Ex Parte Lerner
218 S.W. 331
Mo.
1920
Check Treatment
WALKER, C. J.

The writ of habeas .corpus issued herein was directed to the Marshal of the City of St. *21 Louis, commanding- him to have the body of the petitioner before.this court to be dealt with as might be determined. The production of the body of the petitioner being waived, the return of the respondent, the Marshal, discloses that he holds the petitioner to answer a charge of having violated an ordinance of the City of Saint Louis which is alleged by the petitioner to be invalid. The body of said ordinance, with which we are alone concerned, is as follows:

“Any person who shall accost another person on a street or sidewalk in front of any store, house or place of business in the City of St. Louis, and solicit such other person to purchase any goods, wares or merchandise of a like nature as those kept for sale within said store, house or place of business at another store, house, or place of business, or shall solicit such other person to enter such other store, house, or place of business, for the purpose of examining or purchasing similar goods, wares, or merchandise, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more £han one hundred dollars. Provided, however, that nothing herein shall be construed as prohibiting licensed peddlers acting within the scope of their license, nor members of bona-fide organizations doing lawful picket duty, nor as prohibiting anyone, whether as principal or agent, from soliciting trade upon the street or sidewalk in front of his own place of business.” [Ordinance 30332, approved April 11, 1919.]

_ ,, When Available. I. It was formerly ruled by this court that one held under process issued by a court having jurisdiction of the person and the offense, and where the person was in the custody of the proper officer, habeas corpus would not lie to test the constitutionality! of the , , , , .. , , -, . . law under which the restraint was claimed to be authorized. This limitation upon the court’s action first found expression in the early case In re Harris, 47 Mo. 164, which was affirmed in Ex parte Boenninghausen, 91 Mo. 301. The latter ruling, how *22 ever, overlooked an earlier case in the same volume, of Ex parte Marmaduke, 91 Mo. 228, which held that the court was not! so limited in habeas corpus proceedings, and which overruled without reference thereto the Harris case. In Ex parte Smith, 135 Mo. 223, the rule as declared in the Marmaduke case was expressly approved and has since been uniformly followed. [In re Flukes, 157 Mo. l. c. 127; Ex parte Neet, 157 Mo. l. c. 533 and cases cited; Ex parte Lucas, 160 Mo. 218.] A cogent reason for this later ruling rests in the fact that an unconstitutional law is no law and its validity is therefore open to attack as determinative of the question of jurisdiction at any stage of a proceeding, even in a criminal case after conviction and judgment, the controlling requisite in the application of the- rule being that the record disclose that the petitioner is illegally restrained of Ms liberty regardless of the stage of the proceedings or nature of the charge, although it may be but a misdemeanor punishable only by a fine. See the Smith, Neet and Lucas cases, supra, and others in which the restraint was upon charges for misdemeanors punishable as stated. The rule therefore may be regarded as settled in this jurisdiction that if a person is deprived of his liberty for any act not in contravention of an existing law, or if the act under wliich he is held is unconstitutional, habeas corpus is the proper remedy to restore to him his freedom. (Ex parte Neet, supra, and cases cited.)

of°city. II. The propriety of the proceeding having been established, the sole question seeking solution is the validity of the ordinance. The city charter, which constitutes the ’ immediate source of municipal legislative power, is in this regard comprehensive in its terms. It is not deemed necessary to set these out in detail, reference thereto being sufficient. [See Clauses 14, 23, 25, 26 of Article 1, Section 1, Charter, City of St.' Louis.] To these more specific powers which include the right to establish, locate, dedicate and *23 supervise the highways of said city is added the following general provision:

“To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants.” [Sec. 33, ait. 1, sec. 1.]

' These provisions, which have their origin in the police power of the State (State ex inf. Barker v. Merchants Exchange, 269 Mo. 346), are ample to authorize the city by legislative enactment not only to establish and improve its streets but to pre’scribe the terms and conditions upon which they may be used (State ex rel. Subway Co. v. St. Louis, 145 Mo. l. c. 570; St. Louis v. W. U. Tel. Co., 149 U. S. 467), subject only to the Constitution and the laws of the State (Sec. 23, Art. 9, Mo. Constitution).

III. The general power to enact an ordinance of the character here under review having been determined, its validity is to be tested by the rules of interpretation applicable to state legislative enactments. [St. Louis v. Const. Co., 244 Mo. l. c. 488; Carroll v. Campbell, 110 Mo. 557; Holman v. City of Macon, 155 Mo. App. l. c. 402.]

Proceeding. *24 special Classes, *23 A prosecution for a violation of the ordinance in question, while technically a civil proceeding (Kansas City v. Neal, 122 Mo. 234; City of St. Louis v. Vert, 84 Mo. 204; City of St. Louis v. Schoenbusch, 95 Mo. 618; Parte Hollwedell, 74 Mo. 395; City of St. Louis v. Knox, 74 Mo. 79; Kansas City v. Clark, 68 Mo. 588), will, upon a conviction, authorize the imposition of a penalty and in thus far it partakes of the nature of a criminal action and the ordinance on which it is based is subject to the same rules of construction as a criminal statute, for it is not to be presumed that the State has delegated to a municipal assembly a greater right or conferred upon its acts a more liberal rule of interpretation than is applied to its own *24 legislative enactments. [Hays v. Poplar Bluff, 263 Mo. 516; Chicago etc. v. Salem, 156 Ind. 71; Zorger v. Greensburgh, 60 Ind. 1; Gates & Co. v. Richmond, 103 Va. 702.] Hence penal ordinances, like penal statutes, are to he strictly construed. [City of St. Louis v. Robinson, 135 Mo. l. c. 470; St. Louis v. Goebel, 32 Mo. 295; United States v. Hartwell, 6 Wall. 396.] This rule is to bie applied when the purpose of construction is to relieve' one charged with a violation of such an ordinance, a liberal construction being permissible otherwise to maintain its validity. [Swift v. Topeka, 43 Kan. 671, 8 L. R. A. 772.] Without reference in detail to the requisites of a valid criminal statute, it will suffice to- say that an ordinance, to conform to same, must be general in its terms and uniform in its application to the class of persons or subjects to be affected. If the ordinance, therefore, seeks to regulate citizens in the otherwise lawful use of their property or the conduct of their business, the rules and conditions therein required to he observed must be so specified that all of the citizens may alike be required to comply with same; and no opportunity must be afforded by the terms of the_ ordinance for the exercise of discrimination between citizens so complying. [St. Louis v. Const. Co., 244 Mo. l. c. 489.] An analysis of the ordinance will enable it to be determined whether it possesses the infirmity indicated. Instead of prohibiting the general personal solicitation of persons for business purposes upon the streets and. sidewalks of the city, its application is limited to the prohibition of such solicitations to persons in like lines of trade in front of the store or place of business of a competitor. Such a classification is neither general in its terms as to the persons to whom it is intended to apply or to the streets the use of which is attempted to be regulated.

Certainly if it be an ill requiring legislative supervision to regrdate the solicitation of business upon the streets and highways within the limits prescribed in the ordinance, then it must follow that it is equally an ill *25 to solicit business elsewhere upon any of the thoroughfares of commercial activity in the city. The ordinance, therefore, cannot be otherwise construed than as special in its terms and local in its application, contravening the constitutional provision that “where a general law can be made applicable, no local or special law shall be enacted ” (Sec. 32, art. 4, Oo.n. Mo.), which salutary rule regulating legislation we have shown applies with equal force to an ordinance as well as a state law (St. Louis v. Const. Co., 244 Mo. l. c. 488).

Eegluation IY. The authority primarily for the enactment of ordinances of the character here under review must arise from the exercise of the police power. This power, as we have before indicated, exists in the State and is held to be delegated to municipal corporations to be exercised in the preservation of the health, safety, wel^are an(^ comfort of the citizens. While this classification may be extended by the .more general one that whatever is contrary to public policy or is inimical to the public interest is subject to the police power (State v. Smith, 233 Mo. 242, 33 L. R. A. (N. S.) 179; Silva v. Newport, 150 Ky. 781, 34 Ann. Cas. 1914D, 613); and whether the ordinance is calculated to promote the .object of its enactment or not, is one with which wo have no concern if the municipal legislative will has been clearly expressed (State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Crowley v. Christensen, 137 U. S. 86, 34 Law Ed. 620; Ex parte Hayes, 98 Cal. 555, 20 L. R. A. 701; Comm. v. Reinecke Coal Co., 117 Ky. 885), conformity to constitutional and statutory requirements is as necessary to the validity of ordinances of this character as others. More briefly put, a municipality cannot authorize that which either the organic law or the Legislature has forbidden. Under our system of jurisprudence, therefore, an ordinance enacted in the alleged or ostensible exercise of any of the well-defined purposes of the police power must be general in its nature and applicable alike to all who may properly come within its purview. *26 If, as is probable from its terms, the purpose of the enactment of the ordinance was upon the assumption that its enforcement would promote the welfare and add to the comfort of the public by affording more facilities for the use of the streets, then to avoid the constitutional inhibition it should have been general in its terms and uniform in its application; lacking these requisites its invalidity inheres despite the purpose of-its enactment and will not stand the test of judicial construction. [Merchants Exchange v. Knott, 212 Mo. 616; Hewlett v. Camp, 115 Ala. 499; Flood v. State, 19 Tex. App. 584; Bohmy v. State, 21 Tex. App. 597.].

The invalidity of the ordinance having been determined and the right to enact one not burdened with the infirmities of that at bar being conceded, it becomes unnecessary to discuss whether personal liberty would be impaired by -the enactment of a general ordinance; my individual opinion is that it would not.

In view of all of the foregoing the petitioner should be discharged and it is so ordered.

All concur; Blair, Williams and Goode, JJ., in result; Woodson, J., absent.