It will be observed that the organic act did not specify the officers of the legislature, or their compensation. It did not inhibit payment, in addition to that allowed by the United States, either to the governor, secretary, members of the legislature, or its officers. Nor did any act of congress special to New Mexico, or common to all the territories, until January 23, 1873, forbid such appropriation of the territorial funds, or enumerate the officers allowed and to be paid by the United States. It is logical to conclude — as remedies are not provided, except to cure evils — that the legislators, in the exercise of their power, had regarded payment to themselves and their officers, and the officers of the other branches of the government, out of the territorial treasury, as rightful legislation, and that congress, though recognizing the power as existing, did not regard it legitimate for trustees of public funds to apply them to their own advantage, and imposed the restriction to prevent the continuance of such abuse; but it does not appear that further restraints as to the disposition of the territorial funds were deemed either essential or legitimate. Congress by the act of January 23, 1873, constrained due regard by public servants of their obligations by the prevention of the application of the funds in their custody to their own benefit, and notified the legislators that it would furnish certain officers, at certain compensation, and that no greater number, or greater charge per diem, would be paid or allowed by the United States. Neither the number nor the pay of the officers having been before specified, congress was bound by the acts of its authorized agents in their organization and operation; and it became imperative, consequently, to limit the liability of the United States for the expenses of these bodies. No limitations, however, upon the legislatures, were expressed either in the act of 1873 or that of 1878; and it is difficult, if not rationally impossible, to infer that, in exempting the United States treasury, congress simultaneously contemplated a protectoi’ate over the fiscs of the territories. No legislation of this nature exists and it can not be created by judicial implication. If a casus omissus, the deficit can not be supplied by the courts. An intention, if, in the opinion of the court, entertained and not expressed by the legislature, is quod voluit non dixit, and can not be enforced. Courts can not assume the functions of legislatures. But, no matter what the status, congress, advising the territorial legislatures that only those officers authorized by it would be paid by the United States, warned them that, if other persons - were employed or appointéd, they would not be recognized as claimants against the United States treasury, and no provision would be made for them. It may be said that congress served a caveat upon the legislatures, that at their own risk would they engage other subordinates than those enumerated; and it is submitted that a notice not to act is a recognition of the power, as a right, to act, where the right and power .to restrain specifically exist in a superior, and is not exercised. Congress intended to forbid payment, other'than that allowed by the United States, to the governor, the secretary, and members and officers of the legislature, and did it, unequivocally. It intended to limit the officers to be paid out of the United States treasury, and did it, distinctly. But did not clearly, or by logical implication, prohibit the employment of. other subordinates, and provision for their payment, by the legislatures, and therefore the conclusion seems irresistible that they did not intend to restrict the legislatures in the exercise of their discretion as to their necessities. It may be readily conceived that congress,’ having furnished the aid it deemed essential, recognized it as wise not to interfere with the legislatures in further providing for themselves if necessity should develop. The legislatures of territories are, relatively, as absolute within their limits as are those of the states. The latter are restrained by their constitutions and the constitution of the United States; and the others, by the constitution of the United States, and the laws in pursuance thereof, which is but the constitution, in effect. Legislatures of the states are a law unto themselves, within the provisions of their constitutions; and, in their organizations, they are the arbiters of their wants. Legislatures of territories, though dependents and subjects of congress, are, except as restricted by the constitution, and the statutes applicable to them, unrestrained in their right to- organize and provide for themselves. Imposers of taxes, their disbursers, and absolute over them, except in the right to apply them to the increase of their compensation, or that of their officers and the officers of the other branches of the governments, it seems a sequitur too cogent to be denied that it is rightful that they should be permitted to provide themselves with the subordinates they may consider indispensable, or even contributive, to the satisfactory performance of their duties. Absolute in their control of public funds, to the extent of consigning them, in hundreds of thousands, to the construction of public buildings, capitols, penitentiaries, universities, asylums, and other institutions, they are yet, it is contended, estopped from the disbursement of but a trifle, relatively, that, in their judgment, is required for the execution of their trust. Such a deduction seems incompatible with sound reasoning. It is submitted that the correctness of the foregoing view has been demonstrated by the continuous action of congress; It is fundamental that congress, not rejecting territorial legislation, approves it, the corollary of the statute which requires the submission of the acts of the legislature to congress, and declares that “if disapproved they shall be null and of no effect."
Again, the practice of congress in the premises must be regarded as its law upon the subject. Its acts indicate its intention, and are the construction of its enactments. .“Usages long established and followed have, to a great extent, the efficacy of law, in all countries. They control the construction, and qualify and limit the force, of positive enactments.” Slidell v. Grandjean,
Ours is a government of co-ordinate departments, each, within its sphere, absolute, and exempt from supervision of the others; and the invasion of either, within the domain of the other, is an infraction dangerous to the preservation of the genius of our institutions, and can not be tolerated. Better the abuse of power by one branch than the assumption of power by' another. Courts are disposed to amplify their jurisdiction, even to the extent of encroaching upon the prerogatives of their co-ordinates, and, if not confined to their prescribed limits, would destroy the equilibrium of our political fabric by undue aggression. If injustice has been perpetrated by one department, less the evil of enduring it than the attempt to correct it by another arrogating to itself a province in derogation of fundamental doctrine. If it be permitted to the judicial, department to revise the legislative, the one is subordinate to the other, its dignity less, and departures in contravention of our political tenets will be committed. If courts can, by construction, circumvent legislatures in organizing themselves, it will be difficult to impose a limit to interference by such methods. If courts can inject phraseology into statutes to impart an import unexpressed, serious complications will ensue. Legislatures create courts and judges, not to direct their actions, but to enforce their will; and they can not assume judicial functions to reform judicial abuses, but must cure them, either by the removal of the offenders by impeachment, ■ or by legitimate legislation. The judiciary, jealous of their prerogatives, and zealous in their maintenance, should scrupulously abstain from infringing upon those of the associate departments, that each may move in its orbit harmoniously with the others. Excesses may be committed, even to the extremity of corruption; judgment may err, to the degree of folly; public interest may be sacrificed, to extent criminal,— by legislatures, in the exercise of their powers; but, nevertheless, it would be assumption for the courts to impugn their motives, or to assail the policy of their acts, and usurpation of authority to attempt to restrain their discretion. Endowed with power, the legislatures of states are responsible to the people; of territories, to congress, — to whom they' owe their existence, for its proper exercise; and the courts are estopped from inquiring into the wisdom of their action. It is primary principle that that system of law is best which confides as little as possible to the discretion of the judge; that judge the best who relies as little as possible on his own opinion.
This exposition of the relations of the departments of our government, if orthodox, is as true of the territories as of the United State and the states. Congress, in the exercise of its power to dispose of, and make needful rules and regulations, respecting the territories of the United States, created territorial governments, consisting of executive, judicial, and legislative' departments, and conferred upon them general legislative power? and, in adopting the forms of the federal and sígate systems, incorporated with them the theories of such autonomies. In Clinton v. Englebrecht,
It can not be pretended that the resolution under consideration is any encroachment upon the powers apportioned to either the executive or judicial departments of the territorial government. It having been declared by the supreme court of the United States that the powers conferred by congress upon territorial legislatures, and exercised by them, are nearly as extensive as those exercised by state legislatures, it must be conceded that the foregoing law is not less the rule for the one than for the other. Both are practically absolute, within the prohibitions prescribed. Congress having bestowed upon the territorial legislatures powers but little less, if any, than those inherent in state legislatures, it follows that the said bodies occupy a relation to the other departments of territorial governments corresponding to that which has prevailed in'the states since the foundation of the government. There has been no adjudication by the supreme court of the United States antagonizing this as the status of territorial legislatures, and decisions of subordinate tribunals in conflict must be regarded as erroneous. A court that, in construing the provisions of the organic law conferring power on a territorial legislature, applies the rules of construction applicable to similar provisions in municipal charters, so conceives the nature of territorial legislatures that it logically adopts a rule of construction for territorial statutes more rigorous, less liberal, than for laws made by state legislatures, characterized as sovereign, though they do not possess the attributes of such supremacy. The supreme court of Arizona, in this assumption,—to be found in Territory v. Daniels,
Imbued with the views we have enunciated, and endeavored to fortify by reason and authority, we have reached the conclusion that the power of the legislature to act for itself in providing subordinates in addition to those furnished by congress has not been restricted, either expressly or by intendment, by any act of congress, and consequently that the joint resolution under consideration is an enactment within the power and discretion of the legislature, under the organic act, and can not be annulled by the courts. We beg to refer to the decision of the supreme court of Oklahoma (Braithwaite v. Cameron,