Dissenting Opinion.
Beck, J.Since the decision of this case at chambers, I have given the questions involved very considerable attention. Their great importance demanded that I should investigate the principles of my decision, and re-examine the authorities upon which it is planted. Having devoted whatever time seemed necessary to the labor, I have become most satisfactorily assured of the correctness of my conclusions upon all the points decided.
In addition to the authorities cited in my opinion in support of the jurisdiction of the State courts and judges to inquire into the cause of, and relieve from, illegal *171imprisonment, under federal authority, several important cases, directly in point, have- fallen within my notice. The most important of them is the case of Reynolds, decided by the Hon. Nathan K. Hall, United States district judge for the Northern District of New York; June, 1866, on habeas corpus, to inquire into the legality of the enlistment of the petitioner into the United States army, 6 Park. Or. 276.
This case seems to have been considered with great care and industry on the part both of the counsel and the eminent and learned judge before whom it was tried. We are informed in the opinion that, for the purpose of giving the most thorough examination to the authorities, the cause was continued from the March to the June term. The United States district attorney, William Dorsheimer, appeared for the respondent, an officer of the United States army, and exhibited in his brief the fruits of the most commendable industry, by the citation of twenty-eight authorities in support of the point made by him, namely: “Judges of the State courts have no power to issue a writ of habeas corpus, or to continue proceedings under it when issued in cases of commitment or detainer under the authority of the United States.” The cases cited by him are gathered from all conceivable sources, where they are preserved in print, and some of them are not even so preserved, as no reference as such is made to them. The reports, law journals and newspapers, as well as tradition, seem to have been put under tribute to furnish these authorities. A few cases were determined in courts of appeal; others before judges of such courts at chambers, and some others again before inferior courts, or judges thereof — probate judges and recorders. The industry of the learned United States district attorney enabled him to cite one case, at least, decided in a court and at a time that renders it of very questionable authority. This is the *172case of Sarris in the recorder’s court of Charleston, South Carolina, decided and reported in 1862. It is hardly probable that any case decided prior to the trial before Judge Hall would have escaped the vigilance of .so able and industrious counsel. The cases referred to in the opinion, rendered at the hearing before me at chambers, as denying the jurisdiction of the State courts, were cited.
Judge Hall states that, upon examination, he finds ten of the cases cited by the district attorney are not in point and one overruled ; nine being not in print, were not accessible, and therefore not examined ; six from the State of New York, Ohio and New Jersey, where the jurisdiction of the State courts is unquestionably recognized by the weight of authority, were decided by judges at chambers, three of them by probate judges, or judges of other inferior courts. Booth v. Ableman and Span gler's Case make up the number cited by the district attorney. In support of the jurisdiction of the State courts and judges, Judge Hall cites fifty-nine cases from twelve different States. In the course of his opinion, he says : “During my own service as judge in a State court, I exercised the power of discharging minors held under invalid enlistments in repeated instances, and without the jurisdiction being questioned, and I well know that the same authority was exercised by other State courts and jiidges. In the most of these instances not even a newspaper notice of the case was published.” He expresses the belief “ that some of the cases most frequently relied upon as denying the jurisdiction (of the State courts) will not, when carefully examined, and after the language has been deliberately considered in connection with the usual facts of the case, appear to deny the jurisdiction, to discharge, if legal authority to detain is not shown, or deemed of much weight when compared with many of the numerous cases in which the jurisdiction has been *173maintained.” The learned judge, after proceeding to show conclusively, that Mr. Justice Nelson in his charge to the grand jury (1 Blatchford C. 0. 635), and Mr. Justice McLean in Norris v. Newton, do not deny the jurisdiction of the State courts, and with some success, that the opinion of Chief Justice Taney, in Ableman v. Booth, does not go to that length, uses the following language : “The authority of the decisions of the State courts and judges in support of their jurisdiction is absolutely irresistible and overwhelming, and if any doubt can be entertained as to the correctness of the proposition, that the opinion of Chief Justice Taney and of Justices Nelson and McLean, must be considered as affirming, that the fact that the prisoner is held under the authority of the United States not only must be alleged but proved, in order to divest jurisdiction of a State court or judge in a habeas corpus case, there can certainly be no doubt that all those judges required not merely the allegation or return of facts, showing such authority, but also their actual existence, the actual truth of the return, and not the mere formal birt false assertion of the fact that does not exist.” Id. 381.
“ Upon the most careful and deliberate consideration of the authorities that I have been able to give, I am of the opinion that the jurisdiction of State courts and judges in cases like this, and in cases of persons detained by United States officers under color of illegal enlistment, or other pretense of authority derived from the United States when no such authority exists, is well and properly established by an irresistible preponderance of authority.” Id. 319. * *
ILe says, “ that for quarter of a century the jurisdiction has been tacitly conceded and admitted by the general government; for it is quite certain that during a period of more than thirty years, in which the jurisdiction was constantly exercised by State courts and judges, no single *174case was ever taken to the Supreme Court of the United States for the purpose of reversing, on tbe ground of want of jurisdiction, any decision of a state court or judge discharging a minor or other person from the army because he was held only under an illegal or void enlistment.” Id. 280.
Since the trial of this case, before me at chambers, I have examined the charge of Mr. Justice Nelson (1 Blatchford, 642), to which I had not access when my opinion was written, and I concur with Judge Hall, that it does not go to the extent of denying the jurisdiction of a State court or judge to relieve one illegally held under pretense of federal authority. Judge Hall states (6 Park. Cr. 292), that this learned and venerable justice subsequently concurred with Judge Shipman and Judge Blatchford in sustaining the jurisdiction of the State courts and judges.
I have examined all the authorities to which I could have access, in addition to those referred to in my opinion rendered at chambers, as well as those cited by the United States district attorney in Reynolds' Gase, and I am able to verify the learned judge’s statement as to their effect and the points ruled.
I can also verify the statement of Judge Hall as to the constant exercise of the power of State judges, without question .on the part of the United States officers. The learned judge of the first judicial district of this State — the Hon. Francis Springer — whose long experience upon the bench, as well as his great ability and the careful manner in which he habitually discharges his judicial duties, entitle his judgments and opinions to great weight, I know has exercised the jurisdiction by discharging one illegally held under authority of the general government. Other cases where the jurisdiction has been exercised by State judges are within my knowledge.
Since the trial of this case before me at chambers, J *175have seen a very carefully prepared and able opinion of Mr. Justice Tapley, of the Supreme Court of Maine, in the case of McCrary on habeas corpus, decided at chambers in September, 1867, in which the jurisdiction of the State courts and judges is sustained, and it was exercised in that case.
I find that the jurisdiction has been exercised by State courts and judges in fifteen States, and in more than seventy reported cases, and doubtless in many other cases that have not been reported, and of which no mention has been made in the law journals and newspapers. Opposed to these, and almost unsupported, is Ableman v. Booth. I am justified in using the language of Judge Hall, that the jurisdiction of the State courts and judges “ is well and properly established by cm irresistible prepondermice of atvbhority.”
My re-examination has satisfied me of the correctness of my rulings in the trial at chambers, upon all the questions decided. I am- most thoroughly satisfied that the United States Circuit Court of Illinois acquired no jurisdiction of the subject-matter of the mandamus action— jurisdiction having been acquired and exercised over the identical subject-matter by the State Supreme Court in the prior injunction, proceedings.
I will proceed to notice a few of the points made by my brothers in their separate opinions, which, however, I had not seen before my views, as above expressed, were written. I shall do so briefly, and with no attempt at argument, but will content myself with stating the conclusions of my own mind. One conclusion arrived at by my brothers is, that by this habeas corpus proceeding it is attempted, in effect, to correct the errors of the United States courts; that, admitting these courts erred in the course of adjudications therein, upon the questions growing out of the litigation upon corporation railroad bonds, *176yet, in tbe proceeding before us, their rulings cannot be reviewed and corrected by arresting the enforcement of the judgments in proceedings wherein these errors were committed. This I understand to be the point made in the opinions of the majority. The error is in the application of an undisputed principle of law to the facts of the case. It certainly cannot be claimed, and it cannot be understood, that any such a doctrine as the contrary of .this point is contended for in this case, or in the remotest degree sanctioned in my opinion at chambers. My position, which has been misunderstood, is this: The judgment of a court, rendered in a proceeding wherein it has no jurisdiction, is void. Such a judgment cannot be enforced, and a citizen cannot be deprived of either his property or liberty by process issued upon it. I fin d by the record itself of the judgment of the United States District Court of Illinois, that that court did not have and could not acquire jurisdiction of the mandamus action, because jurisdiction of the identical subject-matter had before been acquired and exercised by the Iowa Supreme Court, thus depriving the federal courts of jurisdiction. This principle of law applied to these facts renders escape from my conclusion impossible. I do not understand that my brothers differ from me as to the facts; at least no difference is expressed in their opinion.
In this case I did not seek to correct the errors of the federal court, using the expression in its proper legal sense, but I simply declared void a judgment which, I found, was rendered by a court that had no jurisdiction of the subject-matter of the action wherein it was rendered. The distinction between correcting the errors of a court in a proceeding wherein it had jurisdiction by a collateral action in another court, and in a like action holding void a judgment because of want of jurisdiction, may be illustrated by one of the cases cited by the chief jus*177tice, viz.: Ex parte Watkins, 3 Pet. 193. In this case Watkins had been convicted upon indictment by the Circuit Court of the United States for the District of Columbia. He made application to the United States Supreme Court for a writ of habeas corpus, based upon the ground that the indictment charged no offenses punishable in the court wherein he was convicted, and of' which it could take cognizance, and that, consequently, the proceedings resulting in his conviction were coram non judice and totally void. The Supreme Court refused the writ, holding, Chief Justice Marshall delivering the opinion, that the Circuit Court, in which the petitioner was convicted, was a court of record, having general jurisdiction over criminal cases, and that an offense cognizable in any court was cognizable in that court, and, if at all punishable by law, that court was competent to inflict the punishment. “To determine whether the offense charged in the indictment be legally punishable or not is among the most unquestionable of its duties and powers. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner.”
Here it is demonstrated that the Circuit Court had jurisdiction of the subject, and that in the exercise of such jurisdiction it properly determined the question upon which the petitioner based the allegation of the illegality of his imprisonment.
The court holds that “ an imprisonment under a judgment cannot be unlawful unless the judgment be an absolute nullity; and it is not a nullity If the court has general jurisdiction of the subject, although it should be erroneous.”
The conclusion of the Supreme Court, therefore, is, that the writ could not be awarded ; that the proceedings would operate to correct the error, if any should be *178found, in the judgment of the Circuit Court, which could not so be done.
Now suppose, in this case, it had appeared in fact that the Circuit Court had no jurisdiction of the subject — of the offense for which the prisoner was indicted; that the court was of special jurisdiction, and the offense was by law excluded therefrom, the case would be very different. The judgment of the Circuit Court then would be void, a nullity, and the imprisonment thereon would be illegal, and all persons concerned in executing the judgment would be trespassers. See page 203 of the opinion in this case, and the following: Elliott v. Piersol, 1 Pet. 340; Thompson v. Tolme, 2 id. 163-169; Wise v. Withers, 3 Cranch, 337; Harris v. Hardman et al., 14 How. 334.
In the case we have last supposed, it could not be claimed, in any collateral or direct proceeding to relieve a citizen from the oppression of such void judgment, that any court, delaring it void and disregarding it, would thus correct the errors appearing in the proceedings, as we are to understand this language when thus applied.
The writ of habeas corpus is intended to relieve the citizen from the illegal restraint of his liberty. If restrained upon a judgment void for want of jurisdiction, such restraint is illegal, and the writ is the appropriate remedy. If the restraint, however, is upon a judgment that is erroneous, such restraint is not illegal, and the writ cannot be used as a remedy for reviewing such judgment and correcting the errors therein.
Another position of my brothers is erroneous, or rather their arguments lead to an erroneous conclusion. It is this : The United States Supreme Court is the final arbiter of the questions involved in this case, upon which there is a conflict between this and that court. To my mind, the arguments lead to this result. The facts, which may be properly repeated in this connection, are these; *179The State court holds certain county bonds void as being prohibited by the Constitution, and enjoins the counties from paying them. The federal court holds them valid. The action in the State court, to enjoin the collection of taxes for the payment of the bonds, was commenced before the suit in the federal court to enforce their payment. The State court thus acquired jurisdiction, to the exclusion of the federal court. To enforce the payment of the judgment, an .action of mandamus is instituted in the federal court. It is resisted on the grounds that it is unauthorized by law, and that the federal court is excluded from jurisdiction of the subject on account of the prior acquired jurisdiction of the State court. Now, my brothers follow the decisions of the federal coui’t upon all points affecting the legality of the mandamus proceeding and the jurisdiction of the federal court therein. They admit that these decisions are binding upon this court, while, in prior decisions, denying that we are bound by the ruling of the federal court as to the validity of the bonds, thus conceding that court to be the final arbiter in all questions as .to the remedy, but denying its authority upon questions affecting the right. See Chamberlain v. The City of Burlington, 19 Iowa, 395; McClure v. Owen, 26 id. 243.
This court thus practically concedes that the judgments of the federal court upon questions arising under the laws and Constitution of this State are binding authority, and must be obeyed, though that obedience sets at naught and is in violation of our State Constitution and laws, as interpreted by this, the highest tribunal of the State. This result is in conflict with all prior decisions of this court, as well Us all other courts of the country, both federal and State. It is a new doctrine, and, if recognized as law, will work a change in the administration of State laws. The United States Supreme Court will become the inter*180preter of State Constitutions and State laws, with power to enforce its judgments. The State tribunal will be, in this class of cases, subordinate and inferior courts. They will possess no power to enforce their judgments interpreting the Constitution and laws of their respective States, when not in accord with the decisions of the United States Supreme Court.
Thomson v. County of Lee (22 Iowa, 206) is cited by the chief justice in support of his conclusions that the decisions of the federal court upon the questions involved in this case are of binding authority" upon us, and must be followed by this court. I am unable to see the bearing of this case upon this position, or that it, in the least degree, supports the conclusions reached. The point ruled is, that in an action upon a judgment of a federal court, brought in a court of this State, the defendant cannot set up and relitigate the defenses which were pleaded by and decided against him in the first action. It does not appear in the report of the case what those defenses were, and it is not intimated, that, if they had been of a chai1acter showing the utter want of jurisdiction of the federal court over the subject-matter of the action, and that such want of jurisdiction appeared upon the record of the federal court, this court would not have held the judgment void. As a matter of fact, I understand it was not pleaded in that action as a defense, that the federal court did not have jurisdiction of the subject-matter of the action. No such point is made in the brief of the counsel for the defendant. It is certainly not ruled in the opinion. The chief justice most certainly does not intend to be understood as holding that, in an action upon the judgment of a United States court, its nullity, because of want of jurisdiction, cannot, in a proper manner, be shown as a defense to recovery thereon; neither would he be understood to hold that Thompson v. Lee County *181sustains that doctrine. Tet nothing short of it will sustain his conclusions. But as I understand the opinion of the chief justice, he holds that, as the question of jurisdiction in the mandamus action had been passed upon by the federal court, and the jurisdiction sustained, it could not be determined in the habeas corpus proceeding. This, if I am not mistaken, is his conclusion. There is no principle of the law settled so completely beyond question as the contrary doctrine. Judgments rendered in the absence of jurisdiction are void. Their nullity may be shown whenever and wherever they are attempted to be enforced, or any right is claimed under them.
It cannot be claimed that the determination of a court in support of its jurisdiction will cure the want of jurisdiction appearing upon its records, or that another court is precluded by such determination from passing upon the question, when the judgment of the first court is before it as evidence or as the foundation of an action. Can it be pretended, if the United States Circuit Court of Blinois should assume jurisdiction in a proceeding for the probate of a will, or any other case confessedly without its jurisdiction, and should formally and solemnly determine and adjudge in the proceedings that it possesses jurisdiction, that such adjudication will bind other courts when called upon to enforce its judgments? No one would say that such is the law. Here is the radical and fatal error at the very foundation of the opinion of Mr. Justice Wricht. He argues that, as the want of jurisdiction was pleaded as a defense to the mandamus action in the United States Circuit Court, and was therein adjudged insufficient, this court and all the world must take that adjudication as conclusive — a judicial determination not to be questioned. He is led into this grave error by forgetting that the defense of want of jurisdiction of the subject-matter of the action strikes at the authority of the court, and not, as *182other defenses, at the merits of the action. If the court had no authority, no jurisdiction in the cause, its determination sustaining the jurisdiction, as all other adjudications therein, are simply nullities. This question of jurisdiction, it is obvious, maybe determined by any other court in which the proceedings are brought in question. It is not like the defense of payment or release, which, if I remember correctly, are used in illustration by Justice Wright. Adjudications upon these defenses eannot.be questioned, because the court having jurisdiction of the case has the authority to determine them. But the same reasons will not support the conclusiveness of the adjudications upon the question of jurisdiction. If applied to that question it would amount to this and nothing more: The court has jurisdiction because it has so adjudged; that is, the exercise of the authority to adjudicate confers jurisdiction. But the very reverse of the proposition is true; jurisdiction confers authority to adjudicate. No one will say that any thing else can.
The chief justice, in his opinion, after adhering to and following the rulings of the United States Supreme Court, holding that the mandamus action is a process of the court in which it is .pending, announces the well-understood doctrine, so indispensable to the harmonious working of our State and national governments, that there must be reciprocal non-interference by the federal and State courts with each other; that one shall not interfere with the operations of the other, either before or after judgment. To this doctrine do I most unreservedly assent, and it is the foundation of my conclusions in this case. My brothers do not deny that the State court had jurisdiction in the injunction action; they do not deny that the decree in the action is perfectly valid and binding on all the officers of the county, including the plaintiffs in this case, the supervisors. A repetition of facts is all the argument *183that need be made to support my ruling under this doctrine. The State court had acquired jurisdiction in the injunction suit before the federal court had acquired jurisdiction in the action upon the coupons; before any legal proceeding of any character was instituted in the United States court to enforce the payment thereof; before the world knew what the ruling of the United States court would be upon these questions; before the questions were in any shape presented to that court. In the exercise of such undoubted jurisdiction the decree of the State court was rendered, and it is admitted on all hands to be valid and binding. But the United States court assumes jurisdiction of the'subject-matter of the mandamus action after jurisdiction had been acquired and exercised by the State court, and overruled its decisions, sets at naught its decrees, and enforces performance of acts by the plaintiff, held by the State court illegal and in contempt of its lawful authority. Here is a direct and flagrant interference by the federal court with the operation of the State court. The doctrine, as applied by the chief justice in this case loses half its force, and amounts to simply this: that the State court shall not interfere with the operations of the federal coxirt, without regard to the question whether jurisdiction was first acquired by the United States court. The State court is robbed of all authority and power to enforce its decrees in a case confessedly within its jurisdiction, acquired to the exclusion of the jurisdiction of the federal court.
The chief justice holds that it makes no difference if the injunction proceedings were commenced before judgment on the coupons- or after, and, without assigning any reason for this conclusion, relies upon The United States ex rel. v. Keokuk (6 Wall. 520) to support it. The position-may be admitted, if the date of the judgment, and not the commencement of the action upon the coupons, *184were subsequent to the commencement of the injunction suit. It cannot be admitted if the commencement of the action was after the commencement of the injunction suit. The commencement of these actions determined the jurisdiction of the respective courts, that one acquiring jurisdiction in which the action was first commenced. It is not ruled in the case cited by the chief justice, nor in the other case of the same name (6 Wall. 514), that, if the injunction suit had been commenced before the action on the bonds, the county officers could not plead the injunction as an answer to the writ of mandamus. In these cases the dates of the commencement of the respective actions are not given. The dates of the judgment on the bonds, and the decree, are stated. In each case the ruling is expressly based on Riggs v. Johnson Co., 6 Wall. 166. It is explicitly stated in that case that the injunction suit was commenced after the action on the bonds. It must be admitted that the cases against the city of Keokuk are decided upon the same state of facts as Riggs v. Johnson Co. Had the court intended to announce any such rule as is claimed by the chief justice, it is to be presumed that it would have been stated in terms, together with the peculiar facts of the case requiring its ajDplication. But this is not done in the opinion in either case. There is an evident mistake or misprint on page 519 in the date of the decree. It appears there as having been rendered in 1853, which was long before the bonds were issued. This date, doubtless, should be 1863.
If it should be held that the doctrine of Riggs v. Johnson County would prevail, even though the injunction proceedings were commenced before the action in the federal court, it would be a strange interference by the United States court with the rightful exercise of authority by the State court. The State court, in a cause con*185fessedly within its jurisdiction, renders a decree. The decree, years after its rendition, is found to stand in the way of the enforcement of a judgment of a United States court in a proceeding subsequently commenced. It is disregarded and held for naught, on the ground that it interferes with the process of the federal court. I will not undertake to point out the dangerous tendencies and the evil effects and consequences of such doctrine. They are apparent to every mind.
The chief justice objects to the injunction proceedings because the bondholders-were not parties therein. He does not insist that they were necessary parties; neither does he say that the decree was for that reason voidbut concludes that the proceedings were, as to them, res inter alias acta. I am unable to admit the force of the objection. It is not denied that the State court had jurisdiction of the subject-matter of the injunction suit and of the county officers, the predecessors of the supervisors. It could then render a decree of full force and binding effect upon the parties to the action. The chief justice does not think that the bondholders were necessary parties to the action. If not necessary parties, can it be pretended that the court did not have jurisdiction because they were not made defendants \ If it had jurisdiction of the subject-matter and of the parties before it, its decree is valid and binding upon these parties. In the exercise of that jurisdiction it enjoined the county officers from levying a tax to pay the bonds. But it is said that the decree does not bind the bondholders. Let this be admitted. It cannot be denied that it binds the county officers, for over them the court had jurisdiction. Because the bondholders are not bound by the decree, though the county officers are, the chief justice arrives at the conclusion that the decree may be held for naught by the federal court. Here, then, is a valid decree disregarded, because proper *186parties are not made defendants to the action, and held void as to the necessary parties who are before the court. This result cannot be sustained by the authorities. But it is argued, that, as the bondholders’ rights were affected by the decree, and they had not a day in court, the decree ought not to be enforced. The answer to that objection is this: The want of proper parties does not render the decree void as to the necessary parties before the court. The decree does not preclude the bondholders from having their day in court, by proper proceedings, to review or set aside the decree.
The chief justice ai’gues, that it would be illogical to insist, and a strange doctrine, that Thompson has a valid judgment, yet the court rendering it has no power to enforce its payment. The statement of fact is incorrect. The United States Supreme Court has held that there is another manner of enforcing payment than by compelling the supervisors to levy taxes ; that a commissioner may be empowered by the court to levy and collect of the people and pay over to the creditor the amount of his debt. See Supervisors v. Rogers, 7 Wall. 175. There may be other ways of enforcing payment of this judgment. Admitting, however, the statement to be strictly correct, it is not the only thing that is illogical and strange in this corporation bond litigation. It is not denied by the chief justice — it never has been denied — that the State court had rightful jurisdiction in the injunction suit, and that its decree therein was lawfully rendered. But we have the illogical and strange result, under the ruling of the chief justice, that this valid judgment cannot be enforced — may be disregarded and over ridden by the federal courts, and the unlawful acts, which it was designed to restrain, may be commanded and compelled by the process of the United States court. The source of all these strange, inconsistent and illogical results *187and of the conflict of jurisdiction, which cannot be too earnestly deprecated, is the doctrine of OeljyeJie v. Dubuque.
The United States Supreme Court, in that case, abandoned a rule that had been recognized from the earliest days of the government, and which is the very foundation of the judicial system of the Union. The result is inevitable. If adhered to, precedent and consistency, legal principles and sound reason must give way to power, that the judgments of the United States courts may produce their “ legitimate fruits.” The extent of the disturbance, which these adjudications of the United States Supreme Court will produce in our judicial system, cannot be predicted nor foreseen. Without the restraint or control of rules designed to harmonize our dual form of government the federal courts will very soon assume and exercise jurisdiction upon subjects now supposed to be exclusively within the jurisdiction of the State courts. If these State courts follow the doctrine of my brothers, that the federal courts have jurisdiction in all cases where they so determine, assumption of authority will be most rapid, and the day is not far distant when the people of every State must look to the United States Supreme Court as the final arbiter of all questions arising in the administration of the law, and in the interpretation of State constitutions and State statutes.
All other objections, urged by the chief justice and other members of the court, are^ as I believe, sufficiently answered in my opinion rendered in this case at chambers, which I file with and make a part of this opinion. I am satisfied to rest upon it, as a re-investigation of the questions involved, with all the care and time necessary assures me of the correctness of my conclusions upon all points therein ruled. I am constrained to dissent from the opinions of the majority, and to hold that my judgment at chambers ought to be affirmed.