In re Nelson
| Decision Date | 27 August 1895 |
| Parties | In re NELSON. |
| Court | U.S. District Court — Western District of Washington |
F. W Wiestling, for petitioner.
W. W Wilshire, for respondent.
The petitioner, being in the custody of the sheriff of King county, after conviction and sentence in the superior court of the state of Washington, for said county, of the crime of incest, has applied to this court to be discharged, on the ground that the statute of the territory of Washington under which he was prosecuted, was abrogated by the act of congress of March 3, 1887 (1 Supp.Rev.St., 2d Ed., 568), commonly known as the 'Edmunds-Tucker Act,' which provided, among other things, for the punishment of bigamy and similar offenses including the crime of incest, when committed within any of the territories, and, the state of Washington having failed to enact any statute providing for the punishment of such offenses prior to the commission of the crime charged against him, there was no law in force in this state under which he could be punished; and he alleges, therefore, that he is restrained of his liberty without due process of law contrary to the provisions of the constitution of the United States. The statute of Washington territory upon which the information against the petitioner is founded was enacted long prior to the act of congress referred to, and remained unrepealed by any enactment of the legislative assembly of the territory at the date of the adoption of the constitution of the state of Washington; and there is no ground whatever for assuming that it does not constitute a part of the laws of the territory, continued in force by the provisions of the enabling act under which the territory was admitted into the Union as a state, and by the constitution of the state, other than the allegations of the petitioner that the act of congress covering the same subject had the effect to annul the legislative enactment. The sixth and eleventh sections of the act of congress referred to expressly disapprove and annul certain specified statutes of Utah territory, and other sections place limitations upon the legislative powers of the territorial government of Utah; but otherwise there is in the act no expressed intention to repeal or annul territorial statutes theretofore enacted, nor to restrict the legislatures in the several territories in the exercise of their powers. Conceding that, during the continuance of the territorial government, such offenses could be prosecuted only under the act of congress,-- that being a complete law, covering the entire subject, and enacted by the highest authority,-- still it did not have the effect to repeal or annul a territorial statute not inconsistent with its provisions. The territorial government was created by congress, and, while it existed, was entirely subordinate to congress. Congress had the power to annul any statute enacted by the legislative assembly, and to make laws and provide for their execution within the territory. The national government was supreme, and the territorial government subordinate thereto. In the exercise of its superior...
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