16 Utah 457 | Utah | 1898
Lead Opinion
The defendant was prosecuted for and convicted of the crime of adultery. Upon being sentenced to the penitentiary for one year, he appealed to this court.
Counsel for the appellant contend that, at the time the act was charged to have been committed, there was no law in íorce in this state which made adultery a public offense. They argue that the act of the territorial legislature respecting polygamy, adultery, and other «kindred offenses, approved February 4, 1892 (Sess. Laws 1892, p. o) was never a valid law of the territory of Utah, and, except as to polygamy, never became effective in the state by any provision of the constitution, and that the law of congress which provided for the punishment of adultery as a crime ceased to have force in Utah upon the transition of the territorial to the state form of government.
The provision of the act of 1892, respecting the crime of adultery, is found in section 3, which reads: “That whoever commits adultery shall be punished by imprisonment in the penitentiary not exceeding three years; and' when the act is committed between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery." This provision prescribes the punishment for, and defines the acts which constitute adultery, and is the same as section 3 of the act of congress of March 3, 1887, known, as the “Edmunds-Tucker Law.” The territorial act contains other provisions concerning polygamy, bigamy, and other offenses which are similar to provisions contained in the “Edmunds-Tucker Law,” and in the act of congress approved March 22, 1882, known as the “Edmunds Law,” but none of the provisions of the act of 1892 appear to be
It is insisted, however, for the appellant, that the acts of congress fully covered the whole subject, and deprived the legislature of the power to legislate concerning the same, and that, therefore, the act of 1892 was absolutely void. It is true the territory of Utah was a nfere dependency of the United States, but as organized by congress its governmental functions were almost -as extensive as those of a state. Like a state, it had an executive, a legislative, and a judicial department, and, unless disapproved by congress, the enactments of the legislature1 were as binding upon the people of the territory as the statutes of a state are upon its people. A person who violated the statutes of the territory could be apprehended and punished the same as one who violated the laws of a state. Although a mere dependency, and not a sovereignty like a state, the territory had, subject, of course, to the constitution of the United States and laws of congress applicable to it, all the governmental power necessary to constitute, in all respects, an adequate and o'omplete government for its people. True, its supreme power was lodged in congress, and congress could legislate directly for the territory. The laws of congress enacted for it constituted its fundamental law, the same as the con-titution constitutes the fundamental law of the state. It follows that, where the laws of congress upon any subject were exclusive, the legislature of the territory had no power to legislate, and so, where the power vested by the constitution of the United States in congress to legislate upon a subject is exclusive, the legislature of a State cannot legislate. Both governments are subject to the constitution of the United States. Exclusiveness, therefore, is the test which, in each government, determines
The organic act under which the government of the territory of Utah was constituted, provided, in section (V thereof, as follows: “That the legislative power of said territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents. All the laws passed by the legislative as
■ Under the first clause, the territorial legislature had power to legislate as to “all rightful subjects of legislation” consistent with the constitution of the United States and with that act. Then follow restraining provisions as to legislation concerning certain subjects, and a .provision whereby any enactment lof the legislature might be disapproved by congress, and thereby rendered void and of no effect. It will be noticed there is no restraint whatever imposed in this section as to legislation respecting crimes. While it is true that any enactment of the" legislature was susceptible of being disapproved by congress and rendered invalid, the converse is equally true that if an enactment was not so disapproved it was valid, unless in conflict with the constitution of the United States, or unless the legislation of congress on the same subject was exclusive, or the territorial law was in conflict therewith.
In Clinton v. Englebrecht, 18 Wall. 434, 446, where the principal controversy was concerning a territorial statute, it was observed: “The law has received the' implied sanction of congress. It was adopted in 1859. It has been upon the. statute book for more than twelve years. It must have been submitted to congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each year. Thus simple disapproval of congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body.” The power which thus could be exercised by the territorial legislature was
Nor are we able to find any provision in the organic act, or in any of the laws of congress applicable to the territory of Utah, which in any wise operated to restrain the legislature from enacting laws respecting polygamy, adultery, or other kindred offenses. The laws of congress were not enacted because the legislature had no power to legislate on these subjects. Nor was the nature of the power such as to prevent the legislature from exercising it. Acts and conduct which offend the moral sense and affect the welfare of the community constitute rightful subjects of legislation, and the legislature having had the fundamental authority to legislate on such subjects, and the acts of congress containing no limitation of such authority, nor any exclusive legislation on the subjects, the legislature had the right to enact the law of 1892, and therein define and punish adultery as a crime, even though the Edmunds-Tucker law, previously enacted by congress, provided for the punishment of such acts as offenses against the laws of the United States. The fact that an offender might thus possibly be subjected to a second punishment for the sanie act did not render the act of 1892 void. Each inhabitant of the territory of Utah was also an inhabitant of the United States, and was therefore a subject of each government, and owed allegiance to and was amenable to the laws of each. If, therefore, he perpetrated an act which constituted an offense against the United States, and also an offense against the territory and its local laws, we know of no legal principle which prevented him from becoming subject to punishment by each government, and neither of such punishments would be in contravention of the constitutional inhibition against the twice putting in jeopardy for the
In Bish. Or. Law, § 178, the author says: “There are, we have seen, wrongful acts of a nature to violate duties both to the United States and a particular state, and some of these acts are declared crimes by the positive laws of each. It is probably the doctrine of the courts, though not free from doubt in principle, that, whenever congress » has the constitutional power to render a thing punishable as a crime against the United States, she can make this legislation exclusive of state law. But, however this may be, if the national statute neither in terms nor by necessary implication excludes the state law, the latter is not superseded. Congress doubtless had the power to make its legislation exclusive of territorial law, because in the organic act it expressly reserved the power to disapprove all legislative enactments, and the fact that it failed' to disapprove the act of 1892 should receive due consideration in determining the validity of that law. The other legal propositions stated by the author are the same, whether one of the offended governments be a state or a territory, and the doctrine hereinbefore mentioned has frequently been recognized in cases of counterfeiting and other crimes. The law on this subject is clearly stated
In the case of In re Murphy, 40 Pac. 398, the validity of section 74, c. 73, Sess. Laws 1890, Wyo. T., an enactment respecting bigamy was assailed on the ground that at the time of its enactment there existed a law of congress punishing bigamy in all the territories. That case is very like the one at bar. The supreme court held the territorial statute valid, and, in the course of the opinion, Mr. Justice Potter, said: “The crime of bigamy, as defined
In support of their position, counsel for the appellant cite the case of Prigg v. Com., 16 Pet. 540. That case was commented upon in the case of Moore v. People, supra,, and the questions decided were clearly pointed out. An’ examination will show that they were entirely different from the questions presented in this case. Nor do we think that Mr. Justice Field, in Davis v. Beason, 133 U. S. 333, by the use of the expression, “The cases in which the legislation of congress will supersede the legislation of a state or territory, without specific provisions to that effect, are those in which the same matter is the subject of legislation by both,7 intended to establish a doctrine that would abrogate a territorial statute like the one in question herein. Nor de we think such an intention manifest from
The remaining question to be determined, on this branch of the case, is, was section 8 of the act of 1892 continued in force in the state by the constitution? The determination of this question depends, upon the effect and operation of section 2, art. 24, Const., which reads: “All laws of the territory of Utah now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations or are altered or repealed by the legislature. The act of the governor and legislative assembly of the territory of Utah entitled ‘An act to punish polygamy and other kindred offenses,’ approved February 4, A. D. 1892, in so far as the same defines and imposes penalties for polygamy, is hereby declared to be in force in the state of Utah.”
The first clause is a general provision under which all territorial statutes, which were valid and effective at the time of the taking effect of the constitution, were continued in force under the state government, until they expired by their own limitations, or where changed or abrogated by the legislature; but, as to the act of 1892, coun
Did, then, any special reason exist, when the constitution was framed, for declaring that the act of 1892, in so far as it related to polygamy, should be in force in the state, without mentioning adultery or other offenses, punishment for which was provided for in the same act? That such reason existed, we think, is clearly apparent from the enabling act, as well as from the proceedings of the convention, of which proceedings we have a right to take judicial notice. The enabling act was passed preliminary to the formation of the state government, and
Considering, then, with reference to polygamy, the terms and conditions imposed by the enabling act, the provisions of the constitution applicable, and the proceedings of the convention which framed that instrument, it is clear that a special reason existed for the adoption of the provision specially declaring that part of the act of 1S92, defining polygamy and prescribing penalties therefor, to be in force in the state. A strict compliance with the terms of the conditions of the enabling act was the
While the special mention of one thing in an enactment weakens the force of the general law, such mention of one thing does not always exclude every other. As a general rule in interpretation, where there is a particular reason or a necessity for mentioning one thing and none for mentioning another, the expression of the former will not exclude the latter. Endl. Interp. St. §§ 397-399; Brown v. Buzan, 24 Ind. 194. And nothing in construction of statutes is better, settled than that repeals, and likewise annulments by implication, are not favored by the courts. Cope v. Cope, supra
It is also insisted for the appellant that his motion in arrest of judgment ought to have been granted on the ground, as stated in the motion, that the record fails to show that the defendant was lawfully bound over or committed by the magistrate named in the information. The information, in the form of the statute, stated that the defendant was bound over to answer the charge by the committing magistrate, and it is claimed that it was incumbent upon the prosecution to offer proof in support of this allegation. In the absence of any insistence, at or
The appellant further contends that the verdict is not justified by the evidence, claiming that he was convicted on the uncorroborated evidence of the prosecuting witness. An examination of the testimony shows clearly that this contention is not well founded and is unwarranted. Without referring to it in detail, there is an abundance of corroborating proof in the record which tends to connect the defendant with the crime, and support the judgment. A discussion of the other questions presented is not deemed necessary, although they have received due consideration. We find no reversible error in the record. The judgment is affirmed.
Dissenting Opinion
(dissenting):
Undoubtedly congress may legislate for a territory directly; or it may direct the territorial legislature to do so; or, having given such authority, it may still exercise it,'and therefore withdraw the authority so conferred on the territory. The latter possesses such power, at the pleasure of congress. In 1850 congress conferred on the
The opinion of the court declares, in effect, that congress passed the law prohibiting and punishing adultery because the territories had failed to do so; that is to say, congress passed a law punishing adultery in the territory because the territory refused to do so. The power of the agent to do an act ceases when the principal does the act himself; so the power of the territory to pass the law punishing adultery ceased when the United States passed the law for itself. The act of congress in question was made for the same territory and to protect the same people from the evil effects of adultery and fornication that the' territorial law covered. The former could have no force 'in the states. It had a local application, and was not intended to protect society in the various states. Those states, under the constitution of the United States, had the exclusive power to do so. The congressional enactment, so far as it applied to adultery and fornication, was not intended for the people of the United States outside of the territories and other
It is also said that the state may pass a law defining
It would appear strange, indeed, if the territorial legislature, the instrumentality of congress, could exercise the same power1, in punishing the .same offense against the same people, after congress had itself exercised it, and punished the same offense against the same people. In that case, the act of the territorial legislature is vain and of no effect. In the case of Davis v. Beason, 133 U. S. 333, the United States supreme court laid down the law as follows: “The cases in which the legislation of congress will supersede the legislation of a state or terri- ' tory, without specific provisions to that effect, are those in which the same matter is the subject of legislation by both. There the act of congress may well be considered as covering the entire ground.” The territorial law in question was not continued in force by section 2, art. 24, of the state constitution. That section,- by its terms, continued in force only valid laws of the territory. For the reasons stated above, I dissent from the judgment of the court.