In re Tartar

• Decision Date: 03 June 1919
• Citation: 213 S.W. 94,278 Mo. 356
• Parties: In Re FRANK S. TARTAR
• Court: Missouri Supreme Court

213 S.W. 94

278 Mo. 356

In Re FRANK S. TARTAR

Supreme Court of Missouri, Second Division

June 3, 1919

Writ quashed.

C. J Anderson for relator.

(1) That portion of Sec. 3459, R. S. 1909, in issue here is unconstitutional, null and void, in this: (a) It is violative of Article 4, Section 53, Clause 26, of the Constitution of 1875, in this: that it is a special law, and attempts to grant to a private corporation and its members a special and exclusive right and privilege, which is denied to other persons in the same class. (b) It is violative of Article 4 Section 46, of the Constitution in that it attempts to grant public money to a private corporation and the individual members thereof. (c) It is violative of Article 4, Section 47, in that it attempts to authorize various cities to grant public money in aid of private corporations, and the individual members thereof. (d) It is violative of Article 10, Section 3, of the Constitution in that it permits the levying of taxes for private purposes. State ex rel. v Kimmel, 256 Mo. 611; State ex rel. Heaven v Ziegenheim, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47. (2) That portion of Sec. 3459, R. S. 1909, as amended by the Laws 1913, page 192, is violative of the Fourteenth Amendment of the Constitution of the United States in that it deprives each person arrested of property (fifty cents in cash) without due process of law. Every person arrested must, under this law, pay the fifty cents bond fee, in order to be released on bond, regardless of whether such person is innocent or guilty of the charge placed against him. (3) That portion of Sec. 3459, R. S. 1909, in issue here is violative of Article 4, Section 53, Clause 26, of the Constitution of Missouri, in that it grants a special and exclusive right, privilege and immunity to such police officers and police officials as are members of the St. Louis Police Relief Association, and denies the same to such police officers and police officials as are not members thereof. State ex rel. v. Tolle, 77 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Loomis, 115 Mo. 307. (4) What becomes of the fifty cents fee after it is collected by the police officer is a very essential subject of inquiry in determining the constitutionality of the law. If the ultimate destination of the money collected is unlawful, then such law thereby becomes invalid, null and void. State ex rel. Heaven v. Ziegenheim, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47.

Holland, Rutledge & Lashly for respondents.

(1) Relator is not entitled to the writ upon the record presented here, because he did not at the time and never has since tendered a good bond with an eligible and qualified security. (a) It is admitted by the pleadings that Ike Grodsky, the person tendered as security upon this bond had at the time an unsatisfied judgment upon a bond forfeiture and several unsatisfied bond forfeitures pending against him and under the ordinance this circumstance rendered him ineligible as a bondsman, irrespective of his property or other qualifications. (b) The clerk in charge of the police station did not and could not waive the ineligibility of a proffered bondsman, whatever may have been his opinion as to the qualifications of the bondsman or his act in connection therewith. Police clerks have no inherent power to make or accept bail and can do so only by statutory (in this case ordinance) authority. 6 Corpus Juris, par. 207, p. 981. (c) The police clerk could not waive the ineligibility of a bondsman because the ordinance conferring power upon the clerk to approve and accept a bond limits that power to persons described in said ordinance as eligible, and the ordinance expressly disqualifies and makes ineligible attorneys-at-law, police officers, constables or deputy constables, officers of the city and persons who have standing against them an unsatisfied judgment rendered on a forfeiture of bond. (d) The ordinance thus describes the conditions regulating eligibility of bondsmen, and since it is the only means or semblance of authority which the clerk has for approving bonds, it may not be waived by him, for if the ordinance is waived he has no power in the premises at all. (e) The "bond" offered and tendered here is not a bond at all, and while such blanks may have been accepted in ordinary practice, where, as here, the person applying for bail undertakes to tender a "good and sufficient bond" and stands upon his tender and insists upon his right to bail under said bond, the law will scan the instrument thus tendered and his case must stand or fall upon its legal sufficiency. State v. Wilson, 265 Mo. 19. (2) Upon the face of the pleadings no constitutional question is introduced or involved in this case and no constitutional question can therefore be properly considered by the court in its decision. Lohmeyer v. Cordage Co., 214 Mo. 688; State ex rel. v. Electric Co., 250 Mo. 527; Street v. School District, 221 Mo. 671; Milling Co. v. Blake, 242 Mo. 23. (3) Even if it should be held that the constitutional validity of that part of Sec. 3459, R. S. 1909, relating to the bond fee, may properly be considered in this case, nevertheless, upon the record here, the writ should be quashed and the case dismissed. (a) The statute is valid and constitutional. State ex rel. v. Herman, 75 Mo. 354; Lynch v. Murphy, 119 Mo. 163; White v. Railroad, 230 Mo. 287; State v. Rawlings, 234 Mo. 544; (b) The Legislature has the right to make reasonable terms upon which one may be admitted to bail. (c) The service required to be performed under the city ordinance, namely, examination of the surety, furnishing of the necessary conveniences for preparing a bond, making out, approving and filing same, are all in connection with and incidental to admitting the applicant to bail, and a charge of fifty cents for this service cannot be held to be unreasonable or objectionable. (4) The unconstitutionality of a statute on the ground that it denies equal rights and privileges by discriminating between persons or classes of persons may not be raised by one not belonging to the class alleged to be discriminated against. 12 Corpus Juris, p. 768, par. 789; State v. Parker Distilling Co., 236 Mo. 219; McCully v. Railroad Co., 212 Mo. 53; State v. McIntosh, 205 Mo. 589. (5) The fact that a part of the statute has been held to be unconstitutional does not affect the validity of the remainder. Green Co. v. Lydy, 263 Mo. 95; State ex rel. Bixby v. City of St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Taylor, 224 Mo. 393.

OPINION

Habeas Corpus.

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...