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but made a mistake in the judgment. For mere error, no matter how flagrant, the remedy is not by habeas corpus. The law is well settled in this court that on habeas corpus only jurisdictional defects are inquired into. The writ does not raise questions of errors in law or irregularities in the proceedings. (In re Crandall, 34 Wis. 177; In re Pierce, 44 Wis. 444.)"

In Ex parte Van Hagan, 25 Ohio St. 432, sentence had been pronounced under a statute which had been repealed. The Supreme Court of Ohio stated: "The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable, but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction. Ex parte Stephen M. Shaw, 7 Ohio St. 81, 70 Am. Dec. 55, approved and followed on this point."

In Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344, it was claimed that the commitment of a juvenile offender to the state board, to be sent to the Lyman School, was not authorized and was not the proper place. The Supreme Court of Massachusetts said: "If there was in the sentence or the prior proceedings any irregularity affecting the validity of the judgment, it can be corrected upon a writ of error. But neither irregularities nor errors, so far as they were within the jurisdiction of the court, can be inquired into upon a writ of habeas corpus. (Clarke's Case, 12 Cush. 320; Herrick v. Smith, 1 Gray, 1, 50, 61 Am. Dec. 381; Adams v. Vose, 1 Gray, 51; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Siebold, 100 U. S. 371, 373, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Platt v. Harrison, 6 Iowa, 79, 71 Am. Dec. 389.) That a writ of habeas corpus cannot perform the functions of a writ of error, in relation to proceedings of a court within its jurisdiction, is universally agreed. The only conflict of authority touching the

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subject is in regard to what acts are open to inquiry upon the question of jurisdiction. It is held in this state, and by good authorities elsewhere, that the constitutionality of a law which a court is attempting to apply lies at the foundation of the jurisdiction under it, and may be called in question upon habeas corpus. (Herrick v. Smith, 1 Gray, 1, 49, 61 Am. Dec. 381; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; People v. Roff, 3 Parker, Cr. R. 216.) But this doctrine has been contradicted, and action founded upon an unconstitutional law has been held a mistake which can only be corrected upon a writ of error. (In 're Harris, 47 Mo. 164.) So there has been diversity of opinion among different courts as to sentences which are not authorized by law. The better rule seems to be that where a court has jurisdiction of the person, and of the offense, the imposition by mistake of a sentence in excess of what the law permits is within the jurisdiction, and does not render the sentence void, but only voidable by proceedings upon a writ of error. (Ross' Case, 2 Pick. 165; Feeley's Case, 12 Cush. 598, 599; Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 62 Ala. 51; Lark v. State, 55 Ga. 435.) It has sometimes been held that such a sentence is legal so far as it is within the provisions of law, and void as to the excess. (People v. Jacobs, 66 N. Y. 8; People v. Baker, 89 N. Y. 460; Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696.)"

Extracts from other decisions pertinent to the inquiry at hand are:

Justice Holmes, speaking for the court, in Re Stalker, 167 Mass. 12, 44 N. E. 1068, said: "We assume, as contended for the petitioner that there was error in his sentence because it did not include solitary imprisonment. (Lane v. Commonwealth, 161 Mass. 120, 122, 36 N. E. 755.) But on a writ of error this could be corrected. (Pub. St. 1882, c. 187, sec. 13; Jacquins v. Commonwealth, 9 Cush. 279.) festly, it would be an absurd result if the petitioner could get his discharge on habeas corpns when he could not get it by a regular proceeding to reverse his sentence. But whether

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the sentence could be corrected or could not be, the rule which has been approved by this court denies relief by habeas corpus when the court has jurisdiction to sentence the petitioner, and errs simply in regard to the extent of the punishment. (Sennot's Case, 146 Mass. 489, 492, 493, 16 N. E. 448, 4 Am. St. Rep. 344; Feeley's Case, 12 Cush. 598, 599.) See Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88."

Petition of Bishop, 172 Mass. 36, 51 N. E. 191: "The general rule is that where the court has jurisdiction, and errs merely in regard to the punishment, relief will not be granted by habeas corpus, but that the remedy is by a writ of error, in which the mistake can be corrected and such sentence pronounced as should have been imposed. (Ross' Case, 2 Pick. 165, 172; Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Stalker, Petitioner, 167 Mass. 11, 44 N. E. 1068; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88.) In exceptional cases relief may be granted by habeas corpus, or questions of constitutionality considered. (Feeley's Case, 12 Cush. 598; Plumley's Case, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839.) We discover nothing in this case which takes it out of the general rule."

In re Belt, 159 U. S. 100, 15 Sup. Ct. 988, 40 L. Ed. 88: "The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction; and that it cannot be used to correct errors. Ordinarily, the writ will not lie where there is a remedy by writ of error or appeal; but in rare and exceptional cases it may be issued, although such remedy exists."

Elsner v. Shrigley, 80 Iowa, 35, 45 N. W. 393: "In Jackson v. Boyd, 53 Iowa, 536, 5 N. W. 734, it is expressly stated that a failure to fix the time in the judgment 'would not render it void'; and also 'the extent of the imprisonment is fixed and declared by the statute, and when the defendant has been imprisoned the required length of time he is entitled to be discharged.' Without attaching to this language a broader signification than is required by the facts considered, it sustains the view that the law is a limitation as to the extent of

Opinion of the Court-Talbot, C. J.

the imprisonment, when no time is fixed in the judgment, and is against the view that the judgment is void because under it the imprisonment might be 'indefinite'; that is, to the time of the actual payment of the judgment. We reach the conclusion that habeas corpus is not available to question the correctness of the proceedings of the district court with reference to the judgment in question. Our conclusion has support, more or less direct, in many cases, and among them are Turney v. Barr, 75 Iowa, 758, 38 N. W. 550; Hurd. Hab. Corp. 2d ed. 328; Cooley, Const. Lim. 347; Shaw v. McHenry, 52 Iowa, 182, 2 N. W. 1096; State v. Orton, 67 Iowa, 554, 25 N. W. 775; Platt v. Harrison, 6 Iowa, 79, 71 Am. Dec. 389; Zelle v. McHenry, 51 Iowa, 572, 2 N. W. 264; Herrick v. Smith, 1 Gray, 50, 61 Am. Dec. 381; Adams v. Vose, 1 Gray, 51; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; In re Underwood, 30 Mich. 502; Ross' Case, 2 Pick. 165; Feeley's Case, 12 Cush. 598; Semler, Petitioner, 41 Wis. 517; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 426; Phinney, Petitioner, 32 Me. 440; Kirby v. State, 621 Ala. 51; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. It is said the judgment of imprisonment, by not fixing a limit, is indefinite; but the law itself defeats such a claim, for beyond its limits the judgment is void, and this proceeding is available for protection against illegal imprisonment."

In People v. Kelly, 97 N. Y. 212, the defendant had been convicted of assault in the third degree and sentenced to imprisonment at hard labor in the state prison, and it was held that, while the sentence was void, as the conviction was valid, the prisoner was not entitled to discharge upon habeas corpus, but should be remanded to the custody of the sheriff.

In Re Harris, 68 Vt. 243, 35 Atl. 55, on habeas corpus, it appeared that the petitioner was properly convicted. The sentence of imprisonment in the state prison was void. It was held that, while he was unlawfully in the state prison, he was not unlawfully restrained, and should be remanded

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to the sheriff of the county in which he was convicted, to be resentenced.

In Ex parte McGuire, 135 Cal. 339, 67 Pac. 327, Am. St. Rep. 105, it was held that the writ of habeas corpus lies not only when the prisoner is entitled to his liberty, but also when he is held by one person, and another is entitled to his custody. Chief Justice Beatty, speaking for the court, said: "My conclusion is that the imprisonment of the petitioner in the county jail, in execution of his sentence for the misdemeanor, is unwarranted and illegal; but it does not follow, as he contends, that he should be set at liberty. He is entitled to the benefit of the writ of habeas corpus only so far as necessary to secure him in his legal right to be placed in the proper custody. It is therefore ordered that he be remanded to the custody of the sheriff for the purpose of delivery forthwith to the warden of the state prison."

In Kingen v. Kelley, 28 Pac. 44, 3 Wyo. 566, 15 L. R. A. 177, the court quoted approvingly from O'Brien v. Barr, 49 N. W. 68, 83 Iowa, 51: "The imprisonment and its duration could alone be determined by the court. But fixing the particular penitentiary in which the petitioner should be confined is not a part of the judgment. The effect and duration of confinement is all that was judicially determined by the judgment.""

In Ex parte Waterman, 33 Fed. 29, the petitioner was sentenced to hard labor in the state prison at Auburn for three years, but the marshal ascertained on his arrival with her that the state law did not allow female prisoners in that institution. Later the court, in her absence, made an order substituting the Erie County penitentiary. The court denied the petition for writ of habeas corpus, and remanded the prisoner, on the ground that the order fixing the place of imprisonment was not necessarily a part of the judgment.

In Re McDonald, 33 Pac. 22, 4 Wyo. 150, the court cited with approval Elsner v. Shrigley, supra, and People v. Foster, 104 Ill. 156, and said: "The judgment * * * does not in itself fix the term or rate of imprisonment for the failure to pay *** the fine imposed; but, if this were erroneous,