Ex Parte Boeninghausen

• Decision Date: 15 November 1886
• Citation: 91 Mo. 301,1 S.W. 761
• Court: Missouri Supreme Court
• Parties: <I>Ex parte</I> BOENINGHAUSEN.

1 S.W. 761

91 Mo. 301

Ex parte BOENINGHAUSEN.

Supreme Court of Missouri.

November 15, 1886.

HABEAS CORPUS — CONSTITUTIONALITY OF ACT DECLARING CRIME.

The court cannot, on a writ of habeas corpus, review the constitutionality of the act or ordinance under which the prisoner was arrested, when the prisoner has been arrested on legal process, by a court having jurisdiction of the person and offense, is in the custody of the proper officer, and by virtue of a provision of law. SHERWOOD, J., dissents.

Habeas corpus.

L. A. Steber, for petitioner. Leverett Bell, for City of St. Louis.

NORTON, J.

The prisoner was prosecuted in the First district police court of the city of St. Louis for the violation of sections 10 and 11 of article 8 of chapter 14 of the Revised Ordinances of said city, which sections, in words and figures, are as follows:

"Sec. 10. The maintenance of cow stables or other conveniences, for the purpose of carrying on a dairy business within the city limits, shall be exercised only under the supervision of the board of health, who may condemn such conveniences or stables as a nuisance if not kept in a cleanly manner; and upon such condemnation said stables or conveniences shall be vacated forthwith, and shall not again be used for dairy purposes without permission of the board of health: provided, that no such stable or convenience shall be maintained in any block of the city without the written consent of a majority of the property owners of such block: provided, further, that any person or persons maintaining such stable or convenience within the city limits shall comply strictly with all regulations framed by the board of health, and shall not feed to his or their animals any swill or other deleterious food.

"Sec. 11. Any party violating the foregoing section shall be deemed guilty of a misdemeanor, and be fined in a sum not less than fifty dollars, nor more than five hundred dollars."

The complaint filed against him under this ordinance was that he "maintained a cow stable and other convenience in city block No. 1550, without the written consent of a majority of the property owners of such block." The prisoner was tried, found guilty, and fined $50, and costs of court, and, on failing to pay the same, his person was seized by the city marshal of the city of St. Louis, and the prisoner was about to be conveyed to the city work-house of the city of St. Louis, when the St. Louis court of appeals, on application made the same day, issued its writ of habeas corpus, and the prisoner was produced before it. That court, after a hearing, remanded the prisoner. See case reported 21 Mo. App. 267. The city marshal aforesaid then obtained an alias execution from the said police court aforesaid, and had again seized the person of the prisoner, and was about to convey him to the keeper of the St. Louis city work-house, when further proceedings were arrested by the issuance of the writ of habeas corpus from this court.

It appears from the return that the prisoner is in custody by virtue of process from a legally constituted court, and in such case it is provided by section 2650 that the prisoner can only be discharged in one of the following cases: "First, when the jurisdiction of such court and officer has been...