Arizona weekly citizen., 1885-10-03
TRIAL BI IMPORTATION.
Opinion Of Hon. r. W. Gregg. County
 Judye. sustaining I.le A st.


 mat an information caIHOt legally be substituted for Gn indictment by grand l jury ID the procedure against hinl. Re relies upon ihe j;h amendment to the constitution of the United States, which IS as follows:
 No person shall be held to answer | fer capital or otherwise infamous .rime unless on Vresentnent or indict- ment of grand jUty, except n eases arising in the land or naval forces, or m | the militia, when m actual seTvIce m time of war or public danger, DOT shall any person be subject for the same | ofIense to be twice put in jeopardy or | life, or limb: nor shali be compelled m | any criminal case to be q witness agaiurt himself. nor be deprived Oi life, or liberty, or property without due pro- | cess Of law, nor shall private property be taken fOr.Spublc use without just con siderstlOI.
 The issue then is the validity of the | information act.
 No questlcn can arise before any court of more deli ate nature than | the validity of the Gct Tn question. lhe | Legislative Assembly of Arizona IS the | highest legislative authority winch con venes within our Territorial limits. lt | has under ihe liberal general laws of Congress concerning Territories, as much or more freedom iu leglsiatiUg, and as much or more power or leglsls- | tion as has the legislature of any state | in the Union. No state constitution | Emits it's powers. lls acts are lawful, so long Rs they are not Iuimlcai to tte ! constitution of the United States, or tO the laws of Congress.
 If iR, however. tine duiy of the courts | to declare its ucts invalid. when they are so beyond reasonable doUb;. No mere belief, nothing but positive and an overwhelming conviction that law Is unconstitutional Nill justify m in- ferior or uisI prius court ln declaring II unconstitutional Cco!cy's CouStltutioBhl Llml;aiiors | l3l et seq. 1 an iuclinei io thiuk that the lnioT- 1 nation act is unconstitutional aud void. | Congress Itsef, because of the nith amendment, could cot pass such a law, either to te operative generally, or To be ! operative only in some particular local- l Ity, as. for instance, m ArIzOnb. It would | be a llain violation of inc language ot the amendment, which ell authorities concede is bindin upon Congress. l Barron vs. The Mayor and City Coan- | cil Of Baltimore, Peters 2i7. It seems reasonable to suppose that what Cougress caauOt do, it caHnOt an thorize a Territorial Legislature Co do. | In other words tha: it canaot indirectly by creating Territorial Legislature do | that which It c1nuut directly dc. am led to tEIs belief principally through the opIui,n of C. ,. Fancy in l Drei Scott ve. SarGford, l7 Howard | I73, reinforced by the opinion oi Judge Daniel in the case of Me'ster vs. Re:d I2 Howard 837, aud by the opinion of the distinguished lag writer, J. N. Porneroy, iu h.- WoIa on Constitutional Law, 3l1.
 The fr-t eigbt amclimcnts to tLe constitution of ihe Uuiici States are commonly known as the Bil! of Rights. They we're passed nt the same tune, Elu it will be conceded that all or none ol them are binding upon ta Territorial Legislatures.
 Says c. J. Fancy in tbe case above cited-Dred Scott vs. SanGfoEd, lI How ard 3s3:
 '.rhe power of Congress over iir p-laou oT property of a citizen can never b' msr" til- cretiouary power under the Constitu inu and form of Government. The pJwer- oi tr~ b1v- ernment and the rIglt- and privilege of lhs l citizen are regulated and 9 Hiuly defined hy th' ConstitEtiuu itFelf. And Hue1 the terrifury be come- A tsart oftna United States the Federal Government eaters into possession tn ths crar- 4cter impressed upun st by thu-e who cSeatgd i-. It enters upon it with Itz over- over the ,Itl- zen strict dehue1 and limited by the tous;I;u- tIon. from winch it derives lts own sNlst-nca, and by virtue of which Riune it curil1ue- Co
 It has no power of any kind beycrd it; and it cannot when it enters a tsrrI'Ory oi the United State put off its characser and assliue disc e. a nu ton has denied to lt.
 IL cannot cIeats flr itself new character parated from inc citizens ut ths nl;ed states and tle dunes It owe tlem under the provisions of the onetltutiun.
 Tue territory being a psr- ui the juifcd SiateE. the uOyeTnment and the cifizen both en Ter it under the authority of the v trn-tItIttuu with their reEprcfi .e Tiz,lIte getred and rl out; and the Federal Government caH sLafci-. m power over hls Ier-on or pTuIrrg. beyond what that inftrumra; cULfess. nor la. su!l. Ccly any night which it has rt ss rvud.
 A elerence to few of the provisions of lie Constitution wIli illustrate thi> iropusItiuu.
 For example. no one, vc prs~une, vlls cou- tend lat tOrCrees can make any laT ID t"rIl tur- r,s pee ing tGe establishment uf religion the free exercise thereof. cor abrdgiIg the free dom ol speech or ui the pres. or the 'i-ht of the people of the territory psac'Diy tn sls--u 1ls and Co petiiiOn the Govornmeut Tor th- redress Of grievauces. Nor can J0Esr'~s deny tn tL, people the rtEht tC keep and bear arms, nor the right Co trial hy igry, nlr compel anyone to bs wItne-s against hul-sit Iu criminal pro ceeslng.
 These power. and others m relation Co rights of peTson. which lt i- not necessary here Co euumerHte, are. IU express and po-ItIvc termF. denied to fhe ser'rai government; ana the righ of private property have been guArdel nltl eqaal care.
 Thus the rights oi property are united with the rights of person. Rad piaC un tLe sane ground by the fifth amendment to the Coustltu- lion. which urJEldes thai no person shall be de- prIved of life. liberty OE property without due process of law.
 And an act of Cong-cs, which 6s- priEez a citizen of tue United Sth,es of his liberty or property, merely be- cgu-e he cRme himSe.f or brought his property 1 into pArtio llar Territory Of the United \ ae-, and who had committed no un~use az sin-t tne l laws. could hardly be dlsniiltd with thc Lstne | of due process of law.
 So, too it .ilI hardly b. ~untendei inst Con gress could hy law quarter -oiulsr m a house a territory wIth0u- the consent ot tie owner l in time of peace; nor m time ot var, D Iu s | manner pr'erribed ny law. Nor could thrJ by | law forfeit the property or ciuicn tu % -errHo- " WHO was convicted of tTea-on. Tor a longer perIod than the hfa of tbe person convicted. | nor take private property fur public use without | a iust compensation.
 The powers of person and property of which | Sa peak are not -uly not Er ntet Co tonEre | hut are iu eEprss- terms 'tie,l. end thcg are | iorbldd-E Co eNercise them. And this Iruhiblt- | ion is not confined to the states. but the words I are eeneTnl. snd extsrd c The who'll" t-rritors | over which the cc --iltutlOn -Ivcs lt power fu Il lez.isla'c including fiIrse .orilous of i' remain
 uE under terr. r.ioTIai government Hs well gs that 4 covered by states.
 
 within The domision Oi the United States. and I places the citizens of t-rritu y far as theze riEhts a-e concerned on the same footing pIth | citzeIs of The states. and guEri- titll Ii- traly and pl riuly a-ainsf any IHro tis shich fis E .l. srsIi government might artcmp', under the plea of implied or incidental poWcrs
 And lf Congress tt -elf cam t do thl-.It it i, be- ycud the powers cuufe. r,'i con the te1erHi truv- srnment it will b. rdmif,e1. Re pcCzu-ae, thai It could not IUfhoriza @ terrItnrl-l government .o exercise them.
 r. c,uli coafer no power on nay .o-ai eoy- erument. established hy It- autho ITy. 70 violate the proy IsiJns of the constitution.
 It must be remembered however that ! in none of tbe cGEes cited above iuCiud- ! ing the case of Dred Scott vs. SsniioId was II precisely in issue whether the first eight amendments, to the Con- stitutiUn or any of them are binding up- on the Territorial Legislature. nor does a most diligent examination Ofthe |. S. Supreme Court Reports disclose R decis- ion upon the question.
 In the case of Dred Scott Y. Sandforl the point before the court was whether a certain act of Congress was constitu- tional or unconstitutional. The op.n-