Ex parte Smith
| Decision Date | 30 June 1896 |
| Parties | Ex parte Smith |
| Court | Missouri Supreme Court |
Petitioner discharged.
G. B Sidener for petitioner.
W. C Marshall for respondent.
Whatever may be the rule in other states, it has always been the rule in Missouri that the constitutionality of a law can not be inquired into by habeas corpus. Ex parte Harris, 47 Mo. 164; Ex parte Boenninghausen, 91 Mo. 301; Ex parte Mitchell, 104 Mo. 121; Ex parte Olden, 21 Mo.App. 267; Ex parte Bowler, 16 Mo.App. 14; In re Wooldridge, 30 Mo.App. 617. Even in civil cases, this court will not consider the question of whether an act is unconstitutional, unless the point is made properly and at the proper time. Phillibert v Burch, 4 Mo.App. 470; Leisse v. Schwartz, 6 Mo.App. 413; Bank v. Armstrong, 62 Mo. 59; State v. McDonald, 85 Mo. 539; Heman v. Skrainke, 14 Mo.App. 577; Brokerage Co. v. Bagnell, 76 Mo. 554; State v. Meinhart, 73 Mo. 562. The first district police court had jurisdiction to try offenses against city ordinances. It acquired jurisdiction over the person of the defendant. It had jurisdiction over the subject-matter. Whether the ordinance under which defendant was tried and convicted was constitutional or not could only arise if the defendant in that case chose to raise the question in that court. This record does not show that he did so. It is a plain attempt to review the judgment of the first district police court by the short process of habeas corpus, instead of by the usual remedy, by appeal or writ of error. Under the decisions in this state this can not be done.
Habeas Corpus.
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 twenty-ninth 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 fifty cents per day, and is charged meanwhile thirty cents per day for his board. Rev. Ord. 1887, chap. 47, secs. 1772, 1760. So that petitioner's time under the smaller execution will last sixty-five 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, article 6, chapter 25, Revised Ordinances, 1887, which is the same as the like clause in section 1062, Revised Ordinances, 1892, article 6, chapter 26, page 889. This eighth clause is a part of what is known as the ordinance respecting vagrants, and it forbids anyone 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., 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 anyone 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, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law?" 1 Bl. Com. 134. Obviously, there is no difference in point of legal principle between a legislative or municipal act which forbids certain associations and one which commands certain associations. We deny the power of any legislative body in this country to choose for our citizens whom their associates shall be.
And as to that portion of the eighth clause which uses the words, "for the purpose or with the intent to agree, conspire, combine, or confederate, first to commit any offense," etc., it is quite enough to say that human laws and human agencies have not yet arrived at such a degree of perfection as to be able without some overt act done, to discern and to determine by what intent or purpose the human heart is actuated. So that did we concede the validity of the former portion of the eighth clause, which we do not, still it would be wholly impracticable for human laws to punish or even to forbid improper intentions or purposes. For with mere guilty intention, unconnected with overt act or outward manifestation, the law has no concern. Howell v. Stewart, 54 Mo. 400.
In St. Louis v....
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