In re W. A. Jarvis

• Decision Date: 07 February 1903
• Docket Number: 13,400
• Citation: 66 Kan. 329,71 P. 576
• Parties: In re W. A. JARVIS
• Court: Kansas Supreme Court

71 P. 576

66 Kan. 329

In re W. A. JARVIS

No. 13,400

Supreme Court of Kansas

February 7, 1903

Decided January, 1903.

Original proceeding in habeas corpus.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Habeas Corpus -- Application after Conviction. Where a defendant has been convicted of a misdemeanor in justice's court and no appeal has been had, and the time for an appeal has expired, he may challenge the constitutionality of the statute under which he was convicted in an application to this court for a writ of habeas corpus.

2. CONSTITUTIONAL LAW -- Pedler's License Act Unconstitutional. Chapter 271, Laws of 1901 (Gen. Stat 1901, §§ 3922-3929), so far as it exacts the payment of a license-tax by non-residents, from which certain residents of the state are exempted by the fact of their residence, is repugnant to the provision of the federal constitution that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Alden & McFadden, for petitioner.

A. A. Godard, attorney-general, J. S. West, and James Clayton, for respondent.

MASON J. All the justices concurring.

OPINION

MASON, J.:

A prosecution was begun before a justice of the peace in Ness county, charging the defendant, W. A. Jarvis, with a violation of chapter 271, Laws of 1901 (Gen. Stat. 1901, §§ 3922-3929), commonly known as the "pedler's license act." The defendant was tried, convicted, and sentenced. He asks this court to discharge him upon habeas corpus, on the ground that the act referred to is unconstitutional.

The state files a motion to quash the writ, and submits the whole matter upon the motion, urging that, even if the unconstitutionality of the statute were conceded, the petitioner could not be discharged in this proceeding, under the rule recently announced in In re Gray, 64 Kan. 850, 68 P. 658. The doctrine of the Gray case, however, does not extend to the case at bar. In that case the petitioner was arrested and held for trial under an ordinance which he claimed to be unconstitutional. This court refused to examine into and determine the question, so sought to be raised, in advance of the decision of the court before which the matter was pending. There the very question which this court was asked to decide was in a fair way to be speedily determined in the lower court, and the petitioner, if aggrieved by the decision, had his remedy in the ordinary course of judicial proceedings by appeal. The court held that, as the prisoner was held under process issued upon what was, in effect, an information, the statute did not authorize an inquiry into the validity of the custody upon habeas corpus. But in the present case the petitioner has been convicted and sentenced, and is held upon a commitment issued not upon an indictment, information, or complaint, but upon a final judgment.

It has been held in many well considered cases that even after conviction the defendant will not be permitted to have the constitutionality of the act under which he is prosecuted investigated upon habeas corpus. The argument is that the judgment of the trial court upholding the validity of a statute in fact unconstitutional is not a nullity, but binds the parties unless vacated upon direct attack by proceedings in error. The greater weight of authority however, favors the view that an unconstitutional law is a nullity--is no law at all--and that a conviction under it is not merely erroneous, but void, and subject to collateral attack upon habeas corpus. This view doubtless results more from a jealous regard for the personal liberty of the citizen, than from the force of the reasoning employed as applied to other subjects of litigation. The authorities upon both sides of the question are collated and discussed in a note to Koepke v. Hill, 87 Am. St. Rep. 161, 174, 157 Ind. 172, 60 N.E. 1039, and in a note to Hovey v. Elliott, 39 L. R. A. 449, 450, 145 N.Y. 126, 39 N.E. 841. But this case...