35. Power of Territorial Legislatures.

The territorial legislatures are created by congress, and have such powers only as are conferred upon them by congress in the act by which they are created,-the organic act, -and by acts of congress supplemental thereto. By act of congress, the legislative power in the territories is vested in a governor and legislative assembly, and "extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." 110

36. Constitutional Limitations-In General.

The legislature cannot legally enact any law in violation of constitutional limitations. Such a statute is absolutely void.111 In the following sections we shall consider particular

110 Rev. St. U. S. § 1851. And see Reynolds v. People, 1 Colo. 179; Territory v. Yarberry, 2 N. M. 391.

111 A statute declaring it a crime to exercise any fundamental right guarantied by the constitution, as the right of suffrage, or the free exercise of religious worship, or which, without any reason, deprives a person of life, liberty, or property, is absolutely void. See Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322, 326; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v.

Be

provisions of the various constitutions. fore doing so, it is well to understand the leading principles by which the courts are governed in determining whether they are violated.

1. If a statute is clearly unconstitutional, the courts must declare it void, and refuse to enforce it. They have no discretion in such

2. They should pay great respect, however, to the deliberate judgment of the legislature as to the constitutionality of a statute, and no statute should be declared unconstitutional unless its unconstitutionality is clear beyond. any reasonable doubt.113

3. The courts do not sit in review of the discretion of the legislature in matters which are within its power, nor determine upon the

Marx, 99 N. Y. 377, 52 Am. Rep. 34; Northwestern Manfg. Co. v. Wayne Circuit Judge, 58 Mich. 381, 55 Am. Rep. 693. And see the cases hereafter more specifically cited.

112 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Frorer v. People, 141 Ill. 172; Ex parte Kuback, 85 Cal. 274; People v. Gillson, 109 N. Y. 389; State v. Scougal, 3 S. D. 55.

113 Per Allen, J., in People v. Albertson, 55 N. Y. 50, 54. And see Powell v. Com., 114 Pa. St. 265, affirmed in 127 U. S. 678,

expediency, wisdom, or propriety of its action in such matters.114

Form of Statutes and Requirements as to Enactment. There are a number of provisions in the various constitutions with respect to the form of acts and mode of enacting them, as, for example, the provisions that an act shall be passed by both houses of the legislature, that it shall be signed by the speaker of the house and the president of the senate, and that it shall be presented to the governor for his approval, etc., and the provision that no act shall embrace more than one subject, and that this subject matter shall be expressed in its title. Statutes which violate such a provision are void.115 This question is not at all peculiar to penal statutes, and need not be further considered.116

114 People v. Albertson, supra; State v. Addington, 77 Mo. 110; Com. v. Colton, 8 Gray (Mass.) 488; Powell v. Com., 114 Pa. St. 265, affirmed in 127 U. S. 678; People v. Worden Grocer Co. (Mich.) 77 N. W. 315.

115 See Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; People v. Starne, 35 Ill. 142, 85 Am. Dec. 348; People v. Campbell, 8 Ill. 466; Miller v. State, 3 Ohio St. 475; State v. Platt. 2 S. C. 150, 16 Am Rep. 647.

116 See Am. & Eng. Enc. Law, tit. "Statutes."

Local and Special Laws.-In the absence of constitutional restrictions, the legislature has the power to declare that certain acts committed in a particular locality shall constitute a criminal offense, and be punished, although such acts would not be criminal if committed in another locality or section of the state.117 But it has no such power if the constitution declares that laws shall be uniform and equal throughout the state.118

37. Due Process of Law in General.

It is provided in the constitution of the United States that no state shall "deprive any person of life, liberty, or property without due process of law," and there are similar provisions in the various state constitutions. This provision is most frequently invoked against laws relating to procedure. In that connection it will be considered in another volume. It has also been invoked, however, to defeat statutes making acts criminal, and in this connection it may be shortly considered here.

38. Right to Follow Lawful Business or Occupation.

It has been held repeatedly that the right

117 People v. Hanrahan, 75 Mich. $11.

118 See Am. & Eng. Enc. Law, tit. "Statutes."

to liberty guarantied by the constitution embraces the right of a man "to exercise his faculties and to follow a lawful avocation for the support of life." 119 It embraces "the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." 120 It follows that a penal statute which, by making an act a crime, arbitrarily prohibits a man from following a lawful trade or business, and which is not sustainable as a reasonable exercise of the police power of the state, is unconstitutional and void.121

In a New York case, a statute making it a misdemeanor to manufacture cigars, in cities of more than five hundred thousand inhabitants, in any tenement house occupied by more than three families, except on the first floor of houses on which there might

119 Bertholf v. O'Reilly, 74 N. Y. 515, 30 Am. Rep. 323.

120 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.

121 In re Jacobs, supra; People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34; Frorer v. People, 141 Ill. 171; State v. Goodwill, 33 W. Va. 179; Braceville Coal Co. v. People, 147 Ill. 70.