The Cheyenne daily leader. [volume] (Cheyenne, Wyo.) 1870-1884, 1879-12-30
UNCONVENTIONAL.
Judge Peek 80 Decides the Terrific
rial PenitentIary Law.

The following is the decision in fun,
rendered by Judge w. w. Peck, in the
district court yesterday, On the question
of the constitutionality of the law pro-
vidiug for the sentencing of territorial
prisoners to Imprisonment in the state
~penitentiary at Lincoln, Neb. The
judge said: I
The county prosecutor moves that
the respondent, Win. Webster, be SEN
fenced upon the verdict to imprison-
ment in the state penitentiary of Ne
braska, located at Lincoln.
The motion involves a question of
the gravest character in the adminis-
tration of the criminal law of the ter
ritory. If sentenced under the peni-
tertiary act of Dec. Is, 1877, and that
Of Dec. Is, 1879, and the sentence be
invalid, because of the %invalidity of
the acts, the effect of the sentence
would be to turn the prisoner loose
from lawful custody at the bar of the
court, and to detain him after that for
the execution of the sentence, as well
as the execution of the sentence would
bea false imprisonment, from which he
would be entitled to prompt relief on a
habeas corpus. Upon the other hand,
to sentence him under the ~penitentiary
act, in force when the act Of ~ was
passed, would be futile, if the act of VI
was valid, and he would be in that case.
equally entitled to relief on habeas cor
pus. 1t is claimed that the act of 10
creates n power not conferred by the
act of III. The latter invests the
board of commissioners, created by it,
with full power to contract for the ter
ritory with any foreign prison for the
confinement Of any penitentiary con-
victs, and declares that upon making
such contract, the foreign prison shall
be the penitentiary of the territory;
that they shall certify such contract to
the several district courts, whereupon
it shall become the duty of those courts
to sentence to that ~penitentiary. II
know ~judicially that such a contract
was made with the prison at Lincoln;
was so certified to the courts, and that
two other judges have been sentencing
accordingly. The act of 1877, if valid
has perfect validity. Now, the act of
10 simply declares that the prison at
Lincoln shall be a penitentiary of the
territory for the sentences heretofore
made to it, and for future sentences.
1t could have no force but for the con-
tract, which was made under, and in
tended to put in operation the act of
TT. The legislature of this territory
cannot abstractly pick up aprison and
make it a prison of the territory with
out the consent of the foreign author |
tiles, even If that would suffice. Be-
cause there is a prison in New South
Wales, simply to declare it to be a PEN
itentiary of this territory means moth
ing and effects nothing. Therefore, if
the act Of 10 neither takes from nor
adds to; weakens or aids the act of IT; |
is a mere echo of that act and super |
fluous. What act, then, is operative
upon the subject? The act of VI, or |
the previous act, which was in force
when the act Ct III was passed? |
If the latter act is valid, it repealed
the former; if invalid it is a nudity,
and leaves the previous one in force;
and being invalid, it is my duty as
much to disregard it as to respect and
enforce a valid act. lam bound by the
law and must administer it, but cannot
administer as a law that which has SIM
ply the name without the virtue of law. |
No court can pass a sentence which it |
cannot execute. This is a self-evident
proposition. 1t can execute its SEN
tence only by a warrant, for by this
process alone is the officer authorized to
enforce the sentence. Now no process
can operate beyond the territorial
limits of the government, which they
represent. Those limits are jurisdic- |
tional. Hence the instant that the
convict is taken beyond the boundary
of the territory under a process of its
court, the process fails.
Prof. Cooley, in his work on consti-
tutional limitation, states it as a maxim, |
and in the law a maxim is a formulated
principle admitting of no dispute, that
a sovereign power cannot exercise juris- I
diction beyond its territorial limits.
To which / add, that no jurisdiction
can be exceeded without the aid of pro- |
cess.
In the case of Ableman VS.. Smith, in /
the 2lst of Towards United States re-
ports, Chief Justice fancy delivering |
the opinion, said that no state could
send its process beyond its limits, and
that any attempt to do it, whatever the
form, would be an attempt at illegal
violence.
A single provision of the organic act
illustrates the excess of the leg
islative power assumed by the act of
III. The organic act invests the gov
ernor with the supreme power to par
don; his pardon is an order for the re-
lease of the convict, and draws to it.
self the judicial power of the territory
to enforce it. The provisions confer
ring the power contemplates that the
convict shall be retained within the
territory, Sc that the power may be at
the will of the executive, consentingly
applied. The legislature cannot in