Servonitz v. State

Decision Date15 October 1907
Citation113 N.W. 277,133 Wis. 231
CourtWisconsin Supreme Court


Syllabus by the Judge.

A writ of habeas corpus only reaches jurisdictional error; it cannot properly be made to perform the office of a writ of error.

By the common law if the court in any given case has authority under any circumstances to render judgment imprisoning the accused the error in reaching the one pronounced is judicial, remediable by writ of error; if the court has no such authority the error is jurisdictional, remediable by writ of habeas corpus.

In case a judgment in any criminal action is grounded on an unconstitutional law it has no legitimate basis and is void, hence a person imprisoned thereunder may obtain his release by writ of habeas corpus.

So far as habeas corpus proceedings are proper in some circumstances to remedy mere excess of jurisdiction not falling within the strict common-law rule above stated, they are referable to statutes.

The Legislature may reasonably regulate procedure in respect to habeas corpus, but cannot restrict the common-law use of the remedy; that is preserved by the Constitution.

Sections 3408, 3427, St. 1898, providing that no person shall be entitled to prosecute a writ of habeas corpus who shall have been committed or detained by virtue of the final judgment or order of any competent tribunal and the court must make an order remanding the prisoner upon its appearing that he is detained by virtue of the final judgment of a competent court, are in harmony with the Constitution. Within the meaning of the statute, a court has no jurisdiction, and so is not competent, by its judgment to give force to an unconstitutional law.

Under the rule that “the writ of habeas corpus does not reach beyond the commitment when the person is detained by virtue of a final order or judgment of a court having jurisdiction of the subject-matter and the person,” no such jurisdiction can be obtained to enforce an unconstitutional law.

The Legislature may treat the occupation of hawker or peddler by itself, as regards exactions for police regulations and occupation taxes.

Under the rule as to classification for the purposes of legislation, special as to the class but general as to the members thereof, there may be a broad general class and sub-classification. The sub-classification of hawkers or peddlers according to the particular method adopted of reaching customers, rendering one class likely to reach more than another and to do a correspondingly greater amount of business both as to number of transactions and the amount of money involved, is legitimate, both as to police regulations and occupation taxes.

Error to Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Application of Isaac Servonitz for writ of habeas corpus. From a judgment remanding him to further custody, he brings error. Affirmed.

Plaintiff in error was charged, in due form of law, in the district court of Milwaukee county, a tribunal having jurisdiction of infractions of general state police regulations occurring in said county, with having violated chapter 490, p. 858, Laws of Wisconsin for 1905, by peddling without a license. Such proceedings were had in the action in such court that he was in due form found guilty and sentenced to pay a fine of $25.00, and the costs of prosecution, taxed at $4.33, and to stand committed to the house of correction in Milwaukee county until payment should be made, not exceeding in all sixty days. He was imprisoned accordingly and thereupon sued out a writ of habeas corpus before a court commissioner to obtain his release upon the ground that the law aforesaid was void. Such proceedings were then duly had before the circuit court for Milwaukee county that the commissioner's decision was reversed, and the accused was remanded to the former custody.

John F. Donovan and Adolph Huebschmann, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and A. C. Titus, Asst. Atty. Gen. (Dorr, Gregory & Stiglbauer, of counsel), for the State.


The point is made that a habeas corpus proceeding is not the proper remedy to test the validity of a judgment under which a person is restrained of his liberty. In support thereof the general principle is invoked, that the writ of habeas corpus only reaches jurisdictional error; that it cannot properly be used so as to serve the mere purpose of a writ of error. The cases so holding in this and other courts are very numerous. The principle is so elementary that it is useless to refer to authorities in respect thereto.

Before applying the conceded rule to a case like this; one where the validity of the judgment is involved, it is necessary to determine whether the error claimed to exist is jurisdictional or judicial. In the absence of any statute extending the scope of the writ the test in respect thereto is this: Could the court under any circumstances of the case have properly rendered a judgment against the accused? If jurisdiction of the person is obtained so that the court might under some circumstances render a valid judgment in the cause against the accused, but error is committed in reaching a final result, then such error is judicial, reviewable only upon a writ of error. If the court, though having no jurisdiction to render judgment against the accused at all, renders judgment it is void. In the latter circumstances a writ of habeas corpus is proper. Speaking on the subject in State ex rel. Welch v. Sloan, Circuit Judge, 65 Wis. 647-651, 27 N. W. 616, the court said:

“It is only when the court pronounces a judgment in a criminal case which is not authorized by law under any circumstances, in the particular case made by the pleadings, whether the trial has proceeded regularly or otherwise, that such judgment can be said to be void, so as to justify the discharge of the defendant held in custody by such judgment.”

The rule stated is about as old as the writ itself. It is stated thus in Bac. Abr. Hab. Corp. B. 10: “If the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the courts are to discharge.” So also Chief Justice Abbott in Rex v. Suddis, 1 East, 306, phrased the principle this way:

“It is a general rule that, where a person has been committed under the judgment of another court of competent criminal jurisdiction, this court (the King's Bench) cannot review the sentence upon a return to a habeas corpus.” That this court has gone further in favor of the use of the writ than the quoted language would warrant is not material to this case. In re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. 285, suggests this remark. That case, In re Ida Louise Pierce, 44 Wis. 411, and perhaps others, deal with excess of jurisdiction and are referable to section 3428, St. 1898.

It has been a mooted question in some jurisdiction whether in case of a conviction under an unconstitutional law the judgment rendered thereon can be impeached in a habeas corpus proceeding to vindicate the right of the prisoner to his liberty, but the authorities are in general harmony that in such a case the trial court obtains no jurisdiction whatever; that the judgment rendered is utterly void, and so can be collaterally called in question. Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, is a leading case on the subject. In discussing the subject the court said:

“The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. * * * An unconstitutional law is void. * * * An offense created by it is not a crime. A conviction under it is not only merely erroneous, but is illegal and void. * * * The question of the court's authority to try and imprison the party may be reviewed on habeas corpus. * * * We think so, because, if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.”

The foregoing rules the point under discussion in favor of the plaintiff in error unless it be otherwise by reason of the statutory regulation of the writ of habeas corpus (sections 3408, 3427, St. 1898), providing that “no person shall be entitled to prosecute such writ who shall have been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction or by virtue of any execution issued upon such order or judgment. * * * The court or judge must make a final order to remand the prisoner if it shall appear that he is detained in custody * * * by virtue of the final judgment or order of any competent court of civil or criminal jurisdiction or of any execution issued upon such judgment or order.”

If the Legislature purposed by such sections to take away from circuit courts the common-law power exercisable by use of the writ of habeas corpus it misconceived its authority. The circuit courts take their power in the matter from the Constitution, not from the Legislature. They look only to the organic act for the source of their authority the same as the Legislature must do for limitations upon its field of action. The former always bow to the latter branch of the government as regards reasonable regulations of the exercise of their constitutional authority, but guard with strictest care against any invasion thereof. A law providing that the writ of habeas corpus cannot issue to vindicate the right to personal liberty where the imprisonment, though it be pursuant to a judgment of a court and with all the forms of law but it is nevertheless void, would be clearly such an invasion.

Speaking on this subject under circumstances, as regards constitutional and statutory provisions similar to those we have here, the New York Court of Appeals in People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211, said substantially this: The statute regulates the exercise of jurisdiction in the use of the writ of habeas corpus, but the writ cannot be...

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  • Stark v. Backus
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    ...can abrogate or impair its efficiency: People ex rel. Tweed v. Liscomb, 60 N.Y. 559 (19 Am. Rep. 211); Servonitz v. State, 133 Wis. 231 (113 N.W. 277, 126 Am. St. Rep. 955); from all of which we conclude that the use of the writ, as it was available at common law, is still available in cour......
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    ...* * *.' The question of classification is primarily for the legislature, both as to need and basis. In Servonitz v. State, 1907, 133 Wis. 231, 239, 113 N.W. 277, 280, the court said: 'In considering the subject we must bear in mind that the policy of classification is a matter wholly within......
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