# In re Swan/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
150 U.S. 637
In re Swan
We reiterate what has so often been said before, that the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal; but when no writ of error or appeal will lie, if a petitioner is imprisoned under a judgment of the circuit court which had no jurisdiction of the person or of the subject-matter, or authority to render the judgment complained of, then relief may be accorded. Ex parte Frederich, 149 U.S. 70, 13 Sup. Ct. 793; Ex parte Tyler, 149 U.S. 164, 13 Sup. Ct. 785.
The contention here is that the order of committal was wholly void, for want of jurisdiction to make any order whatever or to make the particular order.
1. To sustain the proposition that the court had no jurisdiction to commit, it is argued that the petitioner was in the discharge of his duty as an officer of the state, in the execution of a valid police law of the state, authorizing the search and seizure; that his action was therefore justifiable, and judicial interference with him absolutely precluded.
The validity of the dispensary act was elaborately discussed by counsel for petitioner, but we perceive no necessity for entering upon an examination of that question. The circuit court was of opinion that the act did not authorize a seizure without warrant. It was admitted below that such a seizure could not be made except under the authority of a statute conferring the power to do so, and nothing to the contrary has been adduced on this argument.
Any other view would be inconsistent with settled principles of the common law and with familiar constitutional provisions for the security of person and property and immunity from unreasonable searches and seizures. The original occasion for securing that immunity may have been the abuse of executive authority in the matter of obtaining evidence of political offenses, but these safeguards are not, therefore, limited in their scope, and extend protection against every exertion in that direction of merely arbitrary power.
In some of the states, authority to proceed in respect of liquors, without warrant in the first instance, is expressly given by statute, but is accompanied by the provision that when the seizure is so made, the property seized is to be kept in safety for a reasonable time until a warrant can be procured; and it is held that, should the officer neglect to obtain a warrant within such time, he will be liable as a trespasser. Kent v. Willey, 11 Gray, 368; Weston v. Carr, 71 Me. 356. In Kennedy v. Favor, 14 Gray, 200, Chief Justice Shaw said: 'The authority to seize liquors without a warrant, though sometimes necessary, is a high power; and, being in derogation of common-law right, it is to be exercised only where it is clearly authorized by the statute or rule of law which warrants it.'
In his examination of the dispensary act, the learned judge holding the circuit court pointed out that it was to be strictly construed, and not to be extended beyond the import of its terms. Railroad Co. v. Whalen, 149 U.S. 157, 13 Sup. Ct. 822. The act could not be regarded as dealing with intoxicating liquors as if they were a deadly poison, whose presence was noxious per se, which might justify an enlarged construction of the language of the statute, to the end that so fearful a nuisance might be abated, for their use as a beverage was recognized, and their sale placed in the hands of public officials, Moreover, it was not admissible to hold by construction that the statute had authorized the seizure of the goods without warrant, in view of section 22 of article 1 of the constitution of South Carolina, which declared that 'all persons have a right to be secure from unreasonable searches, or seizure of their persons, houses, papers or possessions. All warrants shall be supported by oath or affirmation, and the order of the warrant to a civil officer to make search or seizure in suspected places, or to arrest one or more suspected persons, or to seize their property, shall be accompanied with a special designation of the persons or objects of search, arrest, or seizure, and no warrant shall be issued but in the cases and with the formalities prescribed by the laws.'
Indeed, the statute upon any reasonable construction, did not contemplate action without process. By the twenty-second section, places where intoxicating liquors were sold, bartered, or given away, or where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors were kept for sale, barter, or delivery, in violation of the act, were declared to be common nuisances; and if the existence of such nuisance were established, either in a criminal or equitable action, upon the judgment of a court or judge having jurisdiction, finding the place to be a nuisance, it was to be abated, and the liquors and accessories taken possession of and confiscated.
Under section 23 such places might be enjoined and abated by action in the name of the state, careful provision being made that orders for the search and seizure of the goods should only be issued upon an affidavit stating or showing that intoxicating liquors, particularly described, were kept for sale, or sold, bartered, or given away, on the premises, particularly describing the same.
The twenty-fifth section provided that liquors in transit, intended for unlawful sale in the state, might be seized and proceeded against as if 'unlawfully kept and deposited in any place,' and were, therefore, not subject to seizure without preliminary proceeding or judicial action, as provided in sections 22 and 23, in regard to liquors so unlawfully kept and deposited. So far from the argument being well founded that because the provisions of the twenty-second and twenty-third sections were not expressly repeated in the twenty-fifth, it was to be inferred that they were dispensed with, the provision that liquors in transit might be seized and proceeded against as if 'unlawfully kept and deposited in any place' made them a part of the section by reference, and it was in accordance with those sections that such property could be condemned, and that that involved here was turned over by petitioner to the sheriff of Charleston county. The duties of a constable were, under section 24, to notify the circuit solicitor of the violation of any of the provisions of the act under section 24, and under section 22, if the existence of the nuisance therein mentioned were established either in a criminal or equitable action, he might be directed to abate the place by taking possession thereof. Certainly, seizure by him, without warrant or judicial action, was not expressly authorized by the statute, nor by implication, upon any canon of construction applicable to an act creating offenses unknown to the common law, and authorizing confiscation.
It is insisted that the circuit court was in error in the views it entertained, and the conclusion reached in accordance therewith. But this objection is of error merely, and does not go to the power of the court in the premises. Judgments of courts, whether federal or state, cannot be treated as void, and attacked collaterally on habeas corpus, even if error has actually supervened.
It must be remembered that this property was in the custody of the officer of the court; that it had been brought into the state before the act went into operation; that it had not been delivered because of imperfect address; that there was no concealment and no occasion for haste; and that there was no difficulty, in the way of application to the court, to have the goods detained, or for permission to withdraw them from the receiver's possession. Nothing can be clearer than that the court had jurisdiction to determine whether the goods were retained in violation of the laws of the state; whether the receiver, in conducting the business of the railroad in respect of the transportation of this barrel, was proceeding 'according to the valid laws of the state' as provided by the second section of the act of congress of March 3, 1887, (24 Stat. 552, c. 373;) and whether the seizure was authorized by any law of the state.
The possession of property by the judicial department, whether federal or state, cannot be arbitrarily encroached upon without violating the fundamental principle which requires co-ordinate departments to refrain from interference with the independence of each other, (Ex parte Tyler, 149 U.S. 164, 13 Sup. Ct. 785;) and the position that a petty officer can take property from the possession of a court without permission and without warrant, 'upon his own motion, and without instructions from any other person,' as petitioner admits he did, because in his view the duty is imposed upon him by a particular statute, and that the court is without power to pass upon the questions involved, or, if it does so, that its judgment may be treated with contemptuous defiance, is utterly inadmissible in any community assuming to be governed by law.
We entertain no doubt whatever that the circuit court had jurisdiction, and it necessarily follows that its determination that the action of the constable was illegal, and that he was in contempt in seizing and persisting in holding the property, is not open to review in this proceeding.
2. It is further contended that the court exceeded its power, in that the payment of costs was required, because the costs were in the nature of a fine, and therefore the punishment inflicted was both fine and imprisonment. Under section 970 of the Revised Statutes, when judgment is rendered against a defendant in a prosecution for any fine or forfeiture, he shall be subject to the payment of costs, and on every conviction for any other offense, not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution; and, as contempt of court is a specific criminal offense, it is said that the judgment for payment of costs would appear to be within the power of the court, although by section 725 it is provided that contempts of the authority of courts of the United States may be punished 'by fine or imprisonment, at the discretion of the court.' But, be that as it may, the sentence here was that the petitioner be imprisoned 'until he returns to the custody of the receiver the barrel taken by him from the warehouse without warrant of law; and, when that has been surrendered, that he suffer a further imprisonment thereafter in said county jail for three months, and until he pay the costs of these proceedings.' As the prisoner has neither restored the goods, nor suffered the imprisonment for three months, even if it was not within the power of the court to require payment of costs, and its judgment to that extent exceeded its authority, yet he cannot be discharged on habeas corpus until he has performed so much of the judgment, or served out so much of the sentence, as it was within the power of the court to impose. Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18.
The application for the writ of habeas corpus is denied.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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