Arizona republican., 1896-06-16

and to create reasonable rules and reg ulations for the government of such person so confined aforesaid, while in the care and custody of this defendant, as such superintendent.
 III
 This defendant denies that the said board of control has not had, nor have they heretofore had, nor have they now, fully or any power and authority under the laws of the territory of Ari- zona, to make the contract or any con- tract, copy of which is set out in the application herein.
 This defendant further denies that he, as such superintendent, has full charge of, or had at the time of the filing of said application, or at any time previous thereto or that he has now full charge and control of the prisoners confined in the territorial prison, and he further denies that whatever charge or control he may have of such prisoners such charge and control is not subject only, nor ex- clusively, to the direction of the board of control
 ".
 It is further shown that said board of control under act number 19 of the session laws of 1895, or under any other law of said territory, has not heretofore had, and has not now, any power or authority to make, execute, or deliver the pretended contract, a | copy whereof purports to be attached to the application herein, in this, to- wit:
 Thot 1hn oaf of hn i1lo cited in said pretended contract, was approved March 8, 1895, and said con- tract purports to have been made and entered into on the second day of De- ! cember, 1895, whereas in and by said act of March said board had no power or authority in the premises, after the sixtieth day from the approval of said act.
 That said act, approved March 8. | 1895, is so indefinite and uncertain as to it's provisions, that the said act does not vest any power or authority in said board, and is imperative in this, to-wit:
 That said act purports to grant power and authority to lease buildings and lands therein mentioned on shares, and does not provide what moiety of said shares shall belong to the terri tory or who shall determine what share, or part thereof, shall belong to | the territory, nor what such share shall 1 be of, that is, whether of the product of the soil, either net or gross, or whether such share shall be the profits, or a part thereof, in speculative or other venture.
 That in and by such act it is pro- vided that inmates of said prison may have their labor furnished under con- tract to responsible persons when the same may be for the best interests of the territory, but nothing therein con- tained defines what shall be, or who shall determine, what the best interests of the territory are in the premises. | This defendant further shows that at the time of the making of said pretend eG contract, and in the making of the pretended demand in the application alleged, a large proportion of the in- mates Of said prison, estimated at three-fourths of the total number then therein were convicted and sentenced to Imprisonment therein for offenses committed long prior to March 8, 1885, That under the laws existing in said territory prior to that date, to-wit, the penal code which went into effect the lst day of July, 1887, and acts amend tory and supplementary thereto, the power granted solely to the judiciary of this territory to imprison persons con Vlcted Of crime in said prison; that un- der the laws of this territory no power IS granted, nor is there under the con- stltut1on of the United States, or the
 laws Of congress, any granted or in
 herent power in the judicial depart 1nent of this territory, to cause any person convicted of crime to be pun ished by working at hard labor in ad.
 d1tion to Imprisonment in said peni tentiary
 That chapter 51 of the revised stat utes was approved March 10, 1887, and went into effect immediately, whereas
 the penal code of 1887 did not go into
 effect until 12 o'clock noon on the 1st
 day of July, 1887, and thereby repealed
 any power or authority which the leg
 1slative department of this territory may have granted to the executive de
 partment of the territory under said
 title 5l to impose upon the enmates of
 said prison an additional punishment of work at hard labor or any labor at all
 | Your defendant further shows that
 the legislative department of this ter
 ritory had no further power or authori-
 ty under or by virtue of the said act
 of March 8, 1895, to grant to the ex-
 ecutive department of this territory
 to-wit, the said board of control. in
 contract for an additional punishment
 to the inmates of said prison or any one of them, by leasing their manual
 or other labor to any person, or per sons whomsoever.
 This defendant further shows that
 within the laws of this territory no !. 1 pOMer can he eyercised Inv tho oxoa,,