The petitioner is confined in the workhouse of the city of St. Louis, and in his petition sets forth such grounds as make a prima facie case, and accompanies the petitiоn with a copy of the . original complaint and order of commitment.
It appears from the return made to our writ of habeas corpus by Nicholas Karr, superintendent of the workhouse, that he holds petitioner by virtue of two executions issued and delivered to the marshal of the city of St. Louis on the twenty-ninth day of April, 1896, by the clerk of the first district police court; one of said executiоns being for the sum of $10, with $3 costs, and the other for the sum of $500 with $3 costs, and copies of said executions were subsequently delivered on the same day by the marshal to thе superintendent of the workhouse, which said executions were based on two judgments rendered against petitioner for infractions of certain ordinancеs of the city of St. Louis.
The execution for the smaller sum need not be discussed, since the validity of the ordinance on which it is grounded stands unquestioned. But it is necessary just here, however, to say that under the ordinances of the city of St. Louis, a prisoner committed to the workhouse is allowed to work out his fine and costs at fifty cents per day, and is charged meanwhile thirty cents per day for his board. Rev. Ord. 1887, chap. 47,
The status of petitioner under his imprisonment based on the larger execution is now to be considered. That execution issued on a judgment of the first district рolice court, rendered on a complaint or report made and preferred by L. Harrigan, chief of police, which complaint is founded on the eighth clause of section 1033, article 6, chapter 25, Revised Ordinances, 1887, which is the same as the like clause in section 1062, Revised Ordinances, 1892, article 6, chapter 26, page 889. This eighth clause is apart of what is known as the ordinance respecting vagrants, and it forbids anyone knowingly to associate with persons hаving the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes, or lewd women, or gamblers,.* or any other person, for the purpose or with the intent to agree, conspire, combine, or confederate, first, to commit any offense, or second, to cheat or defraud any person of any money or prоperty, etc., etc.
This ordinance is now attacked on the ground of its unconstitutionality in that it invades the right of personal liberty by assuming to forbid that any person should knowingly associate with those who have the reputation of being thieves, etc. And certainly it stands to reason that if the legislature, either state or municipal, mаy forbid one to associate with certain classes of persons of unsavory or malodorous reputations, by the same token it may dictate who the associates of anyone may he. But if the legislature may dictate who our associates may be, then what becomes of the constitutional protection to personal liberty, which Blackstone says “consists in the power of locomotion, of changing situation, or moving one’s person
And as to that portion of the eighth clause which uses the words, “for the purpose or with the intent to agree, conspire, combine, or confederate, first to commit any offense,” etc., it is quite enough to say that human laws and human agencies have not yet arrived at such a .degree of perfection as to be able without some overt act done, to discern and to determine by what intent or purpose the human heart is actuated. So that did we concede the validity of the former portion of the eighth clause, which we do not, still it would be wholly impracticable for human laws to punish or even to forbid improper intentions or purposes. For with mere guilty intention, unconnected with overt act or outward manifestation, the law has no concern. Howell v. Stewart, 54 Mo. loc. cit. 404.
In St. Louis v. Fitz,
It has been urged that we can not in habeas corpus-proceedings investigate and question the constitutionality of an act upon whose provisions a person .has-been tried and convicted; but we think otherwise In Ex parte Siebold,
In Ex parte Boenninghausen,
In Ex parte Swann,
So that it may now be regarded as the established doctrine of this court that it will interfere by means of the writ of habeas corpus to look into and investigate the constitutionality of a statute or ordinance on which a judgment which results in the imprisonment of a petitioner is founded.
And if it be true, as must be true, that an uncоnstitutional law is no law, then its constitutionality is open to attack at any stage of the proceedings and even after conviction and judgment; and this upon the ground that no crime is shown and therefore the trial court had no jurisdiction; because its criminal jurisdiction extends only to such matters as the law declares to be criminal, and if there is no law making such declarаtion, or, what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense, transcends its jurisdiction and he is consequently entitled to his discharge, just the same as if the nonjurisdiction of such court should, in any other manner, be made apparent.
Under the sentence imposed of afine оf $10 and $3 costs on petitioner he will have to remain in the workhouse for sixty-five days, which will expire on July 3, 1896.
Under the sentence imposed by the • $500 fine and the $3 cost, pеtitioner would have had to remain in the workhouse for two thousand, five hundred and fifteen days, or six years, ten months and twenty-five days, a longer period than he would, havе to remain in the penitentiary for the commission of many felonies.