Koepke v. Hill

• Citation: 157 Ind. 172, 60 N.E. 1039
• Case Date: June 21, 1901
• Court: Supreme Court of Indiana

157 Ind. 172
60 N.E. 1039

KOEPKE, Sheriff,
v.
HILL.

Supreme Court of Indiana.

June 21, 1901.

Appeal from circuit court, Vanderburg county; H. A. Mattison, Judge.

Habeas corpus by Paul C. Hill against Martin Koepke, as sheriff. From an order overruling his motion to quash the writ, defendant appeals. Reversed.

Gilchrist & De Bruler and Duncan C. Givens, for appellant. Posey & Chappell, for appellee.

BAKER, J.

On his application for a writ of habeas corpus appellee was discharged from the custody of appellant as sheriff of Vanderburg county. The facts shown by the petition are these: In 1893 the legislature gave to cities of the class to which Evansville, in Vanderburg county, belongs, the right “to license, tax and regulate branch stores or establishments and all other concerns established in said city for temporary business only.” Section 3927 Burns' Rev. St. 1894. The city of Evansville, in 1894, passed and promulgated an ordinance entitled “An ordinance to license, tax and regulate branch stores or establishments and all other concerns established in the city of Evansville for temporary business only.” The first section declared “that it shall be unlawful to establish, conduct or maintain any branch store or establishment or any other store or concern in said city for temporary business only, without first procuring a license therefor.” The second section fixed the license fee at $25 a day for the first 30 days and $10 a day for each day thereafter. The third section prescribed how an application for license should be made. The fourth section denounced the maintenance of branch or temporary stores without license, and provided a fine for each day's violation. The fifth section declared an emergency. The sixth and last section repealed conflicting ordinances. In 1899 appellee, as agent of a Chicago house, opened in Evansville a temporary store for the sale of works of art. The business was innocuous to public morals. After appellee had conducted the business for some time, 26 affidavits were filed in the police court of the city of Evansville, each charging that appellee, on a day named, “did violate sections 3 and 4 of an ordinance of said city, which ordinance was duly passed by the common council of said city on October 8, 1894, and duly published according to law on October 9 and 16, 1894, by then and there unlawfully establishing, locating, conducting, and maintaining a temporary store for the sale of pictures and merchandise in the city of Evansville for temporary business only, without first procuring a license to do so.” Warrants were issued, upon which appellee was arrested, and brought before the court. He pleaded not guilty, was tried, convicted, and sentenced in each case to pay a fine of $10 and costs. On default of payment of the fines, mittimuses were issued, on which appellee was committed to the custody of appellant as sheriff, and the time of commitment had not expired when appellee's petition for habeas corpus was filed in the Vanderburg circuit court. Appellee, in his petition, alleged “that his restraint is illegal, in this: that said pretended ordinance 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, because no such power has been granted to it by its charter or the laws of the state.” Appellant's motion to quash the writ was overruled, and error is assigned on that ruling, among others.

Counsel for appellee very forcefully contend that the ordinance is invalid on the grounds stated in the petition. Counsel for appellant with equal vigor argue to the contrary, but first insist that the question as to the proper construction of the various constitutional provisions, and of the statutes conferring powers upon cities, and of the ordinance of the city of Evansville, was not open to investigation on habeas corpus proceedings. Whether or not this contention is true is a question that lies at the threshold of the case. Section 1119, Rev. St. 1881 (section 1119, Horner's Rev. St. 1897; section 1133, Burns' Rev. St. 1894), provides that: “No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction.” The police court of the city of Evansville is a court of record, and the statute creating it expressly declares that “all its judgments, decrees, orders and proceedings shall have the same force and effect as those of the criminal or circuit courts except that no judgment shall be a lien on real estate otherwise than is provided by taking transcript.” Acts 1893,...