State v. Cummings

36 Mo. 263

• Court: Supreme Court of Missouri
• Decided: October 15, 1865
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The appellant stands convicted under sections three, six, nine and fourteen of the second article of the Constitution of this State. The ninth section, inter alia, declares that no person shall “ be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages,” unless such person shall have first “ taken, subscribed and filed” the oath specified in section six.

It is contended that that pari^ of the Constitution requiring the persons above enumerated to take, subscribe, and file said oath before they are permitted to pursue their avocations or callings, is in contravention of Article I., sec. 10, of the Constitution of the United States, which prohibits the States from passing “ any bill of attainder, ex post facto law, or laws impairing the obligation of contracts,” and is, therefore, inoperative and void.

Bills of attainder are said to be such acts of the Legislature as inflict capital punishment upon persons supposed to be guilty of high crimes and offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If they inflict a milder punishment than death, they are called bills of pains and penalties. Bills of attainder may include bills of pains and penalties, and they may affect the life of an individual, or confiscate his property, or both.' (2 Sto. on Const. § 1344.) An ex post facto law “is when an action is declared to be a crime, which at the time it was done was innocent, or when it aggravates a crime, and declares it to be greater than it was when committed; or when it increases the punishment, or directs that different or less evidence shall be sufficient to convict the offender.” (Raw. on Const., 115; Shepherd v. The People, 25 N. Y. 406.) Bills of attainder are justly considered odious; they are re- . pugnant and abhorrent to all our ideas of justice, and ought never to be tolerated or countenanced. The history of-England is full of the most startling examples, where the Parliament has claimed and exercised this transcendent power; and the same power was freely resorted to and exercised by the States at the close of the Revolution, and prior to the adoption of the Federal Constitution. The founders of our government saw the dangers to which the citizen would be exposed in times of high partisan excitement, prejudice and passion, and hence wisely provided for his security against oppression and wrong, by checks and guarantees. The subject was deemed of such great and paramount importance, that not only a direct inhibition was placed on the power of Congress to pass such laws, but it was also extended to the States. Not only justice, but the very genius of our institutions requires, that no man shall be convicted of a criminal offence, or deprived of his property, without, the judgment of his peers, or the law of the land. The passing of such laws is not an exercise of legislative function, as they are in the nature of judgments.

When, therefore, it is apparent that laws are clothed with these characteristics, and are in conflict with the supreme law of the land — the Federal Constitution — courts will unhesitatingly declare them invalid and of no effect.

'The question, then is : Is the provision in the State Constitution referred to, justly obnoxious to these objections ? It does not come within the legal meaning and sense of a bill of attainder; for, as we have seen above, that is an act inflicting capital punishment. If, then, it is an infraction of the Constitution of the United States in this respect, it must be in the milder form of pains and penalties. To be a bill of pains and penalties, it is necessary that it should judically declare a person’s estate confiscated, or create a forfeiture of some right, without giving him the opportunity of being heard in the judicial tribunals of the country. It must be a bill, or law, which by its.own force and operation inflicts the wrong complained of.

The clause in the Constitution here in controversy, confiscates no estates, declares no forfeitures, nor does it inflict any pains and penalties. In fact, it passes judicially, on nothing. It imposes certain prescribed acts, as prerequisites to doing certain things, and for failure to comply with these acts, or violating the law as it exists, the party is held amenable. It does not, therefore,' come within the meaning, scope or reasoning of a bill of attainder, nor of pains' and penalties.

But it is said that the law is ex post facto in' its operations. We will briefly examine and see whether it has any of the attributes properly belonging to laws of this description. The term ex post facto has application to civil laws of a criminal nature. (2 Sto. on Const., § 1345; Watson v. Mercer, 8 Pet. 110; Calder v. Bull, 3 Dal. 386; Carpenter v. Commonwealth, 17 How. 456.) It seems clear that the oath prescribed in the Constitution was adopted, not with a view to punishment for any past offence, but for future protection. The preventive provision, embodied in the fourteenth section, is not retroactive, but wholly prospective'. It is not easy to perceive how, or in what manner, it attempts to subject to criminal punishment any person guilty of any of the offénces mentioned in the third section. It is true certain qualifications are affixed as conditions on which certain designated classes shall engage in some kind of professions and callings. It is declared that no person shall be permitted “to teach, preach,” &c., without first having taken an oath; and that any one who shall persist in exercising such profession or calling after a prescribed time, shall incur the penalties therein expressed.

Clearly, he who refuses to take the oath, and still continues to pursue a calling, where the taking thereof is a prerequisite, or sine qua non to render it lawful, violates an existing law. He is not held liable for any acts supposed to have been done or committed antecedently, but for violating an actual subsisting law after its enactment. The distinction between what is legally meant by punishment, and the disability which may incidentally attach, is clear and obvious. It will not be seriously denied, that the State has the right to impose restrictions and conditions on her citizens in the exercise of their callings or professions, as a municipal regulation, provided it is deemed necessary to the public good, and does not deprive them of any natural right; and whether the exigencies of the times demand such enactments, the law-making power is the proper and appropriate judge.

But it is contended that the provisions requiring clergymen to take, subscribe and file an oath, is inconsistent with the fundamental principles of free government, as declared by sections 1, 8, 9,11, 18, and 27, of the bill of rights. So much of the above sections as apply to the case here, are—

“ Section 1. That we hold it to be self-evident that all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

“Sec. 8. That no person can, on account of color, &e., * * * be restricted in the exercise of religious worship, or be hindered in acquiring education; or be subjected in law to any other restraints or disqualifications in regard to any personal rights, than such as are laid upon others under like circumstances.

“ Sec. 9. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. That no person can, on account of his religious opinions, be rendered ineligible to any office of trust or profit under this State, nor be disqualified from testifying, or from serving as a juror; that no human authority can control or interfere with the rights of conscience, and that no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession ; but the liberty of conscience hereby secured shall not be construed as to excuse acts of licentiousness, nor to justify acts inconsistent with the good order, peace, or safety of the State, or with the rights of others.

“ Sec. 11. That in all criminal prosecutions, the accused has the right to be heard by himself and his counsel, &c.

“ Sec. 27. That the free communication of thoughts and opinions is one of the invaluable rights of man; and that every person may freely speak, write, and print, on any subject,. being responsible for the abuse of that liberty.”

An analysis of these sections will not justify the conclusions arrived at by appellant’s counsel. We do not see that any one is forbidden to enjoy the fruits of his labor, but in doing so he must conform to the law ; the State asserts her superior control over all her citizens. The third section is not authority for the doctrine contended for; by its plain import, it was simply intended to place persons of color on an equal footing with all others in regard to their religious rights — nothing more and nothing else. Nor can it be said that, by section nine, freedom of worship is destroyed. The conscience is left perfectly free in the enjoyment of its natural rights of independent, religious action. Whilst there may be a restraint to officiating as a clergyman upon a failure to comply with the law, there is no clog or fetter on the freedom of the mind or conscience. There is no intermeddling with the natural and indefeasible right to worship God according to the dictates of the conscience; none are compelled to erect or support any place of worship, nor to attend any particular church against their consent.

The Legislature of Pennsylvania passed a law prohibiting any person to “ do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sunday, works of necessity or charity only excepted.” There are a large class of Christians who conscientiously observe the seventh day of the week as the rightful Sabbath, and regard the first day as a day of labor, and who contended that the law was an infraction of the Constitution as interfering with the rights of conscience. As the clause in the Pennsylvania Constitution is almost identical with ours, we will transcribe it. The section runs thus: ,

“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent. No human authority can, in any case whatever, control or interfere with the rights of con-^ science; and no preference shall ever be given.-,by law to any religious establishment or modes of worship.”

Yet the Supreme Court of that State, on several occasions, have held the law to be constitutional, and no interference with conscience or infringement of natural and indefeasible right. ■

• In the last case, Specht v. The Commonwealth, (8 Barr, 322,) the court says: “ The Constitution of this State secures freedom of conscience and equality of religious rights. No man living under the protection of our institutions can be coerced to profess any form of religious belief, or to practise any peculiar mode of worship in preference to another.” In this respect, the Christian, the Jew, the Mahommetan,-and the Pagan, are alike entitled to protection; nay, the Infidel, who madly rejects all belief in a Divine Essence, may safely do so in reference to civil punishment, so long as he refrains from the wanton ánd malicious proclamation of his opinions with intent to outrage the moral and religious convictions of a community, the vast majority of whom are Christians ; but beyond this, conscientious doctrines can claim no immunity from the operation of general laws made for the government, and to promote the welfare of the whole people.” In the language of Chief Justice Gibson, “ the right of conscience, as understood under our organic law, is simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever, or to support any religion; and to do, or forbear to do any act for conscience’ sake, the doing or forbearing of which is not prejudicial to the public weal.” (Commonwealth v. Lesher, 17 Serg. & Ra. 160; enforced in Simmons v. Gratz, 2 Penn. 416.) Nor is any preference given to any particular church, all are placed precisely on a like foundation. A loyal man, as well as a disloyal one, may refuse to accept of the prescribed qualifications, and then he falls under the same disabilities. '

But it is not necessary to pursue this subject further ; even if an apparent inconsistency existed, we would not be warranted in declaring this part of the Constitution void. All of the different parts compose one instrument, which constitutes our organic law. The presumption is, that each and every part was intended to be so restrained and construed as to give effect to the whole. This is according to the well known rules of construction. It is a well established principle of law, that courts are not at liberty to declare an act of the Legislature unconstitutional and void, unless its repugnancy is clear and manifest. Respect for a co-ordinate branch of the government, the presumption that they have not transcended their powers or passed beyond the bounds of their, legitimate sphere, invoke every intendment in behalf of their action. Every doubt is to be thrown in favor of the law. This is the rule in favor of ordinary enactments. (Adams v. Howe, 14 Mass. 345 ; Ex parte McCollom, 1 Cow. 564 ; Morris v. The People, 3 Denio, 381.) Now constitutional ordinances are high above mere legislative acts. (Butler v. Pennsylvania, 10 How. 415.)

It has been said by an eminent judge, when speaking of the subject of constitutional construction and of the powers of Conventions, “ It was competent to deal — subject to satisfaction by the people, and to the Constitution of the Federal Government — with all private and social rights, and with all. %e existing laws and institutions of the State. If the Convention had so willed, and the people had concurred, all former grants and charters might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way.” (In the matter of Oliver Lee & Co’s Bank, 21 N. Y. 12, per Denio, J.)

But a direct appeal has been made to us to decide against the particular provisions in the Constitution under consideration, because they are contrary to justice and the fundamental principles of our institutions. With their justice or injustice, policy or impolicy, we have nothing to do. It is not for the judiciary to inquire ^whether laws violate the general principles of liberty or natural justice, or whether they are wise and expedient or not. They can only declare whether they are repugnant to constitutional provisions and limitations. It would be a violation of well established and safe principles for courts to resort to any other test. There is no higher law by which we can be governed. An attempt by judicial construction to obstruct a law, or a failure to enforce it, would be monstrous usurpation. We cannot make or repeal a law; we are not entrusted with any such power. If it is wrong, unjust or oppressive, an appeal must be made to the people in their political capacity at the polls, to apply the remedy. We will not attempt to exercise judicial legislation. We can scarcely conceive of any thing that would be a compensation for introducing into our jurisprudence such a pernicious doctrine.

The most odious and dangerous of all laws would be those depending on the discretion of judges. Lord Camden, one of the greatest and purest of English judges, said, “ that the discretion of a judge is the law of tyrants; it is always unknown ; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature can be liable.” - Courts cannot go beyond their defined powers to avoid the hardship of extreme cases. The Constitution, in this instance, having prescribed all the essential details for its enforcement, a legislative act is not necessary.

The judgment is affirmed.

The other judges concur.-