Yutze v. Copeland
| Decision Date | 26 December 1923 |
| Docket Number | 17942 |
| Parties | Yutze v. Copeland, Chief Of Police |
| Court | Ohio Supreme Court |
Habeas corpus - Not writ of error - Constitutionality of statute to be challenged, how - Criminal law.
A writ of habeas corpus will not lie, to test the constitutionality of a statute or ordinance, in favor of one who has been convicted, where the criminal court wherein conviction was obtained had jurisdiction or power to determine the question of constitutionality. In such case the writ cannot be made a substitute for proceedings In error.
Yutze was arrested, tried, found guilty, and fined by the municipal court of Cincinnati for the violation Of the following ordinance:
etc.
Thereafter, being detained by the chief of police, he invoked the jurisdiction of the common pleas court by applying for a writ of habeas corpus, contending that the ordinance of the city was unconstitutional and void. His application was dismissed by that court, which held that although habeas corpus was a proper remedy, the ordinance was constitutional and valid. Error being taken to the Court of Appeals, that court affirmed the judgment of the lower court holding also that the ordinance was valid, but stating in the opinion "that a writ of habeas corpus will not lie to test the constitutionality of an ordinance, after conviction and before review." Error Is now prosecuted to this court, wherein it is sought to reverse the judgments of the lower courts.
Messrs Pogue, Hoffheimer & Pogue and Mr. Walter M. Locke, for plaintiff in error. Mr. Saul Zielonka, city solicitor, and Mr. Chauncey D. Pichel, prosecuting attorney of the Municipal Court, for defendant in error.
One question presented by this record is whether a writ of habeas corpus will lie to test the constitutionality of an ordinance in favor of one who has been convicted of its violation. Upon this question there is a contrariety of opinion in the various state jurisdictions. The text in 29 Corpus Juris, p. 35, and 12 Ruling Case Law, p. 1199, states that the weight of authority supports the rule that a court on habeas corpus proceedings may inquire into the constitutionality of a statute under which the petitioner has been convicted, and that if the statute proves to be unconstitutional the petitioner shall be discharged. Among other authorities which support this principle are the following: Ex parte Rollins, 80 Va. 314; Ex parte Smith, 135 Mo. 223, 36 S. W., 628, 33 L.R.A. 606, 58 Am.St. 576; Ex parte Harrison, 212 Mo. 88, 110 S. W., 700, 16 L.R.A. (N. S.), 950, 126 Am.St. 557, 15 Ann.Cas. 1; Servonitz v. State, 133 Wis. 231, 113 N. W., 277, 126 Am.St. 955; In re Unger, 22 Okl. 755, 98 P. 999, 132 Am.St. 670; In re Zany, 20 Cal. App., 360, 129 P. 295; In re Smith, 35 Nev. 82, 126 P. 655, 129 P. 308; and Harper v. Galloway, 58 Fla. 255, 51 So. 226, 26 L.R.A. (N. S.) 794, 19 Ann.Cas. 235.
On the other hand, almost an equal number of other state courts hold that the judgment of conviction in a criminal court, having jurisdiction of the offense, is not void because of the invalidity of the ordinance or statute under which the conviction may have been had, and that a writ of habeas corpus is not available to raise the question of unconstitutionality. Among the authorities so holding are the following: Koepke, Sheriff, v. Hill, 157 Ind. 172, 60 N. E., 1039, 87 Am.St. 161; In re Maguire, 114 Mich. 80, 72 N.W. 15; Ex parte Fisher, 6 Neb. 309; People, ex rel. Birkholz, v. Jonas, Constable, 173 Ill. 316, 50 N. E., 1051; and People, ex rel. Harris, v. Graves, 276 Ill. 350, 114 N. E., 556. Other cases might be cited, but they would only tend to show the wide difference of opinion upon the aspects of the case here presented.
The basis of the reasoning underlying the opin- ions of those courts which hold that habeas corpus is a proper remedy to test the unconstitutionality of a statute rests upon the conclusion that if the statute or ordinance be unconstitutional the court is entirely withOut jurisdiction; that it is in effect the same as if an offense were charged under a statute which did not exist; that in either case the cOurt would be powerless to act in any stage of the proceedings-in the issuance Of process, in the trial of the cause, or in pronouncing judgment upon such void statute or ordinance. Most of the courts which so hold place reliance upon the dicta used by the various federal judges of the United States Supreme Court, to which attention will he called later. Under the modern trend of authority, the courts holding otherwise, including, as we think, the Supreme Court of the United States, now rest their decision upon the well-known rule that habeas corpus is not the proper remedy to review errors, either of fact or law, that may occur in the trial of a criminal case; that, jurisdiction having been conferred, a criminal court is empowered to determine in the first instance the question whether a statute or ordinance, as the case may be, is violative of our Organic laws, and that if any error intervenes in the decision of the trial court the defendant has a right of review in the appellate courts, where the question of unconstitutionality may again be passed upon and determined. It would seem that this is the sensible view. Otherwise an offender might keep the card of unconstitutionality up his sleeve and later play it by invoking the writ of habeas corpus. And this he might do not only after trial and con- viction in the nisi prius court, but after full review in the appellate courts. If it be conceded that a conviction in the trial court would be absolutely void were the statute or ordinance upon which the violation was predicated unconstitutional, it then follows that a judgment of affirmance rendered by the Court of Appeals or the Supreme Court would likewise be void. Were that so, any one detained under such unlawful conviction and sentence could at any time apply to the court of common pleas, Court of Appeals, or Supreme Court, and collaterally attack any proceeding under which conviction was had. Indeed, the writ might be invoked even though the question of constitutionality were fully heard and determined by the trial and appellate courts.
Striped to its bare bones the real question is: What is meant by the word "jurisdiction?" The proponents of the argument favoring invocation of the writ argue that the court is not clothed with jurisdiction if the statute is unconstitutional. But it seems to us that they overlook the usual and ordinary meaning of the term. "Jurisdiction" is defined as the power to hear and determine. The court of first instance has power to hear and determine the law question as to whether the statute or the ordinance is constitutional or otherwise. If it is a civil case in which the unconstitutional feature of the statute is presented, there can be no doubt that the court hail jurisdiction to determine its constitutionality, and a judgment in such case would not be subject to collateral attack. Indeed some of our courts announce the rule that conviction upon an unconstitutional statute can- not be inquired into in habeas corpus, because such proceeding is equivalent to a collateral attack upon a criminal judgment in a case wherein that question could have been or had been determined. Recognizing, however, the divergent judicial pronouncements in this country upon this subject, we may be permitted to revert to what we consider the more recent opinions of the Supreme Court of the United States upon this controverted point, especially in view of the fact that many courts holding that habeas corpus is a proper remedy in such cases rely, in the main, upon what was said by Justices Bradley and Miller in Ex parte Siebold, 100 U.S. 371, 377, 25 L.Ed. 717, and Ex parte Yarbrough, 110 U.S. 651, 4 Sup. Ct., 152, 28 L.Ed. 274. In the latter (110 U.S. at page 654, 4 Sup. Ct., 153, 28 L.Ed. 274), Justice Miller used the following significant language:
"If the law which defines the offense ad prescribes its punishment is void, the court was without jurisdiction and the prisoners must be discharged."
Substantially the same language is used by a dictum in Ex parte Shaw, 7 Ohio St. 81, 70 Am.Dec. 55, but the constitutionality of law was not there involved. However, in more recent cases, the United States Supreme Court has held, that, while federal courts have discretion in habeas corpus in cases of conviction where it is claimed that the statute under which the conviction was had is violative of the organic law, it is only where exceptional circumstances intervene that such courts may order the release of convicted offenders, and that in the absence of such exceptions such com- plainants will not be allowed to test the constitutionality of the statute in habeas corpus, but will be relegated to the tribunals of the state court wherein such questions may be threshed out. Ex parte Royall, 117 U.S. 241, 6 Sup. Ct., 734, 29 L.Ed. 868; United States v. Valante, in. S. Adv. Ops., 192324, page 472, 44 S.Ct. 411, decided April 21, 1924.
In the Royall case it was urged by the petitioner...
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