In re Flukes

• Decision Date: 01 April 1900
• Citation: 157 Mo. 125,57 S.W. 545
• Parties: In re FLUKES.
• Court: Missouri Supreme Court

57 S.W. 545

157 Mo. 125

In re FLUKES.

Supreme Court of Missouri, Division No. 2.

April 1, 1900.

WAGES — GARNISHMENT — RESIDENT OF STATE — ACTION IN FOREIGN STATE — MISDEMEANOR — CONSTITUTIONAL LAW — DUE PROCESS OF LAW — PRIVILEGES AND IMMUNITIES — SPECIAL AND EXCLUSIVE GRANT — EQUAL PROTECTION OF THE LAWS.

1. Rev. St. 1899, § 2356, providing that creditors shall not send any note, account, or chose in action out of the state for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this state, is repugnant to the fourteenth amendment of the federal constitution, prohibiting a state from depriving any person of property without due process of law, in that the right to sue, which is one of the essential attributes of property, is taken away.

2. Rev. St. 1899, § 2356, providing that every person or corporation who shall send out of the state any note, bond, account, or chose in action for the purpose of instituting suit to subject to the payment thereof the wages of any resident of this state shall be guilty of a misdemeanor, is repugnant to article 4, § 2, of the federal constitution, providing that the citizens of each state shall be entitled to all privileges of citizens in the several states, as citizens of foreign states can violate such statute with impunity.

3. Rev. St. 1899, § 2356, providing that every person, firm, or corporation who shall send out of the state any note, bond, account, or chose in action for the purpose of instituting suit to subject to the payment thereof the wages of any resident of this state shall be guilty of a misdemeanor, is repugnant to Const. art. 4, § 53, forbidding the legislature to grant any special or exclusive right, privilege, or immunity, and is therefore void.

4. Rev. St. 1899, § 2356, providing that creditors shall not send any note, account, or chose in action out of the state for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this state, and making it a misdemeanor so to do, is repugnant to the fourteenth amendment of the federal constitution, prohibiting a state from denying to its citizens the equal protection of the laws, in that it undertakes to arbitrarily separate wage earners from other classes of people, and provides for them a different rule of action.

Habeas corpus by Helen Flukes for a discharge from an indictment charging her with suing a resident wage earner in a foreign state. Prisoner discharged.

Thos. B. Harvey, for petitioner. P. W. Haberman, for respondent.

SHERWOOD, J.

This is an original proceeding instituted in the court, the object of which is to test the constitutionality of an act passed by the Fortieth general assembly of this state, which act is the following: "Every person or persons, company, corporation or firm, and every agent of any person, persons, company, corporation or firm, who shall take or send, or cause to be taken or sent, out of this state any note, bond, account or chose in action for the purpose of instituting or causing to be instituted any suit thereon in a foreign jurisdiction against a resident of this state, for the purpose of having execution, attachment, garnishment, or other process issued in such suit, or upon a judgment rendered in any such suit, against the wages of a resident of this state, and having such process served upon any person who is, or firm, company or corporation which is subject to the processes of the courts of this state, who is indebted or may become indebted to a resident of this state for wages, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days." Section 2356, Rev. St. 1899. If the act just quoted be unconstitutional, the petitioner's right to be discharged can no longer be questioned in this court, because we now treat (just as it ought always to have been treated) an unconstitutional law as no law at all. Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, and cases cited. When put in more condensed form, the section on which the prosecution of the petitioner is based gives forth these results: It subjects any person, etc., to a fine of not less than $100 nor more than $500, and imprisonment in the county jail for not less than 30 nor more than 90 days, who sends out of this state, etc., any note, etc., account, etc., for the purpose of "instituting * * * any suit thereon in a foreign jurisdiction against a resident of this state, for the purpose of having execution, attachment, garnishment," etc., "issued in such suit, or upon a judgment rendered in such suit, against the wages of a resident of this state, and having such process served upon any * * * corporation * * * subject to the processes of the courts of this state, which is indebted * * * to a resident of this state for wages." Under the provisions of section 3435, Rev. St. 1899, no person can be "charged as garnishee, on account of wages due from him to a defendant in his employ for the last thirty days' service: provided, such employee is the head of a family and a resident of this state." It will thus be seen that under the laws of this state the wages of a single person, an employé and a resident of this state, are not exempt from the process of garnishment here, while under the terms of section 2356 such wages are expressly exempted from the process of garnishment in another state, unless the creditor who attempts to garnish them over there is willing to incur the punishment of both fine and imprisonment for such a course. This, in effect gives to single and unmarried persons who are...