(dissenting) : With due respect for the-opinion of the majority as expressed above, I cannot concur in it. We are dealing now with the personal. *323liberty of the citizen, a sacred right, which can be affected only by positive law, duly administered. The penal laws of another state or territory are foreign laws in this state. They are strictly local and affect nothing more than they can reach. (Story, Confl. Laws, 8th ed., 840, 841.) A person convicted of an infamous offense is not thereby rendered incompetent to testify as a witness in another state. (Commonwealth v. Green, 17 Mass. 514.) In our courts the laws of other states must be proved as facts before they can be noticed. (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462.) While full faith and credit must, under the constitution of the United States, be given to the public acts, records and judicial proceedings of every other state (which has been held to include a territory), yet such records, judgments and proceedings do not have, under the constitutional provision, the same effect in other states. (Commonwealth v. Green, supra.) The laws enacted by the territorial assembly of Oklahoma are not laws of the United States. They sustain the same relation to the federal government that the ordinances of a city do to the state. In National Bank v. County of Yankton, cited in the opinion of the court, Chief Justice Waite said : “ Congress may legislate for them (territories) ... as a state-does for its municipal organizations.”
My associates lay much stress on the provisions of the act of congress which reads : <
‘‘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 con*324finement accordingly in such other territory or state, and all existing legislative enactments of any of the territories for that purpose are hereby legalized.”
That congress has power to legislate for the territories is not denied. I do, however, deny that the above enactment is self-executing, or that it empowers the territorial officers, having a convicted felon in charge, to carry him into this state for punishment without further territorial legislation to that end. There is a law, however, set out in the majority opinion, consisting of three sections of the Oklahoma statutes, giving authority to the governor of that territory to enter into contract with the proper authorities of any other state or territory for the care and custody of convicted persons. These sections of the statute have been proved to us on the hearing as facts. They have no force here as legislative acts. Under their authority the governor of Oklahoma has entered into a contract with the warden of the Kansas penitentiary, but I deny its validity for lack of mutuality. There is no vestige of legal authority for the making of it in existence under the laws of this state.
It will not be denied that Terrill could not have bound himself by contract with the governor of Oklahoma to go into confinement in the Kansas penitentiary. Liberty is an inalienable right. A state can .contract only through officers authorized by express legislative grant of power to do so, or by direct law. It is said, however, that the executive officers of the .state and the legislature have acquiesced in it. This I deny. They have acknowledged the fact that Oklahoma convicts were in the penitentiary at Lansing. ¡So have the convicts themselves, except Terrill, acquiesced in the lawfulness of their restraint for several years, and many of them have served out their terms *325of sentence. This recognition of the fact of confinement does not attest its legality nor retroactively validate a contract gratuitously made by certain state officers wholly lacking in legislative authority to bind their principal.
We must inquire, in such cases, whether the party imprisoned is deprived of his liberty by due process of law. If a question of civil obligation and liability should arise under this contract, could it be said that the state by any act of its officers, in recognition of its validity, had estopped itself from denying the binding force of the agréement ? Can the warden be compelled by mandamus to take Oklahoma convicts which he has agreed in his contract to receive ? Can the state of Kansas, upon the default of Oklahoma to pay for feeding its prisoners, recover on the contract ? Does that which was done by the governor, the warden and the directors of the penitentiary or other officérs operate as an estoppel against the state ? If there were a law of this state declaring it competent for the warden and directors of the penitentiary to enter into this contract, a question would arise not presented in this case.
No person can be deprived of his liberty here except by due process of law; that is, either by state law or the paramount federal law. The prisoner’s detention is by virtue of neither. He is restrained by process of fact. The act of congress above quoted, giving authority to the legislative assemblies of the territories to make provision for the care and custody of territorial convicts, lodges the power granted to be exercised by the territorial legislature. Without an act of the assembly of Oklahoma (which, as stated, can have no extra-territorial force) congress has not undertaken to exercise its superior power of sending *326the territorial prisoners here, which it might, no doubt,, do. The fact that congress authorizes a territorial legislature to enact a law does not give such law, when passed, the force of ah act of congress. The authorization does not make the territorial act the supreme law of the land. This state has, by express statute, made it the duty of the warden of the penitentiary to keep any criminal convicted of a crime against the United States and sentenced to imprisonment therein by any federal court. (Gen. Stat. 1901, §7049.) There is no such power, however, vested in the warden respecting persons convicted in the courts of any other state or territory.
The illustration made in the majority opinion for the purpose of showing that a prisoner on his way from Oklahoma to Nebraska to undergo imprisonment in the latter state would not be discharged by our courts, though not in custody by virtue of our laws,is not apt. If the contract for his imprisonment were lawfully made by Oklahoma and Nebraska, it can be answered as the majority say about Terrill’s incarceration now — that the prisoner’s detention would be a mere incident to his conviction. It is probable that by comity between nations, in the absence of treaties on the subject, a person convicted in England of a crime, and lawfully sentenced to be transported, might be carried through the United States by the English authorities to some place of punishment beyond the United States, an English penal colony, and that his detention here while en route would be lawful. It is a sufficient answer to the question put by the majority, based on a hypothetical case, to say that the facts of the supposed case are not the facts involved here.
Congress did not reserve to itself in the statute *327quoted the power of sending Oklahoma prisoners to another state, but delegated that power to the Oklahoma legislature, to be exercised by it alone. It is only by saying that a law of a territory passed under congressional authority is the supreme law of the land that the present case can be brought within the reasoning of Ex parte Karstendick, referred to in the majority opinion. The attorney-general in his brief quotes from Hauenstein v. Lynham, 100 U. S. 483, 490, 25 L. Ed. 628, as follows :
‘1 It must always be borne in mind that the constitution, laws and treaties of the United States are as much a part of the law of every state as its own local laws and constitution. This is a fundamental principle in our system of complex national polity.”
This is merely an amplification of the language of the constitution of the United States, yet it falls far short of saying that the laws of a territory passed under congressional authority become a part of the law of every state. As well contend that ordibances of a city, enacted concerning any municipal matter about which the legislature has authorized the mayor and council to legislate, are laws of the state. When the legislature grants power to a city to pass ordinances respecting municipal affairs, the state law conferring the power or authority does not operate to do the thing which the mayor and council are given power to do. Is á state law which authorizes a city to enact ordinances suppressing nuisances violated by a person who maintains a nuisance within a city?
The argument here is that a bare congressional grant of authority to the legislature of a territory, authorizing it to enact statutes making provision for the incarceration in other states of persons convicted of violating territorial laws, is to be so construed that *328such convicts can be lawfully sent to prisons in other states under the law of congress, although the territory does not exercise the authority given and passes no law on the subject. The federal statute gives the right to the territorial legislature to contract for the care and custody of its prisoners. The whole section quoted above confers such authority on the lawmaking body of the territory, and when that body acts under the grant the expressions of its will are not the supreme law, and rank no higher, and are invested with no greater dignity, than the laws of any state in the union. In the Karstendick case, the prisoner violated a statute of the United States and was convicted in a federal court in Louisiana. He was sentenced to confinement in the West Virginia penitentiary. The court, in the opinion, refers to a law of the United States providing that persons convicted of crime in any court of the United States in a district or territory where there is no suitable prison shall be confined in some prison in a convenient state or territory, to be designated by the attorney-general. The latter officer designated West Virginia as a place of confinement. The case is not in point.
The petitioner here was not convicted of a crime against the United States. He is, therefore, not detained in the Kansas penitentiary by due process of the laws of the United States. He did not violate them. His offense was against the laws of a territory, enacted, not by congress, but by the legislature of Oklahoma. The law he violated prescribes a punishment for the crime. It has no force here. It comes to our knowledge as any other fact. It follows that Terrill is not held in prison in Kansas by due process of the laws of Oklahoma. It is clear that his imprisonment is not founded on due process of any law *329of this state, for he is held here without law. He is detained by contract, under an agreement made by agents of the state wholly destitute of power, to bargain with respect to the prisoner's liberty.
It is foreign to the question to argue that the petitioner is suffering that punishment only which was adjudged in the sentence of the court. Lawful imprisonment only can justify his detention. I think the prisoner should be discharged.