— The validity of the warrant of commitment is questioned by petitioner’s counsel on two grounds: First, on the ground that the statutory provisions first above quoted have been repealed by nec*88essary implication resulting from the enactment of section 3841, supra, and second, that if not thus repealed, that they are unconstitutional. Counsel for the state denies that chapter 169 has been repealed in consequence of the enactment of section 3841, and insists that the statutory provisions under which petitioner was found to be a vagrant, are not obnoxious to any constitutional objections.
Where one statute on any given subject is in existence, and another statute is passed on the same subject, ‘but with different provisions, but yet not covering perhaps the whole subject embraced in the first one, and no repealing words are used, it-is sometimes quite difficult to determine whether the first statute is repealed in whole or only in part, or whether the provisions of the second statute are merely cumulative in character. This dfficulty confronts us in the present instance.
If, however, chapter 169, a part of which has been quoted, has been repealed as a result of the subsequent enactment, then clearly the justice was without jurisdiction in the premises; the same effect follows if the statute on which his authority is supposed to rest is violative of the organic law.
This being the case, it is thought best to assume, for the purpose of this discussion, that the position of the state is correct, that chapter 169, has not been repealed, as by so doing the merits of this cause can be more satisfactorily reached than if the discussion should proceed on the theory that the statute in question were no longer in force in consequence of the passage of the subsequent act. And should it be determined that chapter 169, is invalid on constitutional grounds, then of course all necessity for determining its repeal or non-repeal is thereby obviated.
Pursuing the course indicated, let comparison be instituted between the statute and the constitution in *89■order to settle the question whether the former is in ■conflict with the latter.
Section 2, of article 1, of the constitution of this •state adopted July 4, 1865, declares: “That there cannot he in this state either slavery or involuntary .servitude, except in punishment of crime, whereof the ■party shall have been duly convicted.”
This section has now become section 31, of article 2, of our present constitution, and .is substantially a "literal transcript of a like provision contained in the ■ordinance of 1787, penned by the hand of Thos. Jeffer.son, and this in substance is section 1, of the thirteenth -amendment to the constitution of the United States.
That petitioner has been guilty of no crime, stands ■conceded by the state, as indeed it must have been, considering the terms of the statute under which proceedings were had against him. That those proceedings, if -allowed to reach their anticipated and ultimate development would result in the imprisonment of the petitioner, in his being subjected to involuntary servitude and to punishment, is equally clear; for imprisonment ■occurs whenever another is detained or deprived of the power of locomotion against his will; involuntary ■servitude is but the condition of a person compelled to do service for another, and punishment is “the penalty for transgressing the law.” Wharton’s Law Dictionary. Or it is any evil or inconvenience consequent upon ■crime or misdemeanor. ’4 Bl. Com. 7.
So that the constituent elements of this case are: Imprisonment, punishment and involuntary servitude without any charge, proof or legislative enactment •establishing the act of petitioner to have been a crime.
The question then is, can a statute which authorizes such proceedings as are here brought under review, stand before the prohibitions of our state and federal ■constitutions? In this investigation, it is. needless to *90cite authorities like that of Byers v. Commonwealth, 42 Pa. St. 89, which assert familiar rulings in regard to-the arrest and commitment of vagrants, or professional thieves when about to ply their vocation; for in those cases the constitutional point .now in hand was. neither involved nor passed upon. Precedents precisely in point have not been found, but petitioner’s counsel have cited some cases which are analogous to the present one.
Thus in an early case in Indiana, it was ruled that though an adult negress had voluntarily bound herself' by indenture and for a valuable consideration to serve the obligee for the term of twenty years, yet it would not be enforced upon her, because to do so would be to impose upon her “involuntary servitude” in violation of the constitution of that state. Clark’s case, 1 Blackf. 122.
In Turner’s case, the petitioner was a young negress who was indentured to her former master until she should become eighteen years of age. Under the. law of Maryland, persons thus apprenticed were allowed to be assigned and transferred at the will of the master to any person in the county, the authority of the master over such an apprentice was described as-a “property and interest,” and in other important particulars differed from indentures prescribed for white apprentices, and upon this it was held on habeas corpus that such an apprenticeship was involuntary servitude-within the meaning of the first clause of the thirteenth amendment of the federal constitution and the petitioner was discharged. 1 Abb. U. S. C. C. 84.
In the Slaughter Houses cases, 16 Wall. 36, and in the Civil Rights cases, 109 U. S. 36, it was held that-while the thirteenth amendment was primarily intended to abolish African slavery, yet it was broad enough to-extend, and did extend to every form of involuntary *91servitude within the United States, or within their jurisdiction whether the rights involved were, those of the white or of other races. Touching the amendment now under discussion an eminent jurist says: “Throughout the land involuntary servitude is abolished by constitutional amendment, except as it may be imposed in the punishment of crime. Nor do we ■suppose the exception will permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities in the manner heretofore customary. The laws of the several states allow the letting of the services of the convicts, either singly or in numbers, to contractors who are to employ them in mechanical trades in or near the prison, and under the surveillance of its officers; but it might well be doubted if a regulation which should suffer the convict to be placed upon the auction block and sold to the highest bidder, either for life or for a term of years, would be in harmony with the constitutional prohibition.” Cooley on Constitutional Limitation [6 Ed.], 363.
In this case it will be observed that just what Judge Cooley supposed might be within the range of possibility, would have occurred but for the intervention of this court. The case he puts, however, is in relation to suffering a “convict to be placed on the auction block and sold to the highest bidder.” If such a proceeding would fall under the ban of constitutional prohibitions, then a fortiori would a like result follow where, as here, the proposed object of sale has not been so much as accused of crime.
The 11 convict" may lawfully be condemned to involuntary servitude; to imprisonment in punishment of Ms crime; not so with one in similar circumstances to those of petitioner. Doubtless he might be proceeded against and punished under the provisions of *92section 3811; which makes the act of being a vagrant punishable as a crime; but in no other way, if obedience is due to express constitutional prohibitions.
The premises considered, we hold that the law under which petitioner is restrained of his liberty contravenes the constitution of the United States and of this state, and he is therefore entitled to be discharged, and it is so ordered.
All concur.