Ex parte Hollwedell

• Citation: 74 Mo. 395
• Parties: EX PARTE HOLLWEDELL.
• Decision Date: 31 October 1881
• Court: Missouri Supreme Court

74 Mo. 395

EX PARTE HOLLWEDELL.

Supreme Court of Missouri.

October Term, 1881.

Habeas Corpus.

WRIT DENIED.

David Murphy and Charles T. Noland for petitioner.

The offense charged is an offense against the laws of the State. The proceeding to enforce the penalty for such offense must be criminal, and conform to the requirements of the constitution and laws of the State. Gilmore v. Dawson, 64 Mo. 310; Const. of Mo., art. 6, § 38, art. 1, §§ 12, 16, 30, 31; City v. Fitz, 53 Mo. 588. The only action authorized by the charter and ordinances is, in form and nature, a civil action for a debt, hence there can be no judgment authorizing imprisonment or compulsory labor. The prisoner is entitled to his discharge. City Charter, art. 3, § 26, chap. 10; Rev. City Ord., chap. 30, § 19, art. 1; 69 Mo. 23; Missouri City v. Hutchinson, 71 Mo. 46; Thomson v Boonville, 61 Mo. 283; St. Louis v. Foster, 52 Mo. 514; State v. DeBar, 58 Mo. 397; Hurd on Habeas Corpus, 361.

Leverett Bell contra.

The city of St. Louis was empowered to enforce its ordinances in the form adopted in this case. 69 Mo. 289; State v. Cowan, 29 Mo. 330. The infractions of city ordinances are in no sense crimes. St. Louis v. Smith, 10 Mo. 438; 68 Mo. 588; 1 Dillon Munic. Corp., (3 Ed.) § 432; Williams v. Augusta, 4 Ga. 509; 42 Pa. St. 89; 74 N. Y. 406; 34 Iowa 524. If the report be presented by the chief of police, it is his act, although the instrument is not signed by him. The signature is an unnecessary formality. Extrinsic evidence cannot now be received to show that his name was affixed to the report by some other person. Ex parte Kaufman, 73 Mo. 588; 11 Mo. 661; 44 Mo. 181; 47 Mo. 164; Ex parte Edginton, 10 Nev. 215; Platt v. Harrison, 6 Iowa 79.

NORTON, J.

This is a proceeding under the habeas corpus act, in which petitioner alleges that he is illegally restrained of his liberty by William Kunz, keeper of the work-house in the city of St. Louis. In his return to the writ said Kunz answered that he held the petitioner in custody by virtue of an execution issued by the clerk of the first district police court of the city of St. Louis, in words as follows:

“State of Missouri, to the Marshal of the city of St. Louis

--Greeting:

Whereas, on the 21st day of June, 1881, the city of St. Louis hath obtained judgment before the police justice of the first district police court of the city of St. Louis, against August Hollwedell, for a violation of an ordinance of said city, for the sum of $100, together with her costs in this behalf; These are, therefore, to command you to levy the said debt and costs of the goods and chattels of said defendant, within the city of St. Louis, and expose the same for sale agreeably to law; and for want of sufficient property whereon to levy said debt and costs, you are hereby commanded to deliver the body of said defendant into the custody of the superintendent of prisoners, who will convey said body to the city work-house of the city of St. Louis, the keeper whereof is hereby commanded to receive said defendant, and said defendant safely keep until the said debt and costs shall have been paid by said defendant's labor, according to the laws of the State of Missouri and the ordinances of the city of St. Louis, or until the defendant shall be otherwise discharged by due course of law. And you are also commanded to make return of this execution within thirty days from the date of the same, with your return indorsed thereon, showing how you have executed the same. Given under my hand, this 21st day of June, 1881.

WM. R. MATEER, Clerk,” etc.

“In obedience to the within writ of execution (no goods and chattels of the within named person being by me found in the city of St. Louis whereon to levy and make the said debt and costs), I have delivered the body of said within named person, together with a copy of said writ of execution, to the superintendent of prisoners, on this 21st day of June, 1881.

EMILE THOMAS,

City Marshal of the City of St. Louis.”

“Received the body of August Hollwedell, together with a copy of the within writ of execution, from the superintendent of prisoners, as in the above return stated.

WM. KUNZ,

Keeper of the City Work-house.”

Respondent states that said execution issued upon the following judgment:

“In the First District Police court of the city of St. Louis.

The city of St. Louis v. August Hollwedell.

Charge: Violating city ordinance No. 11,668, chapter 25, article 1, section 2. Approved March 29th, 1881. As charged in the report of the chief of police of the city of St. Louis, herewith filed: On the 21st day of June, 1881, the chief of police of the city of St. Louis reports the arrest of the above named defendant, charging him with violating the above entitled ordinance. On the 21st day of June, 1881, the case was called, parties announced themselves ready for trial, a plea of not guilty being entered. The police justice, after having heard the testimony adduced, found the defendant to be guilty as against him alleged, and adjudged that he pay a fine to the city of St. Louis in the sum of $100, together with her costs in this behalf, and that she have execution therefor.”

It is further alleged in the return that petitioner was arrested by the police force of said city on the 20th day of June, 1881, he being at the time engaged in violating an ordinance of said city, and was on the following day brought before the first district police court to answer to the report of the chief of police, which is as follows:

“Report of the Chief of Police to the Police Justice of the First District Police Court, State of Missouri, the City of St. Louis, ss.

CITY OF ST. LOUIS, June 21st, 1881.

August Hollwedell, to City of St. Louis, Dr. To $500, for the violation of an ordinance of said city entitled ‘An ordinance in revision of the ordinances of the city of St. Louis, and for the government of said city.’ Being ordinance number 11,668, chapter 25, article 1, section 2, approved March 29th, 1881. In this, to-wit: In the city of St. Louis and State of Missouri, on or about the 20th day of June, 1881, the said August Hollwedell did then and there willfully disturb the peace of others, and particularly of Louisa Brendley, by violent, tumultuous, offensive and obstreperous conduct and carriage, and by loud, unusual noises, and by unseemly, profane, obscene and offensive language, calculated to provoke a breach of the peace; and by assaulting, striking and fighting others, and particularly Louisa Brendley, contrary to the peace and dignity of the city, and the ordinance in such case made and provided. On information of Officer Heaven, second district.

FERD. B. KENNETT,

Chief of Police of the City of St. Louis.”

It is also alleged that petitioner was put upon his trial, which resulted in a judgment and the issuance of an execution thereon, as hereinbefore mentioned, and that in virtue thereof petitioner is held in custody for non-payment of fine.

1. ST. LOUIS: prosecutions for violation of ordinances

No question is made in reference to the power of the mayor and assembly, under section 26 of article 3 of the charter of the city of St. Louis, to pass the ordinance for the violation of which petitioner was fined, nor is there any question as to their power under said section to enforce fines, penalties and forfeitures; nor is there any doubt that said section provides that any offender who shall neglect or refuse to pay any fine or penalty that may have been imposed shall be committed to the work-house, (the imprisonment in no case to exceed six months for any one offense;) nor that he may be required to work out said fine at fifty cents per day, exclusive of board. It is, however, claimed that, notwithstanding the above provisions, petitioner is entitled to his discharge, because, as counsel contend, he was not proceeded against in the name of the State, but was sued in the name of the city of St. Louis in a civil action, and that the recovery had was for a debt, and that, as there can be no imprisonment for debt in this State, he is, therefore, illegally held in custody. While there cannot be any imprisonment for debt in this State, imprisonment for the non-payment of a fine duly imposed is fully authorized. The constitutional provision upon that subject is as follows, and interprets itself, viz: “That imprisonment for debt shall not be allowed in this State except for the non-payment of fines and penalties imposed for a violation of law.” In one sense it may be said that every fine imposed for a violation either of a law of the State or the ordinance of a municipal corporation, recovered either in a criminal proceeding by the State, or in a civil proceeding quasi criminal, in the name of the corporation, is a debt against the party upon whom it is imposed and who is adjudged to pay it; still it is, nevertheless, a debt for a fine, for the non-payment of which the party against whom it is adjudged may be imprisoned. The power of the city of St. Louis to enforce its ordinances...