State ex rel. Dunn v. Noyes

• Decision Date: 16 March 1894
• Citation: 58 N.W. 386,87 Wis. 340
• Parties: STATE EX REL. DUNN, SHERIFF, v. NOYES ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 340

58 N.W. 386

STATE EX REL. DUNN, SHERIFF,

v.NOYES ET AL.

Supreme Court of Wisconsin.

March 16, 1894.

Certiorari to circuit court, Milwaukee county; D. H. Johnson, Judge.

Certiorari by the state on the relation of Michael Dunn, sheriff, to review habeas corpus proceedings in which there were orders for the discharge of Francis W. Noyes and Eugene S. Elliott. Orders reversed.L. Hammel, Dist. Atty., and Jared Thompson, Jr., Asst. Dist. Atty., for relator.

W. C. Williams and Hugh Ryan, for defendants.

ORTON, C. J.

The same questions being in both these two cases, they will be considered and disposed of together. They are brought before this court by a common-law writ of certiorari, to review the proceedings in habeas corpus of the judge of the circuit court of Milwaukee county, by which the defendants in error were discharged from imprisonment. The pleadings in the habeas corpus and the certiorari proceedings show the following facts: On the last day of the October term of the municipal court of Milwaukee county, 1893, the grand jury of said court found and returned true bills of indictment against the defendants and four other persons, under section 4541, Rev. St., for having fraudulently received deposits as directors of the Plankinton Bank of Milwaukee, knowing at the time said bank to be insolvent. The defendants were detained by virtue of commitments on failure to enter into recognizance, issued out of said municipal court, after their arraignment and pleas of not guilty. There was no grand jury summoned, selected, or impaneled for the said October term of said court, but the grand jury acting for said term, and which found said indictments, was the same grand jury duly impaneled for said court, at and for the previous September term thereof. No order was made by said court directing a grand jury for said October term, and no grand jury was summoned for said term. The said grand jury was ordered, summoned, and impaneled for said September term by an order dated August 3, 1893; and the said grand jury convened at the September term, on September 12, 1893, and entered upon the investigation leading to said indictments, but the same was not concluded during the said September term, and for such reason they continued their sittings over and into the said October term, and until the last day of said term, when the said indictments were found, and duly returned. On the last day of the September term the said court adjourned to October 2, 1893, which was the first day of the October term. The same grand jury found and returned several other indictments and against other persons during said October term. On these facts the learned judge of the circuit court discharged the defendants, holding that said indictments were void, and that the said municipal court had no jurisdiction, therefore, to issue the writs for the arrest or the commitments for the detention of the defendants. I say that this was the ground upon which the defendants were discharged, because the want of jurisdiction in the municipal court was the only ground upon which the defendants could have been discharged on habeas corpus. Although this is made a question on this hearing, it is no longer an open question in this court. It has been repeatedly decided by this court that nothing less than jurisdictional defects in the proceedings can be considered, or justify a discharge of the prisoner on habeas corpus, for errors and irregularities which do not go to the jurisdiction of the court may be inquired of on motion, appeal, or writ of error. The last paragraph of section 3428, Rev. St., provides: “But no such court or officer on the return of any such writ [habeas corpus] shall have the power to inquire into the legality or justice of any judgment, order or execution,” etc. This is a limitation on the power of a judge or court to inquire of nothing less than jurisdictional defects in the proceedings on which the imprisonment is based. Mr. Justice Taylor, in State v. Sloan, 65 Wis. 647, 27 N. W. 616, so held after an examination of the previous cases in this court, and cited People v. Liscomb, 60 N. Y. 571-604; Ex parte Lange, 18 Wall. 163; Ex parte Gibson, 31 Cal. 628; Hurd, Hab. Corp. 327; In re Perry, 30 Wis. 268;In re Crandall, 34 Wis. 177;In re Semler, 41 Wis. 517;Hauser v. State, 33 Wis. 678. To these may be added In re Schuster, 82 Wis. 610, 52 N. W. 757;In re Graham, 74 Wis. 450, 43 N. W. 148;In re French, 81 Wis. 597, 51 N. W. 960.

We take it for granted that the learned judge of the court below held that the municipal court had no jurisdiction to issue the writs and commitments on which the defendants were arrested and imprisoned, on the ground that the indictments on which they were based were void, and that the indictments were void, because not found by a lawful grand jury. The decision of the court below depended, then, on the legality of the grand jury that found the indictments. That question is supposed to be before us on this certiorari. But, as we understand the law, the court below had no right in this collateral proceeding to inquire into the legality of that grand jury, and decide it to have been an illegal body, without authority to find the indictments; nor has this court the right to so inquire and decide. We are precluded from inquiring and determining whether the body of men that acted as a grand jury in finding the indictments was a grand jury de jure by the barrier the law sets up to protect the acts of that body in the interest of the public and public justice as a grand jury de facto. “The de facto doctrine, which was introduced into the law as a matter of policy and necessity to protect the interests of the public where those interests were involved in the official acts of persons exercising the duties of an officer without being a lawful officer,” has its most salutary application to the acts of a grand jury, and of other official instruments of the courts which constitute judicial proceedings. The courts are supposed to select and determine the qualifications of their subordinate official instruments necessary to the administration of justice. Their acts cannot be questioned without seriously affecting the proceedings of the courts, and the conclusiveness of their judgments. The grand jury in question was summoned, selected, impaneled, and sworn for the September term of the court, and held its session and did business during that term. There is no question but that it was a legal grand jury throughout the September term. On the last day of that term this same body adjourned, with the court, to the first day of the October term, and continued its unfinished business. It is contended that this body became functus officio as a grand jury on and after the last day of the September term. It was recognized by the court as a lawful grand jury, and the court received the indictments found by it, and finally discharged it from further service, and ordered the payment of its fees. The legal grand jury of the September term simply held over its term. There cannot be a more appropriate application of the de facto...