In Re Squires.

• Decision Date: 02 October 1945
• Docket Number: No. 1206.,1206.
• Citation: 44 A.2d 133
• Parties: In re SQUIRES.
• Court: Vermont Supreme Court

44 A.2d 133

In re SQUIRES.

No. 1206.

Supreme Court of Vermont.

Oct. 2, 1945.

Original proceeding in the matter of the petition of Edward J. Squires for a writ of habeas corpus to obtain release from confinement in the state prison.

Petitioner adjudged not illegally deprived of liberty and remanded to state prison and his petition dismissed.

R. Lawlor Cooper, of Springfield, for plaintiff.

Alban J. Parker, Atty. Gen., for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

BUTTLES, Justice.

This is a petition for a writ of habeas corpus brought directly to this Court, seeking release from confinement in the state prison at Windsor. On August 25, 1943, in Bennington Municipal Court the petitioner was convicted, on a plea of guilty, to violation of the first clause of P.L. 8618, which provides for the punishment of a ‘person who induces, entices or procures a female person to come into the state or to go from the state for the purpose of prostitution or for any immoral purpose.’ On the same day sentence was imposed of imprisonment in the state's prison for not less than three nor more than seven years and he was forthwith committed. By this proceeding the petitioner has challenged the legality of his conviction and commitment on various grounds, only one of which is for our consideration, since it is the only one that has been briefed and argued. In re Everett's Will, 105 Vt. 291, 306, 166 A. 827. It is contended that the statute under which the petitioner was convicted is unconstitutional because in conflict with the Act of Congress of June 25, 1910, known as the White Slave Traffic or Mann Act, 18 U.S.C.A. §§ 397 to 404, by which, it is asserted, Congress has exercised its power under the commerce clause of the federal constitution, Const. art. 1, § 8, cl. 3, over the same subject.

The appropriateness of a habeas corpus proceeding to determine this contention is not and could not be successfully questioned. The weight of authority is that a court may determine in a habeas corpus proceeding the constitutionality of the statute under which the petitioner is held and, if it proves to be unconstitutional, discharge him irrespective of the stage of the prosecution against him under the statute, irrespective of whether he has been convicted, and likewise irrespective of any other relief which may be available to him. 25 Am. Jur. Habeas Corpus, § 29. The reason for this rule is thus tersely stated in Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717: ‘An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.’

This view is supported by our own cases. In re Hook, 95 Vt. 497, 503, 115 A. 730, 19 A.L.R. 610; In re Dawley, 99 Vt. 306, 314, 131 A. 847; In re Dewar, 102 Vt. 340, 344, 148 A. 489, 490. In the last named case the petitioner had refused to disclose the source from which he had obtained liquor and was committed for contempt. He sought relief by habeas corpus proceedings, alleging the unconstitutionality of the statute which required a disclosure. This Court said, citing the Siebold case, supra, that the writ of habeas corpus ‘affords an appropriate means of attacking the jurisdiction of a court, not only its jurisdiction over the person or the subject-matter, but its jurisdiction to make the very order or render the particular judgment called in question. So if it turns out that the statute under which the justice of the peace ordered the petitioner to disclose is in conflict with constitutional provisions, he was wholly without jurisdiction to demand the testimony sought, or to make the order of commitment. In that case, the order was not merely erroneous, it was illegal and void, and could not be the basis of a lawful imprisonment; and it would be the duty of this court, in these proceedings, to set the prisoner free, though we thereby exercise a jurisdiction more or less appellate in character.’

In considering the constitutional question every presumption is to be made in favor of the constitutionality of the statute, and it is not to be adjudged unconstitutional without clear and irrefragable evidence that it infringes the paramount law. State v. Clement Nat. Bank, 84 Vt. 167, 200, 78 A. 944, Ann.Cas.1912D, 22; Gross v. Gates, 109 Vt. 156, 164, 194 A. 465; Waterbury v. Melendy, 109 Vt. 441, 447, 199 A. 236. It is well settled that Congress, in the exercise of its constitutional power to regulate foreign and interstate commerce, could lawfully enact the White Slave Traffic Law. Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523; Athanasaw v. United States, 227 U.S. 326, 33 S.Ct. 285, 57 L.Ed. 528, Ann.Cas.1913E, 911. It is also settled that the law applies to purposes of private immorality unaccompanied by expectation of pecuniary gain, as well as to purposes of commercialized vice. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168.

The petitionee contends that the State was not without jurisdiction in this case even though the federal government might also have jurisdiction and the same acts of the respondent might also be punishable under the federal law. It is true that the same act may constitute a crime equally against the United States and the State, subjecting the guilty party to punishment under the laws of each, provided the act is one over which both sovereignties have jurisdiction. State v. O'Brien, 106 Vt. 97, 104, 105, 170 A. 98; United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 142, 143, 67 L.Ed. 314. Such concurrent or parallel jurisdiction has been upheld with respect to violations of the former state and national liquor prohibition laws, as in the two cases above cited; violations of a state and a national law against counterfeiting or possessing or passing counterfeit bank notes, as in State v. Randall, 2 Aikens 89; of a state law against larceny, and a federal statute against embezzlement from a national bank, as in Commonwealth v. Barry, 116 Mass. 1; of a state and a national law against harboring slaves and preventing their recapture, as in Moore v. Illinois, 14 How. 13, 14 L.Ed. 306, 309.

There is, however, an important distinction between such cases where both sovereignties have jurisdiction and cases where Congress has acted under the paramount authority given to it by the Constitution to regulate commerce with foreign nations and among the several states. The grant in the Constitution of that power to Congress, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce must give way before the supremacy of the national authority. Smith v. Alabama, 124 U.S. 465, 8 S.Ct. 564, 566, 31 L.Ed. 508. It follows that to the extent that Congress has prohibited interstate transportation of women for immoral purposes, and activities incidental to such transportation, the State is deprived of jurisdiction which it otherwise might have, under its police power, of the same subject matter. However a prosecution may be had under a state statute for soliciting or inducing a female to leave the state for an immoral purpose where, by the terms of the statute, the offense is complete where the solicitation is made or the inducement offered without any step being taken toward the transportation of the female to another place. 42 Am.Jur., Prostitution, § 7, page 266. State statutes which do not cover the same subject matter do not conflict with the federal statute so as to be invalid. 15 C.J.S., Commerce, § 126, page 490.

In considering whether there is such conflict it is necessary to consider just what is prohibited by the federal act. It is only the second, third and fourth sections of that act that could be applicable, 18 U.S.C.A. §§ 398, 399 and 400. § 398 reads:

‘Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining...