Ex parte Marmaduke

91 Mo. 228

• Court: Supreme Court of Missouri
• Decided: October 15, 1886
• Status: Published

Opinions

Norton, C. J.

On the twenty-seventh day of January, 1887, the St. Louis criminal court caused to be issued and served on petitioner the following writ :

“City of St. Louis. — ss.

“The State of Missouri, to Darwin W. Marmaduke, Warden of the Missouri State Penitentiary at Jefferson City, Missouri — Greeting : We command that you do, on Monday, January 31, 1887, at 10 o’clock, A. m., without excuse or delay, bring, or cause to be brought, before the honorable St. Louis criminal court, the body of Frederick Wkitrock, by whatever name or addition he is known or called, who is detained in your custody as it is said, then and there to testify as a witness in a cause wherein the state of Missouri is plaintiff and David S. Eoth.erirLgb.am is defendant, and have with yon this writ, return endorsed thereon, and herein fail not at your peril. Witness, Patrick M. Staed, clerk of said court, and the seal thereof, at the city of St. Louis, this twenty-sixth day of January, A. D., eighteen hundred and eighty-seven.

[seal.] “Patrick M. Staed, Clerk.”

To this writ petitioner made the following return:

“ State of Missouri, ) “County of Cole. ( ss’

“Now comes Darwin W. Marmaduke, warden of the Missouri state penitentiary, and for return to the within writ says that he respectfully declines to comply with said writ by producing or having the body of said Frederick Whitrock before the said criminal court, as in said writ directed, for the reason that, as such warden, or otherwise, he has no legal authority to remove the body of said Whitrock from the state penitentiary,, wherein said Whitrock is now confined under and by virtue of a judgment and sentence of said St. Louis' criminal court under a sentence for a felony. •

“ Done at the City of Jefferson, Missouri, this the twenty-ninth day of January, 1887.

“ Darwiít W. Marmaduke,

Warden Mo. State Penitentiary.”

Upon the above being made, the said criminal court' on the thirty-first day of January, 1887, issued its writ of attachment, directed to the sheriff of Cole county, commanding him to arrest the petitioner, and have hie body before said criminal court on the third day of February, 1887, to answer as for contempt in not obeying the first writ issued. The said petitioner was arrested by said sheriff by virtue of this writ and is by him held in custody, and it is from this imprisonment that petitioner seeks to be discharged by the writ, of habeas corpus, issued and served on said sheriff on the first day of February, 1887. Tbe right of defendant to be discharged is maiuly dependent on the question whether section 4031, Revised Statutes, is or is not a valid law. The section is as follows :

“Courts of record, and any judge or justice thereof, shall have power, upon the application of any party to a suit or proceeding, civil or criminal, pending in any court of record or public body authorized to examine witnesses, to issue a writ of habeas corpus for the purpose of bringing before such court or public body any person who may be detained in jail or prison, within the state, for any cause, except a sentence for felony, to be examined as a witness, in such suit or proceeding, on behalf of the applicant.”

This identical statute is found in the Revised Statutes of 1835, section 11, page 623. It is also found in the revision of Í845, page 1089, section 13 ; also in the revision of 1855, volume 2, section 24, page 1582 ; also, in the General Statutes of 1865, section 22, page 588, and is .carried into the Revised Statutes of 1879, as section 4031. It will be thus seen that the law, now assailed as being unconstitutional, has remained on the statute books of the state unchallenged, so far as the judicial records of the state show, for more than fifty years. By way of answer, it is stated, in the brief, and was so orally argued by respondent’s counsel, that, previous to,, and up to, 1879, most j)ersons who were convicted of felonies were rendered incompetent to testify as witnesses, and that the section in question, forbidding persons convicted of felony from being taken from the penitentiary on a writ of habeas corpus ad testificandum into court,' for the purpose of being examined as witnesses, was intended to apply to that class of felons who were disqualified as witnesses.

This is no answer, for two reasous : First, because, if the statute meant only this, there existed no reason whatever for its passage, inasmuch as without such statute it is not to be presumed that any court would issue a writ of habeas corpus to bring before it a person convicted of a felony to testify, who, when brought, could not testify, by reason of such conviction disqualifying and rendering him incompetent as a witness in any case. It has grown into a maxim that a court will not do a useless thing, and it cannot be presumed that it was the intention of the legislature, in the passage of this statute, to forbid the courts from issuing this writ, when they could not have issued it without stultifying themselves. This writ of habeas corpus ad testificandum, under any practice, either in this country or England, never issued, except to bring a witness, competent and qualified to testify when brought, and never to bring a person who could not testify when brought, by reason of his being disqualified as a witness. The second reason is, because, while the above construction contended for gives no force to the statute, there is another construction which is reasonable and gives force and efficacy to it. It is this: that, previous to 1879, under our criminal code, a very great number of persons, who were convicted of certain classes of felonies, were not rendered, by reason of such conviction, incompetent to testify as witnesses, and it does no violence to reason to hold that it was the intention of the legislature, in enacting the section in question, while broad enough to include all who were under sentence for felony, to make it peculiarly apply to that class of felons who were not, by reason of their conviction, disqualified as witnesses.

Section 9, article 13, of the constitution of 1820, and section 18, article 1, of the constitution of 1865, provides that, "in all criminal prosecutions the accused has the right * * * to have compulsory process for witnesses in Ms favor.” In the constitution of 1875, section 22, article 2, it is provided that “in all criminal prosecutions the accused shall have the right * ' *' * to llave process to compel the attendance of witnesses in his behalf." The learned counsel for respondent insists-that the change of the words, as found in the constitutions of 1820 and 1865, “to have compulsory process for witnesses in his favor,” to the words as found in the constitution of 1875, "to have process to compel the attendance of witnesses in his behalf,” has worked such a change as to give some additional right to a person criminally charged, which he did not have under the constitutions of 1820 and 1865, and a change so radical as to bring said section 4031 in conflict with the constitution, and operate as a repeal of it. While there is a change in verbiage, a change in the form of expression, the phrase, as used in the constitutions of 1820 and 1865, means the same thing as that which is used in the constitution of 1875.

Compulsory process, for a witness, signifies and •means a process that will compel the attendance of such witness — a process that will bring a witness into court who refuses to come without it. And nothing is added to the force of a provision which gives the accused the right to have compulsory process for witnesses in his favor, by changing the form of expression so as to give him the right to have process to compel the attendance of witnesses in his behalf. Both forms of expression convey to the mind precisely the same meaning. In the constitutions of 1820 and 1865, the form of expression that the accused “ has the right” to have compulsory processes for witnesses in his favor, was changed in the constitution of 1875, so as to read, "shall have the right to process to compel the attendance of witnesses in his behalf,” and it might as well be argued that the-change of the words "has the right” to the words “ shall have the right,” and the change of the words “witnesses in his favor f to “ witnesses in his behalf,” altered the meaning of the section, as to argue that the meaning of the section as contained in the constitutions of 1820 and 1865, to have compulsory process for Ms witnesses, was either altered or enlarged by changing the form of expression sp as to read, “ to have process to compel the attendance of witnesses.”

It, therefore, follows, from what has been said, that, if said section 4031 is invalid under the constitution of 1875, it was also invalid under the constitutions of 1820 and 1865. And, although it stood on the statute books of the state for thirty years before the constitution of 1865 was framed, and forty years before the constitution of 1875 was framed, the framers of those constitutions did not make the discovery that it was invalid, nor provide against it, nor has it been, as before stated, assailed till now. I do not make this statemént to give color, or countenance, to the idea that an act of the legislature which is unconstitutional at its inception, is rendered valid by having remained on the statute book, unassailed, for more than half a century, or to the idea that such a statute ought not, because of its antiquity, to be declared void; but to deduce, from its non-assailment for so long a time, the presumption that its unconstitutionality is neither so apparent, nor clear, as counsel contend it is, or else it would not, in all probability, have been reenacted through a long series of years, or remained free from attack. But, casting aside this presumption, we are of the opinion that the statute in question is valid. The constitution, which confers upon a person criminally charged, the right to compulsory process for witnesses, also declares and casts upon the legislature the duty and power of enacting laws for the punishment of crimes, and, in the exercise of this power, laws have been enacted, providing that persons convicted of certain felonies shall be punished by imprisonment in the penitentiary for a term of years, in no case less than for two years. The effect of these laws is to bring together, in one place, this criminal class from all parts of the state, and aggregate them into a community separate and distinct from all others, and now numbering about sixteen hundred persons. For such as these, composed, in the main, of lawless and desperate men, with all their civil rights suspended during the respective terms of their imprisonment, as declared by section 1667, Revised Statutes, provision must be made for their safe keeping, and regulations made for their government and control, and to accomplish these ends this class of persons have been put, by the legislature, under the control and management of a warden, deputy warden, guards, etc., and confined in a place called the penitentiary, with strong walls guarded by armed men to prevent their escape in the day time, and with secure cells, in which they are locked at night. We do not believe that the legislature, in the exercise of the right to make regulations for the government of this class oi convicts, transcended its power by providing, as has been done by said section 4031, that the warden having them in custody should not be required to take such convicts and surrender them to the various courts of the state to testify as witnesses. Such a regulation we do not regard as unreasonable, but as one proper to be made, in view of the fact that the thing prohibited, if allowed to be done, would interfere with the government of such convicts by affording them facilities for escape, and, for the time being, put it out of the power of the warden, the chief and controlling officer of the penitentiary, to exercise that supervisory control so essential to the management of such a community of persons put by law in his ' charge, and, besides this, it would place the convict in. such position that it would be in his power to exchange imprisonment in the penitentiary with hard labor, to simple imprisonment in a county jail, without labor, by Ms refusal, when produced in court, to answer proper, questions, or to testify at all, in either of which events . the court could commit him to the jail of the county. .

This is not an argument ab inconvenienti, but is made for tlie purpose of showing that the regulation, made by said section 4031, is a reasonable and proper regulation, and, therefore, one within the power of the legislature to make, and that the right given to those criminally charged is, to that extent, subordinated to the power conferred upon the legislature over this class of persons. The power of the legislature to provide a penitentiary in which all persons from every portion of the state, who are, or may be, convicted of certain felonies, are to be confined, carries with it, necessarily, the power to make such regulations, for their government and detention therein, as are reasonable, and, in its judgment, necessary to keep them safely where the sentence of the court puts them. The power of the legislature to provide that all persons convicted of felony shall forever be disqualified, is undisputed, and, inasmuch as the greater includes the less, their power to provide that such persons shall not, for the time they are undergoing sentence of imprisonment in the penitentiary, be taken therefrom into the various courts of the state, logically follows and is equally indisputable, and said section 4031 does nothing more than this. The sacred right of one criminally accused to have process to compel the attendance of his witnesses, stands upon the same footing of other rights conferred and secured by the constitution, and all of them are equally sacred, and should be construed alike, and with reference to each other, so as to avoid conflict.

The constitution provides that private property shall not be taken for private use, but, notwithstanding this, we have a statute which requires railroad companies to pay to the owners of stock killed on their roads, by reason of their failure to erect fences along the sides of their road, not only the actual damage sustained, but double the amount of such damage, which is, to that extent, a taking of private property for a private use, and, although the constitution forbids this being done, the statute has been held to be valid in several decisions of this court, notably so in the case of Humes v. Railroad, 82 Mo. 221, the judgment in which case was, on appeal to the Supreme Court of the United States, affirmed. In that case, twenty or thirty statutes, which have long stood upon the statute book, are grouped together, in which double and triple damages are allowed in the classes of cases specified. And what is there said with reference to these statutes, may be applied to the one under consideration. “Some of these statutes are old and historic. They are inwoven with the legislative policy of the state. Their long continuance justifies the presumption that the people and their law-makers have found them preservative of the public welfare, and a shield of just protection to private property. Why, therefore, in respect to the constitutional provision, under consideration, and others invoked in this appeal, should the framers of the constitution of 1875, representing, as they did, the whole sovereignty of the people, intend by the general language employed to sweep away all these sanctioned legislative enactments ? * * * Is it not reasonable to assume that, had it been in the mind of the framers of the constitution to strike so deep into the body of the legislative branch of the government, that they would have done so by the employment of words so direct and pertinent as to have made the purpose unmistakabl. ”

It is provided in the constitution that when private property is taken for public use and the owner thereof is damaged thereby, that compensation therefor shall be made by the payment of the same to him, or into court for him, before his proprietary rights shall be disturbed. In the case of Railroad v. Evans, 85 Mo. 307, certain sections of the statute, relating to condemnation proceedings, were drawn in question as being in conflict with the constitutional provision above referred to, and the court, speaking through Mr. Justice Sherwood, in effect, said, that constitutions are instruments of a practical nature, to be construed with the help of common sense ; that “it would be doing violence to all known rules of interpretation to assume that those who framed, or those who, by their votes, adopted, our constitution, were actuated by no intelligent purpose in that behalf. On the contrary, it must be assumed that they were familiar with the vicissitudes incident to condemnation proceedings and with the statutory provisions relating thereto.” And it is further said, “As the legislature has revised the general law in regard to condemnation of land, it. will be presumed that their attention was directed to the subject of the necessity of conforming that law to the constitutional provisions, and such revision must be regarded as a legislative construction of that section of the constitution under consideration, and that the general law is in conformity thereto, * * * This legislative exposition is entitled to some weight, as the authorities show, and the courts may, with some confidence, repose upon the conclusions reached by the legislature, and the statute is to be viewed pro hac Dice, in the same light as though the legislature had enacted a new statute in compliance with constitutional requirements, and had prescribed, by law, the manner in which compensation for land taken shall be ascertained. * * * Prima facie, this law is constitutional, * * * and conforms, in all essential particulars, to the organic law, and the well known rule of construction applies here, that a statute is not to be presumed repugnant to the constitution, until such repugnancy is made to appear beyond a reasonable doubt. * * * ‘As a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect.’ ”

In tlie case before ns, said section 4031 was enacted in 1835, and was a legislative construction of the constitution of 1820, in regard to compulsory process for witnesses. So it was thus construed by tlie reenactment of the section in 1845 and 1855. So it was thus construed in 1865, under the constitution of 1865, and, also, on the constitution of 1875, by the revision of 1879. So, that if a single legislative construction of the constitution was entitled to weight- in considering the question involved in the case above cited, that weight is greatly increased when the same legislative construction has been put on a clause of the constitution for more than fifty years, and by five legislatures, at the end of each-decade of- ten years. So, in the case of State v. Whitten, 68 Mo. 92, the court held, speaking through Sherwood, J., that it was in the discretion of the court to limit the number of witnesses to be heard on an issue pending upon an application for a change of venue in said case; although it would seem that the constitutional provision, giving process to compel the attendance of witnesses, was broad enough to give him a right to all his witnesses, without reference to their number, and, yet, it was held, in the above case, that the court had the right, as it did in the case, to limit the number to sis, and it may be proper to say that the reasoning contained in the opinion fully justifies the conclusion reached. What is said in the case of the State v. Able, 65 Mo. 357, may not be inappropriate here, to the effect that, "'if either department of the government may slightly overstep the limits of its constitutional powers,, it should be that one whose official life would soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient reason that the courts should never strike down a statute, unless its conflict with the constitution is clear. The judiciary ought to accord to the-legislature as much purity of purpose as it would claim for itself, as honest a desire to obey the constitution, and also a high capacity to judge of its meaning.’ Of course the constitution is above, and paramount to all statutes, and where there is a clear and manifest conflict between the two, the former must prevail and the latter fall.”

Eor the reasons given, we are of the opinion that the prisoner is entitled to be discharged from his imprisonment, by the sheriff of Cole county, and he is hereby discharged,

in which Judges Ray, Black, and Brace concur, Judge Brace concurring in the result and Judge Black in a separate opinion. Judge Sherwood dissents.