On writ of habeas corpus.
For the petitioner, Mario H. Volpe.
For the state, Robert Peacock and Lynwood Lord.
DONGES, J. Petitioner seeks release from imprisonment on a plea of guilty to an indictment for violation of section 4 of chapter 155, laws of 1934 (R.S. 2:136-4), on commitment by the Court of Quarter Sessions of Gloucester county. Petitioner was committed to the state prison on February 25th, 1935, for a term of not more than nine years and not less than six years, and has been confined since the date aforesaid. On March 27th, 1939, the Supreme Court of the United States held section 4 of the aforementioned act unconstitutional in that: "The challenged provision condemns no act or omission; the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment." Lanzetta et al., appellants, v. The State of New Jersey (No. 308, October term, 1938), 83 L. Ed. 590.
Objection is made to the content of the petition on the grounds that there are inconsistent statements and that the petition is not adequate. Inasmuch as the questions presented are of importance to the public as well as the prisoner, I prefer to dispose of them on their merits.
At the outset, we are met with the question of whether habeas corpus is the proper remedy. It is settled that a writ of habeas corpus is not available to take the place of a writ of error.
The act concerning habeas corpus provides: "Except as provided in section 2:83-13 of this title, the persons herein enumerated may have a writ of habeas corpus to inquire into the cause of their imprisonment, detention or restraint:
"a. Any person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter or under any pretense whatsoever." R.S. 2:82-12.
"The following persons shall not be entitled to prosecute a writ of habeas corpus: * * * b. Persons committed or detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction * * *." R.S. 2:82-13.
It is admitted that the Court of Quarter Sessions is a competent tribunal of criminal jurisdiction and that it has jurisdiction over crime of the kind sought to be established by the act of the legislature declared invalid.
It is alleged on behalf of the prisoner that the act being unconstitutional all proceedings thereunder are void; that any decision a court may make is without power and, therefore, void; that an unconstitutional law is no law, and any offense created thereby is not a crime, and that, therefore, the trial court was not a competent tribunal of criminal jurisdiction.
The rule is stated in Bac. Abr. Hab. Corp. B. 10, as follows: "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 courts are to discharge."
The decisions of the various states are not in harmony, but the general rule is that in case of conviction under an unconstitutional law, the judgment thereon may be impeached in habeas corpus proceedings to establish the right of the person detained of his liberty and that, in such case, the trial court is without ...