DISSENTING OPINION
Gilkison, J.I am unable to agree with the opinion that: “The law is well settled iñ Indiana that one Cir*429cuit Court has no jurisdiction to issue a writ of habeas corpus setting aside an order of commitment issued by another such court which had jurisdiction of the subject matter and the person, and the power to render the particular judgment.” I am unable to agree with the further statement that: “While a writ of habeas corpus is a writ of liberty, if it appears that the detention complained of is by virtue of a proper process of court, the writ will not be granted unless the proceedings or judgment supporting the process is absolutely void.” (My italics.)
No question of law is ever well settled until it is settled right. It is true the Indiana cases cited in the opinion hold as stated in the opinion, but in so far as they support the propositions noted they are in direct contravention of Art. 1, §9, Cl. 2 of the Constitution of the United States, as follows:
“The privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.”
- It is also in contravention of Art. 1, §27, of the Indiana Constitution, providing that:
“The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then, only if the public safety demand it.”
Implementing the habeas corpus provisions of our constitutions, the Indiana General Assembly very properly enacted a statute as follows:
“Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to’ inquire into the cause of the restraint, and shall' be delivered therefrom when illegal.” Section 3-1901. Burns’ 1946 Replacement.
*430The venue of habeas corpus proceedings is specifically fixed by statute, Section 3-1905 Burns’ 1946 Replacement, thus:
“Writs of habeas corpus may be granted by the circuit or superior courts of the county in which the person applying therefor may be restrained of his or her liberty, or by the judges of said courts, whether in term or vacation; or if said judges be absent from their circuits, or by reason of sickness or other cause be unable or incompetent to hear and determine the same, then by any such judge of any adjoining circuit, and upon application, the writ shall be granted without delay.”
It is further provided that the writ shall be directed to the officer or party having the person under restraint. Section 3-1907 Bums’ 1946 Replacement.
It has been a consistent holding of this court, agreeable with the above statutes that a habeas corpus proceeding should be brought in the county where the person applying is restrained of his liberty. Ex Parte Wiley (1871), 36 Ind. 528; Murphy v. Daly (1934), 206 Ind. 179, 184, 188 N. E. 769; State ex rel. Bevington v. Myers, Judge (1942), 220 Ind. 149, 150, 41 N. E. 2d 358; Newsom V. Miles (1942), 220 Ind. 427, 428, 44 N. E. 2d 297; State ex rel. Howard v. Hamilton Circuit Court (1946), 224 Ind. 220, 222, 66 N. E. 2d 62. The statutes above quoted are in aid of the assertion of the habeas corpus right and are therefore agreeable with the federal and state constitutions.
However, we have another statute which, if enforced (as it has been), rather completely nullifies the habeas corpus provisions of both constitutions, thus:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of *431commitment has not expired in either of the cases following:
“Second. Upon any process issued on any final judgment of a court of competent jurisdiction.
“. . . .” Section 3-1918 Burns' 1946 Replacement.
Thus we have the anomalous situation that the citizen must bring his habeas corpus proceeding in the circuit or superior court of the county in which he is unlawfully restrained, agreeable with Section 3-1905 Burns’ 1946 Replacement, and then, those courts are forbidden to hear and determine his petition. This is a rank contradiction of Section 3-1901 Burns’ 1946 Replacement, supra. The majority opinion and all the authorities upon which it relies are based upon this contradicting statute. None is based upon Section 3-1901, supra. Of course, everyone who is committed to any of the state penal institutions is committed on a final judgment of a court of competent jurisdiction. These institutions include all the jails in the several counties of the state, the state Penal Farm, the Indiana Reformatory, the Indiana State Prison, the Indiana Women’s Prison, the Indiana Boys’ School, the Indiana Girls’ School, and the Indiana Hospital for Insane Criminals, into which hopeless epileptics and insane criminals are cast indiscriminately,1 where appellant is now restrained. Under this statute it is only when someone is kidnapped and held for ransom or some other wrongful purpose that the “Great Freedom Writ” can issue in Indiana. This statute is a direct circumvention of the habeas corpus provisions of our constitutions aforenoted. The several authorities cited in the opinion are based wholly upon this statute and like the statute they *432are in circumvention of our constitutions. Because of this statute and these decisions this court recently rather suggestively and truthfully determined and announced: “Habeas corpus is a statutory proceeding in the State of Indiana.”2 *The learned judge, who made the statement, cited the statute, §3-1918, as his authority. If we continue to give force and effect to that statute, that peculiar statement is true. We have very properly overruled the case in which this announcement was made3 because the decision overruled is in circumvention of our constitutions. To be logical and true to our duty we should declare the statute unconstitutional, and all the cases based upon it will fall with it. It must always be true that “An unconstitutional provision cannot be the basis of lawful proceedings.” Greencastle Tp. et al. v. Black (1854), 5 Ind. 557, 564.
So long as we try to protect this statute, we simply deny habeas corpus to prisoners. It has been said truthfully of habeas corpus in Indiana that,
“. . . Despite the fact that it is protected from suspension by the state constitution, it has become encased in a statutory and judicial straightjacket which has made it practically unavailable as a vehicle for safeguarding the constitutional rights of prisoners. . . .”4
This anomalous situation has caused unexplanable decisions in a number of recent cases.5 **It is true our *433court has attempted to accomplish by coram nobis some of the ends the constitutions compel us to accomplish by habeas corpus.6 To me this proceeding seems quite hypocritical, and we should have the courage to abandon it now, and in its stead to recognize habeas corpus as commanded by the constitution and the implementing statute, Section 3-1901 supra. I think the statement of Treanor, J. in State, ex rel. Eggers v. Branaman (1932), 204 Ind. 238, 247, 183 N. E. 653 is correct, thus:
“A defendant, however, is under no duty to take advantage of any particular legal remedy which may happen to be available at the risk of being precluded from attacking in a habeas corpus proceeding an alleged void judgment. The remedy of habeas corpus is more fundamental and far-reaching as against void judgments than the remedy of appeal. The right to a writ of habeas corpus is a part of the law of the land and if the facts justify relief thereunder a party is entitled to this relief even though the same result might have been achieved by the more common remedy of appeal.”
It cannot matter what other remedies appellant might have pursued. He was and is entitled to question the legality of his detention by habeas corpus. By refusing to allow prisoners the constitutional right to the writ we compel .them to apply to the Federal courts where the writ is granted, and they are permitted to go behind the judgment of commitment and show the facts (usually the denial of constitutional rights) that make the judgment void.
So far as this appeal is concerned, no question is presented to us as to whether appellant’s restraint was or is void. The facts were not heard by the court. The only question presented is: Is appellant entitled to *434present the matter to the circuit court of the county where he is restrained and to have that court determine, from the facts presented in evidence, whether the restraint is lawful or unlawful. At the present time the entire matter is determined by the statute to which I have called attention, and agreeable with its terms every applicant is brushed off without a trial. Under our decisions the trial courts are compelled to obey its commands.
In addition, it will be noted that no final judgment has ever been rendered against appellant by any court, yet he has been restrained of his liberty for more than thirteen years. With this decision against him, he is doomed for life imprisonment without ever having had a trial, and without any judgment against him. I think he is entitled to have the cause of his restraint inquired into, in his habeas corpus proceeding and to be “delivered therefrom if it is illegal.”
I think the judgment should be reversed with instructions to overrule the motion to quash.
Note.—Reported in 108 N. E. 2d 261.
See Dowd v. Harmon (1951), 229 Ind. 254, 96 N. E. 2d 902.
See State ex rel. Barnes v. Howard (1946), 224 Ind. 107, 109, 65 N. E. 2d 55.
See Witte v. Dowd (1951), 230 Ind. 498, 102 N. E. 2d 630, 633.
See 26 Indiana Law Journal 529, 530.
See Todd v. State (1951), 229 Ind. 664, 101 N. E. 2d 45. Todd v. State (1948), 226 Ind. 496, 81 N. E. 2d 530. Dowd v. Harmon (1951), 229 Ind. 254, 96 N. E. 2d 902. Slack v. Grigsby (1951), 229 Ind. 335, 97 N. E. 2d 145. Witte v. Dowd (1951), 230 Ind. 498, 102 N. E. 2d 630.
See State ex rel. McManamon v. Blackford C. Ct. (1950), 229 Ind. 3, 12, 95 N. E. 2d 556, and the many eases there cited.