Ex Parte Smith

• Decision Date: 30 June 1896
• Citation: 135 Mo. 223,36 S.W. 628
• Parties: Ex parte SMITH.
• Court: Missouri Supreme Court

36 S.W. 628

135 Mo. 223

Ex parte SMITH.

Supreme Court of Missouri, Division No. 2.

June 30, 1896.

ORDINANCE — CONSTITUTIONALITY — VAGRANCY — ASSOCIATION — INTENT — HABEAS CORPUS — PRACTICE.

1. Rev. Ord. St. Louis, c. 25, art. 6, § 1033, cl. 8, which is a part of what is known as the "Ordinance Respecting Vagrants," and which forbids any one knowingly to associate with persons having the reputation of being thieves, burglars, etc., for the purpose or with the intent to agree to commit any offense, to cheat any person of any money, property, etc., is unconstitutional, in that it invades the right of personal liberty.

2. Without some overt act done, the law will not attempt to discern and to determine the intent or purpose which actuates a person to associate with vagrants.

3. The supreme court will interfere by means of the writ of habeas corpus to look into and investigate the constitutionality of a statute or ordinance on which a judgment which results in the imprisonment of a petitioner is founded.

Proceedings in habeas corpus by Walter Smith, confined in the workhouse of the city of St. Louis under executions based on two judgments rendered against petitioner for infractions of certain ordinances. One of the sentences held invalid, and the prisoner ordered discharged after the expiration of the other.

G. B. Sidener, for petitioner. W. C. Marshall, for respondent.

SHERWOOD, J.

The petitioner is confined in the workhouse of the city of St. Louis, and in his petition sets forth such grounds as make a prima facie case, and accompanies the petition with a copy of the original complaint and order of commitment.

It appears, from the return made to our writ of habeas corpus by Nicholas Karr, superintendent of the workhouse, that he holds petitioner by virtue of two executions issued and delivered to the marshal of the city of St. Louis on the 29th day of April, 1896, by the clerk of the First district police court, — one of said executions being for the sum of $10, with $3 costs, and the other for the sum of $500, with $3 costs, — and copies of said executions were subsequently delivered on the same day by the marshal to the superintendent of the workhouse, which said executions were based on two judgments rendered against petitioner for infractions of certain ordinances of the city of St. Louis. The execution for the smaller sum need not be discussed, since the validity of the ordinance on which it is grounded stands unquestioned; but it is necessary just here, however, to say that, under the ordinances of the city of St. Louis, a prisoner committed to the workhouse is allowed to work out his fine and costs at 50 cents per day, and is charged, meanwhile, 30 cents per day for his board. Rev. Ord. 1887, c. 47, §§ 1760, 1772. So that petitioner's time under the smaller execution will last 65 days, and will expire on July 3, 1896.

The status of petitioner under his imprisonment based on the larger execution is now to be considered. That execution issued on a judgment of the First district police court, rendered on a complaint or report made and preferred by L. Harrigan, chief of police, which complaint is founded on the eighth clause of section 1033, art. 6, c. 25, Rev. Ord. 1887, which is the same as the like clause in section 1062, art. 6, c. 26, p. 889, Rev. Ord. 1892. This eighth clause is a part of what is known as the "Ordinance Respecting Vagrants," and it forbids any one "knowingly to associate with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes or lewd women or gamblers, [*] or any other person, for the purpose or with the intent to agree, conspire, combine or confederate, first, to commit any offense, or, second, to cheat or defraud any person of any money or property," etc. This ordinance is now attacked on the ground of its unconstitutionality, in that it invades the right of personal liberty by assuming to forbid that any person should knowingly associate with those who have the reputation of being thieves, etc. And certainly it stands to reason that, if the legislature, either state or municipal, may forbid one to associate with certain classes of persons of unsavory or malodorous reputations, by the same token it may dictate who the associates of any one may be. But if the legislature may dictate who our associates may be, then what becomes of the constitutional protection to personal liberty, which Blackstone says "consists in the power of locomotion, of changing situation,...