(After stating the foregoing facts.) It is not, nor has it ever been since the case of Marbury v. Madison, 1 Cranch (U. S.) 137, decided in 1803, necessary to cite authority to the proposition that it is not only within the power, but it is the duty of the courts to declare an act of the Legislature void which is in conflict with the provisions of the fundamental law of the particular jurisdiction concerned. Chief Justice Marshall stated the proposition so clearly, and argued it so conclusively, that it was at once adopted as correct, with the exception of a few dissenting voices, and has ever since been followed in all the states.
Courts: jurisdiction. What.then is the fundamental law of the Territory,? New Mexico was organized as a territory by Act of Congress approved September 9, 1850 (C. 49, Sec. 2, Vol. 9, p. 447). Section seven of that act provides “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.” Section ten of that act provides that “The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and justices of the peace, shall be as limited by law: Provided, that * * * * the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction.” Section 1851 of the Revised Statutes of the United States provides “The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States.”
“It has passed beyond the stage of controversy into final judgment” that the people of the United States, as sovereign owners of the National Territories, have supreme power over them and their inhabitants. Murphy v. Ramsey, 114 U. S., pp. 15, 44. This power is exercised by the general government, through the Congress of the United States. The Constitution of the United States, the Organic Act, under which a territory is organized, and acts supplemental, or in addition, thereto, form the Constitution of a territory. Nat. Bank v. County of Yankton, 101 U. S. 129, 133; Ferris v. Higley, 20 Wal. (U. S.) 375, 380; In re Attorney-General, 2 N. M. 58; Clayton v. Utah, 132 U. S. 636. Any act of the Territorial Legislature inconsistent with these acts of Congress is unconstitutional and void . Ferris v. Higley, supra.
It is, however, contended by counsel for defendant in error that no power has been granted territorial courts to pass upon and declare the constitutionality or unconstitutionality of an act of the territorial legislature, that power, it is alleged, being by Congress expressly reserved to itself by section seven of the Organic Act quoted above. But to this contention we cannot agree. Were this an original proposition, we would have no hesitancy in declaring ample power to exist in the courts of this Territory to deal with the question presented. There is, however, ample authority for such a conclusion. In Hornbuckle v. Toombs, 18 Wal. (U. S.) 656, it is said: The jurisdiction of the Territorial courts is collectively coextensive with and correspondent to that of the state courts.” In Ferris vs. Higley, supra, it is said, “The common law and chancery jurisdiction here conferred on the district and supreme courts is a jurisdiction very ample, and very well understood. It includes almost every matter, whether of civil or criminal cognizance which can be litigated in a court of justice.” This proposition was fully gone into and decided in favor of the power, in the case of In Re Attorney General, 2 N. M. 58. See also People v. Clayton 11 Pac. (Utah), 206; Williams v. Clayton, 21 Pac. (Utah), 398; Clayton v. Utah, 132 U. S. 632.
Unonstitutional law. It is urged by counsel for defendant in error that section seven of the Organic Act amounts to a reservation to Congress of all power of control over Territorial legislation. This contention, it seems perfectly apparent, is not well founded. Congress has already limited legislative power to such acts of legislation as may not be “inconsistent with the Constitution and laws of the United States.” Any territorial legislation that exceeds this limitation, Congress has already said, in effect, is void. Why, then, should it be necessary for Congress to again annul it? It is void ab initio. But this is not an open question. It is said, in Clayton v. Utah, supra: “It is true that in case of doubtful construction the long acquiescence of Congress and the general government may.be resorted to as some evidence of the proper construction, or of the validity, of a law. This principle is moré applicable to questions relating to the construction of a statute than to matters which go to the power of the legislature to enact it. At all events, it can hardly be admitted as a general proposition that under the power of Congress reserved in the organic acts of the territories to annul the acts of their legislatures the absence of any action by Congress is to be construed to be a recognition of the power of the Legislature to pass laws in conflict with the Acts of Congress under which they were created.” And in People v. Clayton, and Williams v. Clayton, supra, it is expressly held that the language used by Congress in limiting legislative power in territories has no such effect as is contended for by counsel for defendant in error, and that the power to pass upon the constitutionality of a legislative act rests in the courts.
This court has in numerous cases assumed to have the jurisdiction claimed for it by plaintiff in error; and the assumption of such jurisdiction necessarily involves a decision that such jurisdiction exists. Some of these cases are cited. Territory v. Baca, 6 N. M. 420; Perea v. Barela, 5 N. M. 458, 6 N. M. 239; Coler v. Santa Fe Co., 6 N. M. 88; U. S. v. De Amador, 6 N. M. 173; Mining Co. v. District Court, 7 N. M. 486-493; Territory v. Ortis, 8 N. M. 154; In Re Wilson, 10 N. M. 32, 60 Pac. 73. See also Money’s Digest, Title, Constitutional law, where all the New Mexico cases are collected.
There is no contention on the part of the defendant in error that the Act of March 11, 1899, of the Territorial Legislature mentioned above, does not contravene the provisions of the Act of Congress of July 30, 1886, supra.
The Act of March 1, 1889, seems not to be open to the same criticism, it being operative in all counties in the Territory and the increase being uniform. At least no objection is made to it by defendant in error.
■ It follows from the foregoing conclusions that the district court committed error in its judgment, and the same will be reversed and the plaintiff will be entitled to judgment in this court for his salary for the first quarter of the year 1899 at the rate of $600 per annum from Jan. 1 to March 1st, 1899, and at the rate of $900 per annum from March 2nd to March 31, 1899. And it is so ordered.
Mills, C. J., McFie, and Crumpacker, JJ., concur. ■ McMillan J. did not participate in this decision, he not having heard the argument.