutes, conforms quite closely
to the provisions of the federal Constitution, the rule laid down
in
Field v. Clark governs the case before us.
Perhaps, however, it would be proper to extend our examination
somewhat further. The question whether a seeming act of a
legislature has become a law in accordance with the fundamental law
is a judicial one, to be tested by the courts and judges, and not a
question of fact to be tried by a jury.
South Ottawa v.
Perkins, 94 U. S. 260,
94 U. S. 267;
Post v. Supervisors, 105 U. S. 667. In
the first case,
Gardner v. The
Collector, 6 Wall. 499, was cited with approval, in
which the Court laid down the proposition:
"That whenever a question arises in a court of law of the
existence of a statute, or of the time when a statute took effect,
or of the precise terms of a statute, the judges who are called
upon to decide it have a right to resort to any source of
information which in its nature is capable of conveying to the
judicial mind a clear
Page 153 U. S. 664
and satisfactory answer to such question, always seeking first
for that which in its nature is most appropriate, unless the
positive law has enacted a different rule."
And see In re Duncan, 139 U. S. 449;
Jones v. United States, 137 U. S. 202,
137 U. S. 216;
Field v. Clark, supra.
The bill alleged that the Council consisted of twelve members,
seven constituting a quorum. By the Organic Act, it was provided
that the Council shall consist of thirteen members. Act of
September 9, 1850, 9 Stat. 446, 448, c. 49, § 5. The Act of June
19, 1878, 20 Stat. 193, c. 329, limited the number to twelve, and
directed the Legislative Assembly to divide the territory into
representative and council districts. An Act of June 27, 1879, 21
Stat. 35, c. 40, referred to the Act of June 19, 1878, and to "the
twelve members of the Council." In the sessions of 1880 and 1882,
there appear to have been thirteen members of the Council. Acts New
Mexico 1880, 11; Acts 1882, 7. By an Act of December 21, 1881, the
election held for members of the legislature on the second day of
November, 1880, was declared to be valid, and all the acts of the
legislature the members of which were chosen at that election were
validated, and the legislature directed to apportion the
representative and council districts, but it was provided that if
they failed to do so, the apportionment should be made in
accordance with an act referring to the Legislatures of Montana,
Idaho, and Wyoming, approved June 3, 1880, 21 Stat. 154, c. 119; 22
Stat. 1, c. 3. By an Act of February 14, 1884, c. 6, it was
provided
"that the members elected to the Territorial Legislature of New
Mexico in November, Anno Domini eighteen hundred and eighty-two,
and all vacancies legally filled since that time, if any, are
hereby declared to be the legal members of the legislature hereby
authorized, subject to all valid contests,"
and the legislature was directed to convene on the third Monday
of February, 1884. 23 Stat. 3. But whether composed of twelve or
thirteen members, there can be no doubt that seven constituted a
quorum authorized to do business.
It was the duty of the Secretary of the Territory, under section
1921, to administer the oath of office to the members
Page 153 U. S. 665
elect of the two houses, and there is nothing in this bill to
exclude the presumption that he did so, and if so, it is difficult
to see why persons so sworn in did not thereby become entitled in
the first instance to take their seats, or why the Council thus
organized was not at least a council
de facto.
The charges of the bill relate to three out of eight members,
but as to one of these, Mr. Catron, the bill states that while he
did not originally have a certificate of election from the board of
county commissioners, which was
ex officio the canvassing
board, he did have a certificate issued by that board, under the
order of the district court, in respect of which adjudication no
further question appears to have been made. Neither as to him nor
the two other members (Mr. McComas and Mr. Montoya) whose title to
their seats is questioned was it alleged that they were not elected
to the Council, but the averment as to the latter is that the
election returns of the election held in November, 1882, showed,
and still show, that two other persons received a majority of the
votes cast in Bernalillo County at the election of members of the
Council for that county, and that the two sitting members did not
receive a majority of the votes so cast, and were not duly elected
members of said Council.
Reference is made in the bill to the journals of the Council and
House of the Legislative Assembly of New Mexico for its
twenty-sixth session, and we have examined them as published by
authority. That of the Council, after stating that the Legislative
Council assembled February 18, 1884, in conformity with the act of
Congress (23 Stat. 3), recites that the Secretary of the Territory,
being present,
"proceeded to call the names of the councilmen elected from the
different counties, respectively, for the purpose of swearing them
in as such. The following gentlemen answered and were duly sworn,
and signed the official register, to-wit . . ."
Then follow the names of eight persons, including those whose
titles to seats are questioned in this proceeding. The record shows
that the election of officers thereupon ensued who, being duly
sworn in by the Secretary, that officer retired. A committee was
then appointed to wait upon the Governor and inform him that
the
Page 153 U. S. 666
Council was duly organized and ready to receive any
communication which he might be pleased to make them, which
committee, having retired in the discharge of the duty assigned
them, after a short absence, returned and reported that they had
done so, and that the Governor "recognized this body as legally
organized, and would be ready to deliver his message to both houses
in joint session on the next day.� But this record of the
proceedings of February 18, 1884, is preceded by a prefatory
statement headed "Organization." This states that the Secretary of
the Territory appeared at the Council chamber at noon
"for the purpose of swearing in the members of the Council (all
as a question of fact being present). He was met with a degree of
confusion, which, being long continued,"
the Secretary retired, and proceeded to the house, where
organization was effected. Subsequently, and on the same day, the
Secretary of the Territory called the members of the Council to
order, and made some remarks, stating, among other things:
"The seats of members from Bernalillo County are disputed. It
appears from the judgment of the district court presented, it has
passed upon the question involved in the case of county officers
elected at the same election that the members of the legislature
were from that county, and decided adversely to those elected upon
the face of the returns, and that a large number of fraudulent
votes were cast. And it appearing that the application of the same
facts would change the result as to members claiming to have been
elected upon the same ticket, and it likewise appearing that the
question of fraud in said election has become one of public
notoriety, and it also appearing that the seat of the member from
Santa Fe County is involved in a similar contest, it therefore
seems to me proper and just that at this time the members only who
are not involved in the contest should be sworn."
Whereupon five members signed the oath and were sworn in. The
Secretary thereupon further remarked:
"In view of the situation, it seems to me just, in the absence
of law to the contrary, that the members sworn in, and not involved
in contest, should express their judgment as to who of the
contestants are
prima facie entitled to be sworn in. For
this purpose, and this purpose alone,
Page 153 U. S. 667
I will consider a motion to be submitted without debate."
A motion was then made that Thomas B. Catron be declared
entitled
prima facie to the seat from Santa Fe County,
subject to the right of contest, which motion was carried by
unanimous vote. The name of Mr. Catron was then called by the
Secretary, and he appeared, signed the oath, and was sworn in. A
similar motion was made as to Messrs. McComas and Montoya, which
being adopted by unanimous vote, their names were called by the
Secretary, and they appeared, signed the oath, and were sworn in as
members from Bernalillo. Mr. Jose Armijo y Vigil was then elected
president of the Council, and sworn in by the Secretary, and "the
latter then retired." We understand the object of this preface to
be to explain that the three persons in respect of whom it was
claimed that they were improperly admitted to seats to the Council
did not take their seats in virtue of the vote of the five members,
whose right to act as members of the Council was not disputed, but
that the vote of those five was simply taken by the Secretary as
advisory, he himself determining upon his own responsibility who
were entitled to be sworn in. So far as the record proper is
concerned, irrespective of this prefatory matter, nothing appears
upon the journals to show that this was otherwise.
The journal of the House discloses similar proceedings as to
certain members from Bernalillo County. It further appears
therefrom that two bodies had organized, each claiming to be the
Territorial Council, one presided over by J. F. Chavez and the
other by J. Armijo y Vigil, and each had sent a communication to
that effect to the house. The house thereupon appointed a committee
to ascertain which of the two councils was legally organized, a
majority of which reported that, according to the law of the United
States, the Secretary of the Territory was
"the only authorized person to administer the oath to the
members of either body of the legislature; that no body can legally
be organized until first being sworn in by said officer; . . . that
the body represented and presided over by Hon. Jose Armijo y Vigil
have been duly sworn in by the Secretary of the Territory, and
recognized by the Governor
Page 153 U. S. 668
of the territory as the regularly organized and legal
Legislative Council, and recommended that the house recognize such
Council accordingly. The majority report was adopted, the sitting
members from Bernalillo County voting in the affirmative, but there
being a majority without them."
On the other hand, among the joint resolutions passed and
approved at the session of the Legislative Assembly in question,
and to be found in the Laws for 1884 as published, is one approved
April 3, 1884, reciting that whereas the chairman of the Committee
on Territories of the United States Senate had advised the Governor
of the purpose of the committee "to investigate the questions at
issue in connection with the memorial of J. Francisco Chavez and
others, referred to said committee," and having requested certain
record evidence bearing upon the issues aforesaid, it was resolved
that the Secretary be authorized and directed to turn over for the
use of that committee "all poll books of the said precincts of the
Counties of Bernalillo and Santa Fe of the election held on the 7th
day of November, 1882, and all other record evidence concerning and
touching said election in said counties now in his possession."
Laws New Mexico 1884, 241. The memorial thus referred to will be
found in the congressional record for the first session of the
forty-eighth Congress (page 1549), where it appears that a memorial
signed by Mr. Chavez and six others, holding, as they state, the
proper legal evidences of election to the twenty-sixth Legislative
Assembly of New Mexico, was presented to the Senate of the United
States on March 3, 1884, and was referred to the committee on
territories.
This memorial refers to the provisions of the territorial laws
that
"each branch of the Legislative Assembly shall decide and
determine the election and qualifications of their own members
under the rules and restrictions that may be respectively adopted
by each branch for that purpose."
That,
"if a contested election be pending, the person holding the
certificate of election shall take possession and discharge the
duties of the office until the contest shall be decided."
Comp.Laws of New Mexico 1865, c. 63, §§ 35, 50. And that the
board of county commissioners shall act as boards of canvassers
of
Page 153 U. S. 669
the elections within their respective counties,
"and shall immediately issue a certificate of election, under
their hands, to the person that may have received the highest
number of votes for any office."
Laws New Mexico 1876, c. 1, § 14, par. 9.
The proceedings of February 18, 1884, are then related at
length, and it is insisted that the conduct of the Secretary was
unlawful, arbitrary, and in defiance of right, justice, and the
plain provisions of the law. We are not advised as to what became
of the investigation based on the memorial and referred to in the
joint resolution, but it would appear that Congress took no action
whatever in the premises, although its attention was thus called to
the condition of affairs.
It is undisputed, therefore, that the council which participated
in the enactment of these laws was recognized by the Governor and
the Secretary of the Territory and by the House, nor is there any
suggestion in the bill of the existence of any other council than
the one thus recognized, and the courts of the territory have
adjudged that these acts were duly enacted.
In the meantime, it must be presumed that bonds have been issued
to provide funds for the erection of a penitentiary and a capitol,
and that these public works have gone forward. Considerations of
public policy, and necessity for the protection of the public and
individuals whose interests may be affected thereby forbid this
mode of attacking the validity of acts of officers
de
facto, if this council were no more than that, whatever
defects there may be in the legality of their appointment or
election.
Norton v. Shelby County, 118
U. S. 441.
Under these circumstances, we think it clear that the judgment
of the supreme court of the territory must be affirmed.
In
Clough v. Curtis, 134 U. S. 361,
134 U. S. 371,
petitions for mandamus to compel the Secretary of the Territory of
Idaho to record certain proceedings as part of the proceedings of a
session of the legislature of the territory, and to compel the
clerk of the territorial house to bring his minutes and journals
into court, to be there corrected, came under review, and this
Court said:
"It is not one of the functions of
Page 153 U. S. 670
a court to make up the records of the proceedings of legislative
bodies. Nor can it be required, in a case not involving the private
interests of parties, to determine whether particular bodies
assuming to exercise legislative functions constitute a lawful
legislative assembly. Such a question might indeed arise in a suit
depending upon an enactment passed by such an assembly. And it
might be that in a case of that character, and under some
circumstances, the court would be compelled to decide whether such
an enactment was passed by a legislature having legal authority to
enact laws. How far, in the decision of such a question, the
judiciary would be concluded by the record of the proceedings of
those bodies, deposited by the person whose duty it was to keep it
with the officer designated by law as its custodian, are questions
we have no occasion at this time to consider."
Without undertaking to consider under what circumstances which
of two legislative bodies may be judicially determined to be the
lawful and true body, or when or how the lawful organization of a
legislative body may be judicially drawn in question, we are of
opinion that the allegations of this bill made no such case for
interposition as would have justified the courts in going behind
the enrolled bills as deposited with the Secretary of the Territory
and declaring them invalid because some of the members of the
Council were seated without certificates of election.
We may add that by an act passed by the legislative assembly in
question, approved April 3, 1884 (Laws New Mexico 1884, c. 66), a
compilation of the laws of the territory was provided for, which
compilation was duly made and published by authority (Compiled Laws
New Mexico 1884); that an official index to these compiled laws was
adopted, the compiled laws amended in many particulars, and other
acts of 1884 amended or repealed, by the succeeding, the 27th
Legislative Assembly (Laws New Mexico 1886-87, c. 49 and
passim), and an act was also passed for the issue of bonds
"for the purpose of paying the present and current indebtedness of
the capitol building" (Laws 1886-1887, c. 45), which latter act was
approved by Congress on June 23, 1888, 25 Stat. 340, c. 693.
Decree affirmed.
