(dissenting)
At the outset of this dissent I must reject the view of the majority that the sweep of statements in Norton1 and Siebold 2 “is deceiving.” I must also reject the majority view that Linkletter'3 “laid to rest as out of tune with the times the concept of Norton * * *While Chicot,4 a case involving the invalidity of a state statute, states that the observations of Norton “must be taken with qualifications,” which statement is reiterated in Linkletter, I believe that the Siebold rule has been recognized, accepted, and applied by this Court in Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411, 49 L.R.A. 831 (1899), and can see no reason for qualification or rejection of the rule in this case. Were I to concede that various decisions of the Supreme Court of the United States establish for that jurisdiction the rule that any decision denying the constitutionality of a statute 5 may in the discretion of the court be declared retroactive or prospective in its application, I would further reject any notion that such ruling is binding upon the disposition that we are to make of this case.
In my view Miskimins clearly recognizes the distinction between a judgment which is merely erroneous and one which is entered without jurisdiction or authority. An erroneous judgment can be corrected only by appeal; one entered without authority is null and void and leaves tha judgment open to collateral attack at any time. It follows, I think, that a judgment of conviction under an unconstitutional criminal statute is one entered without jurisdiction or authority to act and is therefore null and void.
Before considering the facts and holding in Miskimins, I would discuss Siebold and the law there established. Petitioners therein sought writ of habeas corpus from the United States Supreme Court, hoping thereby to upset a conviction in the United States District Court under a law which petitioners claimed was unconstitutional. Apparently they had not appealed their conviction in the usual way and as stated in the opinion,
“The question is whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created and indictable under an unconstitutional act of Congress, may be discharged from imprisonment by this writ of habeas corpus, although the court has no appellate jurisdiction by writ of error over the judgment.” 100 U.S. at 374.
Pointing out that the only ground upon which the court could by habeas corpus give relief to a person convicted in another court “is want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void” *1307(emphasis supplied), the court continued, 100 U.S. at 375:
“This distinction between an erroneous judgment and one that is illegal or void is well illustrated by the two cases of Ex parte Lange (18 Wall. 163) [21 L.Ed. 872] and Ex parte Parks, 93 U.S. 18 [23 L.Ed. 787]. In the former case, we held that the judgment was void, and released the petitioner accordingly; in the latter, we held that the judgment, whether erroneous or not, was not void, because the court had jurisdiction of the cause; and we refused to interfere.”
and continued, 100 U.S. at 376-377:
“ * * * [W]e are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. 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 cannot 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 on 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. Its authority to indict and try the petitioners arose solely upon these laws.[6]
“We proceed, therefore, to examine the cases on their merits.”
While it is true, as pointed out by the majority herein, that the court found the statute constitutional and denied the writ, the point of the case is that the whole justification for its entertainment of the application was on the basis that if the statute was unconstitutional, action thereunder was subject to collateral attack as being beyond the jurisdiction of the court.
In Miskimins the petitioner had been adjudged guilty of contempt for refusal to answer certain written questions asked of him in justice court. Application for writ of habeas corpus was denied by the district court and similar application was then filed with this Court. Following an extensive discussion of decisions and authorities relative to the use of this writ, our Court concluded that the question whether the constitutional privilege against self-incrimination had been violated went to the very jurisdiction of the court wherein the privilege was asserted and that it was therefore not necessary to raise the question by appeal. Habeas corpus was held to be a proper remedy. As I read the opinion, the basis of the holding is plainly that denial *1308of constitutional rights results in a loss of jurisdiction. The Court said, 8 Wyo. at 412, 58 P. at 416:
“The acts constituting the alleged contempt are to be examined to ascertain whether in law they constitute a contempt, for if they do not the court was without jurisdiction to imprison and the petitioner is entitled to be discharged on habeas corpus.”
A number of cases supporting the view that unconstitutional action is void are cited and quoted from, and in my opinion our Court clearly accepts the principle that proceedings in violation of one’s constitutional rights are considered not erroneous but void. Brown on Jurisdiction, with respect to the guarantee of constitutional rights, such as the right against self-incrimination, states:7
“ * * * ‘The refusal of the court to grant each of the rights above enumerated or all of them goes to the jurisdiction; and if the court has jurisdiction to try the action, it seems to lose jurisdiction once acquired, by a disobedience of the mandates of the constitution; or, rather, the trial ceases to be a legal trial by a deviation from this course. Therefore, when any constitutional right or immunity of a person is violated, the judgment of the court is void. The Supreme Court of the United States, in a recent case say: “It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction under a valid law.”[8] Under this rule if a court errs in assuming jurisdiction where it does not possess it, or in interpreting a constitutional immunity or right secured thereby against the prisoner, or in refusing him a constitutional right, the jurisdiction over him ceases and its acts are not simply erroneous, but void. Therefore, it may be laid down as a rule of law, that the error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming jurisdiction originally where the court had none. Error in either case destroys the power to render any valid judgment, and if rendered it is not simply erroneous, but void. Brown on Jurisdiction, Sec. 97.” 8 Wyo. at 407, 58 P. at 414-415. Our opinion then refers to Nielsen, 131
U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and quotes this pertinent passage:
“ * * * ‘The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out in ex parte Siebold, 100 U.S. 371, 375, 25 L.Ed. 717, and is illustrated by the case of ex parte Parks as compared with the cases of Lange and Snow.[9]In the case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law, the court having jurisdiction of the case. In the cases of Lange and Snow there was a denial of a constitutional right.’ ”
Without entering into an extensive discussion of state decisions, I think there are several such opinions that are of point in this case and take a similar view. Thus in Ex parte Anderson, 125 Mont. 331, 238 P. 2d 910 (1951), habeas corpus was held proper to test the right to proceed under an unconstitutional statute, after arrest and before trial, the court quoting directly from Siebold, 100 U.S. at 376. In State v. Ingel, 18 Md.App. 514, 308 A.2d 223, 227 *1309(1973), certiorari denied October 16, 1973, the Court of Special Appeals of Maryland discussed decision of the Supreme Court of the United States concerning the principle of retroactivity, and noted that:
“ * * * When the purpose [to be served by application of the new standards] involved the reliability of the fact determining process of guilt or innocence, the Court accorded full retroactivity to the decision, without regard to the other two criteria. The rationale of those decisions which accord full retro-activity to a holding clearly requires that a conviction based upon an unconstitutional statute not be permitted to stand no matter when obtained. A declaration that a statute prescribing conduct to be criminal is unconstitutional goes even beyond a question of the reliability of the fact determining process of guilt or innocence. The conduct unconstitutionally proscribed is not a crime; a conviction under it is not merely erroneous, it is illegal, and should not be 'the cause of punishment. * * * [Citing Siebold and Norton.] We have no difficulty whatsoever in determining that a decision that a criminal statute is unconstitutional must be fully retroactive so that a judgment thereunder shall not stand.”
In Engle v. Caudill, Ky., 288 S.W.2d 345, 346 (1956) the court had before it a petition for writ of habeas corpus filed after the statute under which petitioner had been convicted had been declared unconstitutional. Sentence had been pronounced in 1952 and the declaration of unconstitutionality was made in 1953. Pointing out that there had been some change of position on its part as to the right of collateral attack, the court said, referring to a previous decision, Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514, 189 S.W.2d 604, 607,167 A.L.R. 512:
“ * * * We noted that there is a recognized right to attack collaterally a judgment of conviction of a crime. As stated in a note appended to our Jefferson County case, supra, 167 A.L.R., p. 519, ‘The majority rule is that where a statute or ordinance making certain acts or omissions a crime is held unconstitutional or invalid, a final judgment predicated upon the validity of such legislation is void, generally upon the theory that the court had no jurisdiction to enter the judgment that it did.’ ”
Cited as to the same effect was Harrod v. Whaley, Ky., 239 S.W.2d 480.
Other cases which seem to support this same position and which I do not think need discussion herein are Hiett v. United States of America, 415 F.2d 664 (5 Cir. 1969); McLaurin v. Burnley, 279 F.Supp. 220 (U.S.D.C.N.D.Miss.1967); Application of Boyd, 189 F.Supp. 113 (U.S.D.C.M.D. Tenn.1959) ; Bird v. Florida, Fla.App., 110 So.2d 52 (1959); Kahler v. Squire, 49 Wash.2d 911,299 P.2d 570 (1956).
From all of this it seems to me to follow that if one is convicted and jailed for violation of a law which is unconstitutional, that judgment is void for want of jurisdiction and the question may be raised at any time, and may be by collateral attack upon the judgment. If a party may fail to raise constitutional objections upon an appeal and still raises those constitutional grounds in habeas corpus filed within a month or two, why may he not do the same two years or ten years after the conviction? So far as I am aware, a judgment which is void may be collaterally attacked at any time. I therefore am of the opinion that upon the facts of this case the conviction of Ostwald upon an unconstitutional statute was outside the jurisdiction of the sentencing court and therefore void.
Even if we accept the premise of Link-letter and other federal cases that a court may itself elect whether the ruling shall be prospective or retroactive, I do not think application thereof would permit a different result. The Supreme Court says that the constitution neither prohibits nor re*1310quires retrospective effect. Mapp 10 represented a reversal of a doctrine previously announced in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and Linkletter declines to apply this reversal retroactively to consider other earlier convictions where there might have been a search in violation of Fourth Amendment privileges. The court seems to consider the problem from the standpoint of the practical difficulties. It is pointed out that to apply Mapp retroactively would not change lawless action on the part of the police that had already been committed, but basically the refusal seems to be predicated on the difficulty in retroactive administration. “Hearings would have to be held on the excludability of evidence long since destroyed, misplaced, or deteriorated.” 381 U.S. at 637, 85 S.Ct. at 1742. To “legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.” (Id.)
The United States Supreme Court applies the rule on an ad hoc basis. In Sto-vall v. Denno, the most recent case which I have found, 388 U.S. 293, 296, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199 (1967), citing Johnson v. New Jersey, 384 U.S. 719, 726, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the court says:
“ ‘These cases[11]establish the principle that in criminal litigation concerning constitutional claims “the Court may in the interest of justice make the rule prospective . . . where the exigencies of the constitution require such an application” . . . . ’ * * * The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. ‘ * * * Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice. * * * ’ ” (Citing Johnson)
In Johnson, 384 U.S. at 727, 86 S.Ct. at 1778, the court said:
“As Linkletter and Tehan acknowledge, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. * * * [Citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), and Jackson v. Denno, 378 U.S. 368,' 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964).] In each instance we concluded that retroactive application was justified because the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent.’ [Citing Linkletter and Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).]”
Is not a conviction under an unconstitutional statute such a conviction of the innocent ?
Considering these cases, and assuming that practical consideration may warrant *1311refusal to apply retroactivity, but without wishing to cavil, I must respectfully disagree with some of the observations of the majority opinion:
“The effect and purpose of Stern was to conclude any further prosecutions for breaking and entering under the existing statute.”
The purpose of Stern12 was to declare unconstitutional a statute enacted by the legislature and which under many authorities therefore amounted to no law at all. The further observations that the law has been in effect for 77 years and has resulted in many persons being incarcerated in the Wyoming state penitentiary is to me unpersuasive if these are people whose liberty is presently denied by reason of conviction under a void judgment. Considering, then, this further statement in the opinion:
“We have no idea how many defendants may have entered pleas of guilty to breaking and entering by way of plea bargaining to avoid other charges and trial. To smoke them out of the annals of history would be a monumental task. In any event they were or are incarcerated by trustworthy evidence and means which we must assume in the absence of appeal. Another unknown is how many are on probation as a result of conviction under § 6-130; to run them down is an unreasonable burden on law enforcement. The administration of justice will be burdened by petitions in coram nobis over long-closed cases. Those sentences have been served or probation ended.” (Emphasis supplied.)
I do not think that this represents the type of difficulty which is contemplated by the United States Supreme Court in its various decisions. Retroactive application of the rule declared in Mapp and possibly other cases would of necessity require new trials where the evidence has long since disappeared or become obscure. Application of the Stern decision to Ostwald’s petition would mean only that his conviction for breaking and entering would be set aside. There would be no new trial on that charge. If the conviction was the result of plea bargaining or an unwise plea of guilty where other charges could have been filed, there may be a practical question as to what the prosecuting attorney would then do, but there is no question concerning what disposition must be made of the particular charge. I especially find unpersuasive the italicized portion of the last quotation and would observe that however trustworthy evidence may be, if the law is unconstitutional so that there is legally no crime, what matter if the evidence is crystal clear ? I can see no reason whatever why the defendant should remain incarcerated.
With respect to the statement:
“We can visualize no useful purpose that would be served in reopening the cases of all those presently incarcerated, to determine the effect of the breaking and entering in prosecutions on multiple counts or to determine whether a plea bargain must be set aside to permit a prosecution on the dismissed charge and otherwise review each case.”,
I think the useful purpose would be that since we operate under a constitutional system and people should be incarcerated and remain so only under constitutional laws, it is a complete miscarriage of justice to hold that Stern is free from conviction and sentence but that other people who have been convicted under the same unconstitutional law are required to serve their terms. If this makes waves, then let the storm blow.
My conclusion is that we are in no way bound by the decisions of the United States Supreme Court represented by Link-letter and the subsequent cases, and even under the rule of these cases we are free to adopt our own rule as to application of the Stern decision. At the present time I am not satisfied that there may not exist a *1312valid distinction between holding a law creating the crime to be unconstitutional and a situation where in the past a defendant may have been convicted under unconstitutional processes. The Attorney General claims that there is no distinction, and under Miskimins and Nielsen I think I would agree, but I would be inclined to hold in both cases that the denial of constitutional rights should be corrected. I do not think that we need reach that point but think that in this case we should hold merely that the statute was unconstitutional, being unconstitutional the court was without jurisdiction to enter the conviction, and therefore the conviction should be set aside.
. Norton, v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886). “An unconstitutional act is not a law; * * * it is, in legal contemplation, as inoperative as though it had never been passed.”
. Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717 (1880). “An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.”
. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940), rehearing denied 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035.
.As I read the ease of Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973), as well as Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025 (1941), cert, denied 314 U.S. 678, 62 S.Ct. 184, 86 L.E'd. 543, cited by the majority, these and other cases therein referred to involved a statute which has been construed by a previous decision in a certain way so as not to be unconstitutional. In a later decision the first was overruled and the statute construed in a different way. It is this previous court decision which the courts protect by ruling that the new interpretation is prospective only. I have been unable to find any decisions where the first time that the constitutional question is raised the decision is against the statute. Perhaps it is a distinction without a difference.
. My own examination of both state and federal authorities convinces me that Siebold is far from dead, and on the contrary that its pronouncements are still very pertinent. Thus, in Fay v. Noia, 372 U.S. 391, 408, 83 S. Ct. 822, 832, 9 L.Ed.2d 837 (1963), we find the quotation included in the majority opinion, plus this additional portion: “ ‘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 . . . the question of the court’s authority to try and imprison the party may be reviewed upon habeas corpus.’ ” The court then continues : “The course of decisions of this Court from Lange and Siebold to the present makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.”
. The quotation is as set forth in 8 Wyo. at 407 [58 P. at 414].
. The citation of this case is not contained in our official reporter, but reference to 58 P. indicates that the case cited is In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).
.The cases referred to are Ex parte Parks, 93 U.S. 18, 23 L.Ed. 787 (1876) ; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1873) ; and In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1889). I shall not further refer to these cases but think that they aptly demonstrate the difference between error in the decision and lack of jurisdiction or authority to make the decision.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ot. 1684, 6 L.Ed.2d 1081, 84 A.L.R.24 933 (1961), rehearing denied 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72.
. Linkletter, and Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). See also Linkletter, 381 U.S. at 625, 85 S.Ct. at 1735, where, with reference to Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 254 the court quotes therefrom that a state “ ‘may make a choice for itself between the principle of forward operation and that of relation backward,’ ” and holding that no federal question of constitutional due process is involved in such decision. If the application of retroactive or prospective application of a ruling on constitutionality of either a statute or procedural rule is discretionary with the Supreme Court of the United States, it must he equally so for this Court, and decisions of the federal Supreme Court are only persuasive. As I shall later indicate. I do not think that on that basis is my dissent at odds.
. State v. Stern, Wyo., 526 P.2d 344 (1974).