Ex parte Boenninghausen
| Decision Date | 16 March 1886 |
| Citation | 21 Mo.App. 267 |
| Parties | EX PARTE GEORGE BOENNINGHAUSEN. |
| Court | Missouri Court of Appeals |
APPLICATION for a writ of habeas corpus.
Prisoner remanded.
L. A STEBER, for the petitioner: Habeas corpus is the proper remedy for the discharge of a prisoner who has been convicted under an unconstitutional law. Ex parte Rollins, 20 Rep. 765; Cooley on Const. Lim. (4 Ed.) 431 *348, see Note 1; Ex parte Snyder, 64 Mo. 58; " The Kuklux " cases, 4 S.Ct. 153; People v. Warden, 2 N. East Rep. 870; In re Wong Yung Quy, 6 Saw. 237. And it makes no difference whether the proceedings, if void, are civil or criminal. Ex parte Rollins, 20 Rep. 765. This court has not only the right, but it is its imperative duty to take jurisdiction in this case. In re McDonald, 19 Mo.App. 370; Ex parte Jilz, 64 Mo. 205; Ex parte Snyder, 64 Mo. 58; Ex parte Bethurum, 66 Mo. 545; Ex parte Kearny, per Thornton, 55 Cal. 212, at p. 230; People v. Liscomb, 60 N.Y. 559, et seq.; People v. Warden, 2 N. East Rep. 870-872; In re Wong Yung Quy, supra. An application for a writ of habeas corpus, for discharge from conviction and imprisonment under a void law, is like moving for dismissal for want of jurisdiction over the subject matter, which can be made at any stage of the proceedings, and even for the first time in the appellate court. Allen v. Scharringhausen, 8 Mo.App. 229; Haggard v. Railroad, 63 Mo. 302; Ferguson v. Crawford, 70 N.Y. 257.
JAMES C. MCGINNES, for the respondent: Admit this proceeding, and then every person charged with committing an offence of every kind and description whatsoever, instead of standing his trial and litigating the matter as the law directs, can come here and ask the advice of the court as to the validity of the law under which he is arraigned. Such a precedent can not be established, and the legislature clearly saw the impolicy of the proceeding when it placed a prohibition upon it. In re Harris, 47 Mo. 164, following Stoner v. The State, 4 Mo. 614, and Ex parte Toney, 661. A long line of decisions in other states affirm the same doctrine. See 6 Iowa 79; 12 Id. 208; 22 Kan. 477; 30 Kan. 753; 32 Kan. 668; 28 La.Ann. 82; 1 Gray (Mass.) 50; 27 Mich. 1; 30 Mich. 502; 104 Ill. 156; 2 Abb. Pr. 84; 2 Parker Cr. R. 650; 5 Hill 164; 4 Barb. 131; 11 How. Pr. 418; 65 Id. 119; 1 N.Y. Cr. R. 1; 66 N.Y. App. 8; 34 How. Pr. 259; 7 Ohio St. 81; 8 Id. 599; 25 Id. 426; 11 Abb. Pr. 56; Church on Habeas Corpus, Par. 233-342.
The petitioner was convicted in the police court of the city of St. Louis, of the offence of maintaining a cow stable and convenience for dairy purposes in a certain block of the city, without first having obtained the consent in writing of a majority of the owners of property in the block, as required by an ordinance of the city, and was adjudged to pay a fine of fifty dollars. The city marshal, having found no property on which to levy an execution for the fine, and the petitioner having pointed out none, has taken his body for the purpose of committing him to the work house in execution. To be discharged from this custody, the petitioner has sued out the present writ of habeas corpus in this court. The only ground on which he claims his discharge is the invalidity of the ordinance under which he was convicted. The ground on which the ordinance is challenged is the same ground which was set up in the case of The State ex rel. v. Beattie (16 Mo App. 131), namely, that the ordinance prohibited the carrying on of a lawful trade within the city, except upon the condition that the consent of a given number or proportion of the property owners within the block in which such trade should be located should first be obtained. The importance of the question thus raised is obvious, and the difficulties surrounding its solution appear from the fact, that in that case the court was divided in opinion with reference to it. Whether a majority of the court, as now constituted, would uphold the decision which was rendered in that case, need not be stated; because we are of opinion, on the authority of Ex parte Bowler (16 Mo.App. 14), that it would be an abuse of the writ of habeas corpus to decide such a question in this case. In that case it was held, after very full consideration, that this court would not discharge on habeas corpus a person arrested for the violation of a city ordinance, on the ground that the ordinance was unconstitutional and void. In other words, we were of opinion that the fact that the law which creates the crime for which the prisoner is held to answer, may be invalid, is not a matter which goes to the jurisdiction of the court either in respect of matter, place, sum, or person within the meaning of section 2650, Revised Statutes. The only distinctions between that case and this are, that in that case the discharge of the prisoner was sought before trial and conviction, while in this it is sought after trial and conviction; and that in that case the validity of the ordinance was challenged on the ground of being in conflict with the constitution of the United States and that of the state of Missouri, while in this case it is challenged on the ground of being in excess of the power conferred by the charter of the city. Neither of these distinctions creates any difference in principle. If the fact that the ordinance is void for any reason goes to the jurisdiction of the police court and of the city marshal, the jurisdiction is wanting as well after as before conviction; and if the invalidity of the ordinance deprives the court and marshal of jurisdiction, it can make no difference from what source the invalidity springs, whether because in conflict with the constitution of the United States, the constitution of the state of Missouri, or the charter of the city; for in either case its invalidity would spring from the fact of its being in conflict with, or unauthorized by, a law paramount to it, and it would in either case be ultra vires and void for substantially the same reason.
Unless, then, we are prepared to overrule Ex parte Bowler, we must hold that the petitioner is not entitled to relief in this proceeding. We are not prepared to overrule that case, and the able opinion written by Judge Bakewell in that case relieves us of the necessity of restating, at much length, our reasons for this conclusion. We do not place our decision upon want of jurisdiction to pass upon constitutional questions in proceedings by habeas corpus. Undoubtedly we have such jurisdiction, considering the word jurisdiction in the mere sense of judicial power. Every court has, and must have, such...
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