People ex rel. Campbell v. District Court of Second Judicial Dist. of Arapahoe County

• Decision Date: 17 July 1899
• Citation: 58 P. 608,26 Colo. 380
• Parties: PEOPLE ex rel. CAMPBELL, Atty. Gen., v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF ARAPAHOE COUNTY et al. (two cases).
• Court: Colorado Supreme Court

58 P. 608

26 Colo. 380

PEOPLE ex rel. CAMPBELL, Atty. Gen., v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF ARAPAHOE COUNTY et al. (two cases).

Supreme Court of Colorado

July 17, 1899

APPLICATIONS FOR writs of prohibition by the people, on the relation of David M. Campbell, attorney general, against the district court of the Second judicial district of Arapahoe county and Hon. George W. Allen, judge, to restrain the discharge of Charles N. Hanford and Henry Ernest, convicted of unlawfully keeping and exhibiting a certain gaming device, on habeas corpus. Granted.

This is an original application to this court for a writ of prohibition to restrain the district court of Arapahoe county and the Honorable George W. Allen, one of the judges of said court, from hearing and determining the applications of Charles N. Hanford and Henry Ernest for writs of habeas corpus. The facts upon which the right to this writ is predicated, as set out in the petition, are, in brief, as follows: Hanford was in November, 1898, convicted in the county court upon the charge of violating the Sunday closing act, and sentenced to pay a fine and costs. Upon being committed under this sentence, he sued out of the district court a writ of habeas corpus, and upon the hearing thereof was discharged by the respondent, Hon. George W. Allen, upon the ground that that act is unconstitutional, and also upon the further ground that the act conferring jurisdiction upon county courts in misdemeanor cases (Sess. Laws 1889, p. 101) is also unconstitutional and void because of defect of title. Thereafter Hanford and Ernest were tried and convicted upon two informations in the county court of Arapahoe county charging them with unlawfully keeping and exhibiting a certain gaming device and apparatus in said county, and were sentenced to pay a fine and to undergo imprisonment in the county jail in each case, and in pursuance of such sentences were committed to the custody of the sheriff of Arapahoe county. Thereupon they made separate applications to the district court of Arapahoe county for writs of habeas corpus. Alternative writs were awarded by respondent, and directed to the sheriff of Arapahoe county, returnable forthwith whereupon this present application was made, and an alternative writ granted. In the return or answer, respondent challenges the materiality and relevancy of the matters alleged in reference to the former proceeding, and presents a certified copy of the proceedings had upon the habeas corpus applications, which are in substance as averred in the petition.

David M. Campbell, Atty. Gen., Calvin E. Reed Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., and S. S. Abbott, Asst. Dist. Atty., for petitioner.

Tom E. McClelland (Greeley W. Whitford, of counsel), for respondents.

PER CURIAM.

The question here presented is whether the district court, under our habeas corpus act, can discharge a person who is held in custody by virtue of a commitment issued in pursuance of a judgment and sentence of the county court upon a conviction for a misdemeanor, on the ground that the act conferring jurisdiction upon county courts in misdemeanor cases, or the act providing for their prosecution, is unconstitutional,--in other words, whether the district court can, in this collateral proceeding, go back of the commitment and judgment, and review the decision of the county court upon either of these questions, and reverse and set aside its judgment in case it is of the opinion that the county court was mistaken in its conclusion. The importance of the question becomes apparent when we realize that if it be once conceded that such power exists, and the district court sees fit to exercise it, it may neutralize every conviction for misdemeanor in any county court, or even district court within the state, when a constitutional question is raised and, in every case where it may deem the objection well taken, discharge the prisoner, and thus prevent this court from ever considering or determining the question. It is very manifest, therefore, that, if such power exists, it should only be exercised when the exigencies of the case are such that the prisoner cannot avail himself of a writ of error or appeal. Upon the question as to the right of the court, on habeas corpus, to inquire into the constitutionality of the law under which the petitioner is held in custody, the authorities are not agreed. Some of the cases go to the extent of holding that no inquiry can be made if the party is detained under the final decree or judgment of a competent court, and that no imprisonment is illegal where the process is a justification of the officer. Com. v. Lecky, 1 Watts, 66; Ex parte Winston, 9 Nev. 71; In re Lybarger, 2 Wash. St. 131, 25 P. 1075. In others it is held that the court will not, on habeas corpus, look beyond the judgment to determine the constitutionality of the statute under which the conviction took place, and that this question must be tested on appeal or writ of error. In re Harris, 47 Mo. 164; Ex parte Boenninghausen, 21 Mo.App. 267; Id., 91 Mo. 301, 1 S.W. 761; Ex parte Bowler, 16 Mo.App. 14; Ex parte Fisher, 6 Neb. 309; In re Pikulik, 81 Wis. 158, 51 N.W. 261; In re Schuster, 82 Wis. 610, 52 N.W. 757. Ex parte Watkins, 3 Pet. 193, in effect announces the same doctrine. The application for discharge in that case was based upon the ground that the indictment charged no offense for which the prisoner was punishable in the circuit court of the District of Columbia. Chief Justice Marshall, who delivered the opinion of the court, said: 'The circuit court for the District of Columbia is a court of record, having general jurisdiction over criminal cases. An offense cognizable in any court is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties. The decision of...