Ex parte Lucas

• Decision Date: 19 February 1901
• Citation: 61 S.W. 218,160 Mo. 218
• Parties: EX PARTE DANIEL LUCAS
• Court: Missouri Supreme Court

61 S.W. 218

160 Mo. 218

EX PARTE DANIEL LUCAS

Supreme Court of Missouri

February 19, 1901

Prisoner remanded.

Hamner & Hamner for petitioner.

(1) This court has decided that it will at any stage of criminal proceedings, and even after judgment, interfere by means of the writ of habeas corpus to look into and investigate the constitutionality of a statute. Ex Parte Smith, 135 Mo. 223. (2) Chapter 78, Revised Statutes 1899, is void and unconstitutional as being in violation of section 53 of article 4 of the Constitution, for the reason that it is a special law, intended to regulate the affairs of existing cities of a population of 50,000 inhabitants, with provisions in it not applicable to cities which may come into existence in the future. Section 7 contains all the provisions as to how those who were engaged in the barber trade at the time of the passage of the act may get certificates of registration. By said section it is provided that "every person now engaged in the occupation of barber in this State shall within ninety days after the approval of the act," get out a certificate of registration, and provides for a renewal of such certificate on January 31, 1900. No provision is made by which those who were practicing the trade at the time of the passage of the act, and who might fail, for any cause, to get out a certificate within ninety days after the approval of the act, can ever afterward get certificates, and consequently by section 1, such barbers failing to get out certificates within the prescribed time, are forever barred from practicing their trade except in cities of less than fifty thousand inhabitants. So that it can be seen from this that the act was intended to apply only to existing cities and to operate in the present and on an existing state of facts, and is therefore void. State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. Co. Ct. Jackson Co., 89 Mo. 237. (3) The act is void for the reason that it is in violation of section 30, article 2, Constitution of Missouri, and of the fourteenth amendment to the Federal Constitution, and also of the fifth amendment to the Federal Constitution. For, if a barber practicing his trade at the time of the passage of the act, should, as petitioner has done, with a view to test the law, in good faith fail to take out a certificate within the prescribed ninety days, or by reason of severe sickness or for other cause fail to get out a certificate of registration within the prescribed ninety days, he would be forever deprived of the right to follow his trade except in cities of less than 50,000 inhabitants. Indeed the act declares that certificates must be applied for within ninety days after the approval of the act by persons practicing the barber trade at the time of the passage of the act, otherwise they can never practice the barber trade in cities of 50,000 or more, and yet the act never took effect until more than ninety days after the approval of the act, for the act was approved May 5, 1899, and the Legislature adjourned on the twenty-second day of May, 1899, and the Constitution (article 4, sec. 36), provides that, "no law passed by the General Assembly, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or in the body of the act), the General Assembly shall, by a vote of two-thirds of all the members elected to each house, otherwise direct; said vote to be taken by yeas and nays, and entered upon the journal." State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 406. (4) Section 2 of the act under consideration, which relates to the appointment of a board of examiners for barbers, makes an unreasonable classification of the citizens of Missouri for eligibility to office, requiring that persons to be eligible to such office must be recommended by certain unions, when there is no more sense to such a test than that they should be members of some religious society or recommended by it, and as this court can not amend the law to make new or different provisions for officers to enforce the law, the whole law is void. Evansville v. State of Indiana ex rel. Blend; 4 L. R. A. 97. The appointment to office is the exercise of an executive or administrative function and must be conferred upon some executive or administrative officer. In order that each of the three branches of the government may be enabled to maintain its independent existence, the officers of each department must be appointed and selected by the department in which he is to work. If the Legislature can not select an executive or judicial officer, neither can it delegate the selection thereof to some one outside of the executive or judicial department. State ex rel. v. Hyde, 13 L. R. A. 83; State ex rel. v. Dennet, 4 L. R. A. 81. (5) Section 2 provides that the Governor shall appoint such persons as certain unions may recommend. That is nothing more than commission those whom the unions appoint, rather may appoint. There is no duty laid upon the designated unions to appoint anybody, and so it is left open for these unions to in effect repeal the law by failing to recommend anybody, and thereby render the law nugatory. It is conferring legislative privileges upon these unions, and is in violation of section 53 of article 4 of the Constitution, where it provides that the Legislature shall not pass any local or special law granting to any corporation, association or individual any special or executive right, privilege or immunity, etc. (6) The act under consideration provides that the various fees for examination and license shall be paid to the treasurer of the board, and section 43 of article 4 is hereby violated, which provides that "all revenues collected and moneys received by the State from any source whatsoever shall go into the Treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn from the treasury except in pursuance of regular appropriations made by law," etc.

Dodge & Mulvihill for Board of Examiners.

(1) In order to provide for the safety and care of a people, and prevent disease, it is competent for the Legislature, in the interest of public health, to pass a law regulating the occupation of barber, and prescribing the qualifications for the practice of such occupation. Wilkins v. State, 113 Ind. 514; State v. Vandersluis, 42 Minn. 129; Gosnell v. State, 52 Ark. 228; State v. Zeno (Minn.), 43 N.W. 749. (2) The nullity of the Act of 1899 must appear beyond a reasonable doubt before it will be declared unconstitutional. Ewing v. Hoblitzelle, 85 Mo. 69; Deal v. Mississippi Co., 107 Mo. 464. The court will not declare a law unconstitutional unless its unconstitutionality is clearly and certainly made to appear. State v. Able, 65 Mo. 357; State ex rel. v. Pond, 93 Mo. 606. (3) "A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special." The act in question is beyond all doubt general, as it applies to all alike who come within its purview; there is no attempt to divide a natural class or to apply any of its provisions to particular persons or things of a class. State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Herrmann, 75 Mo. 354; Lynch v. Murphy, 119 Mo. 163.

MARSHALL, J. Gantt, J., concurs in all except the approval of dissenting opinion in Dorr case; Robinson, Brace and Valliant, JJ., concur in remanding prisoner for reasons given in separate opinion of Valliant, J. Sherwood, J., concurring. Burgess, C. J., Marshall and Gantt, JJ., concur with Sherwood.

OPINION

In Banc

Habeas Corpus.

MARSHALL J.

This is a proceeding by habeas corpus, to test the legality of the imprisonment of the petitioner by Samuel Chiles, marshal of Jackson county, under an information filed in the criminal court of Jackson county by the prosecuting attorney of that county, charging him with practicing the occupation of barber without having procured a certificate of authority so to do from the State Board of Examiners for barbers, contrary to the provisions of chapter 78, Revised Statutes 1899, being "An Act to establish a board of examiners and to regulate the occupation of a barber, in this State, and to prevent the spreading of contagious disease," approved May 5, 1899. [Laws 1899, p. 44.]

The petitioner has not yet been tried on that information, but pending the trial, he applied to one of the judges of this court, and obtained the writ of habeas corpus. The petitioner asserts that the Act of 1899 is unconstitutional and void, and therefore there is no law or authority warranting his arrest, detention or prosecution, and hence he is entitled to have his liberty restored to him by this great writ of right, which the Constitution of this State (sec. 26, art. 2) declares shall never be suspended. The Act of 1899 is claimed to be in conflict with section 53, article 4, section 1, article 6, section 3, article 10, section 4, article 2, section 30, article 2, section 43, article 4, section 5, article 9, section 28, article 4, the whole of article 3 of the Constitution of Missouri, and with the fourteenth amendment to the Constitution of the United States, and with section 2, article 4, of the Federal Constitution.

If the act offends against so many provisions of the organic law of the United States and of the State of Missouri, the petitioner is suffering a grievous wrong by being arrested cast into prison, compelled to stand trial and employ counsel to defend him, simply because he has offended against its provisions when the act itself is a greater offender against the law than he...