(dissenting).
I concur with the result reached in Mr. Justice McClintock’s able dissent in this case and would add a sense of rebellion against the majority opinion with my own separate views:
It is my hope to reveal the distinction (which I am certain exists in law) between the authority relied upon by the majority and the authority of these dissenting opinions which I resolutely believe should be the law of this case.
If there exists the distinction which I will attempt to draw, it follows that the majority opinion reaches its conclusion to deny the writ through reliance upon inapplicable case and text authority. If, on the other hand, there exists no valid distinction between the case law and other supportive material upon which I rely, then this opinion is in error.
The dissent of Mr. Justice McClintock states :
“. . . .in this case we should hold merely that the statute (§ 6-130, W.S. 1957) was unconstitutional, being unconstitutional the court was without jurisdiction to enter the conviction, and therefore the conviction should be set aside.” [Parenthetical matter mine]
I would go further to say that since the court in the original case lacked jurisdiction to send Ostwald to prison (by reason of our holding § 6-130, W.S. 1957, to be unconstitutional in State v. Stern, Wyo., 526 P.2d 344 (1974)), neither the theory nor the authority relied upon by the majority supports a holding that the petition for a writ of habeas corpus should be denied. In my judgment the authorities relied upon in the opinion of the court are not applicable to the issues here and it is my purpose in this dissent to explain why.
First I would suggest that the question for resolution in this case is of the highest order. It is one of the “great issues” that courts must decide as that term is employed in the classical sense. Mr. Justice Raper, the author of the majority opinion, defines the problem when he asks:
“. . . . is he (Ostwald) unlawfully confined because of his conviction under a statute subsequently held or determined to be unconstitutional?” [Parenthetical matter mine]
To put it in laymen’s language:
Is it all right to enact a law which defines a crime — charge, try (or accept a guilty plea), and sentence to the penitentiary persons accused of violating it and then hold, in the Supreme Court of the State, that the criminal statute was unconstitutional, but, nonetheless, leave the prisoners in the penitentiary to serve their sentences?
The judge and lawyer niceties and word games about whether a law will be interpreted to be “retroactive” or “prospective” will not change the fact that Ostwald and others could be languishing in the State’s prison and have assigned to them for life the other stigmata of criminality for having pled guilty to a charge authorized by a statute which the Supreme Court of Wyo*1313ming has held is unconstitutional and hence is void ab initio.1
How can this be reconciled in law or in conscience ?
The majority opinion assumes that we are here involved with the question of resolving the retroactive or prospective effect of this court’s having held § 6-130, W.S.19S7, to be unconstitutional in State v. Stern, Wyo., 526 P.2d 344 (1974) .2 I suggest that this problem does not even arise in this case.
At the outset, I should say something about the terms “prospective” and “retroactive.” It is my belief that we have become “hung up” in an effort to deposit the question with which we are confronted herein into some kind of legal receptacles entitled “retroactive” and “prospective” when the problem was never meant to repose in those catacombs.
The question in the case is whether the lower court had jurisdiction to sentence a man to prison — not whether the Stern decision will be applied retroactively or prospectively.
We are not here assigned the task, as Mr. Justice Raper says, of resolving:
“the question of the retroactive or prospective effect of the court’s holding § 6-130, W.S.1957, unconstitutional.”
The reason for my saying this is because I do not find that the law applicable to the problem at hand even permits us to make that decision where, as here, the unconstitutional statute defines and provides a penalty for a crime and where the one applying for the writ of habeas corpus is a prisoner by reason of a void judgment entered under and by authority of the unconstitu*1314tional statute. (The judgment was void under the holding of this court).3
Contrary to the majority’s position, I suggest that the case with which we are concerned here presents a question of whether or not the sentencing lower court ever had jurisdiction over the cause or the person of Ostwald once § 6-130, W.S.1957, was held unconstitutional.4 This is not the same as resolving:
“the question of the retroactive or prospective effect of the court’s holding § 6-130, W.S.1957, unconstitutional.”
It isn’t a retroactive or prospective question at all. It is a question of jurisdiction over the cause and the person. The law operates to establish the legal proposition that once the criminal statute under which Ostwald was sentenced had been held unconstitutional, it becomes, therefore, void ab initio — it was no law — and a purported offense committed under it was no crime —the conviction of Ostwald under such a statute was not simply erroneous5 in the sense that this court could now do with it what it pleased, including making retroactive or prospective application of the Stern holding, according to the court’s will.
On the other hand, the conviction simply became illegal and void and the statute could not serve as a legal vehicle of Ostwald’s imprisonment. Under the law, as I understand it, Ostwald’s release from prison should be automatic with the recording of the Stern decision. There is nothing left for courts to do but release him. We are not in the position of being called on to see if the Stern decision should apply retroactively or prospectively because the lower court lacked jurisdiction at any stage of the proceedings.
The retroactive or prospective question comes to us for decision making when there is an overruling decision in procedur*1315al matters — where overruling decisions give different interpretations to statutes— or where prior decisions are overruled— and, perhaps, in other circumstances. But it is not for us to make the retroactivity decision where a decision of the court renders a criminal statute unconstitutional. This has the automatic effect of placing the lower court which handled the case and sentenced the prisoner in the position of having acted without jurisdiction at any phase of the proceeding in which the accused was charged, tried, pled guilty or sentenced.
I distinguish the problem here energized by this petition for habeas corpus from those cases upon which the majority relies and in which constitutional appeals of criminal procedure are involved and where the courts have overruled various of their earlier decisions and have expanded the rights of the defendant, especially in connection with the due process clause of the Fourteenth Amendment. I have in mind Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, reh. den. 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72, overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, where it was held that as a matter of due process evidence obtained through an unreasonable search and seizure was inadmissible in criminal proceedings in a state court — Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, overruling Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L.Ed. 1595, in which the overruling decision held that as a matter of due process a state was required to furnish counsel to an indigent defendant in criminal proceedings involving a non-capital offense — Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, overruling Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, reh. den. 346 U.S. 842, 74 S.Ct. 13, 98 L.Ed. 362, holding that due process was violated by a state court procedure which left the question whether a defendant’s confession was voluntary to the ultimate determination of the jurors who tried him — and Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L.Ed.2d 601, where a prisoner had initiated habeas corpus proceedings some time after his conviction, where it was held that the overruling decision of Mapp v. Ohio (overruling Wolf v. Colorado, supra), holding unconstitutionally-obtained evidence inadmissible in state criminal proceedings, was not retroactively applicable to cases in which a conviction had been final, the judgment of conviction had been rendered, the availability of appeal had been exhausted, and the time for petition for certiorari had elapsed before Mapp v. Ohio was decided.
I distinguish the matter before this court from those cases where courts were involved in placing a different interpretation upon the same statute, i.e., Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025, cert. den. 314 U.S. 678, 62 S. Ct. 184, 86 L.Ed. 543; Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179; and Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982.6
*1316I distinguish this case from those where courts have overruled their prior decision. Kelley v. Rhoads, County Assessor, 7 Wyo. 237, 51 P. 593.7
In all of the above categories exemplified by the cases cited, the question of whether to apply an overruling decision of the court prospectively or retroactively was properly for the court’s determination in view of the fact that the jurisdiction of the lower courts had not been lost at any stage of the proceedings and since the cases involved overriding decisions in the area of constitutional criminal procedure — subsequent interpretation of the same statutes and the overruling of prior decisions. The retrospective or prospective effect of subsequent court decisions was indeed a determination that the courts had to make— could make — and should make in those circumstances.
I have no quarrel with the law of that proposition.
There are criteria laid out by the Supreme Court of the United States in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which have been recognized in the majority opinion here and which, in the above mentioned class of cases, aid and guide courts in making the decision whether to give retroactive or prospective application to an overruling decision. The criteria from Stovall v. Denno, supra, are:
“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.”
But those standards do not apply to this case because, here the lower court acted without jurisdiction and we do not have an overruling decision.
In those cases to which the Stovall v. Denno criteria apply, the issue is always whether or not the overruling decision of the court would be applied retroactively to benefit those who have been affected to their detriment by a prior ruling, or prospectively so that the overruling would have applicability only to the case out of which the decision arose and those cases following it.
As an example of the distinction that I attempt to make between the matter currently before the court and the theory and cases upon which the majority opinion relies, I observe that the majority cites 10 A.L.R.3d, and under the general heading of this annotation the subject matter is headed as follows:
“Prospective or Retroactive Operation of Overruling Decisions.” [Emphasis mine]
And then at page 1377, the author says:
“This comment collects and analyzes a representative selection of the cases treating the question whether an overruling decision should be given retroactive effect or should operate only prospectively. [Italics mine]
“For purposes of this discussion, an overruling decision is one by which the *1317court expressly rejects a rule of law which had been announced and adopted in an earlier decision of the same court.” [Italics mine]
The cases upon which the majority calls for authority are those having to do with the problem of giving effect to an overruling decision. It must immediately appear that any cases which fit into this annotation under this heading cannot be applicable to the question to which we here address ourselves in response to this petition for writ of habeas corpus because we are not, in the instant matter, determining the effect of giving retroactive or prospective application to "overruling decisions.” We have no overruling decision in this case. We do not have a prior decision to overrule. We have not given a subsequent interpretation to either a statute or a prior case ruling. We have simply declared a statute unconstitutional, the effect of which — under the law — is to render the lower court to have been without jurisdiction at any stage of its proceeding and therefore incapable of making an order sentencing the petitioner to the penitentiary.
On the other hand, the result reached by the majority comes on as a result of assuming that we have a retroactive or prospective decision to make, but, as I have said, I do not think we do.
It may be that there is no further good purpose to be served by further analysis since the cases relied upon by the majority are concerned with overruling decisions as such decisions will or will not be applied retroactively or prospectively. However, let me make these thumbnail observations: It is said by the majority:
“In Warring v. Colpoys, 1941, 74 App. D.C. 303, 122 F.2d 642, 136 A.L.R. 1025, cert. den. 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543, the court was confronted with the identical question that we have here:”
I cannot agree that Warring presents “the identical question that we have here.” There was no constitutional question involved in Warring. The Court was there concerned with whether or not it should apply retroactively or prospectively an overruling decision pertaining to statutory construction. The case presented no problem involving lower court jurisdiction as Ostwald does. It simply effectuates the rule that the original court holding was the law until it was overruled. I accept that —that, in effect, is the rule of Kelley v. Rhoads, Wyoming, supra.
The author of the majority speaks of “identical views” (to those of the majority) to be found in the Supreme Court case of Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, reh. den. 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035 (1940).
Unlike Siebold, supra,8 the Court in Chicot, supra, had declared a municipal bond statute authorized under an act of Congress to be unconstitutional. The problem, like Warring, was whether to give an overruling decision retroactive or prospective effect when the original proceedings were under collateral attack — the parties having failed to raise the issue in the principal case. The Court held that where this kind of a statute was under collateral attack and where it had not been questioned at the trial it was res judicata. I fail to see where this case is “identical” to the views expressed by the majority and especially it does not reach the rule applicable where a criminal statute has been held unconstitutional, making it void from its passage, thus causing the lower court to have acted without jurisdiction.
*1318The majority opinion places much store in the rule of Linkletter v. Walker, supra. Linkletter was concerned with the question of whether to apply the exclusionary principle enunciated in Mapp v. Ohio, supra, to state court convictions which had become final prior to the rendition of the Mapp opinion. This presented a classic question of retroactive or prospective inquiry. There was an overruling constitutional procedural opinion (overruling Wolf v. Colorado, supra) and the jurisdiction of the original court was not questioned. This did not present the same question with which we are here concerned for all the reasons stated herein.
Like Mr. Justice McClintock, I believe that Siebold 9, supra has been:
“recognized, accepted and applied in this court in Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411 (1899).”
Miskimins says that a proceeding in violation of constitutional rights renders it void. We quoted Brown on Jurisdiction, § 97, at 8 Wyo., page 407, 58 P., page 415, where the author said:
“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.”
In the case at hand the. lower court, having acted under an unconstitutional statute, did so without jurisdictional authority and therefore all proceedings therein are void, including the sentencing of Ostwald to the Wyoming State Penitentiary.
This leaves nothing more for the courts Of Wyoming to do but to grant the writ.
There is no problem of giving retroactive or prospective applicability to the Stern decision. That matter took care of itself by the operation of the rule applicable to it, i.e.,:
“A conviction under it (an unconstitutional statute) .... is illegal and void, and cannot be a legal cause of imprisonment.” Siebold, supra.
The lower court’s authority to try and sentence Ostwald arose solely by virtue of § 6-130, W.S.1957, and if the law is void the court acquired no jurisdiction of the person or the cause.
The rules of retroactivity and prospec-tivity apply where overruling decisions have been rendered in such areas as constitutional procedural questions — subsequent statutory interpretations — overruling prior decisions of the court — and numerous other areas. But the retroactivity or prospectivity problem simply cannot present itself in situations where the court out of which the original decision emanated lacked jurisdiction to act as it did. The problem does not arise in those circumstances either in logic or in law, and it is, in my judgment, error to assume that this case can be resolved on such a theory.
For all of the reasons stated herein I would grant the writ.
. “An unconstitutional law is void, and is as no law. An offence created hy it is not a crime. A conviction under it is not merely erroneous, hut is illegal and void, and cannot he a legal cause of imprisonment.” Ex parte Siehold, 100 U.S. 371, 376, 25 L.Ed. 717. [Emphasis mine]
The applicable general rule is announced in 16 O.J.S. Constitutional Law § 101, p. 469, under the heading, “Effect of Declaring Unconstitutional.” The text there says:
“ . . . .an unconstitutional statute is void, at all times and its invalidity must be recognized or acknowledged for all purposes, or as applied to any state of facts, and is no law, or not a law, or is a nullity, or of no force or effect, or wholly inoperative. Generally speaking, a decision by a competent tribunal that a statute is unconstitutional has the effect of rendering such statute null and void; the act, in legal contemplation, is as inoperative as though it had never been passed or as if the enactment had never been written, and it is regarded as invalid, or void, from the date of enactment, and not only from the date on which it is judicially declared unconstitutional.” [Emphasis mine]
At § 101b, under sub-heading “Remedies, Rights, and Duties,” at page 474, the encyclopedia says:
“The failure of a statute carries with it all remedies therein provided for, and a court has no jurisdiction to try an offense hased on violation of a statute declared to he unconsitutional; nor may it entertain jurisdiction over certain proceedings where the statute granting such jurisdiction has heen held to he unconstitutional.
“An unconstitutional legislative enactment legally binds no one, creates or imposes no obligations, imposes no penalty, and need not be complied with. By such a statute, no rights or immunities can or may be predicated, based or founded on it, built up under it, and no old rights are abrogated ; no protection is afforded, no immunity is conferred, no office is created, no power or authority is bestowed on anyone, and no duties are, or can be, imposed. An offense created hy such a statute is not a crime.” [Emphasis mine]
. The author speaking for the majority says that this court has original jurisdiction to entertain a writ of habeas corpus pursuant to Article Y, Section 3, of the Wyoming Constitution, observing that we do not entertain such a writ unless a showing is made that the writ, if granted, should issue from this court and, in making the observation, says:
“Such a showing has been made (in this case) in that the (this) case will resolve the question of the retroactive or prospective effect of this court’s holding § 6-180, W.S.1957, unconstitutional.” [Parenthetical matter and emphasis mine]
. It was said in Mishimins v. Shaver, 8 Wyo. 392, 58 P. 411, 415:
“ ‘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, hut void.’ ” Brown on Jurisdiction, Sec. 97. [Emphasis mine]
. The mere fact that we accepted the petition for a writ of habeas corpus for consideration indicates that we recognized that there was a jurisdictional problem in the lower court once Stern had been reversed. The general rule is that:
“a conviction and sentence by a court of competent jurisdiction is lawful cause for imprisonment, and no relief can be given by habeas corpus.” Ex parte Siehold, 100 U.S. 371, 375, 25 L.Ed. 717 (1880). [Emphasis mine]
We said in Mishimins, supra, at 8 Wyo., page 408, 58 P., page 415:
“The office of the writ is to determine the legality of the particular imprisonment, and the facts to he considered in determining that question are jurisdictional facts. If upon a consideration of such facts, it appears that the court exceeded its jurisdiction in making the order, the petitioner will he discharged upon habeas corpus, ...” [Italics and emphasis mine]
.If that had been the case it would have been an appellate problem rather than the proper subject for a writ of habeas corpus over which this court has original jurisdiction. Mishimins, supra, says, at 58 P., page 415:
“The distinction (between petition in error and habeas corpus) is tersely stated in Re Nielsen, 131 U.S. 184, 9 S.Ot. 674: ‘The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out Ex parte Siehold, 100 U.S. 371, 375 (jurisdictional basis), and is illustrated by the ease of Ex parte Parks [93 U.S. 18], as compared with the Cases of Lange [18 Wall. 163] and Snow [120 U.S. 274, 7 S.Ct. 556]. (In one case there was no jurisdictional error and in another instance there was. Where there is a jurisdictional question habeas corpus lies; where it is mere error in law it does not lie). 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.’ ” [Parenthetical matter mine]
. The majority opinion, in stating that the rules of Siebold, supra, and Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178-186 (1886), which hold that an unconstitutional criminal statute is void ab initio, observes that the:
“sweep of such statements is deceiving.” Then the majority refers to Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982-1989, and the opinion of Justice Douglas for authority for the proposition that “writs of habeas corpus will not be allowed to do service for an appeal.” (Note 8, the majority opinion). But the author of the majority opinion does not go on to quote the next sentence from Justice Douglas, appearing in 332 U.S. at 178, 67 S.Ot. at 1591, where he says:
“There have been, however, some exceptions. That is to say, the writ has at times been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy. Illustrative are those instances where the conviction was under a federal statute alleged to be unconstitutional (citing JSw parte Siebold, 100 U.S. 371, 25 L.E'd. 717 and other cases), where there *1316was a conviction by a federal court whose jurisdiction over the person or the offense was challenged (citing cases), where the trial or sentence by a federal court violated specific constitutional guaranties (citing cases).”
. We said in that case, at 51 P. 605: “The effect of a decision of the supreme court construing a statute renders it the law for the time being as so construed. Parties have a right to act upon such a decision, and no injury ought to be allowed to result, by reason of a dependence thereon, if the deeision is subsequently changed, any more than in case of a repeal of a statute. (Citing Kollinshead v. Von G-lahn, 4 Minn. 190, Gil. 131). Until the decision now rendered, since the announcement of the court in the cases hereinbefore referred to, the law of the State has been as set forth and adjudged in those cases, at least to the extent that no one should be injured by relying thereon. Consequently, any case which has been brought against the collecting officer in his individual capacity should be permitted to proceed without objection on that ground.”
. Siébold was concerned with the following question:
“The question is whether a party imprisoned under a sentence of a United States Court, upon conviction of a crime created by an indictable under an unconstitutional act of Congress, may be discharged from imprisonment by this Court on habeas eorpus, although it has no appellate jurisdiction by writ of error over the judgment.” (From Siebold, supra, opinion)
. “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.”