Koepke v. Hill.

court of the city of Evansville is a court of record, and the statute creating it expressly declares that "all its judgments, decrees, orders and proceedings shall have the same force and effect as those of the criminal or circuit courts, except that no judgment shall be a lien on real estate otherwise than is provided by taking transcript". Acts 1893, p. 65, et seq., §113, §4017 Burns 1894; Peters v. Koepke, 156 Ind. 35. The police court of the city of Evansville has exclusive original jurisdiction of all violations of ordinances of the city and original concurrent jurisdiction with the circuit court in cases of certain felonies and misdemeanors. Acts 1893, p. 65, et seq., §§115, 116, 884019, 4020 Burns 1894; Acts 1895, p. 258, et seq., §33, §4020 Burns Supp. 1897. It thus appears from the law of its creation that the police court of the city of Evansville was a competent court, and indeed the only competent court, in which to prosecute actions for violations of the city's ordinances.

No question arises in this case with respect to usurpation of authority by a court of inferior jurisdiction in acting in a matter outside of the charter of its powers, as if, for example, a justice of the peace, instead of binding over a party accused of murder to the criminal or circuit court for trial, should convict the accused and sentence him to be hanged. Miller v. Snyder, 6 Ind. 1. For the police court of Evansville, so far as the right to hear and determine a charge of violating an ordinance of the city is concerned, stands on as broad a footing as the circuit court of the county does in regard to the trial of an indictment for murder. The particular question, therefore, is this: Is the judgment of a court, which is the only tribunal before which the prosecutor can bring his charge of some alleged offense, void because the statute or ordinance that defines the offense is unconstitutional?

The Supreme Court of the United States and many of the state supreme courts answer the question in the affirmative. Church on Habeas Corpus (2nd ed.), §83; 15 Am. & Eng.

Koepke v. Hill.

Ency. of Law (2nd ed.) p. 204. In this State, however, the holdings have been to the effect that, whenever a court is confronted with a question which it has a right to decide correctly, its erroneous judgment will not be subject to a collateral attack, irrespective of whether the mistake of law concerned the common, or statutory, or constitutional law. Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Cassel v. Scott, 17 Ind. 514; Wentworth v. Alexander, 66 Ind. 39; Lowery v. Howard, 103 Ind. 440; Willis v. Bayles, 105 Ind. 363; McLaughlin v. Etchison, 127 Ind. 474, 22 Am. St. 658; Board of Guardians v. Shutter, 139 Ind. 268, 31 L. R. A. 740; Jones v. Cullen, 142 Ind. 335; Hiatt v. Town of Darlington, 152 Ind. 570; Pritchett v. Cox, 154 Ind. 108; Winslow v. Green, 155 Ind. 368; Webber v. Harding, 155 Ind. 408; Peters v. Koepke, 156 Ind. 35. In McLaughlin v. Etchison, supra, a judgment of conviction upon an affidavit which failed to charge a public offense was held to be impervious to a collateral assault. The failure to charge. a public offense did not result from a deficient statement of facts. The facts were fully alleged. McLaughlin was charged with maintaining a public nuisance by erecting a high and useless fence which interfered with one Fraly's use of his own property. The mistake was with respect to the statutory law. There was no statute which denounced the acts done by McLaughlin as a public offense. And yet the court before which the charge was presented determined that there was. Surely, it is no greater a mistake of law to decide that a statute (unconstitutional in the opinion of some other tribunal) does not contravene the constitution than to hold that there is a statute which declares certain acts to constitute a public offense when there is no such statute. In Cassel v. Scott, supra, Cassel filed certain bonds in the auditor's office of Wayne county in compliance with an act "to regulate the retailing of spirituous liquors". The act was held to be unconstitutional in Meshmeier v. State, 11 Ind. 482. A judgment was obtained on Cassel's bonds, and he sought

Koepke v. Hill.

to enjoin the collection of the judgment. In the action on the bonds Cassel could have successfully maintained the defense of no consideration because the act was unconstitutional, but he was not permitted to attack the judgment collaterally. The common law, the statutes, and the constitutions make up the law of the land. They are all law. On principle, it is not perceived why a mistake in constitutional law should be visited with more serious consequences than a mistake in common or statutory law. "For if a person", as Judge Vanfleet says in $75 of his work on Collateral Attack, "should be tried on an information and be sentenced to be hanged, and the sentence should be confirmed and carried out by order of that court, and then the court, on further reflection, or by change of members, should come to a different conclusion in another case, and hold that in all such cases the constitution required an indictment, all persons engaged in the taking off of the first person would be guilty of manslaughter and liable for damages at the suit of his widow. When any court, with all the facts and all the law before it, deliberately orders some malefactor to be incarcerated, and compels the officers to carry out its sentence under pain of severe punishment upon refusal, and then as deliberately entertains an action by him against them for false imprisonment, because it has changed its mind on the law, it can hardly expect such officers or their friends to entertain a very high respect for it."

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In this case an affidavit was presented to the police court of the city of Evansville, charging appellee with violations of a city ordinance. There was no other court of original jurisdiction in which the charge could be filed and determined. The court was in duty bound to act. It had to decide whether the facts stated made a case within the ordinance, and whether the ordinance was within the delegated legislative power of the city, and, if so, whether the ordinance and statute authorizing it conflicted with any proviVOL. 157-12

Koepke v. Hill.

sion of the Constitution. These were all questions of law, and if the court had jurisdiction to decide them correctly, it likewise had jurisdiction to decide them erroneously. If the ordinance in question was an exercise of the police power, it might be held valid; if of the taxing power, invalid. That this one of the questions before the court was at least debatable may be seen by a comparison of the cases of City of Indianapolis v. Bieler, 138 Ind. 30, and Pabst Brewing Co. v. City of Terre Haute, 98 Fed. 330, wherein opposite conclusions were reached on the question whether a somewhat similar ordinance was an exercise of the police power or of the taxing power. If the police court had decided that this ordinance was an invalid exercise of the taxing power, and then the same or a higher tribunal had held the ordinance to be a valid exercise of the police power, it is conceivable that appellee might insist upon his former acquittal as a bar to another prosecution for the same acts, although the judgment of acquittal was founded wholly upon a mistake in constitutional law. The conclusion that a judgment under a statute which is erroneously held to be constitutional is not void, is supported by the cases of People v. Jonas, 173 Ill. 316, 50 N. E. 1051; In the matter of Underwood, 30 Mich. 502; In the matter of Coffeen, 38 Mich. 311; In re Maguire, 114 Mich. 80, 72 N. W. 15; Ex parte Fisher, 6 Neb. 309.

If a federal question were duly presented, we would be constrained to follow the decisions of the Supreme Court of the United States. But the averments of the petition disclose that the ordinance applies to residents and nonresidents without discrimination, and that the goods were within. this State before and when offered for sale. The petition does not allege that the owners of the goods were not residents of this State. They may have resided here and owned a business in Chicago. No question of a denial of the equal protection of our laws, or of an interference with interstate commerce, is involved. City of South Bend v. Martin, 142

Morell v. Morell.

Ind. 31, 29 L. R. A. 531; City of Huntington v. Mahan, 142 Ind. 695, 51 Am. St. 200; Emert v. Missouri, 156 U. S. 296.

Judgment reversed, with instructions to quash the writ.

MORELL V. MORELL.

[No. 19,447. Filed June 25, 1901.]

APPEAL.-Action to Establish Will.—An action to secure the probate of an alleged will is an action to determine the property rights of living persons, and an appeal in such a case is not governed by S$2454, 2455 R. S. 1881, providing that appeals in matters connected with decedents estates must be perfected within forty days after final judgment. p. 181.

EVIDENCE.-Hearsay.-The rule that hearsay evidence must be excluded from the jury applies with equal force to statements made by one who has since died. p. 182.

WILLS.-Probate.-Hearsay Evidence.-Where it is sought to secure the probate of a will, both witnesses thereto being dead, it is improper to admit testimony as to statements made by one of the alleged witnesses in reference to the will's execution, although many years have passed, and it is impossible to procure better proof. pp. 181-183.

EVIDENCE.- Handwriting.— Opinion. — Where the genuineness of signatures of the testator and of deceased witnesses to a will is in issue, a witness who was a near relative of testator, and a neighbor of the two subscribing witnesses, had seen them write, had received letters from the testator, and was acquainted with the handwriting of each, is shown to have sufficient qualifications to entitle him to an opinion as to the genuineness of the signatures of all. p. 184. WILLS.-Action to Secure Probate.-Burden of Proof.-In an action to secure the probate of an alleged will, the execution of which is denied, the burden of proof is on the plaintiff to establish its execution by a preponderance of the evidence. pp. 184-187.

From Huntington Circuit Court; C. W. Watkins, Judge. Petition by David Morell for the probate of a will. From a judgment in favor of petitioner, Margaret Morell appeals. Reversed.

T. R. Marshall, W. F. McNagny, P. H. Clugston, O. W. Whitelock and S. E. Cook, for appellant.

E. K. Strong, J. B. Kenner and U. S. Lesh, for appellee.