ON
January 12, 1885, there was filed in this court, on behalf of
C. F. W. Dassler, a petition for a writ of habeas corpus. The
petition sets forth the following facts:
"1.
Your petitioner is restrained of his liberty by one W. D
Shallcross, of Leavenworth, Kansas, who is the city marshal
of the city of Leavenworth, Kansas, a city of the first
class; said petitioner is restrained of his liberty by said
city marshal, in the city and county of Leavenworth, in the
state of Kansas, and in the city jail thereof.
"2.
The cause or pretense of the restraint of this petitioner
according to the best of the knowledge and belief of the
applicant, is as follows: On December 30, 1884, this
petitioner was arrested by a policeman of said city of
Leavenworth, upon a warrant issued by the police judge of
said city, upon a complaint, of which the following is a
copy:
"'THE
STATE OF KANSAS, CITY AND COUNTY OF LEAVENWORTH. -- Police
Court, sct. -- The City of Leavenworth v. C. F. W. Dassler --
W. D. Shallcross, being duly sworn, deposes and says: That C.
F. W. Dassler is now and has been ever since January 1, 1884,
a male resident and citizen of said city of Leavenworth, and
is now and was during all of said time between the ages of
twenty-one and forty-five years, and a registered voter of
said city, and that said Dassler unlawfully neglects and
refuses to perform two days' labor, or any part thereof,
upon the streets, alleys and avenues of said city, and also
unlawfully neglects and refuses to pay to the street
commissioner of said city the sum of three dollars, or any
part thereof, in lieu of said labor, and has during all of
the time since January 1, 1884, so neglected and refused to
perform said labor or pay said money in lieu thereof,
although duly notified in writing so to do by the street
commissioner of said city; and further saith not.
[Signed]
W. D. SHALLCROSS.
"'Sworn
to before me, and subscribed in my presence, this 30th day of
December, 1884. -- M. L. HACKER, Police Judge.'
"On
the 31st day of December, 1884, the case against said
petitioner on said complaint was called for trial, and the
petitioner moved to quash said complaint, because the same
did not state a public offense under the constitution and
laws of the state of Kansas, or the laws or ordinances of
said city, and because said city of Leavenworth had no power
to arrest, fine and imprison the petitioner for the
non-payment of the road tax in said complaint mentioned,
which motion was, by the police judge of said city,
overruled. (A copy of the ordinance of said city of
Leavenworth, in reference to the collection of road tax, is
hereto attached, made a part hereof, and marked 'Exhibit
A.') Thereupon said police judge, under protest of
petitioner, proceeded to try the case, hear the evidence, and
adjudged the petitioner guilty, and adjudged that petitioner
pay a fine of five dollars, and stand committed to the city
jail until said fine be paid, and issued a mittimus to the
said W. D. Shallcross to that effect; and said petitioner was
thereupon so imprisoned and restrained of his liberty by said
city marshal, and still continues in said restraint, this
petitioner refusing to pay said fine.
"3.
The illegality of the said restraint consists in this, that
-- 1st. Neither the said city of Leavenworth, nor said police
judge, has power to enforce the collection of said road tax
by arrest, fine and imprisonment; 2d. That if there be any
pretended law on the statute book to that effect, the same is
unconstitutional, null and void; 3d. That said police judge
had no power to render the judgment for a fine, nor to issue
a commitment to enforce the collection thereof; 4th. That the
said ordinance under which said complaint was issued, and
said proceedings were had, is void, so far as it provides for
the arrest, fine and imprisonment of persons for the
non-payment of road taxes; 5th. That the ordinance is
repugnant to the constitution and laws of the state of
Kansas.
"Wherefore,
petitioner prays that his said imprisonment be inquired into,
and if found illegal, that he be discharged therefrom."
EXHIBIT
A.
"AN
ORDINANCE RELATING TO LABOR ON THE STREETS OF LEAVENWORTH
CITY.
"Be
it ordained by the Mayor and Councilmen of the City of
Leavenworth:
"SECTION
1. (Repealed by ordinance 1044, post, § 905.)
"SEC.
897 -- City Clerk. Sec. 2. The city clerk shall deliver one
copy of the duplicate list of persons registered, which he is
required to make out by the thirty-fourth subdivision of
section eleven of the city charter. to the street
commissioner, and the other copy thereof to the city
treasurer.
"SEC.
898. -- Street Commissioner. Sec. 3. After the duplicate list
of persons registered has been delivered to the street
commissioner, he shall from time to time, as work may in his
judgment, or upon order of the city council, be required to
be done, notify the persons upon said list, or so many
thereof as may be necessary, to report to him at a time and
place in said notice specified, which notice shall be either
printed or written, or pay to him at said time and place the
amount of money due for any delinquency in work, the same
being for not less than one full day's labor.
"SEC.
899. -- Same. Sec. 4. The street commissioner shall also
notify all other persons specified in the first section of
this ordinance, whose names are not included in the list of
registered persons in the same manner as herein provided for
persons registered, and such persons shall be subject to all
of the provisions of this ordinance, and the names of such
additional persons shall be by the street commissioner
forthwith furnished to the city treasurer.
"SEC.
900. -- Same; Failure. Sec. 5. Upon the failure of any person
notified as herein prescribed, and no valid excuse being
given to appear and perform said labor, or upon a failure to
pay to the street commissioner the amount to be paid for such
delinquency, the street commissioner shall mark opposite to
his name upon the list furnished him by the city clerk, or
made by himself, the words 'Notified and failed,' and
such persons so failing shall, on due conviction thereof
before the police judge, be fined in a sum not less than
three dollars nor more than ten dollars for each day he so
fails or refuses to work or to pay therefor, and the list of
said street commissioner so marked 'Notified and
failed,' shall be prima facie evidence of such
notification and failure.
"SEC.
901. -- Receipt. Sec. 6. Upon doing the work required or
payment of the money specified in this ordinance to be paid
to the street commissioner, he shall mark on said list the
words, 'Notified, worked, or paid,' and give the
person so working or paying a receipt therefor.
"SEC.
902. -- Arrest. Sec. 7. It shall be the duty of the street
commissioner to turn over the list of delinquents on Monday
of each week to the city marshal, who shall thereupon cause
such persons to be arrested and brought before the police
judge for trial under provisions of this ordinance.
"SEC.
903. -- Moneys. Sec. 8. It shall be the duty of the street
commissioner to turn over every day all moneys collected by
him to the city treasurer, during the preceding one, and once
each week to furnish the city treasurer with a list of those
persons who have either performed the labor or paid the
amount required by section one of this ordinance, and those
who have been temporarily excused. The city treasurer shall
furnish the city council at each regular meeting a true copy
of all reports filed with him by the street commissioner
since their last meeting.
"SEC.
904. Sec. 9. Any failure upon the part of the street
commissioner or city marshal to perform their duties as
specified in this ordinance shall be deemed sufficient cause
for dismissal from office.
"SEC.
10. This ordinance shall take effect and be in force from and
after its approval and publication.
"Approved,
April 22, 1881; published, April 23, 1881."
"(1044.)
AN ORDINANCE amending and repealing section one of ordinance
No. 1008, entitled 'An ordinance relating to labor on the
streets of Leavenworth city,' approved April 22, 1881.
"Be
it ordained by the Mayor and Councilmen of the City of
Leavenworth:
SEC.
905. -- Street Labor. Sec. 1. That section 1 of ordinance No.
1008, entitled 'An ordinance relating to labor on the
streets of Leavenworth city,' approved April 22, 1881, be
amended so as to read as follows: 'Sec. 1. Each male
resident of the city of Leavenworth between the ages of
twenty-one and forty-five years is hereby required in his own
proper person each year, upon notice from the street
commissioner, his deputy, or an officer appointed for that
purpose, to perform two days' labor of ten hours each, on
the streets, alleys or avenues of said city, under the
direction and control of the street commissioner, or his
deputies, or in lieu thereof shall pay to the street
commissioner the sum of one dollar and fifty cents for each
day.
"SEC.
906. -- Sec. 2. The original section one of this ordinance
above referred to, is hereby repealed, but all actions and
proceedings thereunder shall be carried out, the same as if
this repeal had not been made.
"Sec.
3. This ordinance shall be in force from and after its
publication.
"Approved,
October 5, 1882; published, October 7, 1882."
Upon
such petition being filed, W. D. Shallcross, the respondent
waived the issuance of the writ and entered his appearance,
and for his return stated that C. F W. Dassler was restrained
by him and held in his custody under the proceedings
mentioned in...
