On behalf of the petitioners in the above entitled and numbered cases, petitions were filed with the clerk of this court September 16, 1940. To each petition a general demurrer was on the same day filed and by agreement of parties the cases were the next day orally argued and submitted upon the petitions and the demurrers thereto. *Page 205
Upon the conclusion of the arguments, and the various questions presented by counsel having been considered by the court, the decision of the court was announced by Presiding Judge DOYLE, in an oral opinion, finding that said petitions do not state facts which show that said petitioners are entitled to have the writs demanded, issue, wherefore the demurrers thereto were sustained and the writs denied.
Each petitioner being held in custody of the sheriff of Oklahoma county and confined in the county jail by virtue of a commitment based upon information pending and undetermined in the district court of Oklahoma county, wherein each petitioner is charged with having violated section 2573, Sts. 1931, 21 Okla. St. Ann. § 1263.
Each petition alleges the illegal detention of the petitioner and sets forth the cause of and authority for such detention.
It is alleged in each petition that:
"The petitioner is deprived of his liberty illegally and unlawfully for the reason, the evidence introduced by the State in the preliminary trial before the justice of the peace, Paul Powers is insufficient to show the commission of a crime or the probability of the defendant having committed the same. A true and correct copy of the transcript of said testimony in both of the cases is hereto attached and marked Exhibit B and made a part hereof. An examination of the transcript will disclose that there is no good and sufficient legal evidence justifying the justice of the peace in binding the petitioner over to stand trial in the district court and in justifying the issuance of the commitment to the sheriff of Oklahoma county. The evidence does not show that the petitioner belonged to a party advocating or teaching crime, violence, or unlawful acts as a means of effecting industrial or political change or revolution: It does not show the petitioner sold, distributed or circulated or wrote, or published material advocating *Page 206 or teaching crime, violence, or unlawful acts as a means of effecting industrial or political change.
"The information filed by the assistant county attorney under which the petitioner is scheduled for trial on the 17th of September is null and void. A copy of said information in each of the two cases is hereto attached and marked exhibit C. D. Said informations are null and void and do not state a crime under the laws of Oklahoma. They are so indefinite and uncertain that they do not notify the defendant of the crime for which he is being held. Each of said informations are null and void for further reasons that they are duplications. They attempt to and in fact do charge the petitioner with the commission of more than one crime. The informations are so illegal and so irregular that they cannot be amended. To compel the petitioner to go under trial under said informations would be to deprive the defendant of due process of law under the 14th Amendment of the Constitution of the United States and under the Constitution of Oklahoma."
It is further alleged that said act is contrary to and in violation of section 57 of art. 5 of the State Constitution, in that the subject of said act is not entirely expressed in its title and embraces more than one subject.
In behalf of respondent the point was made that where imprisonment is upon a warrant or commitment issued from a court of competent jurisdiction upon an information, such commitment cannot be attacked collaterally or the proceedings inquired into in a habeas corpus proceeding, and this court is precluded from inquiring into the facts alleged in said petitions by the provisions of the Habeas Corpus Act, ch. 3, art. 4, sec. 693, 12 Okla. St. Ann. § 1342, which provides:
"No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * *Page 207
"Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information."
Section 10 of the Bill of Rights, Okla. St. Ann., provides:
"The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state."
The writ of habeas corpus, which has for centuries been esteemed the best and only defense of personal freedom, has for its object the speedy release by judicial decree of persons illegally restrained of their liberty.
It is elementary that the writ of habeas corpus cannot be used to perform the functions of an appeal, or used to review errors that do not go to the jurisdiction of the court to issue the commitment.
The writ cannot be invoked for the purpose of reviewing acts of courts of record, where they acted within their jurisdiction, under constitutional law.
Before the writ is available as a means of release from imprisonment, it must appear that the court issuing the process has acted without jurisdiction.
In each case it appears that said petitioners are being held by virtue of informations filed by the county attorney, in the district court of Oklahoma county, a court of competent jurisdiction.
In Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142, we said:
"The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed on its final *Page 208 determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement, or by motion to quash, or motion to set aside the information."
Upon adverse rulings by the trial court the remedy is by appeal from a judgment of conviction, exceptions having been reserved. See Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092.
In the instant cases the validity of the commitments is assailed on the ground that the act of the Legislature upon which the informations are based is void and unconstitutional. If the contention is well founded, it affects the jurisdiction of said district court in all the proceedings had. An unconstitutional law is void, and is no law. An offense created by it is not a crime, and a charge based thereon cannot be a legal cause of imprisonment.
We are reminded by counsel for the petitioners that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against arbitrary power; that is unquestionably true. This court is bound to sustain the fundamental law, the State Constitution, according to, its true intent and meaning, but it is equally true that legislative enactments should be enforced by the courts as embodying the will of the people, unless they are plainly inconsistent with that instrument.
All legislative acts are presumed to be valid, and the courts should not declare an act to be unconstitutional unless it is clearly so. A law that is unconstitutional is so because it is either an assumption of power not legislative *Page 209 in its nature, or because it is inconsistent with some provision of the State or Federal Constitutions.
A liberal construction will be applied to acts of the Legislature and constitutional provisions in determining whether or not such enactments violate the Constitution, and it is only when acts of the Legislature are clearly contrary to the Constitution that the court will hold them invalid.
In the case of Berg v. State, 29 Okla. Cr. 112, 233 P. 497, the constitutionality of this act was upheld. The court holding:
"The Criminal Syndicalism Act (chapter 70, Session Laws 1919, * * * 21 Okla. St. Ann. §§ 1261-1263) held constitutional so far as its provisions are material in a prosecution for circulating and displaying printed matter teaching, advocating and affirmatively suggesting criminal syndicalism or sabotage, and for circulating and displaying books and other printed matter prohibited by said act.
"That part of section 2221 Comp. St. 1921, 21 Okla. St. Ann. § 1263, defining criminal syndicalism as circulating and displaying printed matter advocating, teaching, or affirmatively suggesting crime, sabotage, etc., does not violate the right of free speech, and is not void for indefiniteness.
"The fact that treason is defined in the federal and the State Constitutions does not deprive the Legislature of the power to enact a statute intended to prevent the teaching of criminal syndicalism or sabotage as defined by the criminal syndicalism statute, and does not violate either the Constitution of the United States nor the Constitution of this state defining treason."
Judge Edwards, in the opinion of the court, said:
"It is to be borne in mind that the criminal syndicalism statute does not limit or make criminal the advocacy or propriety of bringing about a change in our industrial *Page 210 system by peaceful methods. The people have at all times an undeniable and indefeasible right to alter their form of government; the statute is directed against those who advocate the necessity or expediency of sabotage, violence, or terrorism as a means of accomplishing industrial or political reform, or the doing of things of an analogous nature such as distributing or displaying circulars, books, posters, etc., teaching or advocating criminal syndicalism.
"Statutes similar or of similar import to the one here under consideration have quite generally been held constitutional.
"The crime prohibited by section 3 of the act in question, above quoted, is to be distinguished from treason as defined by the federal and state Constitutions, in that 'treason' requires more than mere words to constitute the offense. It requires some overt act and proof by two or more witnesses, while the offense here defined is an offense which consists of words only; the advocacy or teaching of crime as a means of effecting industrial or political ends, or for a profit. State v. Hennessy, 114 Wn. 351, 195 P. 211; Frohwerk v. United States,249 U.S. 204, 39 S.Ct. 249, 63 L. Ed 561; Equi v. United States [9 Cir.], 261 F. 53, 171 C. C. A. 649; Wimmer v. United States [6 Cir.], 264 F. 11. * * *
"Argument is also made that the statute in question is unconstitutional as abridging the right of free speech granted by the Constitution. But we think it is so well settled that the right of free speech does not imply unrestricted license that no extended notice need be given to this assignment. The act defining criminal syndicalism as circulating and displaying printed matter advocating, advising, teaching, or affirmatively suggesting crime as a means of accomplishing industrial or political ends, or for a profit, is not a denial of the free speech granted by the Constitution."
In the case of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A. L. R. 1484, the United States Supreme Court held: *Page 211
"The right of free speech is not an absolute one, and the state, in the exercise of its police power, may punish its abuse by those who indulge in utterances which incite to violence and crime, and threaten the overthrow of organized government by unlawful means."
Validity of syndicalism and sabotage statutes directed against political, social, or industrial propaganda, see Annotations, 1 A. L. R. p. 336 and 20 A. L. R. 1535, 73 A. L. R. 1484.
The opinion of the court is that the construction heretofore placed upon the act in question is correct, and we see no reason why it should be otherwise held. In the cases now before us it is our conclusion that said petitions do not state facts which show that petitioners are entitled to the relief prayed for; the demurrers thereto should be and are sustained, and the writs denied.