Concurring Opinion.
SHEEWOOD, J.In an opinion which has been read in this cause, the “Act to establish a Board of Examiners,” etc., *250approved May 5, 1899, has been held constitutional, but there has arisen a difference of opinion among us as to whether habeas corpus is the proper remedy for petitioner who, preparatory to his trial, has been imprisoned on a capias issued upon an information charging violation of the act above cited. On this point, another opinion in this cause has been read before us, in which it has been asserted that in the circumstances stated, petitioner has no redress by the writ which he has invoiced. A summary of the doctrine thus announced is best conveyed in excerpts from the language employed by the learned writer of the opinion; he says:
“But where a man is taken into custody under a warrant from a court competent to try him for the offense charged, and competent to decide whether or not the act charged is an offense against the law and the court is proceeding in due course with the case, or where it has proceeded to judgment and has adjudged the accused guilty and pronounced the sentence of the law upon him, it can not be said in the language of Magna Charta that he is deprived of his liberty without having been adjudged to have forfeited it ‘by the judgment of his peers or the law of the land/ and therefore the writ of habeas corpus has no place in his case.
“If the prisoner is held in custody under process awaiting trial or under commitment awaiting the action of the grand jury, and bail has been refused him, the habeas corpus act expressly provides that he may be brought before a court or judge under this writ and admitted to bail to await his trial, or the action of the grand jury, if it is a bailable case. [R. S. 1899, secs. 3568-3510.]
“But except for the purpose of admitting to bail the writ of habeas corpus was not designed and should not be issued to interfere with the due procedure in a court of competent jurisdiction. This is the doctrine announced by this court in its earlier decisions and is the only doctrine consistent with the *251original purpose of the writ and with the spirit of the habeas corpus act in our statutes and under our State judiciary system, although reason exists for a different view under the Eederal judiciary system.....
“Under the judiciary system of this State any one tried and condemned as for a crime may have the proceedings in his trial reviewed on appeal or writ of error, in which he may have relief not only against the errors and irregularities, if any, of the trial court, but if he raises the constitutionality of the statute under which he was convicted he may have the judgment of the highest court in the State on that question. And if the point he desires reviewed goes to the jurisdiction of the trial court, the record may be brought here on certiorari and quashed. If therefore under our system any one is left to pine in prison because of error or irregularity in his trial, or invalidity of the law under which he was convicted, or lack of jurisdiction in the court that condemned him, it is only because he has omitted to avail himself of one of the several remedies the law affords him. There is absolutely no occasion in such-case to invoke the remedy by habeas -corpus, and it would be a misuse of that writ to so extend it.”
These utterances being synopsized, announce:
Eirst, that a person arrested and imprisoned on a capias issued by a court competent to try him for the offense with which he is charged, can not prior to his trial, have inquiry made into the legality of his imprisonment, nor can he be released from such imprisonment through the writ of habeas corpus.
Second, that after he has undergone his trial in the tribunal possessed of jurisdiction, in criminal causes, and been convicted of and sentenced for the offense with which he is charged, he still can not have the legality of the proceedings nor the resultant judgment inquired into by that writ.
In other words, in the circumstances already set forth, he *252can not be released on habeas corpus, neither before nor after final judgment.
Third, but it is graciously added, however, that, if the prisoner be refused bail in “a bailable case,” “where he is held in custody under process awaiting trial or under commitment awaiting the action of the grand jury,” “he may be brought before a court or judge under this writ and admitted to bail to await his trial,” etc.
Fourth, but habeas corpus does not lie except for the purpose of admitting to bail, and “was not designed .... to interfere with the due procedure in a court of competent, jurisdiction.'”
Fifth, that one tried under and convicted, as for a crime, under the judiciary system of this State, is entitled to have an appeal or writ of error to review the proceedings which resulted in such conviction, and in such appeal or on such error brought he may have the constitutionality of the statute under which he was convicted, passed upon by the judgment of the highest court in the State. And if the point he desires reviewed goes to the jurisdiction of the trial court, certiorari is the only appropriate remedy, and by it the record may be brought up and quashed. If with all these available remedies before him, the condemned man prefers “to pine in prison,” he himself is alone to blame. Habeas corpus has no function to perform in his case, and to extend it so far would be a misuse of the writ.
From these premises I propose to draw my own deductions, and those deductions will, I apprehend, be based upon abundant authorities and what I consider sound reasoning; but it would be superfluous to say that such authorities and such reasoning will widely differ from the aforesaid epitome of the doctrine I shall now endeavor to combat.
Lord Coke in his day called habeas corpus festinum, remedium. Were he present to-day before us, he would *253quickly conclude that the writ had nothing left in it either speedy or remedial; only a bare authority to take bail.
Professor Minor, on the subject now under discussion, says: “The writ of habeas corpus is the most celebrated writ in the law. Several kinds are made use of by the courts, either for the purpose of removing prisoners from one court into another, for the more easy administration of justice, or for the purpose of formally inquiring into the legality of an imprisonment, and discharging the party if it be found that he is restrained of his liberty without due warrant of law. It is of the latter, the great and efficacious writ in all manner of illegal confinement, of habeas corpus ad subjiciendum, to which reference is now made. It is awarded with us when one is alleged to be illegally detained under color of the authority of the United States, or in violation of the Federal laws or treaties, by the district or circuit courts of the United States, or by any judge of either of those courts in vacation; and in all other cases of alleged illegal detention, by any circuit, corporation, or county court of the State, or any judge of either in vacation. It is directed to the person who is supposed to have the party in whose behalf the complaint is made is custody, and commands him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever shall be ■considered in that behalf.” [4 Minor’s Institutes, pt. 1, pp. 9 and 10.]
In another place, still treating of the same subject, the ■eminent author says: “This great and important writ, which is aptly denominated the citizen’s writ of right, is the means whereby an imprisonment, or restraint of liberty, alleged to be illegal, may be formally inquired into, and if found to be illegal, the party may be finally discharged. The person having in his custody the party in whose behalf the complaint is made, is required by the terms of the writ, forthwith to have *254the body of such party before the court or judge to do, submit to, and receive whatever shall in that behalf be adjudged. The writ is not designed to test anything but the sufficiency of the authority under which the prisoner is held.” [4 Minor’s Institutes pt. 1, pp. 405, 406.]
Of course, this writ can not serve the purpose of an appeal or writ of error, for mere error or irregularity is neither affected nor cured by it. But aside from errors, etc., the peculiar functions of the writ are as exemplified in the following extracts:
“The habeas corpus ad sub jiciendum .is that which issues in criminal cases, and is deemed a prerogative writ, which the king may issue to any place, as he has a right to be informed of the state and condition of the prisoner, and for what reasons he is confined. It is also in regard to the subject deemed his writ of right, that is, such an one as he is entitled to ex debito justitiae, and is in nature of a writ of error to examine the legality of the commitment; and therefore commands the day, the caption, and cause of detention to be returned. [4 Bac. Abr., A., p. 564.]
“It is said in general, that upon the return of the habeas corpus the cause of the imprisonment ought to appear as specifically and certainly to the judges, before whom it is returned, as it did to the court or person authorized to commit. For, if the commitment be against law, as being made by one "ddio had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the courts are to discharge him', and therefore the certainty of the commitment ought to appear.” [Ib., B. 10, pp. 585, 586.]
Ohitty says: “The habeas corpus ad subjiciendum (so termed from the language of the writ, to undergo and receive all such things as the court shall consider of the party in that behalf) issues in criminal cases, and is deemed a prerogative writ, which the king may send to any place, he having a right to *255be informed of the state and condition of every prisoner, and for what reason he is confined. It is also, in regard to the subject, deemed his writ of right, to which he is entitled ex debito justitiae, and is in the nature of a writ of error to examine the legality of the commitment, and therefore commands the day, the caption, and the cause of detention, to be returned.” [Grim. Law, 119.]
“The true test of jurisdiction is, whether the relator is detained or imprisoned without legal authority ? The source from which the imprisonment emanates, or the authority by which it is sought to be enforced, operates as no barrier to the allowance and validity of the writ. The power exists to make inquiry into the cause of the caption and detention, and it may be pursued without regard to the origin of the imprisonment, or the condition of the imprisoned.” [Ex parte Collier, 6 Ohio St. 55.]
Coulter, J., aptly observes: The “writ of habeas corpus ad subjiciendum is the prerogative of the citizen; the safeguard of his person, and the security of liberty — no matter where or how the chains of his captivity were forged — the power of the judiciary in this State is adequate to crumble them to dust, if an individual is deprived of his liberty contrary to the law of the land.” [Com. ex rel. v. Eox, 7 Barr 336.]
In Cox v. Hakes, 15 App. Cas. (H. L.) loc. cit. 514, Lord Halsbury said: “Eor a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person might make fresh application to every judge or every court in turn, and each court or judge was bound to consider the question independently and not to be *256influenced by the previous decisions refusing discharge.”
Instances will now be given from leading text-writers, touching this subject.
“It will be readily seen that the question before the court is not to ascertain whether the plaintiff has committed a crime, but to inquire into and determine whether he is lawfully held in custody by the defendant who has charge of him. The legality of the process by which he is held, the power of the court to issue the process, if any, and the right of the defendant to hold the plaintiff thereunder, all arise. If the plaintiff is charged with crime, this proceeding tests the jurisdiction of the court issuing the process; the constitutionality of the statute creating it; the process itself; the legality of the judgment or any right or immunity of the plaintiff under the Constitution itself. Therefore the writ tests not only the legality or power of the court to issue process, but also the process, and the power of the Legislature under the Constitution to pass the act under which 'the prisoner was convicted, as well as any other right or immunity guaranteed by the Constitution and appearing by the record to have been denied him. Hence, if for any legal cause so appearing the court had no power to render the judgment it did render, the writ will lie. If, therefore, the defendant in a criminal proceeding was protected by a constitutional provision forbidding his being placed twice in jeopardy for the same offense, he may avail himself of the writ, although the court had jurisdiction over the subject-matter and case; yet, because it has no constitutional right under the facts shown of record to enter the judgment, it is void. Therefore, when the sentence exceeds the jurisdiction of the court, there is no legal authority to hold .the defendant under it. Where he has been once put in jeopardy for the same offense, and this fact appears of record by plea confessed by demurrer, the court has no jurisdiction to sentence him again. If, however, the court misconstrues the statute, thereby rendering him liable *257when he should not be, such misconstruction is mere error of law and can only be rectified on appeal; the one being an error in judgment of the court, like receiving improper evidence; the other being the exercise of the powers of the court going directly to its jurisdiction and forbidding the rendition of any judgment whatever under the record.” [Brown on Jurisdiction, sec. 98;]
“Where the sentence given is beyond the jurisdiction of the court, because contrary to the provisions of the Constitution, which bounds and limits all jurisdiction, the writ of habeas corpus will lie......Therefore, whatever goes to the jurisdiction or authority, statutory or constitutional, and affects the powér so as to destroy the judgment, is an avoidance of the judgment and comes within the writ and its functions.....A trial which denies or fails to secure to the accused the benefit of these provisions would not be a trial under due process of law.....As before remarked, irregularity in the trial does not enter into the hearing under this writ, for the judgment must, in order that the plaintiff shall be discharged because of illegality, become a nullity.....The writ of habeas corpus is not, therefore, in its- nature one that is intended to review the facts already tried or instructed for trial to a tribunal that by statute is authorized to hear, try and determine a case, but it is rather a legal proceeding to test the legality of the trial, and in this respect the power of the court is reviewed, down to the moment of and including the entering of the judgment. The law giving the power is under review, also the law under which the petitioner for the writ is convicted, the legality of the trial, and every subject going to the making up of the jurisdiction, and particularly the judgment itself. It does not act as a writ of error but of right, and its high functions are to see that the law is maintained. It is not to destroy the law but to fulfill its requirements; and the question which is considered. *258is, in the main, whether the applicant for the writ, the plaintiff, is unlawfully, or rather illegally, restrained of his liberty without due process of law. It is a law test and trial, but not one of fact.” [Ib., secs, 101, 102, 112, 114.]
“The writ of habeas corpus ad subjiciendum is a high prerogative writ, summary in its character.....This writ is a remedy for every illegal imprisonment.....It was not framed to retry issues of fact, or to review the proceedings of a legal trial. It can not be used as a substitute for an appeal, or for a writ of certiorari. Errors and irregularities in procedure, not going to the question of jurisdiction, are not reviewable on habeas corpus.....It is not in the power of the Legislature to take away the right of any one to the writ of habeas corpus, or the remedy furnished by it, or to limit, restrict, abridge, impair or suspend it in any degree, except in the exigencies specially provided for in the Constitution. The authority of all other writs must yield to the authority of the writ of habeas corpus.” [Church, Habeas Corpus (2 Ed.), sec. 87.]
In another section, when speaking of the prisoner’s impeaching the legality of his imprisonment, the learned author says: “But this he may do in various ways. He may show that the jurisdiction of such court or officer has been exceeded. .... that the process is defective in some matter of substance required by law; that though proper in form, it has been issued in a case not allowed by law;.... that the process is not, in reality, authorized by any order, judgment, or decree of any court, or by any provision of law.....Mere errors and irregularities of procedure, however, not affecting the question of jurisdiction, are never reviewable on habeas corpus; and where the process is regular and valid upon its face, there is no doubt that a preponderance of authority supports the rule that inquiry, on habeas corpus, will go only to the question of jurisdiction......But jurisdiction is always an open, question, and may be inquired into *259by any court or judge competent-to issue the writ. Thus, the prisoner may be discharged on habeas corpus, either before or after judgment, where the statute or ordinance under which the proceedings are inaugurated against him, is unconstitutional,-as this is a jurisdictional defect; or where the complaint or commitment does not charge any crime known to the law; or where a commitment to answer has been made by a magistrate after a preliminary examination and after the defendant has filed an affidavit that he could not have a fair and impartial trial or hearing before him, which under the statute would disqualify such magistrate from hearing the case.” [Ib., sec. 236.]
Elsewhere, he says: “An indictment must contain the statement of an offense known to the law, and, under the rules well settled by judicial decision that this may be inquired into, if the court or judge determines that it does not, the prisoner must be discharged as a matter of right, particularly in those States where a statute provides that he shall be discharged ‘when the process, though proper in form, has been issued in a case not allowed by law.'" The better opinion is that not only after indictment, but even'after conviction, the courts will, by means of habeas corpus, inquire into the constitutionality of the law under which the applicant for the writ was indicted and tried and, if the law is determined to be unconstitutional, the prisoner will be discharged, no matter what may be the' status of his case.” [Ib., secs. 245, 245a. And see, also, Ib., secs. 81, 349, 351, 352.]
The writer of an elaborate work, discussing the effect and operation of the writ, remarks:
“It is a writ the object of which is to liberate those who are unlawfully imprisoned, whether by the action or under the order or judgment of a court, or without the forms of law. The right to the writ exists independently of and can not be *260taken away by statute. The right is guaranteed by the Constitution of the United States and of the States......
“The causes for which the writ may issue have been increased, and the extent to which courts may go in investigating such causes have been extended and enlarged quite' materially in some of the States. But in none has the writ been made less effective or the causes for which it may issue been diminished.
“The general rule is that the writ is jurisdictional, when directed to a court or judicial officer, and can only be used to inquire into the jurisdiction of such court or officer, and thatit can not be used as a writ of error or appeal for the purpose of inquiring into mere errors or irregularities; nor can the court determine, under the writ, whether the acts alleged constituted the offense charged or not, or the sufficiency of the evidence to warrant the imprisonment of the party seeking the writ.
“But the inquiry is not confined to the question whether the court had jurisdiction of the cause and of the defendant, but may be extended to the question whether the court had power to render a particular judgment or impose the particular penalty inflicted. .:.. If the court has acted without jurisdiction or has transcended its powers, the petitioner will be discharged from imprisonment as a result of its unauthorized action, as well after as before final judgment.” [Works, Courts and their Jurisdiction, secs. 82, pp. 639, 640, 641, 647.]
In reference to the jurisdiction incident to the issuance of this writ, it is observed that: “In a general sense this jurisdiction is appellate in its nature. The expression ‘appellate jurisdiction,’ has been defined to be ‘the power of one tribunal to review the proceedings of another.’.... It is not* strictly speaking, a power of revision, which includes properly the power to affirm or reverse the judgment or order and so establish or destroy it; but a power to arrest the.execution of a void *261judgment or order. It acts directly on the effect of the judgment, to-wit, the imprisonment; but only collaterally on the judgment itself. The jurisdiction, therefore, under the writ ■of habeas corpus over the judgment or order relied on to justify the imprisonment, is only collaterally appellate.....If it appears clearly that the fact for which the party is committed is no crime,.... the court discharges.....A proceeding defective for irregularity and one void for illegality may be reversed upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus.....Illegality is, properly, predicable of radical defects only, and signifies that 'which is contrary to the principles of law, as distinguished from mere rules of procedure. It denotes a ‘complete defect in the proceedings.’.... When the cause of commitment is shown and the prisoner is found in custody of a court of competent jurisdiction, not illegally asserted, the writ has fulfilled its office and the prisoner should be remanded.” [Hurd, Habeas Corpus, pp. 324, 325, 326, 327, 328, 333.]
In a recent recognized work of merit, it is stated: “The writ of habeas corpus is a high prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment. It is the proper remedy for every unlawful imprisonment, both in civil and criminal cases. The writ is the remedy which the law gives for the enforcement of the civil right of personal liberty. While it becomes necessary oftentimes to resort to it, where enforcement of the laws for the punishment of crime has been attempted, yet the proceeding under the writ is not to inquire into the criminal act which is complained of, but tiie right to liberty notwithstanding the act.....
“The writ of habeas corpus has not been given for the purpose of reviewing judgments or orders made by a judge or court or officer acting within their jurisdiction. To put it to *262such a use would be to convert it into a writ of error, and confer upon every officer who has authority to issue the writ appellate jurisdiction over the orders and judgments of the highest political tribunals in the land. It is well settled that habeas corpus can not be put to such use, and that its functions, where the party who has appealed to its aid is in custody under process, do not extend beyond an inquiry into the jurisdiction of the court by which it was issued, and the validity of the process upon its face.....It is only when the court pronounces a judgment in a criminal >case which is not authorized by law under any circumstances in the particular case made by the pleadings, whether the trial court has proceeded regularly or otherwise, that judgment can be said to be void so as to justify the discharge of the defendant held in custody by such judgment. ...
“If the court which renders a judgment has not jurisdiction to render it, either because the proceedings or the law under which they are taken is unconstitutional, or for any other reason, the judgment is void, and may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. .... As the laws of Congress are only valid when they are within the constitutional power of that body, the validity of the statute under which a prisoner is held in custody may be inquired into under a writ of habeas corpus as affecting the jurisdiction of the court which ordered his imprisonment.....
“The mere decision of a tribunal, however, that it has authority to try and determine a case, when no such power exists in the court, does not give it the power. Its judgment may be questioned anywhere for want of jurisdiction. The jurisdiction of a court can never depend upon its decision upon the merits of a case brought before it, but upon its right to hear and determine it at all.” [1 Bailey on Jurisdiction, secs. 310, 311, 322, and 2.]
In illustration of the quotation made from the section last *263cited, mention is made in another section, of a case which arose in Pennsylvania, where an unsigned paper purporting to be a last will was admitted to probate by a decree entered to that effect, and in that State such a decree is held judicial and conclusive, after five years have elapsed, as to the real estate disposed of by it, and no appeal taken; and no appeal was taken in that case. Thereupon plaintiff, claiming title under the will, brought ejectment and recovered in the trial court, but on appeal to the Supreme Court it appeared on the record, from the testimony of the subscribing witnesses, that “the deceased died before he signed and sealed the same; and further, that the deceased was, at the time of so making his will, of sound and disposing mind and memory,” etc. And upon this it was ruled that on the foregoing facts the register was without jurisdiction, and his decree admitting to'probate the unsigned writing, void, Justice Williams saying: “If the court has no jurisdiction it is of no consequence that the proceedings have been formally conducted, for they are coram non judice. If such want of jurisdiction appear upon the record, it .can be taken advantage of at any time and in any court where the conclusiveness of the judgment is the subject of judicial inquiry. The reason for this is found in the fact that the record of the judgment hears on its face the proof of its illegality, and shows the want of power in the tribunal to render it. When it is offered as a conclusive adjudication between the parties, an inspection shows it is not, because the court had no power to make an adjudication. The adjudication of the register was conferred by statute. Within these limits his decrees are conclusive. Outside of them he is without any authority to make a decree, and his decree if made is a nullity.” [Wall v. Wall, 123 Pa. St. 545, cited, 1 Bailey on Jurisdiction, sec. 10.]
Speaking again, in another place, of the question of jurisdiction as affected by that of uneonstitutionality, the same author -expresses himself thus: “It is conceded as a general *264rule that a court of general jurisdiction has the power to decide all questions of law that may arise in the particular case. That the question of the validity of any law that may be applicable must be decided, when the question is raised, in the first instance by the court which is proceeding with the trial. It is purely a question of law, yet the courts quite generally hold the doctrine that proceedings under an unconstitutional law are absolutely void; that the act, being void, has no effect to confer jurisdiction; that the power to determine is wanting; therefore, any decision the court may make is without the power to make it, and must be void.” [1 Bailey on Jurisdiction, sec. 15.]
In a very comprehensive text-book, the nature, scope and functions of the writ in question are exhaustively treated. Among other things it is said:
“The writ of habeas corpus is a high prerogative writ, given by the common law, and of authority paramount to that of all other writs, for the purpose of effecting a speedy release of the subject or citizen, whether an infant or a person of full age, from any illegal restraint of his liberty.....The writ issues ex debito justitiae, as a matter of right, but not as a matter of course, for the authorities are uniform in holding tha't sufficient probable cause must be shown to enable the court to form some judgment in the case, and if it appears from the petitioner’s statement that there is no sufficient ground for his discharge, the court should not issue the writ.....A person who is in custody under a warrant or commitment on a criminal charge, before indictment, may have a writ of habeas corpus for the purpose of an inquiry into the legality of his detention and to procure his release, in case it appears that he is illegally detained. The grounds, among others, on which a discharge will be granted under this head are want of jurisdiction or power in the committing magistrate to make the commitment; failure to indict for the offense charged within the *265time prescribed by statute; that no criminality is attached by law to the acts charged; and radical defects in the commitment. .... Even after indictment has been found, and the party is held in custody to respond to the charge against him, he may «till question the legality of such detention by means of the writ of habeas corpus, and may procure his discharge if it appears that he is illegally detained, as where the offense charged was not committed within the jurisdiction where the indictment was found, or where the court in which the prosecution is pending has no jurisdiction of the offense charged; but no matter of defense on the facts, however clear, can be thus determined in advance.....A person who is in custody by virtue of any judgment or order of court may be discharged therefrom on habeas corpus in any case where the court, whether it was one of general or of limited jurisdiction, did not for any reason have jurisdiction of the person of the defendant, or of the subject-matter involved, civil or criminal, so that the judgment would be held void on collateral attack, or if the process under which the party is in custody is void for any reason.....A conviction under an unconstitutional statute is generally considered void, so that the prisoner may be discharged from custody under it by habeas corpus.....If the acts of which the defendant was convicted are not criminal in law, the judgment is void, and a person who is imprisoned tinder it may be discharged on habeas corpus.....But it is only when the court pronounces a judgment which is not authorized by law under any circumstances in the particular ease made by the pleadings, whether the trial has proceeded regularly or otherwise,' that such judgment can be said to be void, so as to justify the discharge of the defendant held in custody by it.” [15 Am. and Eng. Ency. of Law (2 Ed.), pp. 154, 155, 157, 161, 162, 163, 166, 169, 170.]
I have thus given in outline, and in substance, the chief points, properties and functions of the writ of habeas corpus, *266and of the jurisdiction of the courts in relation thereto and in connection'therewith, 'as set forth by the leading text-writers, as heretofore quoted.
True it is that there are some authorities opposed to the views contained in those I have quoted, but I am persuaded that the great current of authority flows in the direction indicated in the quotations I have made, and that the current of common sense and common reason flows towards the same point of the compass, to say nothing of the sacred principles of personal liberty which the great writ of habeas corpus was designed to protect and preserve against all illegal assaults, whether made by laymen, ministerial or judicial officers, or the orders or judgments of courts.
In discussing the invalidity of acts repugnant to the Constitution, Judge Cooley says with his accustomed force: “When a statute is adjudged to be unconstitutional, it is as if_ it had never been. Rights can not be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force.” [Cooley, Const. Lim. (6 Ed.), p. 222.]
This quotation was in substance adopted and applied by this court, where it w7as held that the Act of 1895 being unconstitutional, that the repealing clause of that act which repealed “all acts or parts of acts inconsistent or in conflict with the foregoing section,” had no effect on such unconstitutional law, because of its being “a nullity,” and, therefore, there was nothing on which the repealing clause could operate because there was no law in existence which could be inconsistent or in con*267flict with an act void by reason of its unconstitutionality. [State v. Thomas, 138 Mo. loc. cit. 99.]
Touching the same thought of the nullity which results in either process or judgment where the statute on which the proceedings are based is unconstitutional, Mr. Justice Bradley, in passing judgment in a habeas corpus case, made, among others, the following observations: “The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and can not be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that-there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed in habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the circuit court acquired no jurisdiction of the causes.” [Ex parte Siebold, 100 U. S. 371.]
Repeated affirmance of that doctrine has occurred in the Federal Supreme Court. And it was held in that case that the question of the constitutionality of the laws, involved in that case, was good ground for issuance by the Supreme Court, of the writ of habeas corpus to inquire into the legality of the imprisonment under a conviction resting for its basis on such laws. •
The doctrine announced in Siebold’s case has since been *268followed by the Federal courts and most of the State courts, such as has not previously taken the same view of the matter. This is true of Michigan, Nebraska, Texas, Iowa and Missouri.
In Wisconsin, a person convicted and sentenced under an-unconstitutional law was discharged on a writ of habeas corpus issued by a court commissioner. [State ex rel. Larkin v. Ryan, 70 Wis. 676.] In an earlier case in that State, In re Elred et al., 46 Wis. 530, Ryan, C. J., in delivering the opinion of the court, after remarking that where the prisoner is held by legal process, the writ of habeas corpus raises only the question of the jurisdiction of the court or officer to issue the process of arrest; held, that inasmuch as the justice of the peace had no authority to cause the arrest of a person for an offense committed in another county, consequently such persons were entitled to their discharge on habeas corpus.
In this State the writ of habeas corpus has frequently issued for the purpose of determining the constitutionality of statutes involved in such litigation: Ex parte Slater, 72 Mo. 102; Ex parte Marmaduke, 91 Mo. 228; Ex parte Swann, 96 Mo. 44; Ex parte Thompson, 117 Mo. 83; Ex parte Wooldridge, 30 Mo. App. 612.
It is asserted in the opinion now being discussed that there was no express ruling made either in Swann’s case, nor in Ex parte Marmaduke, nor in Ex parte Thompson, on that point, of the unconstitutionality of a statute rendering all proceedings thereunder void. It was not necessary that this court should in terms state that it had authority to test the constitutionality of a statute by means of a writ of habeas corpus; the very fact that it issues the writ; that it hears and determines the cause, either by discharging the petitioner or else by remanding him, is, in and of itself, an implied declaration of authority to take either alternative indicated. I do not suppose that in the whole range and realm of jurisprudence an instance can be found where a court issuing a writ of replevin, or attachment *269or injunction, or habeas corpus, or what not, has seen fit to declare it had authority to do so.
In such circumstances the issuance of the writ is an assumption of jurisdiction thus to issue it, and of the propriety of its issuance. [Bouldin v. Ewart, 63 Mo. loc. cit. 335; 19 Pac. Rep. 442; State v. Peyton, 32 Mo. App. 522; State ex inf. v. Fleming, 147 Mo. loc. cit. 12.] “Hence any step taken is an application of the law to all the facts disclosed by the record and necessarily implies an adjudication of the right to take that step.” [Vanfleet’s Col. Attack, sec. 62.]
“The assumption of jurisdiction and the exercise of authority is a decision upon the question of notice without any formal entry declaring the notice sufficient. So where an objection was made to the right of the circuit judge to sit in the probate court, he assuming to act, ignoring the objection is an adjudication of his right to do so.” [Ib., and Updegriff v. Palmer, 107 Ind. 181; Jackson v. State, 104 Ind. 516; Landon v. Cornet, 62 Mich. 80.]
But the cases mentioned, do more than impliedly assert the authority to act and the propriety of the court’s acting in the premises. For instance:
In Marmaduke’s case, it was held in the majority opinion that section 4031, Revised Statutes 1879, was not in contravention of that provision of the Constitution (section 22, article 2), which gives the right to the accused to have process and compel the attendance of witnesses in his behalf;” and so holding, it was further held that the warden of the penitentiary was guilty of no contempt of the criminal court of St. Louis, in refusing to obey a writ of habeas corpus ad testificandum by producing before that court the body of Frederick Whitrock, a convict then in the penitentiary, and the warden having been arrested by the sheriff of Cole county on an attachment issued by the criminal court, was discharged on habeas corpus. In that case you will note that whether section 403 was a constitu*270tional law, was the hinge on which turned whether the wgrden was guilty of contempt. Being held constitutional, his discharge followed. And in that case you will note further that the writ of attachment issued from a court of competent jurisdiction, and was fair and regular on its face, and the warden was arrested on it, and yet this court, notwithstanding that fact, thought the writ of “habeas corpus had a place in his case.”
In Swann’s case it was expressly determined on a demurrer to the return to the writ of habeas corpus, that the local option law was not a local or special law'within the meaning of section 53, article 4, of the Constitution, nor a delegation of legislative power, nor did it violate the above section of the Constitution in regard to that provision about enacting a local or special law by the partial repeal of a general law, nor did it contravene section 1 of article 14 of the Federal Constitution. And upon this the return was held sufficient, and the prisoner remanded. If remanded because of the law being held constitutional, it necessarily and inevitably follows that if unconstitutional the prisoner must have been discharged.
In Thompson’s Case, the point involved was whether section 8849, Revised Statutes 1889, respecting vagrants, was constitutional. That section of chapter 169 authorized that the person whom the jury fround to be a vagrant, should be kept in the custody of the sheriff, and then after three days’ notice, hired out at the courthouse door for six months, etc. In'the course of the opinion in that case, it is, among other things, said:
“Section 2, of article 1, of the Constitution of this State adopted July 4, 1865, declares: ‘That there can not be in this State either slavery or involuntary servitude, except in punishment of crime, whereof the party shall have been duly convicted.’ This section has now become section 31 of article 2, of our present Constitution, and is substantially a literal transcript of a like provision contained in the ordinance of *2711787, penned by the hand of Thomas Jefferson, and this is in substance section 1, of the thirteenth amendment to the Constitution of the United States.....So that the constituent elements of this case are: Imprisonment, punishment and involuntary servitude without any charge, proof or legislative enactment establishing the act of petitioner to have been a crime. The question then is, can a statute which authorizes such proceedings as are here brought under review, stand before the prohibitions of our State and Eederal Constitutions ?” The opinion then concludes:.... “The premises considered, we hold that the law under which petitioner is restrained of his liberty contravenes the Constitution of the United States and of this State, and he is therefore entitled to be discharged, and it is so ordered.” [In re Thompson, 117 Mo. 83.]
If these cases do not contain express rulings as to the constitutionality of the respective statutes, and recognize habeas corpus as the appropriate remedy in such circumstances, then the power of our vernacular to convey our meaning has been greatly curtailed. They certainly did not follow the Harris case, and others of that ilk.
Now I will take up the other eases which have been mentioned, and see what they amount to, and in what they differ from those analyzed above.
Slater’s case (72 Mo. 102), involved the constitutionality of section 1804, Eevised Statutes 1879, which is substantially identical with section 42, page 848, General Statutes 1865. That section made provision, as was lawful under thé Constitution of 1865, that in case a crime were committed in a county and no indictment could be found, it devolved on the circuit judge to have the cause certified to another county, where an indictment could be found. [Sec. 12, Art. 11, Constitution 1865.]
In that ease it was determined that though section 1804 *272was a valid law under tbe Constitution of 1865, yet in consequence of the change effected by the Constitution of 1875, the Constitution of 1865 was abolished by the Constitution of 1.875, which made provision only for finding indictments in the county of the crime committed. The indictment in that case showed “upon its face that it was preferred by a grand jury of Scotland county, and charged the offense not to have been committed in said county, but in Clark county.”
And concerning section 1801, supra, in delivering the opinion, this court remarked: “We are of opinion that this statutory provision is utterly null and void, for the reason that it undertakes to deprive a person of the constitutional right conferred upon him by section 12, supra, of the Constitution, which section, as we have shown, gives to every person charged with a felony, before he can be tried, the right to have the charge preferred in an indictment found by a grand jury of the county where the offense was committed. While the Constitution gives this right to every person, the statute in question takes it away and denies it to some persons. While the Constitution declares that a person charged with a felony can only be tried after an accusation has been made upon the oaths of the grand jury of the county where the crime was committed, the statute in question declares, on the contrary, that a person charged with a felony may be tried upon an accusation preferred upon the oaths of the grand jury of another and different county than the one where the crime charged was committed. The statute being thus in direct conflict with the Constitution, which can in no way be reconciled, must, therefore, fall and be considered as no law.”
And upon the ground of the unconstitutionality of section 1801, the prisoner was discharged on habeas corpus.
The above case announces the very doctrine ruled in Siebold’s case, heretofore cited.
In Bethurum’s case (66 Mo. 515) the prisoner would *273¡have been discharged on habeas corpus but for the passage of a law which permitted the re-sentencing of the prisoner, and this was done, whereby the excess of punishment was obviated and the prisoner was remanded. But the writ was granted in that case in order to test the constitutionality of that remedial and error-correcting law.
In Page’s case, the excessive sentence proved fatal on habeas corpus; and the prisoner was discharged. This, of course, occurred prior to the curative act above mentioned, and the discharge of the prisoner was ordered by reason of the fact that the jurisdiction of the court had been exceeded, etc., and by reason of the further fact that the process was not authorized by any provision of law. [Wagn. Stat., sec. 35, p. 690.] And in that case the court is careful to point out that if the fact of excess of jurisdiction lay dehors the record, this court could not interfere in the manner prayed; but inasmuch as the excess of sentence, etc., appeared on the face of the record, habeas corpus was the proper remedy.
Ex parte Snyder (61 Mo. 58) was one where the court was organized by a valid law, but the law of its organization was necessarily, though not in terms, abolished by the adoption of the Constitution of 1875, to which the law establishing the probate and criminal court of Cass county became repugnant; and after that the trial of Snyder occurred, and upon this it was held he was entitled to his discharge on habeas corpus, as there was no statute left in existence establishing the court aforesaid.
But if it be true as stated in Siebold’s case, that “an unconstitutional law is void and is as no law,” and if as stated in Slater’s case, a similar statute is to be “considered as no law,” how can Snyder’s1 case being a conviction in a court organized under an abolished law, be made to differ from a conviction in a court validly organized, but based on an unconstitutional *274law ? Point ont the difference if you can. In Harris’ case (47 Mo. 164) it was held that an arrest of a person under an unconstitutional law could not be reviewed or relieved by habeas corpus, and this on the ground that our statute on that topic contained- no provision for that kind of a case, referring to section 35, Wagner Statutes, p. 690. That section is now section 3578, Revised Statutes 1899.
But in that case the court did not consider, as it did after-wards, in Page’s case, that if the arrest was “not authorized by .... any provision of law,” there the prisoner was entitled to his discharge. Nor was it considered that if the statute were unconstitutional, there could not be “any provision of law” for his arrest. But the whole case was passed over lightly without any reference to, or citation of, authority, and upon that case in all its meagerness, rests Boenninghausen’s case (91 Mo. 301).
In 1854, sixteen years before the Harris case was decided, Chief Justice Shaw had determined that a conviction on an unconstitutional law was void. And the Chief Justice disposed of a number of other cases involving in .one way or another, the validity of the same law; actions for damages, for torts in enforcing the law, prosecutions for violating the law, etc. Herrick’s case came up among the number. He had been convicted for a violation of the law, sentenced to and confined in, the common jail. The papers were “all right and regular.”
Herrick thereupon sued out a writ of habeas corpus, and his cause was heard and determined along with the rest. Of that the Chief Justice said:
“In Herrick’s case, a question was made by the Attorney-General whether the prisoner could be relieved on habeas corpus, even if the conviction is wrong; and whether his remedy is not by writ of error or certiorari; on the authority of Riley’s case (2 Pick. 172). We take the distinction to be this: When *275the proceedings are irregular or erroneous, if the court or magistrate has jurisdiction, the judgment is voidable only, and not void; and of course must stand good until reversed or annulled in a proper course of proceeding, by a court having authority to revise and annul it. But where it appears, on the face of the proceedings, that the magistrate had no jurisdiction, the proceedings are wholly void, the commitment is without authority, and the party committed is entitled to be discharged from his imprisonment without reversal of the judgment.
“The case being rightly before us, the court are all of opinion that, for the reason's already given, that section of the law7 under which the conviction was had is unconstitutional, and therefore the judgment is void, and the prisoner is entitled to be discharged from custody.” [Herrick v. Smith, 1 Gray 49.]
And in one of the associate cases, Fisher v. McGirr, it was ruled that where an officer acted on a warrant apparently regular on its face, that though, ordinarily, this would be a full protection to the officer making the seizure, yet this would not be the case where, owing to the statute being unconstitutional the magistrate had no jurisdiction and consequently “the process was not merely voidable but wholly void; the officer taking property under it has no authority, and is therefore liable to an action of trespass.....
“The law relied on for a justification, being void, gave the magistrate no jurisdiction and no authority to issue the search warrant, the officer can not justify the seizure under it, and therefore an action lies against him for the taking.” [1 Gray, 45, 46.]
You will observe in the above case that the Attorney-General suggested a doubt as to whether habeas corpus would lie, but this doubt w7as promptly solved by the Chief Justice saying that as “the commitment is without authority, the party committed is entitled to be discharged without reversal of the judgment.”
*276In. 1852, a similar ruling as in Herrick’s case had been made on circuit by that eminent judge, B. R. Curtis, to the effect that if a statute is in conflict with the Constitution, it confers no jurisdiction on the magistrate who acts under it. [Greene v. Briggs, 1 Curt. C. C. 311.]
But there is an earlier original by-way of authority on the point in hand, than any of the cases I have recently mentioned. I have already quoted this sentence: “For if the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge him.” [4 Bac. Abr., B., 10, p. 585.] Chief Baron Gilbert is thought to be the author of that sentence. The latter part of the rule there quoted, is confined to cases of clear and manifest want of criminality in the matter charged, such as render the proceedings void.
The authority commonly cited as pertinent to this point is Bushell’s case, decided in 1670. There twelve jurymen, Bushell among the number, were convicted “for giving a verdict against full and clear evidence” (whereby William Penn and others, charged with meeting in a conventicle, were acquitted). Bushell and his associates being imprisoned for failure to pay their fines, sued out habeas corpus, and were discharged, on the ground that their conviction was void; that jurymen could not ■be indicted for rendering any verdict they choose. [Bushell’s Case, Vaughan, 135; s. c., 6 Howell’s St. Tr., 999, T. Jones, 13.]
So that it is at once evident that Siebold’s case announced no new doctrine to that last cited, unless there be distinction to be talcen between an absence of a law for doing a certain thing, and an unconstitutional law, which is no law at all, professedly giving permission to do that thing.
Our right to the writ of habeas corpus had its origin in the common law, and though the Legislature may to some *277extent regulate the issuance of the writ, yet it can not take away the right of anyone to the writ or the remedy furnished by it, or to limit, restrict, abridge, impair or suspend it in any degree, except in the exigencies specially provided for in the Constitution. The authority of all other writs must yield to the authority of the writ of habeas corpus. [Church, Habeas Corpus, sec. 87.]
But our Constitution provides that:
“The privilege of the writ of habeas corpus shall never be suspended.” [Art. 2, sec. 26.]
Treating of this question, Judge Cooley said:
“When the Constitution gave this court jurisdiction of the writ, I think it conferred the same full powers upon the court, as representing the sovereignty of the people, which the Court of King’s Bench possessed as representing the Crown of England. Our jurisdiction does not depend upon the statute, and the main purpose of that, here as in England, is to compel the performance of judicial and ministerial duties. Chancellor Kent says (2 Kent, 27) : ‘The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the Habeas Corpus Act (of 31, Ch. II), is of common right.’ And by this he means, as the context shows, without regard to the cause of imprisonment, so that it be unlawful. The statute does not give the writ, but renders it more effectively and actively remedial. I therefore attach no special importance to the particular wording of the statute where it speaks of the cases in which the writ is to be issued........ If the statute lacks comprehensiveness, it may be that the same opportunities are afforded for evasions of duty by courts that existed in England before the statute 31, Charles II, but until a disposition to evade duty shall be manifest, it will not be- important. The common-law jurisdiction is ample. As it came from no statute, it is not confined in its scope to any prescribed limits, but is co-extensive with the cases to which its principles *278can be applied, and in wbicb it can afford a remedy. I am aware of nothing wbicb limits tbe power of tbe court upon tbis writ, but its capacity to give relief in tbe particular case in accordance with the settled rules wbicb govern tbis mode of proceeding. I know of no other test that can have determined its jurisdiction at tbe common law; and while the law bolds tbe right to personal liberty in the same high regard as now, the same test will probably continue to be applied.” [In the Matter of J ackson, 15 Mich. 417.]
Works says: “Tbe right to tbe writ exists independently of and can not be taken away by tbe statute.” [Courts and Jurisdiction, p. 639, sec. 82.]
Prof. Minor says “tbe guaranties and securities” which surround tbis writ “are not susceptible of being evaded or modified by the Legislature; that is, not legally'[4 Minor’s Inst., Pt. I, p. 416.]
The statute of New York concerning this writ underwent elaborate discussion in People ex rel. v. Liscomb, 60 N. Y. 559, by Allen, J., who said:
“The prohibition of the forty-second section of tbe habeas corpus act, forbidding the inquiry, by the court or officer, into tbe legality of any previous judgment, decree or execution specified in the twenty-second section, does not and can not, without nullifying, in good measure, tbe provisions of that and other sections of the act, take from the court or officer the power, or relieve him from tbe duty of determining whether the process, judgment, decree or execution emanated from a court of competent jurisdiction; and whether the court making the judgment or decree, or issuing tbe process, had tbe legal and constitutional power to give such judgment, or send forth such process. It simply prohibits the review of the decision of a court of competent jurisdiction........The inquiry is, necessarily, in every case, whether tbe process is void, and the officer or court having jurisdiction of the writ must pass upon *279it. If a process good in form issued npon a judgment of a court having jurisdiction, either general or limited, must in all cases be assumed to be valid until the judgment be reversed upon error, the remedy by the writ of habeas corpus will be of but little value.” And that the relief afforded at common law by This, the greatest of all writs,’ is, under the Constitution beyond the pale of legislative discretion and should not be shorn of its power and its glory by a subtle and metaphysical interpretation; rather should it receive a liberal construction, in harmony with its grand purpose, and in disregard, if need be, of technical language used.”
And in regard to the construction to he placed on the statute it is not to be presumed that the Legislature intended by the use of general words therein to defeat the very object and purpose of the writ of habeas corpus, which, according to all the authorities, as already quoted, “is in the nature of a writ of error to examine the legality of the commitment.” [1 Chitty, Cr. L., 119; 1 Bailey Juris., sec. 310.] If all opportunity for examination into the legality of the commitment were to be foreclosed by bare, formal recitals in writs or judgments, such “pitiful evasions” would often be resorted to in order to balk the operation of "the Great Wni.”
In this writ, legality and jurisdiction are inseparably blended; whatever shows legality to be non-existent, shows jurisdiction occupying the same vacuum. [See text-books, supra.]
But in this case inasmuch as this cause has not proceeded to judgment, the words of section 3578, will be sufficient for' the purposes of this case, to-wit: “Where the process, though in proper form, has been issued in a case or under circumstances not allowed by law.”.......“WThere the process is not authorized by any provision of law.” [Ex parte Page, supra.]
Many of the cases upholding the doctrine that habeas corpus lies to question legality of process and judgments issued, *280entered under unconstitutional laws will be found in a-note to section 83, Church’, Habeas Corpus.
Ex parte Mitchell, 104 Mo. 121, was correctly decided. The subject-matter of the proceeding which resulted in the judgment in that case was the local option law; but as the evidence as to whether that law had been adopted or not, did not appear in the record, there was nothing left for this court to do but deny the writ. In re Wooldridge, 30 Mo. App. 612, the prisoner was very properly discharged on habeas corpus because ■it was apparent of record that the local option law was adopted ■at a void election. In Ex parte Bedard, 106 Mo. 616, an affidavit was filed which disqualified the judge of the court of criminal correction, but who nevertheless committed the defendant, and it was ruled that the judge having been disqualified had no jurisdiction to imprison defendant, and so he was discharged on habeas corpus.
That case is, in effect, the same as one where the statute involved is unconstitutional; for, in either case jurisdiction is absent. In re Flukes, she was arrested on a charge and was discharged by us on habeas corpus, on the ground that the statute was unconstitutional. [157 Mo. 125.]
So far as concerns the case of State ex rel. v. Dobson, 135 Mo. 1, it suffices to say that no question of an unconstitutional law was presented, and therefore it would have been wholly obiter to have discussed such a point in that case.
Ex parte Mallinkrodt (20 Mo. 493), was a case where a witness required by a subpoena duces tecum to produce books and papers before a notary, refused to .do so, and was committed to prison. The notary’s authority only extended to commitments for contempts in failing to give testimony. Consequently, as authority was lacking to the notary in that partir cular case to commit, the petitioner was discharged on habeas corpus. It can make no difference, in point of principle, what *281ground causes the absence of authority; it suffices to show such absence, and when shown, the conclusion follows.
In re Knaup, 144 Mo. loc. cit. 665, it was said: “There is no doubt upon the proposition that a person committed for contempt in disobeying an order, which the court had no legal right to make, may be discharged on habeas corpus.”
In State ex inf. v. Bland, it was said: “It is a solecism to say a court of law would enter a judgment punishing a defendant for doing an act that was never made unlawful by any law. [Kansas City v. Corrigan, 86 Mo. loc. cit. 69.]”
In conclusion I have this to say, that if the opinion I have endeavored to discuss is held good law, such a ruling will be in violation of section 26 of article 2 of the Constitution, in that it will suspend the writ of habeas corpus in this Statej something which that section says, “shall never he suspended
Inasmuch as the statute referred to in the beginning of this opinion, has been held to be constitutional, it follows that the prisoner must be remanded, as heretofore ordered.
Burgess C. J., Marshall and Gantt, JJ., concur.