DISSENTING OPINION. The act under which appellant was convicted (Acts 1923 p. 70) provides: "that any person violating this section, upon conviction shall be fined not less than $100 nor more than $500,to which shall be added imprisonment in the county jail of not less than thirty days nor more than six months, for the first offense. . . ." It further provides that: "the court trying cases under this section shall not have the power to suspend the sentence either upon a conviction or a plea of guilty."
The act defining the jurisdiction of the city judge provides (Acts 1921 p. 404, § 2) that he: "shall have power to assess a fine in any sum not exceeding $500 or adjudge *Page 517 imprisonment as part of the sentence for any time not exceeding six months in the county jail, workhouse or other lawfully designated place of confinement, or both."
The special judge of the city court either without knowledge of the law or in gross disregard of what he knew the law to be, rendered judgment in the case of State of Indiana v. WilliamHunnicutt assessing a fine of $100 and costs and imprisonmentin the Indiana State Prison for a period of not less than oneyear nor more than two years.
It is elemental that the judgment of the court may be attacked in the collateral proceeding of habeas corpus, if the court: (1) did not have jurisdiction over the defendant; (2) did not have jurisdiction over the subject-matter; or (3) did not havejurisdiction to render the particular judgment in question. 29 C.J. 31, Brown, Jurisdiction (2d. ed.) § 110, note, 87 Am. St. 173. Church, Habeas Corpus (2d. ed.) § 368, names four elements of jurisdiction: (1) Person; (2) place; (3) subject-matter; and (4) "jurisdiction of the court to render the particular judgment in question," citing many cases to support the last named element. In 12 R.C.L. 1197 it is said:
"While some of the earlier decisions inclined to the view that when a court had jurisdiction of the subject-matter and of the person of the defendant its judgment was conclusive on habeas corpus, it is now generally conceded that in order to render a judgment immune from attack the court must have had not only jurisdiction of the subject-matter and of the person of the defendant, but also authority to render the particular judgment in question, and if either of these elements is wanting the judgment is fatally defective and open to collateral attack. Jurisdiction to render the particular sentence imposed is deemed as essential to its validity as jurisdiction of the person or subject-matter." *Page 518
A court is not a court of "competent jurisdiction" within the meaning of § 1200 Burns 1926 unless it has jurisdiction as above set out. Such statutes prohibiting inquiry into a detention under the judgment of a court having jurisdiction do not preclude an examination into the question of jurisdiction. 29 C.J. 32.
I do not believe that the city court of Bluffton had jurisdiction to render the judgment in question here. It is not merely a case where a court decided wrong when it should have decided right, but is a case where the judgment is entirely void and not merely erroneous. The words "to which shall be addedimprisonment" in the act as quoted above convince me that the city court did not have power "to assess a fine of $100 and to enforce the collection of this fine" as is stated in the prevailing opinion. Under this statute the city court could not impose a fine only but was required on a finding of guilty to impose a judgment of fine and imprisonment, and was expressly divested by the same statute of power to suspend its sentence of imprisonment. The part of such a judgment imposing the fine, for that reason is not severable from the part imposing the imprisonment, and the cases relating to "severable sentences" are thus clearly distinguished.
Likewise the cases cited involving "excessive sentences" are not applicable here. The principle of those cases applied here would be that a fine of less than $500 and imprisonment up to six months would be valid and enforceable and the additional imprisonment beyond six months would be void. But the distinguishing feature of this case is that the imprisonment assessed was in the Indiana State Prison, where the minimum sentence is one year, and a sentence to one year in a prison cannot by any possible means be divided up into a valid six months imprisonment in a jail and a void six months imprisonment in a state prison. *Page 519
The appellant having received a void sentence should be released on habeas corpus, but he should be remanded' to the sheriff of Wells county to be by him detained for proper sentence by the city court of Bluffton. In re Charles Harris, (1896),68 Vt. 243, 35 A. 55; In re Bonner (1893), 151 U.S. 242, 14 Sup. Ct. 323, 38 L.Ed. 149. In the first of the cases just cited the court said:
"The court had no power to sentence the petitioner to imprisonment in the state prison; it had no jurisdiction to impose such a sentence. There is, consequently, no escape from the conclusion that the sentence was in violation of the statute. In imposing the sentence, the court exceeded its powers, and its action, therefore, was void. In re Mills, 135 U.S. 263." . . . "The record before us shows that the petitioner was properly convicted. The error was in the sentence, and there does not seem to be any good reason why jurisdiction of the petitioner should not be reassumed by the court in which he was convicted, that he may be properly sentenced. To prevent the defeat of justice we may well remand the petitioner to the custody of the sheriff of Caledonia county, that he may be taken before the county court and sentence properly imposed. In re Bonner, 151 U.S. 242."
In the Bonner case the United States Supreme Court said:
"A question of some difficulty arises, which has been disposed of in different ways, and that is as to the validity of a judgment which exceeds in its extent the duration of time prescribed by law. With many courts and judges — perhaps with the majority — such judgment is considered valid to the extent to which the law allowed it to be entered, and only void for the excess. Following out this argument, it is further claimed that, therefore, the writ of habeas corpus cannot be invoked for the relief of a party until the time has expired to which the judgment should have been limited. But that *Page 520 question is only of speculative interest here, for there is here no question of excess of punishment. The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the writ of habeas corpus in such a case is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source — equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals." (My italics.)
The court held that the petitioner was "entitled to a writ ofhabeas corpus directing his discharge from the custody of the warden of the state penitentiary, but without prejudice to the right of the United States to take any lawful measures to have the petitioner sentenced in accordance with law upon the verdict against him."
I believe that the judgment in the instant case should be reversed and that the Wells Circuit Court should be directed to sustain appellant's exceptions to the return of the writ ofhabeas corpus, and discharge appellant from the custody of the sheriff under the void order of the city court of Bluffton, but without prejudice to the right of the State of Indiana to have appellant sentenced in accordance with law upon the finding against him and remanding appellant to the custody of said sheriff in order that the city court of Bluffton may deal with him according to law.