Ex Parte Tartar

• Decision Date: 03 June 1919
• Docket Number: No. 21301.,21301.
• Citation: 213 S.W. 94,278 Mo. 356
• Parties: Ex parte TARTAR.
• Court: Missouri Supreme Court

213 S.W. 94

278 Mo. 356

Ex parte TARTAR.

No. 21301.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Original application by Frank S. Tartar for writ of habeas corpus against Martin O'Brien, Chief of Police of the city of St. Louis, and A. W. Schwartz, Captain of Police, in charge of the Central police district. Writ quashed, and petitioner remanded to custody.

C. J. Anderson, of St. Louis, for relator. Holland, Rutledge & Lashly, of St. Louis, for respondents.

FARIS, J.

This is an original proceeding under the Habeas Corpus Act, brought by petitioner against Martin O'Brien, chief of police of the city of St. Louis, and A. W. Schwartz, captain in command of the Central police district of said city (herein called respondents), wherein petitioner avers that he is being restrained of his liberty by respondents.

The facts in the case are disclosed by the pleadings, which consist of the application for our writ, the return of the respondents thereto, and the answer of petitioner to said return. The above pleadings, together with respondents' motion for judgment thereon, constitute the whole record in the case. Under settled rules of law, to which more definite reference will be made in the opinion, the conceded facts in the case must, for the purpose of this discussion, be taken from the return of the respondents. This return shows —and therefore the facts are—that respondent Martin O'Brien is chief of police of the city of St. Louis, and that respondent A. W. Schwartz is captain of police of said city in charge of the Central police district thereof. On the 26th day of November, 1918, petitioner was arrested by a police officer of the city of St. Louis on the charge of having violated the provisions of an ordinance of said city regulating automobile traffic on the streets thereof. Petitioner was taken to the station of the Central police district, accompanied by his attorney, and presumably by one Ike Grodsky. Both petitioner and said Grodsky as his proposed security signed a paper, which is referred to in the pleadings and briefs in the case as a "bail bond." This so-called bail bond, as signed and tendered for filing and approval (omitting venue and the residences of petitioner and said Grodsky), reads as follows:

"We, the undersigned, ____, as principal, and ____, as security, do hereby acknowledge ourselves each to be indebted to the city of St. Louis in the sum of ____ hundred dollars, to be levied upon our respective goods, chattels, lands, and tenements—

"Upon condition, that if the said above-named principal shall personally be and appear before the city court judge of the city of St. Louis, at city court ____ of said city, on the ____ day of ____, 191—, at the opening of the aforesaid city court, in the forenoon of said day, then and there to answer a charge of violating an ordinance of said city, and shall also appear on any future day to which this cause may be continued, and shall not depart thence without leave being first had and obtained from said city court judge, then this recognizance to be null and void; otherwise, to remain in full force and effect.

                           "Principal: Frank S. Tartar. [Seal.]
                           "Security: Ike Grodsky.      [Seal.]
                

"Taken and certified this ____ day of ____, 191_.

"______, in Charge of ____ District."

While there is a blank space on the so-called bail bond which was apparently intended for the signature of the police officer, or so-called desk sergeant, in charge of the police station, evidencing the approval of such bond by such officer, no such signature or approval, as will be noted, appears on the above paper.

The return avers that Ike Grodsky, whose signature appears on the above paper as the proffered security therein, was not at the time of his tender as such security an eligible bondsman, for the reason that there was outstanding against him, at the time he was tendered as security, an unpaid judgment in favor of the city of St. Louis upon a forfeited bail bond. The return pleads an ordinance of the city of St. Louis (which we will set out in our discussion of the case) which, in substance, forbids the approval as bondsman of any person who shall at the time he is tendered as such, have outstanding against him an unsatisfied judgment rendered on a forfeiture of a bond. The above-mentioned ordinance also provides for the taking of bail and the execution and approval of bail bonds, and designates the officers who are thereby authorized to take and approve such bonds.

The above facts, as well as others not pertinent to the points which we find it necessary to discuss, are, as stated, well pleaded in the return. No denial is made in the answer of petitioner of the truth of the above facts, or of any of them. In fact, the return sets out a photographic copy of the above-quoted paper offered by petitioner as a bond, and it is admitted by the answer that the photographic copy so pleaded by respondents is a true and correct copy of the identical bond by him tendered. Neither is there any denial made of the allegation of the return that said Grodsky, tendered as aforesaid by petitioner as his security, had, at the time of such tender of him as bail, outstanding against him an unsatisfied judgment rendered on a bond forfeiture.

Respondents in their return further aver that at the time of the arrest of petitioner there was in force a certain statute of this state which permitted the collection, by any police officer in charge of any police station, of a fee of 50 cents for each and every bond taken by any police officer for the appearance of any person charged with the violation of any ordinance of the city of St. Louis. It is further averred that petitioner refused to pay the said sum of 50 cents so authorized by the statute above mentioned to be collected for the taking and approval of such bond, and that for this refusal, if for no other reason, respondents were warranted in holding petitioner.

Petitioner in his answer admits the existence of this statute thus pleaded by respondents, which is, to wit, section 3459, R. S. 1909, and which In pertinent parts reads as follows:

"This fund shall be created in the following manner: * * * All percentages of rewards allowed to members of any police force under the regulations of its department together with a fee of fifty cents for each and every bond taken by any police officer for the appearance of any person charged with violating any city ordinance, which said officer is authorized then and there to collect; * * * all of which moneys herein designated shall be paid to the treasurer of said relief association." (Italics ours.) Laws 1913, p. 192.

But petitioner avers that the above section of the statute, relied on by respondents for their second defense, is unconstitutional and void, for that it offends against divers provisions of the Constitution of Missouri, which he designates, as well as against the provisions of the Fourteenth Amendment...