« ΠροηγούμενηΣυνέχεια »
to of Petitioners thereupon moved to strike the
sue $200,000 of bonds in aid of the construc- 1 personnel of the loan commission had been tion of the Arizona Narrow Gauge Railroad wholly changed; that the act authorizing Company, to which company the bonds were the employment of loan commissioners had made payable. The entire issue was de- been repealed and no longer existed, and nu. clared to be void by this court in Lewis v. merous defenses which had not been made Pima County, 155 U. S. 54, 39 L. ed. 67, 15 or set up in the original answer or return. Sup. Ct. Rep. 22. This decision was pronounced in October, 1894.
amended return from the files on the ground Prior to this decision, however, owing to that the same had been filed without leave doubts that were entertained as to the va of the court, and that under the decision of lidity of bonds issued in aid of railroads, the this court in Utter v. Franklin no new de. legislature of Arizona in 1887 and Congress fenses could be considered. The supreme in 1890 passed certain acts authorizing the court of the territory, however, overruled the refunding of territorial bonds, which had motion and permitted the amended return been authorized by law, and, in compliance to be filed, to which ruling petitioners ex. with a memorial submitted by the legisla- cepted. But, instead of applying to this ture of Arizona, Congress passed a further court for a writ of mandamus to carry its act in 1896 authorizing the refunding of all mandate into effect, they proceeded with the outstanding bonds of the territory, and its case in the supreme court of the territory, municipalities, which had been authorized and filed a reply to the amended return. A by legislative enactments, and also confirm referee was appointed, testimony taken, and ing and validating the original bonds, which the supreme court of the territory made a by the 1st section were authorized to be re- finding of facts set out in the record, and funded.
awarded a peremptory writ of mandamus diThereupon, and on December 31, 1896, recting the refunding of the bonds. From James L. Utter and Elizabeth B. Voorhies this judgment defendants appealed to this tiled the petition involved in this case for a court. writ of mandamus to compel the loan com. Meantime, however, Elizabeth B. Voor. missioners to issue refunding bonds in ex. hies, one of the petitioners, had died, and change for those originally issued by the her executors were ordered by this court to county of Pima in aid of the Narrow Gauge be substituted. Railroad Company. Defendants demurred to the petition, and for answer thereto Messrs. Rochester Ford, John G. Car. averred that the bonds of Pima county, held lisle, and C. F. Ainsworth for appellants. by the petitioners, had been declared, both Messrs. John F. Dillon, Harry Hubbard, by the supreme court of the territory, and John 11. Dillon, and William H. Barnes for by this court, to be void, and therefore that appellees. the petition should be dismissed. They also interposed a plea of res judicata. The peti. Mr. Justice Brown delivered the opinion tion being denied by the supreme court of of the court: Arizona, the relators appealed to this court, While upon the former hearing of this which reversed the order of the supreme case, under the name of Utter v. Franklin, court of the territory, and remanded the case 172 U. S. 416, 43 L. ed. 498, 19 Sup. Ct. Rep. to that court for further proceedings. Ut. 183, the order of the supreme court of Ariter v. Franklin, 172 U, S. 416, 43 L. ed. 498, zona denying a writ of mandamus was re19 Sup. Ct. Rep. 183. This decision was versed, and the case remanded for further made in January, 1899.
proceedings, we expressed the opinion “that Thereupon, and on June 1, 1899, after the it was made the duty of the loan commiscase was remanded to the supreme court of sioners by these acts to fund the bonds in Arizona, respondents, by leave of the court, question.” The logical inference from this filed an amended return to the effect that the was that a writ of mandamus should issue bonds and coupons sought to be refunded at once. True, the case was argued upon were not delivered by anyone authorized by demurrer, but as the demurrer was accom. Pima county to do so; that the county never panied by a plea of res judicata, which was acknowledged the validity of the bonds or expressly held to be untenable (p. 424, L. ed. paid interest thereon; that the railroad, the p. 501, Sup. Ct. Rep. p. 186), it is a serious construction of which the legislature in question whether the defendant should have tended to promote by the issue of the bonds, been permitted to set up new defenses withwas never constructed, equipped, or oper- out the leave of this court. Re Potts, 166 ated; that Pima county never *received any U. S. 263, 267, 41 L. ed. 894, 996, 17 Sup. consideration whatever for the bonds; that ct. Rep. 520; Ex parte Union S. B. Co. 178 they had been declared void by this court; U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. that petitioners were not innocent holders 904; Wayne County v. Kennicott, 94 U. Š. of them; that the bonds and coupons were 498, 24 L. ed. 260; New Orleans v. Warner, not sold or exchanged in good faith, and in 180 U. S. 199, 203, 45 L. ed. 493, 495, 21 compliance with the act of the legislature Sup. Ct. Rep. 353; Stewart v. Salamon, 94 U. by which they were authorized, and that they S. 434, 24 L. ed. 275; Gaines v. Rugg, 148 U. were not intended to be included, and were S. 228, sub nom. Gaines v. Calduell, 37 L. not included, in the act of Congress of 1896, ed. 432, 13 Sup. Ct. Rep. 611. The reason or any act or memorial of the legislative for such a course applies with special coassembly of the territory. The return also gency to this case in view of the statute of set up the statute of limitations; that the Arizona (Rev. Stat. 1887, § 734), declaring
that the “defendant in his answer may plead | ficer, and the duty be an official one, still as many several matters, whether of law or the writ is aimed exclusively against him as fact, as may be necessary for his defense, a person, and he only can be punished for and which may be pertinent to the cause, disobedience. The writ does not reach the but such pleas shall be stated in the follow- office. It cannot be directed to it. It is, ing order, and filed at the same time: 1. therefore, in substance a personal action, Matters denying the jurisdiction of the and it rests upon the averred and assumed court. 2. Matters in the abatement of a fact that the defendant has neglected or resuit. 3. Matters denying the sufficiency of fused to perform a personal duty, to the perthe complaint, or of any cause of action formance of which, by him, the relator has a therein, by demurrer, general or special. clear right.
It necessarily follows 4. Matters in bar of the action. 5. Mat- from this that, on the death or retirement ters of counterclaim and set-off.”
from office of the original defendant, the Of the numerous defenses upon the mer writ must abate in the absence of any stat. its set up in the amended return, but two utory provision to the contrary. When the are pressed upon our attention, namely, personal duty exists only so long as the of.. whether the petition abated by a change of lice is held, the court cannot compel the dethe personnel of the loan commission, or by fendant to perform it after his power to pera repeal of the act abolishing the commis form has ceased. And if a successor in ofsion altogether.
fice may be substituted, he may be mulcted 1. The court was correct in holding that in costs for the fault of his predecessor, the change in the personnel of the commis- without any delinquency of his own." This sion did not abate the proceeding, which was language has evidently but an imperfect apnot taken against the individuals as such, plication to a case where the delinquency is but in their official capacity as loan commis- not personal, but official, and the action is sioners. The original petition was entitled not that of an individual, but of a body of and brought by Utter and Voorhies, plain- men in their collective capacity. tiffs, against "Benjamin J. Franklin, C. P. These were followed by Warner Valley Leitch, and C. M. Bruce, loan commissioners Stock Co. v. Smith, 105 U. S. 28, 41 L. ed. of the territory of Arizona,” and the prayer 621, 17 Sup. Ct. Rep. 225, wherein a bill in
was for a writ of mandamus requiring the equity against the Secretary of the Interior defendants, "acting as the loan commission and the Commissioner of the General Land ers of the territory,” to issue the refunding Office, by their personal names, to restrain bonds.
them from exercising jurisdiction with re The question when a suit against an indi- spect to the disposition of certain public vidual in his official capacity abates by his lands, and to compel the Secretary to issue retirement from office has been discussed in patents therefor to the plaintiff, was held to a number of cases in this court, and a dis- abate, as to the Secretary, upon his resigtinction taken between applications for a nation from office, and could not afterwards mandamus against the head of a department be maintained against the Commissioner or bureau for a personal delinquency, and alone. those against a continuing municipal board In United States ex rel. Bernardin v. But. with a continuing duty, and the delinquency terworth, 169 U. S. 600, 42 L. ed. 873, 18 is that of the board in its corporate capa- Sup. Ct. Rep. 441, it was held that a suit city. The earliest case is that of The Secre- to compel the Commissioner of Patents to tary v. McGarrahan, 9 Wall. 298, sub nom. issue a patent abates by the death of the Cox v. United States ex rel. McGarrahan, 19 Commissioner, and cannot be revived so as L. ed. 579, which was a writ of mandamus to bring in his successor, although the latagainst Mr. Browning, then Secretary of the ter gives his consent. See also United Interior, in which it appeared that Mr. States ex rel. Warden v. Chandler, 122 U. S. Browning had resigned some months before 643, 30 L. ed. 1244; United States es rel. Inthe decision of the court was announced. It ternational Contracting Co. v. Lamont, 155 was held that the suit abated by his resig. U. S. 303, 39 L. ed. 160, 15 Sup. Ct. Rep. 97; nation, because he no longer possessed the United States ex rel. Long v. Lochren, 164 power to execute the commands of the writ, U. S. 701, 41 L. ed. 1181, 17 Sup. Ct. Rep. and that his successor could not be adjudged 1001. in default, as the judgment was rendered It was doubtless to meet the difficulties against him without notice or opportunity to occasioned by these decisions that Congress, be heard. The same question was more on February 8, 1899, passed an act (30 Stat. fully considered in United States v. Bout- i at L. 822, chap. 121) to prevent the abatewell, 17 Wall. 604, 21 L. ed. 721, in which it ment of such actions. was held that a mandamus against the Sec- We have held, however, in a number of retary of the Treasury abated on his death cases, that if the action be brought against or retirement from office, and that his suc- :1 continuing municipal board it does not cessor could not be brought in by way of abate by a change of personnel. Thus, in amendment or order of substitution. Said Leavenworth County v. Selleu, 99 U. S. 624, Mr. Justice Strong: “But no matter out 25 L. ed. 333, which was an application for of what facts or relations the duty has a mandamus against a board of county comgrown, what the law gards and what it missioners and its individual members geeks to enforce by a writ of mandamus is compel them to !ery a tax to pay a judg. the personal obligation of the individual to ment, it was held thint the action would lie, whom it addresses the writ. If he be an of- though the terms of the members had ex
pired, and the case of Boutwell was distin. I bership, and that the individuals constitutguished upon the ground that the county ing the board at the time the peremptory commissioners were “a corporation created writ was issued may be compelled to obey and organized for the express purpose of per-it. As we said in Thompson's Case, 103 U. forming the duty, among others, which the S. 480, 26 L. ed. 521, “the proceedings may relator seeks to have enforced. The alter- be commenced with one set of officers, and native writ was directed both to the board terminate with another the latter being in its corporate capacity and to the individ- bound by the judgment.” ual members by name, but the peremptory It is true the loan commissioners were not writ was ordered against the corporation made a corporation by the act constituting alone.” Said the Chief Justice: “One of the the board, but they were vested with power, objects in creating such corporations, cap- and were required to perform a public duty; able of suing and being sued, and having per- and, in case of refusal, the performance of petual succession, is that the very inconven- such duty may be enforced by mandamus, ience which manifests itself in Boutwell's under $ 2335 of the Revised Statutes of AriCase may be avoided. In this way the of- zona of 1887, which provides that “the writ fice can be reached and the officer compelled of mandamus may be issued by the supreme to perform its duties, no matter what or district court to any inferior tribunal, changes are made in the agents by whom the corporation, board, or person, to compel the officer acts. The board is in etřect the of performance of an act which the law speficer, and the inembers of the board are but cially enjoins.” As, under the act of Con. the agents who perform its duties. While gress, as well as the territorial act, the board the board is proceeded against in its corpo. was made a continuing body with corporate rate capacity, the individual members are succession, the fact that it is not made a cor. punished in their natural capacities for fail. poration hy name is immaterial. ure to do what the law requires of them as 2. Respondents, however, relied largely the representatives of the corporation." upon the fact that as the loan commission
This was followed by Thompson v. United of Arizona was abolished prior to the judg. States, 103 U. S. 480, 26 L. ed. 521, which ment of the supreme court in this case, there was a petition for a mandamus to compel are now no persons upon whom the duty the clerk of a township to certify a judg. rests to fund the bonds in question, or ment obtained by the relator against the against whom the writ of mandamus can township, to the supervisor, in order that the go. There is no doubt that the legislature amount thereof might be placed upon the of Arizona did, on March 13, 1899, pass an tax roll. It was held that the proceeding act "to Abolish the Loan Commission,” here. did not abate by the resignation of the clerk inafter set forth in full. But, in order to upon the appointment of his successor; cit. determine the effect of such act, it will be ing People ex rel. Shaut v. Champion, 16 necessary to give a synopsis of the prior Johns. 61, and People ex rel. Case v. Collins, acts, both territorial and congressional, upon 19 Wend. 56. See also Re Parker, 131 U. the same subject. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708. To meet certain objections that had been
We think these cases control the one un raised to the validity of bonds issued in aid der consideration, and that they are clearly of railroads (which objections were subsedistinguishable from the others. The loan quently sustained by this court in Lewis v. commission of Arizona was originally cre- Pima County, 155 U. S. 54, 39 L. ed. 67, 16 ated by an act of the territorial legislature Sup. Ct. Rep. 22) the legislature of Arizona of 1887 (Laws of 1887, title 31), the 1st sec- on March 18, 1887, passed an act consisttion of which reads as follows:
ing of fourteen sections, the 1st section of "2039 (Sec. 1.) For the purpose of liqui. which (above cited) constituted the gover. dating and providing for the payment of the nor, auditor, and secretary of the territory outstanding and existing indebtedness of loan commissioners of the territory, for the the territory of Arizona, the governor of the purpose of providing for the payment of the said territory, together with the territorial existing territorial indebtedness of the ter. auditor and territorial secretary, and their ritory due, and to become due, and for the successors in office, shall constitute a board purpose of paying and refunding the exist. of commissioners, to be styled the loan com. ing or subsisting territorial legal indebted. missioners of the territory of Arizona, and ness, with power to issue negotiable bonds shall have and exercise the powers and per. therefor. This power was limited to the form the duties hereinafter provided.” legal indebtedness of the territory, and ap
*Congress, by an act approved June 25, parently had no bearing upon the indebted. 1890, re-enacted this statute substantially ness of its municipalities, certainly not verbatim. 26 Stat. at L. 175, chap. 612. upon indebtedness which had been illegally As the members of this commission and their contracted. successors in office were constituted a loan On June 25, 1890, Congress passed an act commission for the express purpose of liqui. (26 Stat. at L. 175, chap. 614) providing dating and providing for the payment of the that the above-mentioned funding act of the outstanding indebtedness of the territory, territory of Arizona “be, and is hereby, and subsequently by the act of Congress of amended so as to read as follows, and that 1896 (29 Stat. at L. 262, chap. 339), of its as amended the same is hereby approved and counties, municipalities, and school districts, confirmned, subject to future territorial leg. we think it must be treated as a continuing islation." The 1st section of this act is an body, without regard to its individual menj- exact copy of the 1st section of the territor.
ial act of 1887, with an immaterial addition of 1870 operated as a repeal of the act of here printed in italics, and reads as follows: 1813, and that all criminal proceedings "Par. 2039 (Sec. 1.) For the purpose of li- taken under the former act failed; and that quidating and providing for the payment of even where two acts are not, in express the outstanding and existing indebtedness terms, repugnant, yet if the latter act covers of the territory of Arizona and such future the whole subject of the first, and embraces indebtedness as may be or is now authorized new provisions plainly showing that it was by law, the governor of the said territory, intended to be a substitute for the first act, together with the territorial auditor and ter it will operate as a repeal of that act-citritorial secretary, and their successors in ing a number of prior cases. office, shall constitute a board of commis. *We think that case is controlling of the sioners, to be styled the loan commissioners one under consideration, notwithstanding of the territory of Arizona, and shall have the cases of Miners' Bank v. Iowa ex rel. Disand exercise the powers and perform the trict Prosecuting Attorney, 12 How. 1, 7, 13 duties hereinafter provided." Then follow L. ed. 867, 870, and Lyons v. Woods, 153 U. thirteen other sections, which are also cop. S. 661, 38 L. ed. 858, 14 Sup. Ct. Rep. 959, ies of the corresponding sections of the ter- relied upon by the respondents, which are ritorial act, with a few immaterial changes readily distinguishable. In the first case, as to the rate of interest, the form of the re the territorial legislature of Wisconsin funding orders, and the maturity of the chartered the Miners' Bank. Afterwards, bonds, etc., and followed by an additional an act of Congress annulled the charter in section (15), providing against any further certain particulars, but left other provisions increase of indebtedness, with certain excep-in force. Thereafter, the territory was ditions, beyond that limited by a former act. vided by an act of Congress, and the terri.
The first question to be considered is as to tory of Iowa erected over that former part the relation of*these two acts. Is the act of of the territory of Wisconsin in which the Congress to be considered as an amendment bank was located. Later, the territorial or a repeal of the territorial act? It is true legislature of Iowa repealed the charter, and the preamble speaks of the territorial act directed the settlement of the affairs of the as being amended, and, as amended, ap- corporation by trustees under the supervi. proved, and confirmed. But the language sion of the court. It was held that the anis not that of an amending act, but that of a nulment of several of the provisions of the repeated and substituted act. No attention bank's charter did not make the charter of is called to the amendments, which are not the bank a congressional charter, but that even introduced in brackets, and a careful it still remained a creation of the legislature reading and comparison of the two acts are of Wisconsin, and that no Federal question required to discover where and how the ter- arose from the repcal of that charter by the ritorial act is amended. It stands as an legislature of Iowa. The case is totally dif. original piece of legislation, although its dif- ferent from the one under consideration, and ferent sections contain the numbers taken that of Lyons v. Woods is equally so. from the Revised Statutes of Arizona, as There is a plain distinction between an act well as from the original act of 1887. Both of Congress amending a territorial act by acts are complete in themselves, and each is, adding or striking out particular provisions, upon its face, independent of the other. It and one re-enacting it substantially in all is impossible to say that, if the territorial its provisions. act were repealed, the act of Congress passed We therefore are constrained to hold, as three years later would also fail in conse- did the supreme court of the territory, that quence thereof, because the latter is not only the territorial act of 1887 was repealed by the later, but the paramount, act. They the act of Congress of 1890, and that the must either stand together as two independ latter act is still in force. ent pieces of legislation, or the general, and Returning now to the subsequent legislaperhaps the sounder, rule stated in United tion, it appears that on March 19, 1891, the States v. Tynen, 11 Wall. 88, 20 L. ed. 153, territory passed an act "supplemental to be applied, that where there are two acts on the act of Congress” approved June 25, 1890, the same subject, and the latter act embraces and in compliance with the permit given by all the provisions of the first, and also new Congress for future territorial legislation, provisions, and imposes different or addi- the 1st section of which declared that the tional penalties, the latter act operates, act of Congress “be, and the same is hereby, without any repealing clause, as a repeal of now re-enacted as of the date of its apthe first. In that case, the defendant was proval,” and enacted that the loan commisindicted under an act passed in 1813 for ut- sioners “shall provide” for the funding of tering and counterfeiting a certificate of cit. the outstanding indebtedness "of the terri. izenship, purporting to have been issued by tory, the counties, municipalities, and school a California court. Upon a demurrer being districts within said territory, by the issu.to filed to the indictment, the judges differed in ance of bonds of said territory as authorized opinion, and the case was sent to this court by said act;" and also provided* ($ 7) that upon a certificate of division. While pend. “any person holding bonds, warrants, or any ing here, in 1870, Congress passed another other evidence of indebtedness of the terri. act, embracing the whole subject of fraud tory, or any county, municipality, or school against the naturalization laws, including district within the territory,
may all the acts mentioned in the law of 1813, / exchange the same for the bonds issued unand many others. It was held that the act der the provisions of this act."
In the following year, and on July 13, pealed, is the 1st section of the territorial 1892, Congress passed another act amending act of 1887, whereby the territorial gover. the act of June 25, 1890, in several imma- nor, auditor, and secretary were constituted terial particulars, not necessary to be fur. loan commissioners; that § 1 of act No. 79 ther noticed, and on August 3, 1894, it was the territorial act of March 18, 1891, passed another act amending the act of 1890, re-enacting the act of Congress of June 25, also in immaterial particulars.
1890, which, as before stated, was a substiIt seems, however, as stated in Otter v. tuted copy of the territorial act of 1887. Franklin, 172 U. S. 416, 420, 43 L. ed. 498, Act No. 33 and act No. 74 have no bearing 500, 19 Sup. Ct. Rep. 183, that the existing upon this case. The former referred only to legislation upon the subject was not deemed territorial indebtedness, and the latter adequate by the territorial legislature, since merely remedied defects in the records of the in 1895 it adopted a memorial, urging Con- loan commissioners. gress to pass such curative legislation as Upon this repealing act being presented to would protect the holders of all bonds issued Governor Murphy, one of the defendants, for under authority of its acts, the validity of his approval, he submitted it to the attorney which had been acknowledged, and relieve general for his opinion, and was advised by the people from the disastrous effects of re- him that the act was void so far as attemptpudiation.
ing to abolish the loan commission was conIn compliance with this memorial, Con- cerned. He advised the governor that, so gress on June 6, 1896 (29 Stat. at L. 262, far as the bill attempted to repeal g 1 of the chap. 339), passed an act extending the pro territorial act of 1887, it was nugatory, as visions of the act of June 25, 1890, and the there was no such section to repeal, Congress amendatory act of 1894 the 1st section of having re-enacted it and having repealed all which provided that the above acts "are acts or parts of acts in conflict with it, and hereby amended and extended so as to au- that if it were the intention of the repealing thorize the funding of all outstanding obli- act to repeal the act of 1887 as approved and gations of said territory, and the counties, confirmed by Congress, it was beyond the municipalities, and school districts thereof, province of the territorial legislature to do as provided in the act of Congress approved so. Upon this opinion the governor reJune 25, 1890," etc.; provided that such evi- turned the act without his approval, but the dences of indebtedness “have been sold or ex legislature proceeded to pass it over his veto changed in good faith in compliance with by a two-thirds vote. the terms of the act of the legislature by Had the territorial statute of 1887 been which they were authorized,” and also pro- the sole authority for the appointment of viding that they "shall be funded with the loan commissioners, there would be much interest thereon,” etc. The 2d section pro- force in the argument that the repeal of this vided that all bonds and other evidences of statute, as well as that of 1891, in 1899, terindebtedness heretofore funded by the loan minated their official existence and operated commission of Arizona under the act of even on pending cases (Merchants' Ins. Co. 1890, "are hereby declared to be valid and v. Ritchie, 5 Wall. 541, 18 L. ed. 540; E30 legal for the purposes for which they were parte McCardle, 7 Wall. 506, 19 L. ed. 264; issued and funded, and all bonds and other Re Hall, 167 U. S. 38, 42 L. ed. 69, 17 Sup. evidences of indebtedness heretofore issued Ct. Rep. 723); but, as we have already indi. under the authority of the legislature of said cated, we think the congressional act of 1890 territory, as hereinbefore authorized to be had already operated as a repeal of that act. funded, are hereby confirmed, approved, and Unless we are to take the position that the validated, and may be funded as in this act repeal of a territorial act operates as a reprovided, until January 1, 1897.”
peal of an act of Congress covering the same *This act was held in Utter v. Franklin to subject, it is impossible to deny that the require the refunding of the bonds involved congressional act 1890 is still in force. in the case under consideration. There is Had the latter been a mere amendment of no suggestion of any attempt having been the territorial act, the result would have made to repeal it. This opinion was pro been different, and a repeal of the original nounced January 3, 1899, and on March 13 operated as a repeal of the congressional of the same year the legislature passed a amendment. territorial act abolishing the loan commis- It is true that the preamble of the act of sion. This act is in the following language: 1890 declares that the funding territorial “An Act to Abolish the Loan Commission act of 1887 “is hereby amended,” and “as
and to Repeal Sundry Laws Relating amended the same is hereby approved and Thereto.
confirmed, subject to future territorial leg. “Be it enacted by the legislative assembly islation,”'and it is insisted that, under this of the territory of Arizona. Sect. 1. That power to amend, it was competent for the par. 2039, sect. 1, chapter one, title 31, of territorial legislature to repeal the act alto. The Revised Statutes of the territory of Ari.gether, and that such repeal would operate zona; also that sect. 1 of act No. 79, Session also to repeal the congressional act of 1890. Laws of the 16th legislative assembly the That, as the legislature, before the approval territory of Arizona, also act No. 33, and by Congress of the act of 1887, had the un. act No. 74, Session Laws of the 18th legis. doubted power to abolish the commission lative assembly of the territory, are hereby which it had created, and as the act of 1887 sepealed."
was declared by Congress to be “subject to It will be observed that I 2039, thus re-'future territorial legislation," it had tho