Ex parte Branch
| Citation | 137 S.W. 886,234 Mo. 466 |
| Parties | Ex parte CALVIN BRANCH, Petitioner |
| Decision Date | 23 May 1911 |
| Court | Missouri Supreme Court |
Petitioner remanded.
Willis H. Clark for petitioner.
(1) That portion of Sec. 2228, R. S. 1899, which provides that "every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support shall be deemed a vagrant, and upon conviction thereof, shall be punished," etc., is in conflict with the natural right of personal liberty inherent in the people and contravenes the provisions of section 4 of article 2, of the Constitution of Missouri. St. Louis v. Roche, 128 Mo. 541; Ex parte Smith, 135 Mo. 223; State v Meyers, 174 Mo. 352; St. Louis v. Gloner, 210 Mo. 502; In re Fletcher, 157 Mo. 125; Ex parte Harrison, 212 Mo. 88. (2) Such legislation is also in contravention of sections 11, 21, 30 and 31 of article 2 of the Constitution guaranteeing the people against seizure of their persons without probable cause, against the deprivation of their property for public use, against the deprivation of life, liberty or property without due process of law, and against slavery or involuntary servitude. Cases cited under point one.
Seebert G. Jones and Forrest G. Ferriss for respondent.
(1) Section 4789, R. S. 1909, defining vagrancy and punishing vagrants, upon which the conviction of petitioner was based has been on our statute books for thirty-one years in its present form, first appearing as Sec. 1568, R. S. 1879, and in principal substance it has been our statutory law for seventy-five years. Laws 1835; Laws 1845, p. 563; R. S. 1855, p. 1557; Wagner's Statutes, chap. 141; R. S. 1879, sec. 1568; R. S. 1889, sec. 3841; R. S. 1899, sec. 2228. (2) The constitutionality of such or similar vagrancy statutes has never heretofore been brought directly in issue before the court, but it has been recognized in the following cases: In re Thompson, 117 Mo. 83; State v. Canton, 43 Mo. 48. (3) Said statute defines an offense against public peace, morality and decency, and its enactment was pursuant to the general welfare on the lines of sound public policy. Freund's Police Power, pp. 97, 99, secs. 97, 99; Tiedeman's Limitations of Police Power, p. 117, sec. 47; Commonwealth v. Daugherty, 137 Mass. 245; Carter v. State, 126 Ga. 570. (4) Vagrancy statutes have been upheld as constitutional in other States. Re William Stegenga, 133 Mich. 55; Ex parte McCue, 96 Cal.App. 110; State v. Austin, 114 N.C. 855; Byers v. Commonwealth, 42 Pa. St. 89; State v. Hogan, 63 Oh. St. 208; People v. Fox, 77 N. Y. App. 245; People v. Forbes, 4 Park. Crim. (N. Y.) 611; State v. Maxey, 1 McMillin (S. C.) 501; State v. Kenilworth, 69 N. J. L. 114; Matter of Glenn, 54 Md. 572.
Habeas Corpus.
This is an original proceeding by habeas corpus, instituted in this court, to test the constitutionality of section 4789, Revised Statutes 1909, being section 2228, Revised Statutes 1899, which is as follows:
"Every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support, or shall attend or operate any gambling device or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant, and, upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment."
It appears from the sheriff's return that the petitioner was convicted on an information charging "that Calvin Branch in the city of St. Louis on the 9th day of July, 1907, and on divers other days and times was found unlawfully loitering around houses of ill-fame, gambling houses and places where liquors were sold and drunk, without any visible means of support, contrary," etc.
It is contended on the part of the petitioner that said section is in contravention of section 4 of article 2 of the Constitution of this State, which is as follows:
"That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design."
It is also contended that said section is in conflict with sections 11, 21, 30 and 31 of article 2 of said Constitution, guaranteeing the people against seizure of their persons without probable cause against deprivation of their property for public use, against the deprivation of life, liberty or property without due process of law and against slavery or involuntary servitude.
I. There has been no serious attempt on the part of petitioner to show wherein said section 4789 is contrary to either section 11, 21, 30, or 31 of article 2 of our Constitution, and we will not devote any time to that subject, as the merit of the petitioner's case seems to be confined to the question as to whether said section of the statute is contrary to section 4 of article 2 of our Constitution.
II. By raising the question of the constitutionality of said section 4789, the petitioner challenges the right of the Legislature to punish vagrancy as a crime.
As has been said by one of old, "Before we enter upon a discussion about a thing, we should clearly and concisely define what that thing is."
Webster defines a vagrant as "one who strolls from place to place; one who has no settled habitation; an idle wanderer; a sturdy beggar; an incorrigible rogue; a vagabond."
The...
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