Petition of Semler

Oole, J. This is an application for a writ of habeas corpus. We were in some doubt whether, upon the face of the petition and the papers annexed to and made a part thereof, a writ should be granted by this court ; or, if granted, whether, apon the facts stated, the petitioner would not have to be remanded to his former custody. It was therefore deemed best to have an argument on certain points on the application. The attorney general and the counsel for the petitioner have argued questions suggested, which would necessarily have to be considered in determining whether the petitioner would be entitled to a discharge from imprisonment. If these questions should be decided against the petitioner, the writ would be unavailing, even if granted. And as we are now satisfied that upon the ease presented the petitioner could not be discharged, the writ is denied on that ground alone, as was done in the cases, In re Gregg, 15 Wis., 479; In re Griner, 16 id., 423; and Petition of McCormick, 24 id., 492. One question upon which argument was requested was, whether the practice of granting writs of habeas corpus in a proper case, as it has heretofore obtained, has been affected or should be changed in view of the recent decisions in regard to the original jurisdiction of this court over writs of injunction, mandamus and quo warranto, as defined and limited in Attorney General v. Railway Companies, 35 Wis., 425; Attorney General v. The City of Eau Claire, 37 id., 400; State ex rel. Wood v. Baker, 38 id., 71; and State ex rel. Cash v. The Supervisors of Juneau Co., id., 534. This question of jurisdiction was quite fully argued; but, for the reason just suggested, it is not necessary to decide it on this application. It is dismissed with the remark that we entirely concur in the view of the petitioner’s counsel on this point, that no rule should be adopted restricting the jurisdiction of this court over the writ of habeas corptos, which has ever been regarded as the best safeguard of personal liberty, except for the most weighty considerations. The plenary power of this court over [523] tbe writ has frequently been asserted and exercised under tbe constitution, and has hitherto not been questioned. But we pass from the jurisdictional question to other points arising on the application. Another question arising in the case is, Can the petitioner be relieved by means of this writ, or must he resort to some other appropriate process to review and correct the proceedings of the circuit court? This leads to an inquiry as to the office of the writ, and what matters can be considered upon it. And at the outset it may be observed, that the principle is well settled, that a writ of habeas corpus does not have the scoj>e, nor is it intended to perform the office, of a writ of error or appeal. This doctrine is almost elementary in the law. The writ, then, cannot be resorted to for the purpose of reviewing and correcting orders and judgments which are erroneous merely. It deals with more radical defects, which go to the jurisdiction of the court or officer, and which render the proceeding or j udgment void. A distinction between a proceeding or judgment which is void, and one that is voidable only for error, is recognized in the cases, and must be observed. Says DixoN, C. J., in Petition of Crandall, 34 Wis., 177: “ It is conceded that for mere error, no matter how flagrant, the remedy is not by writ of habeas corpus. Eor error, the party imprisoned must prosecute his writ of error or certiorari. Nothing will be investigated on habeas corpus except jurisdictional defects, or illegality, as some courts and authors term it; by which is meant the want of any legal authority for the detention or imprisonment.” p. 179. To the same effect is the doctrine laid down in In re Blair, 4 Wis., 522; In re O’Connor, 6 id., 288; In re Perry, 30 id., 268. Now the inquiry is, in the light of these adjudications, Did the circuit court act without jurisdiction, or in excess of its jurisdiction, in the matter complained of; or did it make merely a wrong decision? There can be no doubt that the circuit court had jurisdiction of the person of the petitioner, and of [524] the offense charged in the .information. But it is claimed that the first and second counts in the information charged no offense; in other words, that the information is insufficient, and that the motion to quash for that reason should be sustained. This may be at once conceded, but what follows? Manifestly this, that the circuit court gave a wrong decision where it clearly had jurisdiction, in holding a defective information good. The court committed an error, but there is no ground for saying it acted without jurisdiction in rendering its decision. If a demurrer had been filed to the information, and overruled by the court, precisely the same question would have been presented. It is a case of error; for which the petitioner can only have relief on writ of error or some other appropriate process of review. He cannot have relief on a writ of habeas corpus, without making such writ perform all the office of a writ of error. This seems very obvious. Nor does the fact that this court, under the constitution, has appellate jurisdiction over the circuit courts, in any way affect the, question before us. For this court can only exert revisory or appellate jurisdiction on proper process, proceeding according to the rules of law. It cannot overlook and disregard the well established distinction between the scope and operation of a writ of error and a writ of habeas corpus, and make the latter a substitute for the former. And the distinction has been clearly recognized in the above decisions. In the case of Hauser v. The State of Wisconsin, 33 Wis., 678, a strictly analogous question was considered. That was a certiora/ri to review the decision of the municipal court of Milwaukee refusing to quash a criminal information for a libel against a corporation. It was claimed that a corporation could not be the object of a criminal libel, and that the municipal, court erred in holding the contrary. But this court held that even if that position was well taken, the real question presented to the municipal court for decision was, whether the information did or did not charge the accused with the commission of a [525] criminal offense, and tbat tbis was in no sense a jurisdictional question. It refused to review the decision on tbe motion to quash, upon certiorari, and quashed the writ. The operation of the writ of certiorari is certainly as extensive as the writ of habeas corpus; still this court declined to examine on that writ the correctness of the ruling of the municipal court in refusing to quash. The reason and principle of that decision are directly applicable to the case at bar. So in Ex parte Booth, 3 Wis., 145, the petitioner applied to this court for a writ of habeas corpus to discharge him from imprisonment. It appeared that he was in confinement by force of a warrant of the district court of the United States, and that the object of the imprisonment was to compel him to answer an indictment for a violation of the fugitive slave law. That law had been held to be unconstitutional by this court in a previous case. WhitoN, C. J., says: “These facts show that the district court of the United States has obtained jurisdiction of the case, and it is apparent that the indictment pending against the petitioner is for an offense of which the courts of the United States have exclusive jurisdiction. We do not see, therefore, how we can, consistently with the principles of our former decision, interfere.” p. 148. The writ was denied. The petition before us shows that the applicant is committed on an order of the circuit court for want of bail. ITe is held by the process of a court of competent jurisdiction, which had authority to make the order. Eor these reasons, neither the sufficiency of that order nor the correctness of the decision on the motion to quash will now be inquired into. But we think it would be very proper for the circuit judge, on application of the petitioner, to inquire whether any cause has arisen since the making of the order of the 9th of April, for putting an end to the commitment upon it, or for admitting the petitioner to bail on his own recognizance. It is stated in the petition that the offense charged in the complaint made subsequent to the order, is the same offense as that [526] attempted to be charged in the information. Notwithstanding this statement, we do not feel justified in assuming that it is the same offense, in view of the second complaint and other papers annexed to the petition. According to these papers, it would seem that the petitioner was proceeded against for another offense, or a different embezzlement from the one set out in the information. The circuit judge can, however, readily determine whether this is so, and, if it is not, afford the proper relief in respect to bail. The petitioner has given a sufficient recognizance on the second complaint, and this fact the circuit judge should and doubtless would deem ,a valid ground for admitting him to bail on his own recognizance if the charges are for the same embezzlement. Excessive bail is forbidden by the constitution, and it is evident that double bail might be excessive. It is true, there was no examination on the second arrest, but it will not be difficult to ascertain from the district attorney whether that prosecution is for the same embezzlement as the one charged in the information. If it is, the circuit court can make the proper order in respect to bail. It seems unnecessary to issue the writ from this court to inquire into the matter, since to do so would subject the state and the petitioner to the trouble and expense of an investigation here, which could be had much more conveniently before the circuit judge. Besides, the writ was not asked for on any such ground or for any such purpose. These suggestions are made for the guidance of all concerned. But, upon the facts stated in the petition, the writ must be denied. By the Oov/rt. — It is so ordered.