187 F. 268 | 7th Cir. | 1911
(after stating the facts as above). Payment of the fine, even if the judgment of conviction was void, is not to be deemed a voluntary contribution to the government, and therefore is not a bar, if the recovery in other respects is sustainable. Durr v. Howard, 6 Ark. 461; Devlin v. U. S., 12 Ct. Cl. 266; Reinhard v. City of Columbus, 49 Ohio St. 257, 31 N. E. 35.
Contentions for reversal may be summarized thus: The District Court was the organism provided by law and clothed with the duty of hearing the criminal charge against Rothstein. Section 563, Rev. St. (U. S. Comp. St. 1901, p. 455). When the parties appeared, the court had jurisdiction of them and of the subject-matter of the in-, dictment. Even on Rothstein’s plea, “I will not contest,” the court’s duty of administering justice required that the indictment should be dismissed if it was based on an unconstitutional statute, for the matter charged as a crime would be in truth no crime. Therefore the court’s retention of the indictment, acceptance of the plea, and judgment of conviction necessarily constituted an adjudication of the statute’s validity. That question was as much a part of the subject-matter in the Rothstein as in the Keller Case. Having jurisdiction of the pax-ties and of the subject-matter, the court had lawful power to render a judgment which would be equally binding whether questions of fact or of law were rightly or wrongly decided. An oversight or misconstruction of constitutional law is simply an error of law, for “the Constitution, the statutes, and the common law together make up the law of the land.” Van Fleet’s Collateral Attack, § 67. Rothstein’s conviction, however erroneous, was not void, could not be questioned collaterally, was reviewable only on writ of error, became final in the District Court at the close of the December term, and, except for fraud, could not at a subsequent term be openéd for the correction of errors. Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538; Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797.
If Rothstein’s contention as to the law determinative of the validity of the order of July, 1909, is correct, confessedly the judgment would have to be affirmed. If his argument is wrong, it is so because the government’s insistence that the judgment of conviction was not open to a collateral attack is right. But this writ does not bring here the order of July, 1909, for review on assignments of error. It is addressed to a judgment of the District Court, sitting as a court of claims, wherein the court found that in and by the order of July, 1909, the District Court, sitting as a criminal court, had adjudged that Roth-stein’s conviction was based on an unconstitutional statute, that the unconstitutional statute never was a law, that the conviction was a nullity, and that, therefore, it was within the power and duty of the criminal court to cancel the void judgment of conviction and order the restitution of the fine. It was on these facts that the District Court, as a court of claims, rendered the judgment now on review. This writ of error therefore involves a collateral attack upon the order of July, 1909. Eor the government to succeed, that order must be, not merely erroneous, but absolutely void. Now, if a conviction under an unconstitutional statute is a nullity, the court, on motion and notice and hearing, would have jurisdiction after the term to expunge the void judgment; and the order of expungement would not only be within the court’s power, but would be errorless. Surely the government will not insist that the jurisdiction'of the District Court, as a criminal court, being the organism provided by law and clothed with the duty of hearing the parties’ contentions respecting the disposition to be "made of the motion, was dependent upon its giving an unquestionably correct decision; for, though there may be precedents for holding that an erroneous judgment on the constitutional law is not binding, all the authorities agree that a mistaken decision on the common law shall not be assailed collaterally.
The judgment is affirmed.