Ex parte Hulet

• Decision Date: 15 October 1930
• Docket Number: 22630.
• Parties: Ex parte HULET.
• Court: Washington Supreme Court

292 P. 430

159 Wash. 98

Ex parte HULET.

No. 22630.

Supreme Court of Washington

October 15, 1930

Department 1.

Original application by James Hulet for writ of habeas corpus against the Sheriff of Grays Harbor County.

Writ denied.

J. A Kavaney, of Centralia, for petitioner.

Austin M. Wade, of Aberdeen, and A. P. Wilson, of Montesano, for respondent.

John H Dunbar and John C. Hurspool, both of Olympia, amicus curiae.

BEALS J.

James Hulet files in this court his petition for a writ of habeas corpus directed to the sheriff of Grays Harbor county, who petitioner alleges, is unlawfully keeping him in restraint. An order to show cause having been issued, and respondent sheriff having made his return thereto, the matter is now before the court for determination.

It appears that petitioner, having been charged before a justice of the peace for Montesano precinct with the offense of manufacturing intoxicating liquor for the purpose of sale, pleaded guilty to the charge, and was by the justice sentenced to serve ninety days in the county jail and pay a fine of $600. Petitioner was convicted of violation of chapter 122, Laws of 1921 (Session Laws of 1921, p. 398; Rem. Comp. Stat. § 7338), the pertinent portion of which reads as follows:

'An Act relating to intoxicating liquors, and amending sections 3193, 3194, Pierce's Code.

'Be it enacted by the Legislature of the State of Washington: * * *

'Every person convicted of the manufacture of intoxicating liquor for the purpose of sale, barter or exchange thereof shall be punished by a fine of not less than $500 nor more than $1,000, and by imprisonment in the county jail for not less than ninety days nor more than six months. Every person convicted a second time of the manufacture of intoxicating liquor for the purpose of sale, barter or exchange thereof shall be punished by a fine of not less than $1,000 nor more than $2,000, and by imprisonment in the county jail for not less than six months nor more than one year.

'The provisions and penalties of this section are independent of those of Sec. 3179h of [292 P. 432] Pierce's Washington Code relating to the offenses of 'jointist' and 'bootlegger' which shall remain in full force and effect.

'Every justice of the peace shall have jurisdiction to hear and determine any offense in this section prescribed and to impose any punishment in this section provided except in cases where previous conviction under this section is charged.'

Petitioner contends that under the statutes of this state the jurisdiction of justices of the peace for precincts other than cities of the first class, under circumstances similar to those disclosed by the record herein, is limited to the imposition of a fine not exceeding $100, or a sentence of not to exceed 30 days in the county jail. Petitioner contends that, in so far as the sentence imposed upon him by the justice exceeds these limits, the same was unlawful, and that petitioner, after serving so much of the sentence as lies within what he contends is the jurisdiction of the justice, is entitled to his discharge. It is admitted that, at the time of the institution of this proceeding, petitioner had served so much of his sentence as, according to his contention, the justice could lawfully impose. If, then, the sentence, as pronounced by the justice, was in excess of that which the law vested the justice with jurisdiction to pronounce, petitioner is entitled to his discharge, unless, as contended by respondent, the remedy by way of a writ of habeas corpus is not available to petitioner.

Petitioner entered a plea of guilty before the justice, and respondent contends that petitioner cannot test the constitutionality of the sections of the statute under which he was sentenced by applying for a writ of habeas corpus, but that these questions can be presented to this court only on appeal.

It is, of course, true that, as a general rule, a writ of habeas corpus may not be sought for the purpose of testing the constitutionality of a statute under which the person seeking the writ was convicted. State ex rel. Jahn v. Searing, 120 Wash. 117, 207 P. 5; In re Voight, 130 Wash. 140, 226 P. 482, 483; In re Hammar, 134 Wash. 51, 234 P. 1018; Thomas v. Phelan (Wash.) 289 P. 51. These cases declare the doctrine that the constitutionality of an act cannot be tested by habeas corpus, but must be presented to this court on appeal. As stated in the opinion in Re Voight, supra, quoting from the opinion in the case of Smith v. Hess, 91 Ind. 424: "A judgment by a court of competent jurisdiction, valid upon its face,' and a valid commitment under it, 'is an unanswerable return to a writ of habeas corpus."

The general rule above referred to does not, however, apply to the case at bar, which falls under the exception which was the basis of the decision of this court in the case of State ex rel. Wagner v. Superior Court, 144 Wash. 71, 256 P. 784. In that case it appeared that one Wagner, having been convicted before a justice of the peace on the charge of unlawful possession of game, was found guilty and sentenced to pay a fine in the sum of $250. In default of paying this fine, Wagner was imprisoned in the county jail, whereupon he applied to the superior court for a writ of habeas corpus. The trial court having sustained a demurrer to his petition and entered judgment dismissing the same, upon appeal this court reversed the ruling of the trial court and held that, upon the facts stated in Wagner's petition, it appeared that the fine imposed by the justice was beyond his jurisdiction, and that the justice had therefore attempted to impose a punishment beyond that which under the law he had authority to direct. It was held that the justice had no power to try the case against Mr. Wagner because it could not impose the sentence required by law. While some of the language in the case cited is possibly inappropriate to the situation which was then before the court, the result reached was correct, and it was properly held that the petitioner was entitled to test the validity of the sentence imposed upon him, and his commitment pursuant thereto, by way of habeas corpus. While the statute under which Mr. Wagner was sentenced mandatorily fixed a penalty entirely beyond that which under the law the justice had the power to impose, and in the case at bar a portion of the penalty provided by the statute falls within the ordinary jurisdiction of a justice of the peace, we deem this immaterial in view of the sentence actually imposed by the justice upon the petitioner herein, and we hold that under the circumstances disclosed by this record petitioner may test the validity of the sentence, pursuant to which he is now confined, by way of an application for a writ of habeas corpus. It would seem that, in the prosecution of Mr. Wagner for violation of the game laws, the justice of the peace did in fact have power, as a committing magistrate, to hear the case, but, because of the sentence provided for by law, had no authority to find the accused guilty, but had authority only to bind him over to the superior court for trial. It may be that, in the opinion of this court in the Wagner Case, supra, the jurisdiction of the justice, as a committing magistrate, to hear the case, was confused with the assumed jurisdiction of the justice to try the case, find the accused guilty, and impose sentence, which latter jurisdiction was clearly lacking. So, in the case at bar, if petitioner's assertion that the statute under which he was tried and sentenced is unconstitutional should be held correct, the judgment entered by the justice against petitioner, and the sentence imposed thereunder, at least in so far as the same exceeds the statutory jurisdiction of the justice, would be wholly void and susceptible to attack by way of habeas corpus.

This brings us to the merits of the controversy, whether the justice had lawful authority to try petitioner and impose the sentence which was imposed, or any sentence, and whether or not the laws under which petitioner was charged, tried, and sentenced are constitutional. The Legislature, pursuant to article 4, section 10, of the State Constitution, enacted section 46, Rem. Comp. Stat., defining the jurisdiction of justices of the peace, which section has never been repealed or directly amended, and reads as follows: 'Justices of the peace shall have jurisdiction concurrent with the superior courts of all misdemeanors and gross misdemeanors committed in or which may be tried in their respective counties: Provided, that justices of the peace in cities of the first class shall in no event impose greater punishment than a fine of five hundred dollars, or imprisonment in the county jail for six months; and justices of the peace other than those elected in cities of the first class shall in no event impose greater punishment than a fine of one hundred dollars, or imprisonment in the county jail for thirty days.'

The title to chapter 2, Section Laws of 1915 (Initiative Measure No. 3), reads as follows: 'An Act relating to intoxicating liquors, prohibiting the manufacture, keeping sale and disposition thereof, except in certain cases, the soliciting and taking of orders therefor, the advertisement thereof and the making of false statements for the purpose of obtaining the same, declaring certain places to be nuisances and providing for their abatement, regulating the keeping, sale and disposition of intoxicating liquors by druggists and pharmacists, the prescription thereof by physicians, the transportation thereof, and providing for the search for and seizure and destruction thereof, prescribing the powers and duties of certain officers, and the forms of procedure and the rules of evidence in cases and...