an act of congress, and must be given the same force and effect as though duly enacted by that body.” The scope of this reasoning is that it is idle for congress, in delegating the taxing power to a territorial legislature, to set limitation to that power, as was done by the provisions of § 1925, because in every case congress must annul an act which sets at defiance this limitation prescribed by congress, or be regarded as ratifying the illegal act by its silence; nay, worse, its silence makes the act which it has already emphatically asserted should not be passed by the territorial legislature an act of congress itself. Having power to set bounds to the authority it delegates, and having unmistakably erected a barrier beyond which the body exercising such delegated authority may not pass, the prevailing opinion asserts the doctrine that nevertheless congress must pursue every usurpation of power by the territorial legislature in defiance of this limitation, and expressly annul such void act, or be deemed to have assented to it. Under such a view, I am at a loss to understand for what purpose the limitation upon the taxing power of the territorial legislature was enacted. The silence of congress, it is said, annuls it; and without it, it is clear that that body could have arbitrarily destroyed the gross earnings law, or any other law the territorial legislature might have passed. The case of Railroad Co. v. Le Sueur (Ariz.) 19 Pac. Rep. 157, is cited to sustain this view of the prevailing opinion. A most casual reading of the opinion discloses the fact that the case stands upon an express statute relating to the territory of Arizona and other territories, providing that “all laws passed by the legislative assembly shall be submitted to congress, and, if disapproved, shall be null, and of no effect.” This provision did not apply to the territory of Dakota, but that territory, with others, was expressly excepted from the statute. Rev. St. U. S. § 1850. The opinion of Judge BarTHOLOMEW in the case of Trust Co. v. Whithed, ante, is extensively quoted from in the prevailing opinion in this case as being peculiarly pertinent to the question of the power of the legislature to classify as the territorial legislature classified the appellant's land grant by exempting it from taxation. I do not regard this
