In re Terrill , 66 Kan. 315 ( 1903 )

The opinion of the court was delivered by

Smith, J. :

In December, 1894, the petitioner, Ira N. Terrill, was convicted in the district court of Noble county, Oklahoma, of thn crime of manslaughter. The material part of the sentence of the court reads :

“It is therefore considered, ordered and adjudged by the court that the said defendant, Ira N. Terrill, be confined in the Oklahoma territorial penitentiary, at Lansing, Kan., for the period of twelve years from the date of his delivery to the warden of the said penitentiary.”

To the return of the warden is attached the journal entry of conviction and sentence. He also justifies the prisoner’s detention by setting forth a written contract dated July 1, 1898, between H. S. Landis, warden of the Kansas penitentiary, and O. M. Barnes, governor of Oklahoma, wherein the former agrees to receive and keep in said penitentiary all prisoners convicted of crime, whose sentence under the laws of the territory of Oklahoma is confinement in a penitentiary for one year or more. This contract was approved in writing by the board of directors of the Kansas state penitentiary. There is no statute of this state authorizing the warden or directors of the penitentiary to contract with the authorities of Oklahoma for the keeping of territorial convicts.

To determine the legality of the prisoner’s restraint, it is necessary to consider the scope and effect of the act of congress having relation to the imprisonment of territorial convicts in penitentiaries beyond the boundaries of the territory where the crime was committed and the conviction had, and also the relation which territories sustain to the United States. In National Bank v. County of Yankton, 101 U. S. 129, 132, 133, 25 L. Ed. 1046, it was said :

“It is certainly now too late to doubt the power of congress to govern the territories. There have been some differences of opinion as to the particular clause of the constitution from which the power is derived, but that it exists has always been conceded. It has full and complete legislative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people, under the constitution of the United States, may do for the states.”

The act of congress of June 16, 1880 (21 Stat. at Large, 277), provides:

“That the legislative assemblies of the several territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other territory or state, and provide that such person or persons may be sentenced to confinement accordingly in such other territory or state, and all existing legislative enactments of any of the territories for that purpose are hereby legalized.”

Under this congressional authority, the legislature of.Oklahoma enacted the following statutory provisions (Stat. Okla. 1893, ch. 64) :

“(3680). §1. The governor of the territory of Oklahoma is hereby authorized and empowered to contract, in the name of this territory, with the proper authorities of some other state or territory, for the care and custody of such persons as may be convicted of crimes punishable in the penitentiary, by the courts of. this territory and to bind this territory to the faithful performance of such contract or contracts.”

“(3686). §7. That in all cases where persons have been ,or may hereafter be, by the courts of this territory, sentenced to incarceration in the penitentiary, it shall be lawful for any officer of this territory having such persons in charge, to convey them from this territory into any other state or territory where provisions may have been made for their incarceration.

“(3687). §8. That such conveyances of such persons shall, under section 3688, be held and deemed to be a case especially authorized by law within the meaning of that section, and such imprisonment without the territory of Oklahoma is hereby declared to be legal.”

The rightful detention of the prisoner does not, in our judgment, depend on whether this contract with the governor of Oklahoma was made by persons having statutory authority from the state of Kansas. The prisoner was convicted in a territorial court which derived its power and jurisdiction from the organic law of the territory, which is an act of congress. The federal statute above quoted authorizes the custody and punishment of its convicts in any other state or territory. The petitioner’s conviction and sentence being regular and lawful, to carry it but is a mere detail. The acts of congress are, under the constitution, the supreme law of the land. The power was given by congress to the authorities of Oklahoma to make provision for Terrill’s imprisonment here. This has been done. The federal laws are paramount and have force and effect in every state and territory in the union.

The petitioner insists that the warden must justify his detention under some law of the state of Kansas, where he is imprisoned; that no statute of this state having been pointed out which gives authority for holding him, his discharge must follow. If the governing body of the Nebraska penitentiary had made a contract with the territory of Oklahoma for the detention and punishment of its prisoners in the Nebraska state prison, could it be held that a convict-going to his place of sentence, while en route from Oklahoma to the Nebraska penitentiary, and traveling-, through this state, would not be lawfully in custody under federal authority during the time he was in- the-state of Kansas? In such case no law of Kansas-could be cited which would justify the holding of the jjrisoner while in this state, yet his rightful detention by force of the federal laws cannot be denied. If the all-pervading force of congressional laws relative to-the government of territories will hold a territorial convict going through this state for one day without reference to state statutes, the same laws wiil justify his imprisonment here for a longer time, and operate to make his detention lawful when undergoing punishment at hard labor in our penitentiary for a term of years.

The case of Ex parte Karstendick, 93 U. S. 396, 404, 23 L. Ed. 889, is directly in point against the contention of the petitioner. There the' prisoner was convicted of an offense against the United States in the district of Louisiana. He was sentenced to be confined in the penitentiary of the state of West Virginia. He sued out a writ of habeas corpus in the supreme court of the United States. In answer to the objection that there was no agreement by the state of .West Virginia authorized by the legislature for the detention of the convict in that state, the court said :

“It is further insisted on behalf of the petitioner, that the legislature of the state of West Virginia has not given its consent to the use of the penitentiary of the state 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 by their courts. The question is not now whether the state shall submit to this use of its property by the United States, nor whether these state officers shall be compelled to act as the custodians of those confined there under the authority of the United States, but whether this petitioner can object if they do not. We think he cannot. So long as the state permits him to remain in its 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 a sentence lawfully passed.”

We take judicial knowledge of the fact that for many years the state of Kansas has acquiesced in the confinement in our penitentiary of Oklahoma prisoners. The official reports of state officers show the receipt of money from the territory of Oklahoma for their maintenance. The message of the • governor, delivered to the present legislature, recognizes the care and custody by the state of a large number of Oklahoma prisoners serving sentences at Lansing. By unanimous consent of the warden and directors of the prison, expressed in writing, provision is made for their maintenance until discharged at the expiration of the time for which they were sentenced.

The petitioner was sentenced to be confined in the Oklahoma territorial penitentiary at Lansing, Kan. He is now held under the exact terms of his sentence, and the only complaint is that the place of his confinement is in Kansas instead of Oklahoma. He is confined in such a prison as the act of congress authorizes, and is undergoing no greater or different punishment than that imposed by the court in which he was convicted. Convicted for the infraction of a valid law, in a legally constituted court, and sentenced to confinement and hard labor for a period authorized by the territorial statutes, and at a place which, under the act of congress, maybe selected for his punishment, and which has been selected as above shown, we think the imprisonment of the petitioner is rightful.

The other grounds for discharge set forth in the petition were passed on by this court in a former application heard in 1897. It was decided that the place of the commission of the crime was a matter for the consideration of the trial court, and that the question of former jeopardy could not be inquired into in a habeas corpus proceeding. (In re Terrill, 49 Pac. 158.)

The writ will be denied.

Johnston, O. J., Cunningham, Gkeene, Mason, JJ., concurring.