In re Parte

• Citation: 10 Mo.App. 442
• Parties: EX PARTE GUSTAV KIBURG.
• Decision Date: 07 June 1881
• Court: Court of Appeal of Missouri (US)

10 Mo.App. 442

EX PARTE GUSTAV KIBURG.

St. Louis Court of Appeals, Missouri.

Jun. 7, 1881.

1. The city of St. Louis may lawfully imprison the defendant for non-payment of a fine assessed against him for violation of an ordinance prohibiting the sale of lottery tickets.

2. It is immaterial whether the action upon which the fine is assessed is in form a civil or a criminal proceeding.

3. The validity of an ordinance is not affected by the existence of a State law upon the same subject not inconsistent with it.

4. Defendants are not entitled to trial by jury in trials for petty offences cognizable in the police courts.

5. The authority conferred on the city of St. Louis to establish municipal courts authorized it to establish the First District Police Court.

6. The power to provide for a clerk and to define his duties is necessarily incidental to the power to establish a court.

7. The clerk of the police court may issue executions upon the judgments of his court.

APPLICATION for habeas corpus.

Prisoner remanded.

DAVID MURPHY, for the petitioner.

J. R. HARRIS, circuit attorney, contra.

LEWIS, P. J., delivered the opinion of the court.

The prisoner is detained in the city work-house under an execution and commitment from the First District Police Court of the city of St. Louis, issued upon a judgment against him for a fine of $200, on account of the violation of a city ordinance prohibiting the sale of lottery tickets. In this proceeding by habeas corpus he demands his release from imprisonment, upon many grounds which are pressed by his counsel with zeal and ingenuity at various stages, in a motion to quash the respondent's return, in objections to testimony, and in a final demurrer to the evidence sustaining the return. The several grounds of his claim will be considered without reference to the form of their presentation.

The proceeding before the police justice was begun by the filing of a statement by the city attorney, which charged that the prisoner was indebted to the city of St. Louis in the sum of $500, for the violation of an ordinance of said city, which the statement proceeded to describe particularly by its number, title, subject-matter, and date of approval. The prisoner was brought in by summons, as in an action of debt, and the hearing resulted in a judgment against him for the sum of $200 and costs. Execution was issued, directed to the city marshal, and commanding him to levy the debt and costs of the goods and chattels of the defendant and, for want of sufficient property whereon to levy the same, “to deliver the body of said defendant into the custody of the superintendent of prisoners, who will convey said body to the city work-house of the city of St. Louis, the keeper whereof is hereby commanded to receive said defendant, safely keep,” etc. It is urged for the prisoner that the whole proceeding was in the nature of a civil action for debt, and that bodily imprisonment in such a case is forbidden by constitutional and statutory law.

The State Constitution, Article II., section 16, provides “that imprisonment for debt shall not be allowed, except for the non-payment of fines and penalties imposed for violation of law.” This, by implication, is conclusive that the proper legislative authority may direct imprisonment for the non-payment of fines and penalties, without a violation of the Constitution. It remains only to be seen whether such a legislative authority has sanctioned the imprisonment here complained of.

For certain purposes connected with the welfare and good order of local communities, legislative powers are conferred on municipal corporations, to be operative within their respective territorial limits. In the case of the city of St. Louis, these powers are derived directly from the State Constitution, through the action of the board of freeholders, and its ratification by the voters of the city. We need look no farther than the Charter, for a sufficient authority given to the law-making agency of the corporation, to pass an ordinance providing for imprisonment as a consequence of the non-payment of a fine or penalty. By the tenth subdivision of section 26, Article III., of the City Charter, power is given to the Municipal Assembly “to impose, collect, and enforce fines, forfeitures, and penalties, for the breach of any city ordinance. Any offender who shall neglect or refuse to pay any fine, penalty, and costs that may have been imposed upon him or her, shall be committed to the work-house, or, in case of women, in such other place as for them may be provided, until such fine, penalty, and costs be fully paid: Provided, that no such imprisonment shall exceed six months for any one offence.” By the fifth subdivision of the same section, power is given the Municipal Assembly by ordinance, “to license, regulate, tax, or suppress * * * lottery-ticket dealers.” The legislative authority thus conferred was exercised in the passage of City Ordinance number 11322, approved March 15, 1880, which prohibited the selling, etc., of lottery tickets, as a misdemeanor, under penalty of a fine of not less than $10 nor more than $500 for each offence. The several links in the chain of authority for the detention of the prisoner because of his failure to pay the fine imposed upon him, are thus traceable back to the Constitution of the State. The power thus derived is distinct, positive, and effectual. In the face of such a clear and emphatic authorization, it is idle to advance refined speculations over the distinction between civil actions and criminal procedures, and the propriety of personal detention, as incidental to one...