In re Siegel
| Decision Date | 22 January 1915 |
| Citation | 173 S.W. 1,263 Mo. 375 |
| Parties | In re JOSEPH SIEGEL, Petitioner |
| Court | Missouri Supreme Court |
Rehearing Denied 263 Mo. 375 at 386.
Petitioner remanded.
Numa F Heitman for petitioner.
(1) The criminal court exceeded its jurisdiction because your petitioner was not charged with any felony nor did he plead guilty to any felony and yet he was sentenced to two years in the penitentiary. The word "feloniously" nowhere appears in the information. Illegal voting in Kansas City is expressly made a felony by statute. Sec. 6155, R. S. 1909; State v. Feasal, 132 Mo. 181; State v Deffenbacker, 51 Mo. 26; Johnson v. State, 7 Mo. 183; State v. Band, 191 Mo. 566-7; State v. Willard, 219 Mo. 725; State v. Murdock, 9 Mo. 739; State v. Clayton, 100 Mo. 516; State v. Dixon, 247 Mo. 668; State v. Gilbert, 24 Mo. 380; State v. McGrath, 228 Mo. 413; State v. Buckfelder, 231 Mo. 55; In re Spalding, 75 Kan. 163; Ex parte Smith, 135 Mo. 223; State v. Rosenblatt, 185 Mo. 114; Secs. 2474, 4923, 4925, R. S. 1909. From the foregoing statutes and authorities, it is clear that, in view of the information which did not charge a felony, it was an excess of jurisdiction to sentence the petitioner as though he had pleaded guilty to a felony. The writ of habeas corpus is the remedy. Ex parte Snyder, 64 Mo. 58; Ex parte Bedard, 106 Mo. 616; In re Shull, 221 Mo. 623; Ex parte Creasy, 243 Mo. 679; In re Clark, 208 Mo. 121; Ex parte Neilson, 131 U.S. 176; In re Snow, 120 U.S. 274; Ex parte Neet, 157 Mo. 527; Ex parte Lucas, 160 Mo. 218; Ex parte Harrison, 212 Mo. 95; In re Spalding, 75 Kan. 163. (2) There was no criminal law violated by the petitioner for the reason that no criminal statute was in existence which covered or included the so-called franchise election held in Kansas City, on July 7, 1914. The word "election" as used in the Constitution and election laws of Missouri is not broad enough to cover said franchise election. This question was discussed in State ex rel. v. Taylor, 220 Mo. 618. Subsequently, the Legislature undertook to expand the meaning of the word "election," and to accomplish this purpose, Sec. 6177, R. S. 1909, was passed. Haas v. Neosha, 139 Mo.App. 297. The franchise election which was held in Kansas City in pursuance of an ordinance of Kansas City, on July 7, 1914, was not an "amendment" within the meaning of the word "amendments" used in said section, nor was said franchise ordinance a "law" within the meaning of the word "law" used in said section. A law is a rule of conduct, prescribed by the supreme lawmaking power in the State, and applying generally to all the people within the State. An ordinance is a very different thing. It is a rule of conduct prescribed by a delegated lawmaking power in the city and applies only to the inhabitants in the city. This franchise was not submitted to the people "by law," for the reason that the ordinance submitting it was not a "law" but an ordinance. A proposition submitted to the people of the city by ordinance does not come within the definition of the word "election" as the same is defined in section 6177. Kansas City v. Clark, 68 Mo. 588. Criminal statutes should be strictly construed and not be extended or enlarged by judicial construction so as to embrace offenses or persons not plainly within their terms. State v. Reid, 125 Mo. 43; State v. Brock, 202 Mo. 223; State v. Shortell, 174 Mo.App. 153; State v. McMahon, 234 Mo. 611. Said franchise was not a "public" act. It was only a quasi-public act. It was a contract between the city on one side, and a private corporation on the other. It was only a half way "public" act. The phrase "or other public act or proposition" means a "public act" or "proposition" belonging to the class of "amendments" or "laws" under the rule ejusdem generis. State v. Krueger, 134 Mo. 262; Ex parte Neet, 157 Mo. 527; State v. Robinson, 253 Mo. 27; Ex parte Lucas, 160 Mo. 218; Ex parte Harrison, 212 Mo. 88; Ex parte Smith, 135 Mo. 223.
OPINION
In Banc
Habeas Corpus.
-- Upon his plea of guilty to a charge of illegal voting, petitioner was sentenced to serve a term of two years in the penitentiary by the criminal court of Jackson county, Missouri, and he brings habeas corpus in this court to secure his discharge.
The complaint of petitioner is accompanied by a copy of the information under which he was convicted upon a plea of guilty, a copy of the judgment and sentence, together with a copy of an ordinance of Kansas City which purports to authorize the holding of an election on July 7, 1914, in said city to determine, by vote, whether or not said city would grant a franchise to certain corporations to maintain and operate certain street car lines upon its streets.
Petitioner asserts that there is no law which denounces as a crime his act in voting more than once in the before-mentioned municipal election, and that therefore, he is entitled to his discharge. We will consider this insistence first, for if it be true that the acts of which petitioner was convicted are not denounced as a crime by any law in force in this State, then his confinement is unlawful, notwithstanding his plea of guilty to the information preferred against him.
Petitioner concedes that by section 6155, Revised Statutes 1909 (), he was expressly prohibited from voting more than once at any election held in said city pursuant to law. However, he earnestly insists that the election held on July 7, 1914, to adopt or reject a street car franchise was not an election held by law, being merely an election held pursuant to a city ordinance, and, therefore, not within the purview of that part of section 6177 which reads as follows:
"The word 'election,' as used in this article, shall be construed to designate elections had within any city for the purpose of enabling electors to choose some public officer or officers under the laws of this State or the United States, or to pass any amendment, law or other public act or proposition submitted to vote by law." (Italics ours).
Petitioner stresses the last two words quoted from section 6177, and insists that a proposition submitted to voters by a city ordinance is not a submission of such proposition by law, for the reason that city ordinances are not laws; so that a proper ruling on this issue depends, in a large measure, upon a correct interpretation of the words "by law," as found in section 6177, supra.
OPINION.I. To sustain the last-noted contention petitioner cites Kansas City v. Clark, 68 Mo. 588, wherein Chief Justice Sherwood, in discussing the right of a city to appeal from a judgment of acquittal in an action to recover a fine for violating its ordinances, stated that the violation of a city ordinance was not a crime, because the ordinance was not a public law, but only a local law.
Petitioner also cites the case of Baldwin v. City of Philadelphia, 99 Pa. 164, in which it was held that a provision in the constitution of Pennsylvania which ordained that "no law shall increase the salary of any public officer after his election or appointment" did not apply to the increase of salary of an officer by city ordinance.
Notwithstanding the authorities cited we think petitioner's contention is unsound. The Clark case, supra, was not, in a strict sense, an interpretation of the word law, but what was there said was in the nature of obiter, or the reasoning of the judge, and intended merely to illustrate the reason why a city was entitled to appeal from a judgment of acquittal in a suit to enforce its ordinances. As will be seen, that opinion does not hold that an ordinance is not a law, but only that it is a "local law" as distinguished from a "public law." That view did not meet the approval of all of the judges of this court.
In the subsequent case of Grand Ave. Ry. Co. v. Citizens' Ry. Co., 148 Mo. 665, l. c. 671, 50 S.W. 305, it was held that a power to hear and determine a certain class of causes conferred upon circuit courts by a valid city ordinance was a jurisdiction conferred upon such courts by law. This last-cited case met the unanimous approval of this court in Banc, except Valliant, J., who did not sit. If that ruling was sound, it would necessarily follow that an election held under a city ordinance is an election held "by law."
McQuillin, in his treatise on Municipal Corporations (Vol. 2, sec. 643), says: "Valid ordinances of municipal corporations are as binding on the corporators and the inhabitants of the place as the general laws of the State upon the citizens at large." Can it be a misnomer to classify as a law that which was enacted by a legislative body and possesses all the force of law?
Section 10, article 1, of the Federal Constitution provides that "no State shall . . . pass . . . any . . . law impairing the obligation of contracts." This constitutional provision has been held by the Supreme Court of the United States to include ordinances enacted by cities which impair the obligation of contracts. [Murray v. Charleston, 96 U.S. 432, 24 L.Ed. 760; see also, Railroad v. Memphis, 96 F. 113.]
Of course, the Murray case, supra, is not directly in point here, because constitutions are not always construed by the same rules as criminal statutes, but it does tend to show that the ruling in the Pennsylvania case, cited by petitioner, is erroneous.
In Miller v. Dunn, 72 Cal. 462, l. c. 465, 14 P. 27, the Supreme Court of California was urged to hold that the word law as found in the Constitution of that State was intended to cover only statutes enacted by the General...
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