Wangsness v. McAlpine (Ex parte McAlpine)

• Decision Date: 26 June 1924
• Docket Number: No. 5154.,5154.
• Citation: 199 N.W. 478,47 S.D. 472
• Parties: Ex parte McALPINE. WANGSNESS, Sheriff, v. McALPINE.
• Court: South Dakota Supreme Court

47 S.D. 472

199 N.W. 478

Ex parte McALPINE. WANGSNESS, Sheriff,

v.McALPINE.

No. 5154.

Supreme Court of South Dakota.

June 26, 1924.

Appeal from Circuit Court, Minnehaha County; J. T. Medin, Judge.

Application by Edna Alice McAlpine for writ of habeas corpus against Herman Wangsness, as Sheriff of the County of Minnehaha. From a judgment and order releasing applicant, the Sheriff appeals. Reversed and remanded, with directions.R. W. Parliman and R. W. Parliman, Jr., both of Sioux Falls, for appellant.

Danforth & Barron and Christopherson & Melquist, all of Sioux Falls, for respondent.

SHERWOOD, P. J.

This cause was before us on a motion to dismiss the appeal, and an opinion filed September 28, 1922, and reported in 190 N. W. 883, denied the motion to dismiss the appeal. The case is now before us on the merits.

Edna Alice McAlpine was convicted in the municipal court of Sioux Falls of a violation of the provisions of section 15, Ordinance 722 of the City of Sioux Falls, and sentenced to pay a fine of $50 and be imprisoned in the Minnehaha county jail at the rate of $1.25 per day until such fine was paid.

On May 18, 1922, on her refusal to pay the fine, she was committed to the county jail. She brought habeas corpus proceedings in the circuit court of Minnehaha county and was released by an order of the circuit court on May 18, 1922, and thereafter, Herman Wangsness, as sheriff of Minnehaha county, perfected an appeal to this court.

Two questions are presented by the appeal.

[1] First. Will habeas corpus lie to test the constitutionality of a city ordinance under which a person was convicted of a misdemeanor, or must the question of the constitutionality of the statute be raised by appeal?

It is said in 12 R. C. L. at page 1199:

“The weight of authority both federal and state is, however, to the effect that a court on habeas corpus proceedings may inquire into the constitutionality of the statute under which the petitioner has been convicted and sentenced, and, if it proves to be unconstitutional, discharge him, and this too irrespective of any other relief which may be available to him. The reason underlying this doctrine is that an unconstitutional act is no law at all, and that no court has a right to imprison a citizen who has violated no law, but that such act, even if done by a court under the guise and form of law, is as subversive of the right of the citizen as if it was done by a person not clothed with authority. So it is generally held that where the conviction and consequent restraint of a person are the result of a prosecution based upon a void municipal ordinance or regulation, the error is not merely an irregularity but fundamental, and may be reached by the writ of habeas corpus.”

This text is supported by a large number of federal and state cases reported in notes 14, 15, and 16 on pages 1199 and 1200, same volume. Also by cases cited in note on page 581 of 3 Ann. Cas. It would appear from these authorities, and we therefore hold, that habeas corpus will lie to test the constitutionality of the city ordinance under which the prisoner was convicted of a misdemeanor.

[2][3] The second question presented is as to the constitutionality of a part of section 15 of Ordinance No. 722 of the City of Sioux Falls. Section 15 of this ordinance is as follows:

“No person shall frequent any bawdy house, house of ill fame, prostitution or assignation, nor be an inmate or visitor of such house or houses, nor shall any person use or occupy any room, house or building within the city of Sioux Falls, for the purpose of unlawful sexual intercourse.”

It was alleged, and was the only offense charged in the complaint on which defendant was tried, that on October 24, A. D. 1921, she “did use and occupy a room in the city of Sioux Falls for the purpose of indulging in unlawful sexual intercourse,” contrary to the provisions of section 15, Ordinance 722. It will be seen that the question here raised refers only to that part of section 15 which reads as follows:

“Nor shall any person use or occupy any room, house or building within the city of Sioux Falls for the purpose of unlawful sexual intercourse.”

The particular points raised by this appeal are:

(a) Municipal corporations have only such powers as are conferred by legislative enactment or plainly implied.

(b) Our statute confers no power upon a municipal corporation to punish for unlawful sexual intercourse.

(c) No offense is charged under the statutes or any law of this state.

“It is well settled that a municipal corporation has only such powers as are clearly and unmistakably granted to it by its charter or by others acts of the Legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the corporation. Any fair and reasonable doubt concerning the existence of the power, or any ambiguity...