(concurring). I concur in this decision only in deference to what appears to be the weight of authority. This decision, and others which it follows, under cor stitutions and statutes like our own, seem to me to rest upon made ground, improvised by the courts, upon which to plausibly rest a ruling designed to prevent a failure of justice, and upon the ordinarily dangerous doctrine that the end justifies the means. Habeas corpus lies where a court whose act is the subject of inquiry “has exceeded the limit of its jurisdiction, either as to the matter, place, sum, or person.” Section 7841, Comp. Laws. The circuit court, although a court of general jurisdiction, gets its power to sentence in any case from the statute, and the same statute which gives the power also limits it. Its power to sentence is its jurisdiction to sentence, and I am unable to comprehend why a court which assumes to sentence for 20 years, in a case where its authority is limited to a sentence for 10 years, does not exceed “the limit of its jurisdiction” in that respect. The cases all concede that if a court imprison where it only has authority to fine, or fine where it only has authority to imprison, such judgment is not merely erroneous, but is absolutely void, because in excess of its jurisdiction; thus distinctly making the very judgment which the court rendered in a case in which it confessedly had jurisdiction of the person and the offense a controlling test of whether it kept within its jurisdiction or not, and teaching the doctrine that in determining whether a court had exceeded its jurisdiction the judgment which it renders is to be considered, as well as the other elements of person and offense, and that a court may have ample jurisdiction to try a defendant for the offense charged against him, but that it may exceed its jurisdiction in rendering a judgment which it had no legal power to render. But that the trial court has exceeded the limit *395of its jurisdiction is precisely tlie condition named in orir statutes for relief by habeas corpus. But the cases which this decision follows hold that if the statute expressly limits the power of the court to sentence to 5 years, but the court courageously ihaposes a sentence of 20 years, there is no excess of jurisdiction, but only an error in its interpretation of the law. It is held that a sentence which sends a defendant to jail for a year, when he ought to have gone to the penitentiary for the same time, is void for excess of jurisdiction, because the court bad no authority to pass such a sentence, but a sentence' for 20 years, when the only authority of the court is to sentence for 5 years, is not jurisdictionally excessive, because the court had authority to sentence for 5 years, and for so much it is good. But the difficulty is that the court made no sentence for 5 years. It deliberately declined to exercise the authority which it did have, and assumed an authority and power which it did not have. The question is not whether it might ha-ve made a judgment within its jurisdiction, but whether it has done so; not whether a judgment which it did not make would have been good, but whether the judgment which it did make was one it had authority to make. This court, upon this inquiry, has nothing to do with a judgment which was not made, but should look at the judgment which was made, and compare it with the statutory authority of the trial court to make it; and if it had no power to make the only judgment which it did make, or attempt to make, it seems to me, personally, that it has exceeded its jurisdiction. A court commits an error when it does something which it has the legal power to do, but ought not to do. It exceeds its jurisdiction when it does something which is beyond its legal power to do. To me the distinction seems as plain in principle as it is momentous in fact.
How does it help the matter to say that the court which pronounced the sentence is one of general jurisdiction? It surely is not general in the sense that its jurisdiction is broader than the law itself, or that the exercise of its power — its authority — may not be limited and circumscribed by law. The legislature has the *396same power to regulate the punishment which it may inflict for certain offenses as though it were a court of limited, jurisdiction. If the statute made b'ut o'ne offense punishable by imprisonnient, and fixed the term at 20 years, I think it would be accepted that a court, even of general jurisdiction, which sentenced a defendant to 30 years, would exceed the limit of his jurisdiction. It seems to me that in such case “jurisdiction” means more than control o'f the person of the defendant, and authority to try the question at issue; and includes also power in the court to render the judgment which it does render. If it does not, then the court, having acquired jurisdiction of the person, may sentence a defendant to be hung for larceny committed within its jurisdiction, and there would be no relief by habeas corpus, for the answer would be— apparently as adequate in that case as in this — that the court did not exceed its jurisdiction, for it had jurisdiction of the person and of the offense, and only committed an error in imposing a wrong sentence. And so the court or judge who happened’ to hear the habeas corpus would, in its mind, substitute a judgment which the trial court had authority to and ought to have rendered for the judgment which it did in fact render, and which stands upon the record as the sole, entire, and only judgment in the case; that is, a court or judge who had no authority to try the case, or render judgment of any kind in it, would, in order to prevent a failure of justice, substitute in its imagination a legal judgment for an illegal one, and so hold the defendant under his counterfeited judgment, so improvised for the occasion. It may not be absurd to say that one solid sentence for a definite term is separable, and that this court, on habeas corpus, will pick out of it as many years as the court was authorized to sentence for, and say that as to so much the court has not exceeded its jurisdiction; but no court ought to be compelled to resort to such a subterfuge to accomplish by judicial legislation what ought to be done by the legislature.
A man has power, under the statute, to make a verbal lease for one year. He makes one for two years, and asks the court to *397apply tlie same rule it applies here, and help him to enforce it for a year; but the court wisely shakes its judicial head, and says: “You have attempted to do something which you had no authority to do, and your act is all void.” By statute the power of a judge to render an ex parte order, staying proceedings, is limited to 20 days. He makes such an order for 50 days, and the courts do not hold it good for the 20 days for which he might legally have made it, but hold it void in toto. “The judge has transcended his jurisdiction,” is the language of the court. I can see a basis of reason for holding that where a judgment or sentence consists of two or more separable and distinct elements or parts, as fine and imprisonment, only one of which the court had power to impose, the illegal or unauthorized part may be exscinded, and leave the legal part operative; for, as said by Earl, J., in People v. Baker, 89 N. Y. 467, the legal part “is a separate portion of the sentence, complete in itself, and the balance of the sentence can be held void, and disregarded.” This application is made to, and the writ issued by this court which, under the constitution, has a general superintending control over the circuit court and its judgments. It is not in the nature of a collateral attack. This court is competent, and it is the proper tribunal, to say whether the judgment rendered by the circuit court was one within its jurisdiction to render.
My confidence in the logical and legal correctness of the views I have expressed is greatly strengthened by the deliberate declaration of the United States supreme court as to what the law is, in the Graham Case, 138 U. S. 461, 11 Sup. Ct. 363, referred to in Judge Corson’s opinion. It says, “It is undoubtedly the general rule that a j udgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or extent of the punishment inflicted renders the judgment absolutely void.” It is true, discharge was refused in that case, but it was denied upon the distinct ground “that under the law of Wisconsin [from which state the case came] a judgment in a criminal case which merely exceeds in the tirge of punishment prescribed by the sentence that which *398is authorized by law is not absolutely void, but only erroneous, and that the error must be corrected on appeal, and cannot be corrected by a writ of habeas corpus. * * * When the highest 'court of a state holds that a judgment of one of its inferior courts imposing punishment in a criminal case is valid and binding to the extent to which the law of the state authorized the punishment, and only void for the excess, we cannot treat it as wholly void, there being no principle of federal law invaded in such ruling.” What the court would have done if it had not felt controlled by the decision of the Wisconsin court, I do not undertake to say, but it would seem to me that its formal declaration of what the “general rule” is, as quoted above, in which it is said that a sentence exceeding “in extent” the punishment allowed by law is “absolutely void,” would afford substantial ground for an inference.
A number of the highest state courts in the Union have also distinctly avowed the same views, and, probably recognizing their force, the legislatures of a number of states have provided by statute that no person can be discharged on habeas corpus until the time has expired for which he could legally have been detained. I think there should be such a statute here, and the courts left to their constitutional function of declaring what the law is, rather than what they think it ought to be. In other words, if further affirmative provisions of law are needed to prevent a failure of justice, or to accomplish any other desirable ends, the legislature, and not the courts, should supply them. While I do not in this case and shall not in any case hesitate to declare my own views upon any question before this court, I do now, as I have sometimes before, vote to follow the weight of adjudicated cases, rather thailjny own judgment,.less fully supported by au thorites,