The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-09-12
DECISION is
BY ROBERTS
Governor Would Know His
Rights in the Matter,
CAN MAKE CONTRACTS
Care of Territorial ConvictS
Within His Province.

Guthrie, o. T, Sept. 11.-Attorney Gen
eral ]. c. Roberts, in response to ALUM
eral J. C. Roberts, in response to a
query from Governor T. B. Ferguson,
handed down an important and far
reaching opinion today holding that the
governor of the territory has power to
make many contracts as he may see fit,
with, persons or corporations, IN or OUT of
Oklahoma for the care Of territorial con-
victs. The question was brought up by
the recent return of alleged insane con-
victs to Oklahoma. The opinion. in full
is as follows:
Hon. Thomas B. Ferguson, Governor of
Oklahoma,
Sir:-You have asked this Office for an
opinion relative TO your power as gov
ernor of the territory, under existing laws
to enter into contracts with persons or
corporations for the care and custody of
prisoners that have been convicted of
crime in this territory and sentenced by
the courts and who are now serving out
their sentences in the territorial peniten
tiary at Lansing, Kan, and further as to
your power to order the removal of any
such convicts located in the territorial
prison at Lansing, Kan. from that prison
to the place of confinement for which you
may have contracted with persons Of cor
porations in this territory and whether
the confinement of such prisoners in such
new place of confinement under the same
warrant of commitment which authorized
their being held in Lansing, would be
legal Because of its Importance, this
has been a matter which has occupied
our closest attention for some time
The point necessary to be determined
is really whether the Governor of the
territory of Oklahoma has the right, first
TO contract for the care and custody of
prisoners in more than one place; and,
second. having such right, whether he has
the further right to order the removal of
a prisoner incarcerated in one of such
places to another of such places.
The first of the above questions does
not seem TO present any difficulties OF
serious character as the reading of the
following section of our law will show
Section / chapter q, of the laws of 1903:
THAT section l, chapter 81. general sec
ton 1851 of the statutes of 1903 be 5nd the
same is hereby amended to read as fol-
lows: Section l. The governor of the
territory of Oklahoma shall be and IS
hereby authorized and directed to con-
tract with a responsible person or per-
sons or CORPORATION within the territory
of Oklahoma or with the proper authori-
ties of some other state or territory, fer
the care and custody of such persons as
may be convicted of crime punishable in
the penitentiary by the courts of this ter
ritory and to bind this territory to the
faithful performance of such contract or
contracts"
This seems to give the governor the
power to contract either with one person
or entity for the care of all Of Oklahoma
cOnvicts or to contract with more than
one concurrently. 1t as well gives the
power to the governor 20 contract with
one Individual or entity within the terri
tory and at the same time 10 contract
with an individual or entity outside OF
the territory. believe that the power Of
the governor exists to contract for the
care and custody of convicts with the au-
thorities of the federal Jail with the trus-
tees of the hospital for the insane. with
the county commissioners of the various
counties for the county jails or with any
individual or group of individuals for the
erection of a prison for the cypress pur-
pose of caring for our convicts.
The second question. however is one
of more difficulty, but still I think TO
be solved according To the well recog-
nized general principles Of law. Can
prisoner who is held within the walls of
the territorial penitentisry at Lansing,
Kansas, by virtue of commitmenet
which recites that he shall be sentenced to
the territorial prison for a term OF years.
or recites that he shall be imprisoned in
the territorial penitentiary at Lansing.
Kansas. be. by the order of the governor,
removed from the penitentiary at Ian
sing to another penitentiary which has
been contracted for under the power given
as indicated above and there held upon
the same commitment TO serve out the
full period of his sentence that he was
held under in the penitentiary at Ian
sing.
The first practical answer that presents
itself to the above question is that there
is no way in which prisoner 50 removed
to prison as indicated in the foregoing
paragraph could get release or relief
from court. Admitting that. technical
" speaking. the governor should exceed
his rights under the law when ne ordered
the removal Of any prisoner. I can think
of no way in which the prisoner could.
because of such an excess OF power. OBJ
tain HIS freedom. The only way that one
could think Of prisoner held under such
circumstances attempting to gain his
freedom. would be blythe suing out Of
writ Of habeas corpus. but writ Of
haheas corpus does not lie when error in
the commitments amounts to mere irreg-
ilarity. 1t only lies when the imprfson-