Ex Parte Lerner

• Decision Date: 26 January 1920
• Docket Number: No. 21641.,21641.
• Citation: 281 Mo. 18,218 S.W. 331
• Parties: Ex parte LERNER.
• Court: Missouri Supreme Court

218 S.W. 331

281 Mo. 18

Ex parte LERNER.

No. 21641.

Supreme Court of Missouri, in Banc.

January 26, 1920.

[218 S.W. 332]

Ex parte petition for writ of habeas corpus by Louis Lerner against Charles Mohrstadt, Marshal of the City of St. Louis. Petitioner discharged.

Frumberg & Russell, of St. Louis, for petitioner.

Charles H. Daues and Everett Paul Griffin, both of St. Louis, for respondent.

WALKER, C. J.

The writ of habeas corpus issued herein was directed to the marshal of the city of St. Louis commanding him to have the body of the petitioner before this court to be dealt with as might be determined. The production of the body of the petitioner being waived, the return of the respondent, the marshal, discloses that he holds the petitioner to answer a charge of having violated an ordinance of the city of St. Louis which is alleged by the petitioner to be invalid. The body of said ordinance, with which we are alone concerned, is as follows:

"Any person who shall accost another person on a street or sidewalk in front of any store, house or place of business in the city of St. Louis, and solicit such other person to purchase any goods, wares or merchandise of a like nature as those kept for sale within said store, house or place of business at another store, house, or place of business, or shall solicit such other person to enter such other store, house or place of business, for the purpose of examining or purchasing similar goods, wares or merchandise, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than one hundred dollars. Provided, however, that nothing herein shall be construed as prohibiting licensed peddlers acting within the scope of their license, nor members of bona fide organizations doing lawful picket duty, nor as prohibiting any one, whether as principal or agent, from soliciting trade upon the street or sidewalk in front of his own place of business." Ordinance 30332, approved April 11, 1919.

[] I. It was formerly ruled by this court that one held under process issued by a court having jurisdiction of the person and the offense, and where the person was in the custody of the proper officer, habeas corpus would not lie to test the constitutionality of the law under which the restraint was claimed to be authorized. This limitation upon the court's action first found expression in the early case of In re Harris, 47 Mo. 164, which was affirmed in the Boenninghausen Case, 91 Mo. 301, 1 S. W. 761. The latter ruling, however, overlooked an earlier case in the same volume, of In re Marmaduke, 91 Mo. 228, 4 S. W. 91, 60 Am. Rep. 250, which held that the court was not so limited in habeas corpus proceedings and which overruled without reference thereto the Harris Case. In Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576, the rule as declared in the Marmaduke Case was expressly approved and has since been uniformly followed. In re Flukes, 157 Mo. loc. cit. 127, 57 S. W. 545, 51 L. R. A. 176, 80 Am. St. Rep. 619; Ex parte Neet, 157 Mo. loc. cit. 533, 57 S. W. 1025, 80 Am. St. Rep. 638, and cases cited; Ex parte Lucas, 160 Mo. 213, 61 S. W. 218. A cogent reason for this later ruling rests in the fact that an unconstitutional law is no law, and its validity is therefore open to attack as determinative of the question of jurisdiction at any stage of a proceeding, even in a criminal case after conviction and judgment; the controlling requisite in the application of the rule being that the record disclose that the petitioner is illegally restrained of his liberty regardless of the stage of the proceedings or nature of the charge, although it may be but a misdemeanor punishable only by a fine. See the Smith, Neet, and Lucas Cases, supra, and others in which the restraint was upon charges for misdemeanors punishable as stated. The rule therefore may be regarded as settled in this jurisdiction that if a person is deprived of his liberty for any act not in contravention of an existing law, or if the act under which he is held is unconstitutional, habeas corpus is the proper remedy to restore to him his freedom. Ex parte Neet, supra, and cases cited.

II. The propriety of the proceeding having been established, the sole question seeking solution is the validity of the ordinance. The city charter, which constitutes the immediate source of municipal legislative power, is in this regard comprehensive in its terms. It is not deemed necessary to set these out in detail, reference thereto being sufficient. See clauses 14, 23, 25, 26, of article 1, § 1, Charter City of St. Louis. To these more specific powers which include the right to establish, locate, dedicate, and supervise the highways of said city, is added the following general provision:

"To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants." Clause 33, art. 1, § 1.

[] These provisions, which have their origin in the police power of the state (State ex inf. Barker v. Merchants' Exchange of St. Louis, 269 Mo. 346, 190 S. W. 903, Ann. Cas. 1917E, 871), are ample to authorize the city by legislative enactment not only to establish and improve its streets but to prescribe the terms and conditions upon which they may be used (State ex rel. Subway v. St. Louis, 145 Mo. loc. cit. 570, 46 S. W. 981, 42 L. R. A. 113; St. Louis v. W. U. Tel. Co., 149 U. S. 467, 13 Sup. Ct. 990, 37 L. Ed. 810), subject only to the Constitution and the laws of the state (section 23, art. 9, Const. Mo.).

III. The general power to enact an ordinance of the character here under review having been determined, its validity is to be tested by the rules of interpretation applicable to state legislative enactments. St. Louis v. Con. Co., 244 Mo. loc. cit. 488, 148 S. W. 948; Carroll v. Campbell, 110 Mo. 557, 19 S. W. 809; Holman v. City of Macon, 155 Mo. App. loc. cit. 402, 137 S. W. 16.

[3-6] A prosecution for a violation of the ordinance in question, while technically a civil proceeding (Kansas City v. Neal, 122 Mo. 234, 26 S. W. 695; City of St. Louis v. Vert, 84 Mo. 204; City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; Ex parte Hollwedell, 74 Mo. 395; City of St. Louis v. Knox, 74 Mo. 79; Kansas City v. Clark, 68 Mo. 588), will, upon a conviction, authorize the imposition of a penalty, and in thus far it partakes of the nature of a criminal action and the ordinance on which it is based is subject to the same rules of construction as a criminal statute, for it is not to be presumed that the state has delegated to a municipal assembly a greater right or conferred upon its acts a more liberal rule of interpretation than is applied to its own legislative enactments. Hays v. Poplar Bluff, 263 Mo. 516, 173 S. W. 676, L. R. A. 1915D, 595; Chicago, etc., v. Salem, 166 Ind. 71, 76 N. E. 631; Zorger v. Greensburgh, 60 Ind. 1; Gates, etc., v. Richmond, 103 Va. 702, 49...