Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-04-02

! OF tne sDeIlH O the VIII set iOith tna'
he held the petitioner in custody under
the said writ. Of capias ad responder
d,im.
SYNOPSIS OF THE OPINION.
The first question is whether, on the
facts appearing by the return, the case
is proper one TO be considered on ha-
beas corpus. 1t is a well-established
and undisputed principle that mere er-
rors in the proceedings of court OF
competent jurisdiction cannot be re-
viewed on ha6eas corpus. In such
case the remedy, if any, is by
writ of error or appeal. But
where the proceedings under which
the party complaining is detained
are void, as where the court is without
jurisdiction, the same are renewable
on hdJedS corpus, and the party will be
discharged. IF it appears says
Lord Hale. "by the return of the writ
that the party be wrongfully committed,
or by one that hath not jurisdiction, or
for cause for which man ought not
to be imprisoned, he shall be discharg-
ed. "--Bac. Abr. Hab. Corp. (B.) 10 :;
Hurd on HaJeds Corpus. 1888. 1t was
upon this ground that this court pro-
ceeded in en pdrte Meredith, 80 Graft,
ll9, though the proceeding was really
an amicable one to try the title to the
office of county judge of Prince Will
liam county. And the same principle
is illustrated by numerous decisions Of
the Supreme Court Of the United States.
Thus, in car pdrte Lange, Is WALL, l63,
the petitioner was discharged on haJeos
corpus on the ground that he was ille-
gally restrained of his liberty by vir-
tue Of void Judgment of a Fed
eral court. On the other hand,
in er paue Watkins, 3 Pet, 1913, the
writ was refused, because the peti-
toner was in custody under the order
of court of competent jurisdiction,
which was therefore conclusive until
reversed or set aside in all other courts.
So, on the same ground, the court re-
fused to interfere in the following
cases Er poi1e Parks. 93 U. S.. l8;
cr pdrie Virginia, 100 ID, 339 ; er parte
Curtis, l06 ID, 81; er paTte Crouch,
10 Id, It's. In ca pGrte Siebold, 100
ID, 81, the writ was applied for to
discharge the petitioner from custody,
who had been indicted and convicted
in the Chcuit Court Oft United States
for the district of Maryland under cer-
tain acts Of Congress alleged to be
unconstitutional. The question there
fere arose whether the court had juris-
diction to discharge party imprisoned
under sentence of United States
court upon conviction Of crime Gre
ated by and indictable under an uncon-
stitutional act of Congress. And it
was held that it had. The Court said
1.-The validity of the judgment is as
sailed on the ground that the acts Of
Congress under which the indictment
was found are unconstitutional. II this
position is well taken il affects the
foundation of the whole proceedings.
An unconstitutional law is void. and is
as no law. An offence created by it is
not crime. A conviction under it is
not merely erroneous but illegal and
void, and cannot be legal cause of
Imprisonment
The principle here asserted fully sus-
tains the jurisdiction of this court in the
present case. Formerly it was doubted
whether habtos corpus was a proper
remedy in case of arrest under civil
process. Er partc Wilson, Il Crouch.
-. But such doubt, from whatever
source it may have arisen, is no Longer
entertained. Nelson g. Graydon e. Cut
ter. Mclean, 32G. The true test is,
whether the process is illegal and void,
or irregular merely. II the former, then
the party in custody is restrained of
his liberty without due process Of law
and is entitled to the immediate remedy
Of habeGs corpus but not so in the lat
ter case. Er parfe Randolph, Brock,
al s9 parfe Rowland, l04 l. s., 604;
Bank L. ). Z. Jenkins, Is Johns. 30j.
The remaining question then is
whether The provisions Of the revenue
laws, under which the petitioner is de-
tanned, are, as alleged, unconstitutional :
And upon this point there would seem
TO be no room for doubt in view Of the
decision Of the Supreme Court Of the
United States in the recent case of
Webber rs. Virginia, l03 L. s., 344.
In that case the provisions Of the
revenue laws of this State imposing
tax on the privilege Of selling the man
uiactured articles or machines OF other
States or Territories, there being no
such tax imposed on the privilege of
selling the manufactured articles or
machines of this State, were heldinyalid,
as in contrayention Of that clause Of
the Federal Constitution which gives to
Congress the power TO regulate COM
merce among the several States.
In the present case the evident pur-
pose Of the Legislature in enacting the
sections of the statute in question was
10 discriminate in favor of the publish
crs Of books, newspapers, periodicals,
&C., in this State. and against those en-
gagged in such business elsewhere. Thus
all persons other than licensed mer-
chants who receive subscriptions for or
in any manner furnish books, &C..
printed or published beyond the limits
of the State are required to pay
license-tax, while no such tax is i'm
posed for the privilege Of selling the
publications Of this State. This is in
effect imposing tax on the pub
lications Of other States, and is
to that extent regulation OF
commerce in such publications between
the States. and therefore in confiictwith