I very deeply regret to be forced to dissent from the majority opinion, but after a careful and unbiased analysis of what I consider to be the underlying question involved, I am constrained to believe that the majority opinion is not rested upon the correct premise. To my mind, the sole underlying and decisive question is simply whether the Criminal Court of Appeals has authority to set aside the final decisions and mandates of this court. Under the Constitution and statutes there is but one answer, No. Yet that is what the Criminal Court of Appeals has sought to do, what it has attempted to do in this case; therefore, I see no need for discussing or passing upon the relative superiorities of the two courts, nor whether the one or the other be inferior. The question is not what the Criminal Court of Appeals might have power to do in given cases, but whether it has any semblance of power to do what it attempted to do in this case, viz., set aside the final order, judgment, and mandate of this court.
Outside of the parties immediately interested in this litigation, I doubt whether a lawyer can be found in the state who would for a moment contend that the Criminal Court of Appeals has any such authority.
This court need not attempt to define what the Criminal Court of Appeals may do, because, in view of the present situation, it is impossible to foresee what may be attempted. But this court should say, once and forever, that the Criminal Court of Appeals has no semblance of authority, either from the statute or Constitution to set aside a final order, judgment, and mandate of this court.
The basis of its assumption of jurisdiction in this matter is found in paragraph 14 of the syllabus to the opinion under review, to wit:
"When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty, upon habeas corpus, to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law."
The language of the above syllabus — *Page 46
"When a person is held in custody under a void order of commitment, or is imprisoned without due process of law"
— constitutes the real basis for its assumption of jurisdiction. Hence, the question arises, When this court, in a matter properly before it, has passed its final judgment and issued its final commitment, then what court in this state has judicial authority to say that such commitment is void and set it aside? The answer is that no state court has any semblance of such authority.
I believe the commitment upon which the Criminal Court of Appeals assumed jurisdiction, aside from the fact that it constitutes the final mandate of this court, is without material defect even in form.
But even if it were defective in form, and though the Criminal Court of Appeals might entertain the idea that it was void, and that the party confined had been deprived of due process of law, still that court has no authority to set it aside.
The judgment of this court, in a matter properly before it, that the commitment is valid, and that the party imprisoned has been afforded due process of law, is final, under the Constitution and statutes and other authorities cited in the majority opinion, and the Criminal Court of Appeals, nor any other state court, has any authority to set it aside.
If it be true that the complaining party has in reality been denied due process of law, then the federal courts are open to him and have authority to grant him whatever relief he may show himself entitled to receive, but no state court has authority to set aside the final orders, judgments, and mandates of this court.
But the Criminal Court of Appeals has assumed to say that the mandate of this court is void, and the mandate being void, the party has been deprived of due process of law, hence we will assume to set aside the mandate of the Supreme Court.
In its attempt to justify the exercise of jurisdiction, the Criminal Court of Appeals resorts to a lengthy discussion and exhaustive review of authorities on the sacred right of the writ of habeas corpus.
We will not take the time nor give space to review and answer the discussion by the Criminal Court of Appeals of this question, for, frankly, we do not feel that it merits answer.
No one will deny that any person deprived of his liberty has the right to apply, to petition, for a writ of habeas corpus, yet no one would claim that every person who applies for a writ of habeas corpus is entitled to a discharge under such writ. If this were true, that every applicant for a writ of habeas corpus is entitled to a discharge, then our jail and penitentiary doors would immediately be spread ajar, and if the theory upon which the Criminal Court of Appeals bases its authority be true, then upon the same theory this court could, under a writ of habeas corpus, discharge every convict confined in the penitentiary under final order and judgment of the Criminal Court of Appeals.
It is most fervently hoped, however, that this court will never be so constituted as to attempt any such thing, and were it to attempt to do so, then it would be the duty of the Chief Executive to summon the militia of the state and call a halt. Why? Because, under the statutes and Constitution, the final judgment of the Criminal Court of Appeals in criminal cases is final, and this court and all other courts of the state are without authority to interfere or set aside such final judgment.
Any convict within the walls of the penitentiary has the right to make application for a writ of habeas corpus, and the court to which he applies may inquire into the authority by which he is restrained of his liberty, but when it finds that he is imprisoned under a final judgment of the Criminal Court of Appeals, then that constitutes a complete answer to the application for the writ.
Likewise, O. O. Owens, the party in question in this case, had the right, secured by the Constitution, to apply for a writ of habeas corpus, and the Criminal Court of Appeals had a right to inquire into the authority by which he was imprisoned but when it ascertained that he was imprisoned under the final order and judgment of this court, then the power of the Criminal Court of Appeals ceased, and if he had been denied any rights guaranteed to him by the federal Constitution, the federal courts were open, with authority to grant relief, but the Criminal Court of Appeals had no authority, and we may repeat that there is not a word either in the statutes or Constitution which gives any semblance of reason for the exercise of such authority.
As Mr. Chief Justice Branson in the majority opinion in effect well says: "There should be no conflict between the two courts; there is no ground for conflict; the language of the Constitution and statutes is clear."
In my judgment there is no ground for *Page 47 conflict, nor justification for this assumption of jurisdiction by the Criminal Court of Appeals which renders possible a state of confusion and chaos which is as inexcusable as would be intolerable. But, while I am firmly of this opinion, I am still of the opinion that a writ of certiorari should not issue. Such a writ is essentially based upon the authority of the court issuing same to review the action of some tribunal over which the issuing court has a superintending control under the provisions of the Constitution and law. In my judgment this court has no superintending control over the Criminal Court of Appeals, but when the Criminal Court of Appeals attempts to interfere with the final orders and judgments of this court, then this court, the matter being brought to its attention, could by special order direct the parties interested to obey mandates of this court and to disregard the mandates of any other state court which seeks to interfere with the final orders of this court.
In other words, when the Criminal Court of Appeals having so obviously invaded the constitutional province of this court, and attempted to interfere with the constitutional duties of this court, its attempted interference should be treated with that degree of disregard which its groundlessness merits, and Sheriff Dancy be directed to disregard the orders and mandates of any other state court, and to obey the mandates of this court.
I do not concur in the conclusion that this court has a superintending control over the Criminal Court of Appeals. In my opinion, the Constitution has clearly recognized the necessity for, and authorized the creation of, two separate, independent branches of jurisprudence, viz., civil and criminal, with a final head to each branch that each branch is superior within its prescribed jurisdiction, and neither has a superintending control over the other, and neither has authority to invade the province of the other, and where one branch does assume to interfere with the proper functions of the other, its attempt should be treated with disregard and the parties affected directed to obey the orders of the branch thus invaded and leave it to the Executive Department to enforce the orders of the branch whose jurisdiction has been unlawfully invaded, and interfered with.