2 Wyo. 329 | Wyo. | 1880
This case has been docketed for hearing here by leave of the court, under and by virtue of secs. 146, 147, 148, 149, of the'Criminal Code of Wyoming, as found on pages 157 and 158 of the edition of 1876. These sections thus referred to are as follows :
Section 146. The prosecuting attorney may take excep--
Section 147. The prosecuting attorney may present such bill of exceptions to the supreme court, and apply for permission to file it with the clerk thereof, for the decision of such court upon the points presented therein; but prior thereto, he shall give reasonable notice to the judge who presided at the trial in which the bill was taken, of his purpose to make such application, and if the supreme court shall allow such bill to be filed, such judge shall appoint some competent attorney to argue the case against the prosecuting attorney, which attorney shall receive for his services a fee not exceeding one hundred dollars, to be fixed by such court, and to be paid out of the treasury of the county in which the bill was taken.
Section 148. If the supreme court shall be of the opinion that the questions presented shall be decided upon, they shall allow the bill of exceptions to be filed and render a decision thereon.
Section 149. The judgment of the court in the case in which the bill was taken shall not be reversed, nor in any manner affected; but the decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterward arise in the territory.
The court has listened with great pleasure to able and learned arguments on many points growing out of the treatment of the case at bar. To our view, however, there is but' one practical question presented for decision, and that necessarily embraces all others. That question narrows to this: What is the penitentiary for the confinement of all persons convicted of any offense against territorial laws,
The district court of Albany county disregarded and overruled the motion of the prosecuting attorney for Albany county, and of its own motion sentenced the said Andrew Nelson to the Nebraska penitentiary, at Lincoln, Nebraska, doubtless under direction of chapters 80 and 81, of the laws of the sixth legislative assembly of Wyoming, approved December 13, 1879, pages 142 to 146 inclusive.
The act which undertakes to fix and locate “ a ” penitentiary of -this Territory at Lincoln, Nebraska, is as follows: page 142, session laws 1879; section 1. “ That the state penitentiary of the state of Nebraska, located at Lincoln, in the state of Nebraska, is hereby declared to be a territorial penitentiary of the Territory of Wyoming, for the confinement of all convicts of said Territory of Wyoming, who have heretofore been sentenced, or may hereafter be sentenced, by any of the courts of said Territory of Wyoming to confinement therein.”
Before proceeding to consider the question, or questions, raised in the récord, it is proper to notice the point made in the argument by the counsel representing the court below,
The prosecution certainly existed until it terminated in the final judgment of the eonrt, to-wit: the sentence. This being ascertained, it will follow necessarily that it is not only the right but the duty of this court to pass upon and decide the questions raised by the prosecuting attorney of Albany county, in the court below, and brought here properly for our consideration and determination. It was insisted, however, in argument, that the territorial attorney ought not to be heard here, when denying the validity of a law of the legislature. The answer to this is, that by the
In July, 1868, the Territory of Wyoming was created, and in May, 1869, the territory was formally organized. The-first legislature adjourned in December, 1869. Now, in so far as the organic act of the Territory speaks, it is, if consistent with the Constitution of the United States, our supreme law, and, obviously, the territorial legislature can pass no law inconsistent therewith. Is it not in the very line of this thought to hold that whenever congress legislates over any subject touching territorial affairs, the legislation of congress becomes to that extent the only legislation that can be maintained by the courts for the orderly government of its people ? If so, and we think so, we have only to apply this principle and we shall find what congress has spoken touching a territorial penitentiary for the Territory of Wyoming.
By an act of congress, approved July 15, 1870, found on page 314 of the Statutes at Large, in the appropriation bill of that year, under the miscellaneous heading, it was enacted as follows: “For the erection of penitentiary buildings in the Territory of Wyoming, forty thousand dollars, or so much thereof as may be necessary,” which
Then followed the act of congress, approved January 10, 1871, in relation to certain territorial penitentiaries which have been, or may hereafter be erected by the United States in any organized territory, and places them under the care and control of the marshal of the terrritory or district in which such penitentiaries may be situated. This act, as incorporated in the Revised Statutes, changes the to any penitentiary, and any organized territory to an organized territory.
Section two, of the act of January 10, 1871, need not be quoted here; it is the same as section 1894 of the Revised Statutes, and has no bearing on this question just here. Section 1895 of the Revised Statutes has, however, an important bearing on this subject. It is the third section of thé act of January 10, 1871, and is here quoted in full. It provides as follows: “Any person convicted by a court of competent jurisdiction in a territory for a violation of the laws thereof, and sentenced to imprisonment, may, at the cost of such territory, on such terms and conditions as may be prescribed by such rules and regulations, be received, subsisted and employed in such penitentiary during the term of his imprisonment, in the same manner as if he had been convicted of an offense against the laws of the United States.” For a proper understanding of this matter, and for the reasons that are hereinafter more particularly referred to, we will here cite sections 1892 to 1894 of the Revised Statutes, inclusive, entire, as they appear published in said Revised Statutes, in addition to section 1895, already stated in full:
Section 1892. Any penitentiary which has been, or may hereafter be erected by the United States in an organized territory, shall, when the same is ready for the reception of convicts, be placed under the care and control of the
Section 1893. The attorney-general of the United States shall prescribe all needful rules and regulations for the government of such penitentiary, and the marshal having charge thereof shall cause them to be duly and faithfully executed and obeyed, and the reasonable compensation of the marshal and of his deputies for their service under such regulations shall be fixed by the attorney-general.
Section 1894. The compensation, as well as the expense incident to the subsistence and employment of offenders against the laws of the United States, who have been, or may hereafter be, sentenced to imprisonment in such penitentiary, shall be chargeable on, and payable out of, the fund for defraying the expenses of suits in which the United States are concerned, and of prosecutions for offenses committed against the United States; but nothing herein shall be construed to increase the maximum compensation now allowed by law to these officers.
From what has so far appeared, we find a penitentiary built within the territorial limits of Wyoming by the United States, with United States funds. Now, for what purpose was it erected? For the imprisonment of offenders against Federal laws, who have been convicted ?
Section 1892 does not mate this distinction, but declares that it shall be placed under the care of the United States marshal, when the same is ready for the reception of convicts, not restricting its use or occupancy to this class of convicts. And sections 1894 and 1895 of the Revised Statutes point out how the cost of maintenance shall be borne, and how the penitentiary may be used. The one provides for charging the United States with the cost of maintaining the Federal convicts, or those convicted of offenses against the national authority within the territory; the other points out how the cost of maintaining those who
But it is seriously claimed, notwithstanding this legislation pointing affirmatively to the use of this penitentiary for convicts against territorial laws, (legislation as binding as the organic act, in our opinion), that it is competent in the legislature not only itself to erect or locate another penitentiary, but it is seriously claimed that this can be done for the Territory, not by its legislature but by a third body, erected for that purpose by the legislature, and that in pursuance of such a power and policy it can be erected in Maine, Florida, Alaska or Nebraska, as this commission shall determine. To justify legislation looking to this end, there is running through it all a leaning to economy, which is highly commendable, if from an economic standpoint, so far as the Territory is concerned, the matter was alone to be decided. But if this view were to enter into consideration, with what justice ought the Territory to ask or expect the Federal government to erect buildings for penitentiary purposes in her limits for the punishment of its offenders, and to expect it to provision it and man it, and yet not help to use it? Can any one rationally conclude that the government of the United States, through congress, had any other .purpose in building a penitentiary out here in Wyoming, than that it should be used for both United States and territorial convicts ? Can it be supposed that .in a territory, then numbering less, than 10,000 people, the government would have erected a building of sufficient
I. That act speaks of the penitentiary at Laramie as the
II. The legislature declared that there were convicts there. If there, they must have been there by enactment of the legislature, or this act must be construed as ratifying their being there, or that no act of the territorial legislature was therefore deemed necessary on the part of the courts in sending them there, the acts of congress being theretofore doubtless deemed by the courts sufficient authority for that purpose. The word “ may,” however, has in statutes a separate meaning. Let us see what it 'is. Bouvier’s Law Dictionary, 2d yol., under heading “may,” says:
“ Whenever the statute directs the doing of a thing for the sake of justice or the public good, the word ‘may’ is the same as 1 shall.’ It cites a statute of one of the Henrys, where.the sheriff, it is said, ‘ may ’ take bail; and again the words ‘ shall ’ and. ‘may’ in general act of the legislature, are to be construed as imperative. The interpretation of the word ‘ may ’ in statutes, and the criterion of its meaning, passed under the eye of the supreme court of the United States in Mann v. Pearson, 22d Howard. Here the court quotes approvingly, Rex & Regina v. Barlow, 2d Sacket’s, 609, which says: Where the statute directs the doing of a thing for the salce of justice or the public good the word ‘ may ’ is the same as the word ‘ shall.’ ” The court goes on to cite other cases, and says: “ Without going more into details these cases fully sustain the doctrine that what a public corporation or officer is empowered to do for others, and it is beneficial for them to have done,, the law holds he ought to do. The law is conferred for their benefit, not his; and the intent of the legislature, which is the text in the case, seems under such circumstances, ‘to impose a positive and absolute duty.’ ”
Tried by the two leading decisions can there be any doubt of the proper meaning of the word “ may ” in sect. 1895 of the Revised Statutes ? Surely the use of the peni
Suppose, applying another test, the warden of the penitentiary had refused the use of the penitentiary for territorial prisoners: can it be doubted that by proper process under this law the Territory could have exacted the use of the penitentiary for offenders against territorial laws? We think so. If, then, the Territory has a right to its use at any time, and can enforce that right to the extent of its accommodation for its own prisoners, has the United States no right to compel the Territory to use said penitentiary so long as there is room there, unless congress shall otherwise legislate ?
It seems hardly necessary to. pursue this discussion further, yet we will quote two more decisions of the supreme court of the United States determining the meaning of the word “ may.” They are City of Galena v. Amy, 5th of Wallace. There the court held an act of the legislature as imperative which said that the city council may, if it believe the public good and the best interests of the city require it, levy a tax, &c.
The court cited approvingly the Supervisors v. United States, 4th Wallace, 435. There the supervisors w'ere authorized, if deemed advisable, to levy a tax, &c.
The court said that permissive long usage will be
Once accepting its use and using it the Territory exhausted even the permissive force of the word “ may,” and until congress shall otherwise direct the word “may,” must even if originally permissive, which we do not hold, be treated now as imperative and mandatory in this section of the Revised Statutes, to wit: Section 1895.
The tendency of legislatures in making statutes and courts, in construing them to give to the word “may” tlie force of “shall” or “must,” comes to us not only with the sanction of English common law and chancery interpretation, and sustained by the highest tribunal of our own land in the interpretation of Federal and territorial enactments, but the courts of the several states of the Union also have inclined that way most strongly, as will be seen by reference to the cases cited in Abbott’s Law Dictionary, under the heading “ May.” There, some thirty decisions from at least twelve states, construe “ may ” as used imperatively and
We have heretofore maintained that every attempt to erect another penitentiary within this territory so long as the penitentiary at Laramie has sufficient accommodations for the “ reception, subsistence and employment of the convicts for offenses against territorial laws,” is inconsistent with section 1895 of the revised statutes and so void and of no effect. Hence it follows that each and every act of legislation on the part of the Territory of Wyoming for this purpose, must fail and fall when considered in connection with section 1895 of the Revised Statutes, as interpreted by
Nor can we see any hardship in this matter, as possibly may be felt if the legislation of the recent session of the assembly of this territory is the reflection of the sentiment of its people ; for congress in 1873, by an act to be found in section 1936 of the revised statutes provided that “the care and custody of the penitentiaries in this Territory (among others) and the personal property thereunto belonging, and the use and occupation thereof be transferred to the Territory, until otherwise ordered by the attorney-general, but the legal title to such penitentiary and the property, shall continue to be in the United States, and by section 1937 the congress makes it mandatory to keep all persons convicted in the Territory of violations of the laws of the United States, and sentenced to imprisonment therefor, as well as all persons held to answer for alleged violations of the laws of the United States in such territories, and fixes the rate of keeping at one dollar per day. The act of December 13, 1873, of the legislature of Wyoming, before referred to in this opinion, recited this act and declared that no provision had ever been made by, territorial law for assuming such custody and control, and none ever has been passed for assuming it. This act of the territorial legislature expressly conferred authority on a board of penitentiary commissioners to accept and take control of the Laramie penitentiary, provided the congress of the United States shall hereafter transfer the same to the Territory of Wyoming.
By transfer, meaning doubtless, if the United States should vest the title of the property in the Territory instead of its custody and control. On the 8th of December, 1869, the territorial penitentiary was, by a law that day approved, located at Laramie, and the rest of that act provided for building and keeping it as such, but that whole act seems constructed upon the idea that the government of the United States would furnish the money and build it and vest the title in the Territory of Wyoming, and the act
Any other conclusion would nullify a law of congress, blend penitentiaries and jails in confusion, in direct conflict with the act of December 5th, just referred to, cast upon sheriffs duties never contemplated by fair intendment of proper and consistent territorial laws, mate penitentiaries of jails without the consent of the respective counties that built them by taxation and possibly to their detriment in so doing, and enlarge in our opinion without authority of law and without necessity, the scope of territorial legislation so as to give it extra-territorial force. It only remains for the court to render its judgment upon the bill o.f exceptions presented in this case comformably to sec. 149 of the Laws of Wyoming, p. 158 (hereinbefore cited) of the Compiled Laws of Wyoming, which judgment that statute expressly declares shall not reverse the judgment and sentence in the case of Andrew Nelson, or in any manner affect it, but the judgment now about to be rendered shall be the decision of' the supreme court of this Territory which shall govern in any similar case which may be pending at the time this decision is rendered, or which may hereafter arise in the Territory. .Wherefore it is considered by the court, and so to be entered of record as our decision, that the penitentiary at or near Laramie city, erected by authority of a law of congress of the United States, is the only penitentiary for the confinement of persons convicted in the several district courts of this Territory for offenses against the laws of the Territory, and punishment for which is, by territorial statute, prescribed to be confinement in the penitentiary unless congress shall otherwise legislate, and so long as there is in such penitentiary prison room for said convicts.
delivered the following concurring opinion.
The prosecuting attorney for Albany county has under sections 146, 147 and 148 of the Criminal Code — Compiled Laws, 157 and 158, — filed here a transcrint from the second
These are the only exceptions that are presented for our consideration. The case has been ably and instructively argued- on both sides; and we have endeavored to treat it with the care that is due to its unusual importance.
Nelson objects that the Territory cannot be heard upon the exceptions, because under those sections we can entertain only such exceptions as the prosecuting attorney shall take
The second exception. The territorial statute, approved. September 15th, 1877, entitled an act providing for the keeping of the territorial prisoners, and other purposes, declares in its section 1 that a given board shall “take charge of, and control all matters pertaining to the care and custody of territorial prisoners”; in its section 2, that the board shall ascertain the relative cost of keeping prisoners and transporting them to the territorial penitentiary located in Albany county; and to other prisons located without the Territory; and may “ determine where the territorial prisoners shall be confined; and may make all contracts between the Territory and the authorities of such prisons, either in or out of the Territory; provided that the prisons selected shall be those in which the prisoners can be confined with the least expense to the Territorj'-; that the penitentiaries or prisons so designated and selected
On the 13th day of December, 1879, an act of the legislature was approved, entitled “an act declaring the state penitentiary of the state of Nebraska a territorial penitentiary of the Territory of Wyoming”; and which declares that the state penitentiary of the state of Nebraska, located at Lincoln, in the state of Nebraska, is hereby declared to be a territorial penitentiary of the Territory of Wyoming, for the confinement of all convicts of said Territory of Wyoming, who have heretofore been sentenced, or may hereafter be sentenced, by any of the courts of said Territory of Wyoming, to imprisonment therein: which act is chapter 80, of the Statutes of 1879.
On the 13th day of December, 1879, there was also approved an act entitled, “ an act providing for the keeping of territorial prisoners, and for other purposes connected therewith.” The act in its 1st, 2nd, 3rd and 4th sections,
The first board notified the legislature at its session of 1879, that it had contracted for, selected and designated the Nebraska prison as a territorial penitentiary; had notified the judges thereof; and that the latter had been sentencing to that prison accordingly: chapter 80 evinces and is based upon knowledge by the legislature of these facts. Chapter 81 repeals the act of 1877 ; but does not affect the contract which had been made under it. Chapters 80 and 81 being in pari materia, and approved together, are to be construed as one statute.
That part of the one statute which consists of chapter 80, confirms that contract; and upon it as a basis, declares that the Nebraska prison shall be a térritorial penitentiary for past sentences to it, and until the selection and designation of another under that part which consists of chapter 81, for future sentences. The board contemplated by chapter 81, was filled at the session of 1879, and notified the judges in January following that it had contracted with said Stout, as the lessee and custodian of the Nebraska prison, for the confinement there of territorial convicts; and had accordingly selected and designated it as the ter
The present sentence must find support, if any, in the contract of the new board, and this leads to an inquiry into the merits of the chapter. Its validity is asserted upon the grounds of the comity of law, the treaty power, constitutional expressions in several of the states of the Union, and a decision of the supreme court of the United States; also Federal provision under the treaty power. The territorial government has the right, and therefore the authority to punish its convicts: the one is the precise complement and measure of the other. The right is restricted and conditioned by the duty of care over the convict; and involves the control and custody of his person. Hence, in the case of a penitentiary offense, the government must transport the convict to prison, in order to secure to itself nothing less, and to the prisoner nothing more and nothing else than the sentence; must have charge of him there, and' on the expiration of his sentence, must set him at liberty: to all which a valid sentence and process, continuing and operating in full force down to this point, are indispensable. In exercising its authority over him for punishment, it should have that reasonable regard to his wants which is consistent with the infliction of punishment and incident to humane and wise government; to accomplish . it, must attend him throughout by its executive and judicial power. In respect to area, jurisdiction and territorial limits are identical: otherwise, as to area, jurisdiction — if not conferred and lost — would be unlimited, a thing in law impossible and absurd; hence all territorial government stops at the boundary; it has no extra territorial jurisdiction; at that line its coercive and protective power ends. This principle is inherent. In the case of Albaman v. Booth, and the United States v. Booth, in the 21 How. at p. 506, Taney, C. J.,° says at page 524: “No judicial process, \Vhatever form it may assume, can have any lawful author
Nor can it find support upon the idea that the convict has forfeited his rights, and retained no voice as to the place of his punishment. Were that so, he would have no voice as to the mode of his punishment. Neither proposition can be true: his conviction works no forfeiture or suspension of his rights, except so far as forfeiture on suspension is incident to punishment. • If punished, the accused has a right to be punished according to law, and that involves, made with the conditions of time and place; he could not be convicted unless he was at the time subject to the territorial government, and it is bound to protect him in all those rights, which a lawful sentence leaves in him; subject to punishment he is entitled to protection; the right of punishment and duty of protection are inseparable, and a statute that ignores the latter, nullifies the former; conviction renders him powerless to protect himself and correspondingly dependent upon the government; it holds him absolutely in its hand, and must entreat him according to that law which is equally binding upon both. There can be no finer spectacle of good government than power so accurately applied to the suppression of crime as to vindicate law without violating right: there can be no more deplorable aspect of perverted authority than to make a victim of the accused in the name of justice.
It was urged that Nebraska does not dissent to the trans
It is urged that, if a foreign prison cannot, the penitentiary in Albany county cannot be used by the Territory, because, owned and controlled by the Federal government, it, as much as the former, is beyond territorial jurisdiction. The cases are entirely dissimilar.
The organic act clothes the governor with unrestricted pardoning power as to territorial'convicts; and neither can the legislature interfere with, nor can he divest himself of the prerogative, because it imposes a trust. The grant of a pardon is an executive order for the discharge of the convict; overrides all other power within the executive jurisdiction and may call upon that other power for support and enforcement; but it can be adequately enforced only within the Territory. Doubtless a pardon would be in a foreign jurisdiction the basis of ultimate relief; but it is inconsistent with the purpose and dignity of the prerogative, that its efficiency should depend upon the employment of foreign law. This statute assumes to nullify the prerogative. Cooley on Const. Lim. 116. Sustain the statute and the power is extinguished : sustain the power and the statute is void.
As then the comity of law is wholly unsuited to the relations of right and duty which the Territory occupies towards its convicts, it does not aid the statute.
Nor can support be found for it in the treaty power. If that exists as a state, it so exists because it is incident to state sovereignty, which is full, less what the state has relinquished to the Union. The state preceded the Union. The territorial status is created and measured by, and dependent on the. will of the ÍTnion: if the power can be attached to a territory, it can be done only under the constitutional provision above referred to. It has not been
The disjunctive “ or,” in this remark introduces an alternative, not to the idea of confinement within Federal jurisdiction, but to that of direction in one case as distinguished from arrangement in another, the alternatives being subject to the principle of that jurisdiction. Thus the court held the Federal statute to be valid, because it authorized the Federal courts to sentence for punishment in a state prison, located within the Federal jurisdiction. There can be no intelligent doubt of the correctness of the conclusion; for the jurisdiction embraces the Union area, and under those sections, Fedei’al authority transports Federal convicts; can protect them from abuse there and secure to them due release on the expiration of their sentences, accompanies and surrounds them by its executive and judicial protection, and completely retains them within the reach of executive clemency. It does not or need not follow, it is true, from what I have quoted of the decision, that under those sections the Federal government could execute ’its sentences upon the convicts, so confined in state penitentiaries, and this for want of control over its convicts, while within them,. and the sentences might fail of execution for want of rigid enforcement; but this would involve no invasion of the rights of the convicts, only a sort of relaxation or, abatement of the prescribed punishment; the convict would be
But as to the effect of the Federal statute, the court went farther in that case, and said: “It is farther insisted on behalf of the petitioner that the state of West Virginia has not given its consent to the use of the penitentiary of the state of West Virginia by the United States for the punishment of their criminals, and that for this reason the order for his confinement there is void. The petitioner is actually confined in the penitentiary and neither the state nor its officers object. Congress has authorized imprisonment as a punishment for crimes against the United States in the state prisons. So far as the United States can do so, they have made the penitentiary at Moundsville a penitentiary of the United States, and the state officers, having charge of it, their agents to enforce the sentences of imprisonment passed in their courts. The question is not now whether the state shall submit to the use of its property by the United States, nor whether those state officers shall be compelled to act as custodians of those confined there under the authority of the United States,-but'whether the petitioner can object, if they do not. We think he cannot, as the state permits him to remain in the prison as the prisoner of the United States, and does not object to his detention by its officers; he is rightfully detained in custody under sentence lawfully passed.” Thus Karstendick did not question the right of the general government to contract with a state for the use of its prison and its prison officers, nor its power over tire prison and its officers if a contract had been made; only that in his case a contract had not been made; and the court replied that West Virginia was permitting such use in his'case, and its prison officers were acting accordingly,
The respect due from me to the United States supreme court permits the suggestion, that, as an open inquiry there is room for doubt, whether the use of a state prison, contemplated by this Federal statute, means a control by the Federal government of the interior of the prison for the enforcement of its sentences; and that to the extent of such control, the prison and the officers who are attached to it by the state, become respectively the prison and the agents of that government; for, to be such,.they must be under its supervision and direction; whether by the provisions that Federal convicts while confined there, shall be in all respects subject to the same discipline and treatment which are applied to the state convicts who are confined there, and exclusively under the custody of the. officers who have charge of the prison “under” which signifies, by and according to the laws of the state, the contract of the attorney-general — which must keep within the provisions-*can do more than to put upon the given state the enforcement of the sentence through its prison and prison officers, over both retaining control, as to both being responsible to that government and standing between it and them accordingly. The inquiry, however, has ceased to be abstract, if
In support of the judgment we are reminded that the United States has acquired within the limits of several foreign governments, territorial areas for the purpose of its diplomatic service witli those governments; which areas are appropriated to the use of its legations, located at those governments; and over which areas it exercises criminal jurisdiction to convict and punish within them. This is an additional illustration that the general government confines the exercise of its primitive power to its limits, whether at home or abroad; and that its practice lucidly and forcibly condemns the departure which this territorial legislature attempts to inaugurate.
In this connection the English and French practice as closely conformable to the jurisdictional principle, is instructive. _ Foreign transportation, as a method of punishment, is unknown to the British courts: in them a convict transportation “beyond the seas,” has never meant more than transportation in British bottoms — which are British territory — from one part to the other of the British realm. Convict transportation in the French court has never meant more than the transportation in French ships — which are French soil — from one to another part of the French dominion.
The history of civilized governments presents no instance
In support of the judgment, provisions from the constitutions of several other • of the states of the Union, recognizing exile as a form of punishment, have been produced. But chapter 81 does not contemplate expatriation; nor does the judgment attempt to inflict it. Consider, however, that .method as analagous to transportation. The learned counsel has failed to suggest an instance in our judicial history, in which punitive expatriation has been imposed in this country; and I feel safe in asserting that none exists. Those provisions are probably mere relics repeated from colonial charters and statutes; are unaccompanied by judicial sanction, and stand in the constitutions that contain them, as political abstractions, or effete ideas. I am not prepared to admit that punitive expatriation is an incident of state sovereignty in the Union; it is not recognized in the Federal practice, and cannot be regarded as an incident to the territorial status, for it is an incident in the latter, if it is there.
Chapter 81 forcibly illustrates the error of its principle,
The second exception presents several constitutional questions which I have passed over, deeming them too grave to be disposed of without further argument.
The first exception. Chapter 81 closely conflicts with the Federal legislation respecting the penitentiary which is located within the Territory. The United States Kevised Statutes, title twenty-third, “the territories,” provide in section 1892 that every penitentiary in an organized territory shall be under the cam and control of the marshal of the territory; in section 1893, that “the attorney-general of the United States shall prescribe all needful rules and regulations for the government of” the penitentiary; and the marshal shall cause them to be observed; and in section 1895, that “any person convicted by a court of competent jurisdiction in a territory, for a violation of” its laws, “ and sentenced to imprisonment, may, at the cost of such territory, on such terms and conditions as may be prescribed by such rules and regulations, be received, subsisted and employed in such penitentiary during the term of their
With the exception of its repealing effect chapter 8 is invalid: the judgment of the district court conflicts with Article V, of the constitutional amendments, which forbids that any person shall be deprived of his liberty without due process of law; and each of the exceptions was well taken.
Judgment accordingly.