Dowd v. Grazer, 29030

Citation116 N.E.2d 108, 233 Ind. 68
Case DateDecember 15, 1953
CourtSupreme Court of Indiana

Page 108

116 N.E.2d 108
233 Ind. 68

No. 29030.
Supreme Court of Indiana.
Dec. 15, 1953.

[233 Ind. 70]

Page 109

Edwin K. Steers, Atty. Gen., Carl M. Franceschini, Dep. Atty. Gen., for appellant.

James C. Cooper, Public Defender, Richard M. Givan, Dep. Public Defender, Rushville, for appellee.


On his application for writ of habeas corpus appellee was discharged from the custody of appellant as Warden of the Indiana State Prison.

The application recites that appellee is held on a commitment issued by the Elkhart Superior Court on December 19, 1939; that on said date appellee was found guilty of the offense of resisting an officer with intent to commit bodily injury and of being an habitual criminal; that he was sentenced to the Indiana State Prison for one year for the first offense and to life imprisonment on the habitual criminal charge. Appellee asserts that his restraint is illegal in that the court was without jurisdiction to sentence him on the habitual criminal charge because the Habitual Criminal Act of Indiana 1 is unconstitutional and void as being in violation of Art. I, § 37 of the Indiana Constitution and the Thirteenth Amendment to the Constitution of the United States.

Appellant contends that the constitutionality of a statute may not be tested in an habeas corpus proceeding.

[233 Ind. 71] Insofar as the record before us discloses no appeal was taken from the judgment entered by the Elkhart Superior Court on December 19, 1939, nor have we otherwise been advised that any appeal was taken by appellee from the judgment by which he was committed to the custody of appellant.

If appellant is correct in his position, we need not decide the constitutionality of the Habitual Criminal Act. In view of this situation we shall first consider appellant's contention that the constitutionality of a statute may not be first raised in an habeas corpus proceeding.

Appellee is here attempting, by collateral attack, to have a statute declared unconstitutional in order to establish that the judgment by which he is restrained is void.

The identical question here presented was before this court in Koepke v. Hill, 1901, 157 Ind. 172, 60 N.E. 1039.

Appellee Hill was convicted for the violation of a city ordinance. In his petition for a writ of habeas corpus he alleged "that his restraint is illegal in this, that said pretended ordinance [under which he was restrained] is repugnant to the Constitution of the State of Indiana and to the Constitution of the United States, and is beyond the authority of the city of Evansville * * *.'

Appellant in that case asserted that the question of the proper construction of the various constitutional provisions, and of the statute conferring power upon cities, and of the ordinance, was not open to investigation in habeas corpus proceedings.

Page 110

At pages 176, 177 and 178 of 157 Ind., at page 1040 of 60 N.E., this court said:

'In this state, however, the holdings have been to the effect that, whenever a court is confronted [233 Ind. 72] with a question which it has a right to decide correctly, its erroneous judgment will not be subject to a collateral attack, irrespective of whether the mistake of law concerned the common, or statutory, or constitutional law. Wright v. State, 5 Ind. 290, 61 Am.Dec. 90; Cassel v. Scott, 17 Ind. 514; Wentworth v. Alexander, 66 Ind. 39; Lowery v. Howard, 103 Ind. 440, 3 N.E. 124; Willis v. Bayles, 105 Ind. 363, 5 N.E. 8; McLaughlin v. Etchison, 127 Ind. 474, 27 N.E. 152, 22 Am.St.Rep. 658; Board of Children's Guardians v. Shutter, 139 Ind. 268, 34 N.E. 665, 31 L.R.A. 740; Jones v. Cullen, 142 Ind. 335, 40 N.E. 124; Hiatt v. Town of Darlington, 152 Ind. 570, 53 N.E. 825; Pritchett v. Cox, 154 Ind. 108, 56 N.E. 20; Winslow v. Green, 155 Ind. 368, 58 N.E. 259; Webber v. Harding, 155 Ind. 408, 58 N.E. 533; Peters v. Koepke, [156 Ind. 35], 59 N.E. 33. * * * The common law, the statutes, and the constitutions make up the law of the land. They are all law. On principle it is not perceived why a mistake in constitutional law should be visited with more serious consequences than a mistake in common or statutory law. * * * In this case an affidavit was presented to the police court of the city of Evansville, charging appellee with violations of a city ordinance. There was no other court of original jurisdiction in which the charge could be filed and determined. The court was in duty bound to act. It had to decide whether the facts stated made a case within the ordinance, and whether the ordinance was within the delegated legislative power of the city, and, if so, whether the ordinance and statute authorizing it conflicted with any provision of the constitution. These were all questions of law, and, if the court had jurisdiction to decide them correctly, it likewise had jurisdiction to decide them erroneously.'

In Cruthers v. Bray, 1903, 159 Ind. 685, 65 N.E. 517, quoting from Platt v. Harrison, 6 Iowa 79, 81, 71 Am.Dec. 389, 390, in considering the question as to whether an affidavit charged a public offense, this court, 159 Ind. at pages 686, 687, 65 N.E. at page 517, said:

[233 Ind. 73] "The argument is that the ordinance was passed without authority of law and was null and void. Whether it was or not was a legitimate subject of inquiry by the magistrate, in the same manner as any other question which might be presented for his adjudication. And being determined by him adverse to the position of the prisoner, his remedy was by appeal or writ of error, and not by habeas corpus. It is not a case where a court has acted without having jurisdiction. On the contrary, the most that can be claimed is that the magistrate erred in deciding that the ordinance was in force, and that the city had the power and authority to provide for the punishment of the offense. Such cases we do not think can be reviewed in this manner. The petitioner has a perfect, well-defined, and complete remedy in the regular and usual method of appeal. After conviction by a court having jurisdiction, though the conviction may be irregular or erroneous, the party is not entitled to this writ. The judgment and proceedings of another competent court cannot be revised upon habeas corpus."

See also Tullis v. Shaw, 1908, 169 Ind. 662, 83 N.E. 376; Baker v. Krietenstein, 1916, 185 Ind. 693, 114 N.E. 445; Shideler v. Vrljich, 1925, 195 Ind. 563, 145 N.E. 881; Stephenson v. Daly, 1928, 200 Ind. 196, 158 N.E. 289; Goodman v. Daly, 1929, 201 Ind. 332, 165 N.E. 906.

The rule announced and followed in the foregoing cases has been the law in Indiana for more than fifty years, and we

Page 111

are not disposed to change it, even though the majority rule 2 is to the contrary.

A writ of habeas corpus cannot be used as a substitute for a writ of error or for an appeal. Smith v. Hess, 1883, 91 Ind. 424, 428; Shoemaker v. Dowd, Ind.Sup.1953, 115 N.E.2d 443, and cases there cited.

[233 Ind. 74] The Elkhart Superior Court is a court of general jurisdiction and is a proper court in which to prosecute violations of the criminal laws of the state. The offense with which appellee was charged is within the class of offenses placed by law under its jurisdiction.

The affidavit charging appellee with being an habitual criminal was presented to the Elkhart Superior Court. It was one of two courts of original jurisdiction in Elkhart County in which such charge could be filed and tried. The record here does not disclose, nor have we been advised, that any court of competent jurisdiction had declared the Habitual Criminal Act to be unconstitutional either prior to the time of appellant's trial in the Elkhart Superior Court or prior to the time of the filing of his application for a writ of habeas corpus in the LaPorte Circuit Court. It was the duty of the Elkhart Superior Court to act. It had to decide whether the facts stated in the affidavit constituted an offense within the statute and whether the statute (Habitual Criminal Act) was in conflict with any of the provisions of the state or federal constitutions. Having the power to decide these questions, it could decide them correctly or incorrectly.

If the question of the constitutionality of the Habitual Criminal Act had been presented to the Elkhart Superior Court at the time of appellee's trial and that court had held the act unconstitutional, it would have had jurisdiction to render a judgment acquitting appellant. Must it not then follow that had the constitutionality of the statute been presented to the trial court and it had held the act constitutional, it would have had jurisdiction to render a judgment finding appellee guilty as charged in the affidavit? Can it be said that a court has jurisdiction to decide a question of law correctly but is without jurisdiction to decide the same question incorrectly?

[233 Ind. 75] The reason for the minority rule which Indiana had followed is ably stated by the Supreme Court of Ohio in Yutze v. Copelan, 1923, 109 Ohio St. 171, 142 N.E. 33, at page 34, 32 A.L.R. 1048, affirming, 1923, 17 Ohio App. 461, as follows:

'The basis of the reasoning underlying the opinions of those courts which hold that habeas corpus is a proper remedy to test the unconstitutionality of a statute rests upon the conclusion that if the statute or ordinance be unconstitutional the court is entirely without jurisdiction; that it is in effect the same as if an offense were charged under a statute which did not exist; that in either case the court would be powerless to act in any stage of the proceedings--in the issuance of process, in the trial of the cause, or in pronouncing judgment upon such void statute or ordinance. Most of the courts which so hold place reliance upon the dicta used by the various federal judges of the United States Supreme Court, * * * . Under the modern trend of authority, the courts holding otherwise, including, as we think, the Supreme Court of the United States, now rest...

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  • Saloom v. Holder, 572A215
    • United States
    • Indiana Court of Appeals of Indiana
    • October 18, 1973
    ...174, 216 N.E.2d 737, 217 N.E.2d 858; City of Indianapolis v. Dillon (1937), 212 Ind. 172, 6 N.E.2d 966. See also: Dowd v. Grazer (1953), 233 Ind. 68, 116 N.E.2d 108; State v. Steinwedel, supra. Accord, Wilt v. Bueter (1916), 186 Ind. 98, 111 N.E. 926; Turner v. Sievers (1919), 73 Ind.App. 3......
  • Harling v. Department of Health and Social Services, 69-C-560.
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    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
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  • Cotner v. Henry, 16601.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 29, 1968
    ...372, 373. Despite ambiguous language in Koepke v. Hill, 157 Ind. 172, 60 N.E. 1039, 1041, the Supreme Court of Indiana in Dowd v. Grazer, 233 Ind. 68, 116 N.E.2d 108, held that habeas corpus is not available to a prisoner to test the constitutionality of a statute because a conviction, even......
  • Myers v. State, 28952
    • United States
    • Indiana Supreme Court of Indiana
    • January 27, 1954
    ...1923, 193 Ind. 599, 141 N.E. 341; Scharillo v. State, 1934, 207 Ind. 22, 191 N.E. 76; Mandich v. State, 1946, 224 Ind. 209, 66 N.E.2d 69. [233 Ind. 68] The evidence discloses that the appellant was one of several who had an opportunity to commit the offense. It further discloses that he had......
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