State ex rel. Barker v. Wurdeman

163 S.W. 849, 254 Mo. 561, 1914 Mo. LEXIS 230

• Court: Supreme Court of Missouri
• Decided: February 10, 1914
• Status: Published

Opinions

WALKER, J.

This is a proceeding by certiorari instituted by the State, at the relation of the Attorney-General. The writ directed Gustavus A. Wurdeman, Judge of Division. No. 2 of the Circuit Court of St. Louis County, respondent, to certify to this court a true copy of the record in a habeas corpus proceeding then pending before him, in which Henry L. Algermissen was petitioner and the sheriff of St. Louis county was defendant. In obedience thereto, the respondent filed in this court a complete copy of said record, and thereafter, on the 3rd day of October, 1913:, filed his motion to quash the writ of certiorari and to dismiss the cause.

The proceedings in the circuit court were as follows:

On July 18, 1913, the sheriff of St. Louis county arrested Henry L. Algermissen, charged with selling liquor without a license, the sale having been made in the view of the sheriff and another. Hpon the arrival of the sheriff at the courthouse in Clayton with Algermissen in custody, about two hours after his arrest and before any formal charge had been preferred against him, a writ of habeas corpus was served on the sheriff commanding him to forthwith produce the body of Algermissen before the respondent and show by what legal authority he was holding him. The prosecuting attorney was not formally notified of the proceeding as required by section 2509, Revised Statutes 1909, but had actual knowledge of same. In compliance with the court’s order the sheriff produced the body of Algermissen before the respondent, who at once admitted him to bail, conditioned upon his appearance before said circuit court in the habeas corpus proceedings on the 19th day of July, 1913, and ordered the sheriff on or before said day to make his return to the writ of habeas corpus. On July 18th, the prosecuting attorney filed an information in the office of the clerk of the circuit court, which was assigned to Division No. 1 of said court, charging said Algermissen with selling liquor without a license, and immediately thereafter, on the same day, a capias was issued by the clerk and placed in the hands of the sheriff, commanding him to take Algermissen into custody. The sheriff arrested Algermissen under said capias, and the latter gave bond for his appearance in said Division No. l of the circuit court at the next term, or upon the setting of the case, to answer the information so filed by the prosecuting attorney, and the sheriff again released him and he is now at liberty. On July 19th, the sheriff filed his return to the writ of habeas corpus, in which he set out the following facts:

That he had arrested Algermissen for a misdemeanor, viz., selling liquor without a license, committed in his view; that he had surrendered him to the custody of the court; that he had subsequently arrested him by virtue of a capias issued by the clerk of the circuit court for the same offense; and that thereafter Algermissen was admitted to bail, released, and was not then in his custody.

No answer was filed to this return, and no motion was made to discharge the prisoner. Immediately after the filing and reading of the return, in Division No. 2 of said circuit court, before respondent as judge thereof, the court heard arguments by counsel of the respective parties as to the return, and as to whether the validity of the law creating the Board of Excise Commissioners was in issue in the habeas corpus proceedings, and held that the validity of the law was in issue, and continued the further hearing until August 5, 1913. On July 29, 1913, the petition for a writ of certiorari was applied for and granted by this court.

I. Certiorari to Review Habeas Corpus. Under the Constitution of this State (Art. 6, sec. 3, and sec. 8, Amdt. 1884), this court .has a general superintending control over all inferior courts and as a means of maintaining same is clothed with power to issue writs of habeas corpus, quo warranto, certiorari and other original remedial writs and to hear and determine same. At the common law the issuance of the writ of certiorari was authorized before the proceedings instituted had culminated in a trial, order or judgment, and was based upon the absence or an excess or usurpation of jurisdiction on the part of the court from which the proceedings were removed. [1 Tidd Pr. (4 Am. Ed.) 398; 6 Cyc. 737, 750, 770:] Under our procedure the office of the writ is the same as at common law, and our courts are authorized to adopt the principles and usages in regard to the writ as developed under the common law system, if in other respects consistent with the letter and spirit of existing statutes. [State ex rel. Harrison County Bank v. Springer, 134 Mo. 212, 222; State ex rel. v. Walbridge, 69 Mo. App. 657, 666, and cases; State ex rel. v. Walbridge, 123 Mo. 525, 537; State ex rel. v. Smith, 101 Mo. 174.] Under this general superintending power conferred by the Constitution it has been held by this court that the writ will issue to review the proceedings in a habeas corpus case. [State ex rel. v. Broaddus, 245 Mo. 123, 135; State ex rel. v. Dobson, 135 Mo. 1, 19.] A like rule prevails elsewhere. [Ex parte Montgomery, In re Knox, 64 Ala. 463; McLaren v. Brown, 34 Ga. 583.]

Where the writ is applied for, as it is here, by the chief law officer of the State, the Attorney-General, it goes as a matter of course (State ex rel. v. Dobson, 135 Mo. 1, 19) in the first instance, provided there is apparent in the application any one of the following requisites: 1st, absence, excess or abuse of jurisdiction (State ex rel. v. Broaddus, 238 Mo. l. c. 204; State ex rel. v. Reynolds, 190 Mo. 578; State ex rel. Knox v. Selby, 133 Mo. App. 552); 2nd, absence of the right of appeal (State ex rel. v. Broaddus, 245 Mo. l. c. 135; Ferguson v. Ferguson, 36 Mo. 197; Ex parte Jilz, 64 Mo. 205; Weir v. Marley, 99 Mo. 484, 488); and, 3rd, lack of any other adequate remedy (State ex rel. Iba v. Mosman, 231 Mo. 474; State ex rel. v. Guinotte, 156 Mo. 513; State ex rel. Sanks v. Johnson, 138 Mo. App. 306).

The petition for certiorari being sufficient for the submission of the issues involved, its reproduction here is unnecessary, and the duty devolves on .us to examine the record to determine whether or not the habeas corpus proceeding was authorized. [State ex rel. v. Broaddus, 245 Mo. l. c. 140.] Petitioner’s discharge on bail might pertinently be considered as a reason why the writ should not issue (3 Yeates R. 263; 1 Serg. & R. 356; Hurd, Hab. Corp. (2 Ed.), p. 201); but we have, in the interest of the petitioner, ignored this record fact, and have reviewed the case as though formal complaint had been filed against him before the issuance of this writ and that he was being detained by reason of such complaint.

II. Habeas Corpus. It may profit nothing to recount in this connection, the origin and history of the Habeas Corpus Act, first enacted (31 Car. II, c. 2), strange as it may seem, in one of the most corrupt reigns recorded in English history, the infamies of which the facile and suppliant pen of Hume, the artful and unscrupulous partisan of the House of Stuart, has not been able to gloss over; nor is it necessary to descant upon the constitutional value of this act which rendered the remedy against arbitrary imprisonment certain, short and readily obtainable, but introduced no new principle into the system of English jurisprudence, nor did it form such an epoch in the acquisition of national liberties as many writers from Blackstone to Lamm, C. J., in State ex rel. v. Broaddus, 245 Mo. l. c. 139, have so eloquently represented. [2 Hallam, Con. Hist. 176; Creasy, Eng. Con., p. 269; Hurd, Hab. Corp. 83.]

Individual liberty has been of slow and perilous growth. The right of a freeman not to be detained in prison except upon a criminal charge or conviction or for civil debt, did-not have its origin in the Habeas Corpus Act adopted by Parliament in 1679, as popularly believed, but it had existed, although seemingly at times obliterated by tyranny, from the earliest records of the English law. The abuse and evasion of this right, more especially by the arbitrary proceedings of the Earl of Clarendon during the reign of Charles II., probably aroused the people, as oppression often does, to a livelier sense of the necessity of an express statute declaratory of the public will on the subject, than the imprisonment of the obscure individual Jenks, to which, as every student of English law knows, is oftentimes attributed the occasion of the enactment. The beneficial effect of this statutory-declaration as affording a ready remedy against arbitrary and continued imprisonment is evident, but it did not blossom forth in one enactment, nor is it a fetich upon- which adjectives should be exhausted or that veneration paid it which the wandering Israelites bestowed upon the cedar chest called the Ark of the Covenant. Recognizing, therefore, the remedial effect of the act, which has been adopted wherever the common law prevails, it should never be suspended, but at the same time its issuance, in view of our liberal system of procedure against those accused of crime, should always be guided by a wise and wholesome discretion.

While we agree with the learned Chief Justice, as stated in the Broaddus case, supra, that it is the duty of those “who attend as priests at the altar of justice to well see to it that the flame of the lamp- of personal liberty is kept alive,- well trimmed and brightly burning” (if the sacerdotal function, which we question, has any relation to that of the judiciary), we should also, in the exercise of a wise discretion, see to it that the light of this flame does not so blind the eyes of the judge issuing the writ, as to improperly influence his judgment.

We fully recognize the force of the constitutional provision (Sec. 26, art. 2, Constitution of Missouri) that “the privilege of the writ of habeas corpus shall never he suspended;” the refusal of the writ, however, under a proper state of facts, is not a suspension of same, hut is the exercise of a power with which the judiciary is clothed as a part of its inherent existence. It must he remembered as was cogently said by Sherwood, J., in State ex rel. v. Dobson, 135 Mo. l. c. 10, that “the writ of habeas corpus is a writ of right, hut not a writ of course” . . . That “the issuance of the writ is not a mere perfunctory operation, . . . to he ‘had for the asking,’ ” hut that “it is intended as a relief alone against unlawful imprisonment; and no imprisonment is. unlawful when the process is a justification of the officer” — citing Com. ex rel. v. Lecky, 1 Watts, 67. Further, that “judicial discretion is as necessary to the issuance of the writ as in the issuance of any other writ whatsoever. It can only properly issue to.one entitled to it, either under the common law or under the statute. Were it otherwise, the writ would descend from its high plane, and its issuance become a mere ministerial act which could he performed by the clerk of a court as well as by the judge.” In harmony with this reasoning it was held in the same case (p: 18) that the statute (now Sec. 2497, R. S. 1900) was invalid which subjected a court or magistrate to a penalty for refusing to issue the writ; the court holding that the invalidity consisted in an interference by the Legislature with a judicial function which required the exercise of discretion in its performance and hence could not he abrogated by a statute.

The test, therefore, as to the right to this writ is the existence of such an imprisonment or detention, actual though it may not he, as deprives one of the privilege of going when and where he pleases (Hurd on Hab. Corp., pp. 200 et seq.); and upon such restraint being alleged, the court or judge will, in the exercise of discretion, determine whether the individual liberty of the petitioner and the demands of justice, if the petitioner is being held under the warrant or process of a court, authorize the issuance of the writ.

Conceding the sufficiency of the petition for habeas corpus, was the respondent, under the facts disclosed, by the record, authorized to issue the writ? The petitioner was charged with the commission of a misdemeanor, and the complaint was filed, charging him with this offense in the court of which the respondent was one of the judges. In addition, therefore, to the knowledge he obtained from the petition, as to the locus of the proceeding, he had actual knowledge not only of the filing of the complaint in his own court, as the same was then in session, but as to the actual character of the offense and nature of the detention..

The material allegation of the petition is that the petitioner is being held under an invalid statute — not the one it was alleged he had violated, but a statute creating an excise commission to regulate the granting of dramshop licenses in counties of the class to which St. Louis county belongs. The facts attending the application for the writ give color to the conclusion that the purpose of this proceeding, in form to secure the release of the petitioner, was in fact to test the validity of this statute. This aside, however, for we concern ourselves only with what is shown by the record.

We do not question the right of a petitioner to the writ if the statute under which he is held is unconstitutional (Ex parte Harrison, 212 Mo. 88, 16 L. R. A. [N. S.] 950); but where, as in this case, the right depends upon a statute collaterally involved, and the holding of same to be invalid will foreclose the right to an appeal or writ of error, and constitute a final determination of the case, the writ should not be granted; the grade of the offense and the constructive detention of the petitioner should also be taken into consideration — the record showing petitioner’s release on a nominal bond approved by the respondent, pending the habeas corpus proceeding, and the approval of a like bond upon his being charged in a formal complaint with the same offense. That the invalidity of the statute in question may be raised by the petitioner in a trial of the case upon its merits, and that no right he possesses under the law is lost or would have been lessened by the refusal of the writ, are also factors which the respondent should have weighed in determining whether' the issuance of the writ was the exercise of a wise discretion; in view, therefore, of the fact that no substantial right of the petitioner would have been jeopardized by the refusal of the writ, we are of the opinion it was improvidently issued.

III. The Statute. Despite the fact that we hold the writ of habeas corpus to have been improperly issued, the record sufficiently presents petitioner’s grounds as to the invalidity of the statute (Laws 1913, pp. 199-202, approved March 25, 1913), creating the excise commission in St. Louis county and other counties of like class, to entitle .same to our consideration and thus finally determine the validity of this statute. It is challenged in the copy of the' petition for habeas corpus set forth in respondent’s return- for the following reasons:

“ (1) Because said act is in violation of that portion of article 4, section 53-, of the Constitution of Missouri, which provides that the G-eneral Assembly shall not pass any local or special law ‘regulating the affairs of counties, cities, townships, wards or school districts. ’

“ (2) Because said act violates that portion of article 4, section 53, of the Constitution of Missouri, which provides that the General Assembly shall not pass any local or special law ‘creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts.’

“ (3:) Because said act violates the provisions of article 4, section 53, of the Constitution of Missouri, which prohibits the Legislature from passing any special law granting to any corporation, association or individual any special or exclusive right, privilege or immunity. .

“(4) Because said act violates section 53 of article 4 of the Constitution of Missouri, which prohibits the General Assembly from passing any local or special law where a general law can be made applicable.

“(5) Because said act violates section 30' of article 2 of the Constitution of Missouri, which provides that no person shall be deprived of life, liberty or property without due process of law.’ ”

IY. Title. The title of the act is sufficiently clear and comprehensive to define its purpose and prescribe the manner in which it shall be enforced. [State ex rel. Bixby v. St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 223 Mo. 1.] No valid objection can, therefore, be urged against the act in this respect.

Y. Validity of Statute. The classification made by the act is as to counties of 75,000 inhabitants or more, adjoining a city of 500',000 inhabitants or more. The fact that St. Louis county was at the time of said enactment the only county having a population of 75,000 or more, adjacent to a city (St. Louis) of 500,000 inhabitants or more, and that said city was the only one in the State then having the designated population, does not render the act obnoxious to the State Constitution in regard to special legislation. The act under its terms will apply with equal force in the future to other counties or cities which by increase in their populations may come within the purview of the statute. [State ex rel. v. Clayton, 226 Mo. 292, 307.] In other respects the classification is not unreasonable as to the subjects to which it applies and its application is uniform as to the classes embraced within its provisions. [State v. Parker Dist. Co., 236 Mo. 219, 281; State v. Brodnax, 228 Mo. 25, 45, 137 Am. St. 613, affirmed Brodnax v. State, 219 U. S. 285, 55 Law Ed. 219.] Thus much in regard to the validity of the statute considered generally without reference to the subject legislated upon.

In its general.features and with reference to the subject of legislation the statute is similar to that providing for an excise commissioner to regulate the issuance of dramshop licenses in cities having- a population of 300,000- or more (Art. 2, chap. 63, R. S. 1909). This statute after a careful review by this court in State ex rel. v. Bell, 119 Mo. 70, 76, was declared not to be a local or special law, and hence not violative of section 53 of article 4 of the Constitution of Missouri, on the authority of State ex rel. v. Miller, 100 Mo. 439, 447, in which the cases bearing on this subject are ■elaborately discussed. [See also State ex rel. v. County Court, 128 Mo. 427, 443.] By parity of reasoning, therefore, the act under review in the instant case may be held to. violate no provision of the organic law.

The record shows that the Board of Excise Commissioners, under the authority of section 4 of the act (Laws 1913, p. 200), revoked the petitioner’s license to sell liquor. If the statute is valid, and this is the only question under consideration, ample power was lodged in the board to revoke the license, which was in no sense property, but a mere permit issued in the exercise of the police power, to do what, in the absence of the permit, would have been illegal.' No property rights being involved calling for the exercise of a judicial function in the revocation of the license, the excise board acted in a ministerial capacity in revoking the permit which the licensee had violated. The right of revocation, therefore, is as much a part of the license as though, it had been written into it, and the licensee must be held to have accepted it upon these terms and conditions. [State v. Seebold, 192 Mo. 720, 726; Higgins v. Talty, 157 Mo. 280, 287.] The license not being property, but a mere privilege, it was subject to revocation on such conditions as the State, through its law-making power, saw fit to impose, and objections will not be heard questioning the constitutionality of the law for the reasons urged in the Seebold case, supra, first, because such revocation is not a punishment, and, second, because no property right is thereby affected, and the licensee has no such interest in defeating the law as will be considered by this court. This disposes of the objection to the validity of the statute based on section 30, of article 2 of the Constitution of Missouri, in regard to due process.

State ex rel. v. Turner, 210 Mo. 77, in which the Seebold case, supra, was, in an exhaustive opinion by Woodson, J., reviewed and distinguished, is not an authority against the conclusion here reached. In the Turner case, mandamus was sought to compel the granting of a license to sell liquors in the city of Columbia. The provisions of the general law had been complied with by the applicant, and in addition he had procured the required two-thirds majority of the qualified taxpayers to his petition, which rendered the granting of the license mandatory by the county court, in the absence of other legal objection. The court refused the license on the ground that a statute called the “Five-Mile Law” prohibited the granting of dram-shop license within that distance of an educational institution having enrolled therein 1500' or more students —the State University then having that enrollment and being located in Columbia. This court held the distance statute invalid as special legislation, and ordered the issuance of the writ; the basis of the court’s conclusion, the soundness of which we do not question, being that the general law having been fully complied with, even as to its mandatory requirement, and the distance law being invalid, there was no alternative left the county court but to grant the license. The Turner case, therefore, is not parallel in its facts with the Seebold and Talty cases, supra, and hence not in conflict with the conclusions reached in the case at bar.

VI. Notice of Writ. Relator contends that the habeas corpus proceeding was void for want of notice, section 2509, Revised Statutes 1909, requiring notice to the prosecuting attorney where the petitioner is held under criminal process.

Important as is the matter to a petitioner that he should be speedily released if illegally imprisoned, it is also of much concern to the public, where one is held on a charge of crime or misdemeanor, that the prosecuting attorney should have notice of the application for or the pendency of the writ in order that the possibilities of an escape from merited punishment may not result from an ex parte hearing. The necessity of notice in habeas corpus proceedings is emphasized by Tilghman, C. J., in an early Pennsylvania case, Hecker v. Jarret, 3 Binn. (Pa.) 404, in which the writ was sought in a civil proceeding,- the language of the court being as follows: “The power of discharging from an execution is a very important one, and should be exercised with great discretion. . . . I will not say that the judge had no right to discharge from imprisonment in a case of this nature. I am of opinion, however, that granting his right to discharge, his proceedings were void for want of notice to the plaintiff in the execution.”

In New York, as here, notice of proceedings is required to be given the public prosecutor. It is held there, in the absence of such notice, that a judge has no right, where the detention is under criminal process, to discharge the prisoner. [People v. Carter, 48 Hun, 165, 167; People v. Cassels, 5 Hill, 164.] See, also, In the Matter of Leggat, 162 N. Y. l. c. 443, where the detention was in a civil case.

In the instant case the prosecuting attorney was actually cognizant of the proceeding and the formal notice required by the statute was, therefore, unnecessary, and would have served no useful purpose. We would not be understood as holding, however, where actual notice did not exist, that the statute should not be complied with as a condition precedent to the legality of the hearing.

It follows from the reasons stated that the habeas corpus proceeding should be quashed, and it is so ordered.

Woodson, J., concurs; Graves andFaris, JJ., concur in separate opinion by Graves, J.; Lamm, G. J., and Brown and Bond, JJ., dissent.