In re Murphy

• Decision Date: 29 May 1895
• Citation: 5 Wyo. 297,40 P. 398
• Parties: IN RE MURPHY
• Court: Wyoming Supreme Court

40 P. 398

5 Wyo. 297

IN RE MURPHY

Supreme Court of Wyoming

May 29, 1895

RESERVED QUESTIONS from the District Court for Albany County.

James E. Murphy, having been held to answer for the crime of bigamy, and being held in custody by the sheriff of Albany county under a commitment issued by the examining magistrate applied to the district court for writ of habeas corpus. Upon submission of the matter to the court on the issue raised by a demurrer to the return of the sheriff to the writ requiring him to show the cause of the restraint of the prisoner certain questions were reserved to the Supreme Court for its decision. Such questions and the entire facts in the case are recited in the opinion.

Nellis E. Corthell, for the petitioner.

The territorial statute with reference to bigamy never went into effect, and therefore is not a law of the State, as the act of congress covered the same ground. This results because: 1. From the provision of the Federal constitution that no man shall be subject for the same offense to be twice put in jeopardy. (Art. 5, Amendments.) 2. From the congressional statute giving the United States exclusive jurisdiction in all cases of offenses cognizable under its laws. (U. S. Rev Stat., sec. 711.) 3. Because, in the territories, congress has plenary legislative power, exercising both the Federal and State powers of government, for the people of the territories. (Houston v. Moore, 5 Wheat., 21; Com. v. Felton, 101 Mass. 204; Com. v. Tenney, 97 id., 50; People v. Fonda, 62 Mich. 401; U. S. v. Kagama, 118 U.S. 375; Bank v. Yankton, 101 U.S. 129; Snow v. U.S. 18 Wall., 317.) The distinction between Federal and State jurisdictions has no foundation in territorial governments. (Benner v. Porter, 9 How., 242; Downes v. Parshall, 3 Wyo. 426; Bradford v. Terr'y, 1 Okl., 366; In re Lane, 135 U.S. 443.) Congressional enactment supersedes all territorial laws on the subject. (Nelson v. U.S. 30 F. 115; Kie v. U.S. 27 id., 356; Davis v. Beason, 133 U.S. 333; U. S. v. Clark, 46 F. 636; Franklin v. U.S. 1 Colo., 40.) A void law is no law. (Cooley Const. Lim., 222; Van Schaack v. Robins, 36 Ia. 203; Draper v. Folley, 33 Ind. 465; State v. Benton, 33 Neb. 823; Stingle v. Nevel, 9 Or., 62; Maxwell v. State, 89 Ala. 150; Arnoult v. New Orleans, 11 La. Ann., 56.

C. W. Bramel, prosecuting attorney, contra.

Bigamy was a rightful subject for territorial legislation. Two laws, each describing the same act as a crime and prescribing a penalty therefor, are not inconsistent. (Moore v. People, 14 How., 13; Fox v. Ohio, 5 How., 411.) The policy of the United States towards the territories is manifested in Reynolds v. U.S. 98 U.S. 145; Clinton v. Englebrecht, 13 Wall., 434. They hold that, in a territory, its laws govern the procedure of courts. The State adopted the bigamy statute as a law of the State by declaring all laws of the territory not repugnant to the constitution to be in full force and effect. (L. 1890-91, chap. 35.) The bigamy statute was thereby revived, even if it had been suspended by the congressional legislation on the same subject. (Sturgis v. Spofford, 45 N.Y. 446; Com'rs v. Steamship Co., id., 609; State v. Kibling, 63 Vt. 636.) If there is no statutory provision, the common law in relation to bigamy is in force in the State. (R. S., sec. 498; 4 Blackstone, 163; 1 Russel on Cr., ch. 23; 2 Kent Com., 69; State v. Pulle, 12 Minn. 164.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

On the 20th day of February, 1895, James E. Murphy filed in the district court of Albany county his petition for the writ of habeas corpus, questioning the legality of his restraint in the jail of that county by the sheriff thereof. The cause of the restraint, as alleged, is a commitment issued by a justice of the peace; and it is alleged that the justice had no jurisdiction of the offense charged against the petitioner, and that no offense against the laws of this State has been charged against him.

A reference to the commitment, a copy of which is attached to the petition, discloses the fact that the petitioner was, after examination upon complaint filed before the justice, held to answer to the district court for the crime of bigamy, committed on the 28th day of March, 1891.

The writ was issued upon order of the district judge, and the sheriff returned that he had the petitioner in his custody at the jail of said county by virtue of the said commitment; a copy of the complaint or information filed with the justice of the peace is also attached to the return, by which it was charged that the petitioner on January 22, 1881, in Albany county, Wyoming, did marry one Lillie C. Rauch, a woman, and on March 28, 1891, at said county and State did marry one Alice Warren, the said Lillie C. to whom he was married in 1881 being alive, the bond of matrimony between them being still existing and undissolved and no legal presumption of her death having arisen.

A demurrer was filed to the return of the sheriff and upon this pleading the issues raised were submitted to the court.

Thereupon the district court made and entered an order reserving and sending said cause to this court for its decision upon certain questions certified therein to be difficult and important, viz.:

1. Is the act of bigamy, as defined in section 74 of chapter 73 of the Session Laws of Wyoming of 1890, being a part of the act of the legislature of the Territory of Wyoming, approved March 14, 1890, committed March 28, 1891, within the State of Wyoming, an offense now punishable under the laws of said State?

2. Did the legislature of the Territory of Wyoming at the time of the passage of the act of March 14, 1890, above referred to, have power to enact section 74 of chapter 73 of the laws of 1890, mentioned in the last preceding question?

3. If the enactment of said section 74 of chapter 73 of the laws of 1890 was not within the power of the legislature of the Territory of Wyoming, did said section at any time thereafter come into force or become operative in the Territory of Wyoming or in the State of Wyoming, and, if so, when?

4. Is said section 74 of chapter 73 of the laws of Wyoming of 1890 now in force as a part of the laws of the State of Wyoming?

It is apparent that the same ultimate question is the result of each of the four propounded by the court, viz.: Is section 74 of chapter 73 of the laws of the Territory of Wyoming defining the crime of bigamy and providing a punishment therefor now in force in this State, that being the only statutory provision we have touching that offense. It is conceded, as it must be, that if that section was valid when enacted, and was a valid law of the territory, it became and was in force as a law of the State by virtue of the provisions of the enabling act and the State constitution, each of which expressly continued as the laws of the State all the laws of the territory in force at the time of the admission of the State, and said section had not been repealed by any law of the territory, nor has it been by any statute of the State. Our inquiry is therefore directed to an examination consideration of the question whether, in the first place, the law was a valid enactment by the territorial legislature, and if not, in the second place, is it the law of the State.

It must be confessed at the outset that this presents an inquiry of no little difficulty, and the field to be covered in a proper and comprehensive consideration thereof is an amazingly large one.

The section of the statute to which our attention has been invited, reads as follows:

"Whoever being married, marries again, the former husband or wife being alive, and the bond of matrimony being still undissolved and no legal presumption of death having arisen, is guilty of bigamy, and shall be imprisoned in the penitentiary not exceeding five years."

At the time this statute was enacted, there existed a law of congress punishing bigamy in all the territories, in the following language:

"Every person who has a husband or wife living who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man, who, hereafter simultaneously, or on the same day, marries more than one woman in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead, nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract." 22 U.S. Stat. at Large, 30.

The act of congress enacting this section was approved March 22, 1882, and was amendatory of section 5352 of the Revised Statutes of the United States, which defined and provided a punishment for bigamy in the territories and other places over which the United States have exclusive jurisdiction, the change by the amendment being that part covering the case of marriages by a man to more than one woman simultaneously or on the same day, and the addition of the requirement that in the case of the absence of the former husband or wife for five successive years, the person marrying again shall believe the other to be dead.

The...