Bohnenkamp, Louis M.

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Washington University Law Review Volume 10 Issue 2 January 1925 Unconstitutional Legislation in Missouri: Its Trend As Indicated by Personal Liberty Statutes and Police Regulations Louis M. Bohnenkamp Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Constitutional Law Commons Recommended Citation Louis M. Bohnenkamp, Unconstitutional Legislation in Missouri: Its Trend As Indicated by Personal Liberty Statutes and Police Regulations, 10 ST. LOUIS L. REV. 135 (1925). Available at: https://openscholarship.wustl.edu/law_lawreview/vol10/iss2/7 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. UNCONSTITUTIONAL LEGISLATION IN MISSOURIUNCONSTITUTIONAL LEGISLATION IN MISSOURI:ITS TREND AS INDICATED BY PERSONAL LIBERTYSTATUTES AND POLICE REGULATIONS.Decisions in cases involving the interpretation of statutesconcerning personal liberty and police regulations are soclosely interwoven that it is impossible to consider this classof cases without treating the two together,-police power andpersonal liberty. The class of cases falling under the pro-visions of the Constitution concerning personal liberty may besubdivided into the following classification: 1. police controlof the criminal classes; 2. police regulation of the press andthe freedom of speech; 3. police regulation of trades and pro-fessions. The courts have without one exception never con-strued this part of the Constitution in a loose manner. Theyhave accepted personal liberty as being only the power of do-ing what we care to do, and in not being constrained to dowhat we object to doing. No man has a right to make useof his liberty so as to commit an injury to the rights of others.His liberty is controlled by the oft quoted maxim, sic uteretuo, ut alienum non laedas.As to the first proposition, it is evident that the MissouriCourt has been more than lenient in permitting legislation con-trolling the criminal element. The police power of the Statehas been held to be a greater force than has been the objectionagainst such legislation because of its being class legislationor special and oppressive regulation. Despite the leniency ofthe courts towards legislation of this nature, it is quite evidentthat such an ordinance as one making it an offense "tok-nowingly associate with persons having the reputation ofbeing thieves, burglars, etc., for the purpose or with the intentWashington University Open ScholarshipST. LOUIS LAW REVIEWto agree, to conspire, etc., to commit any offense, or to cheator defraud any person of any money or property, etc.," isunconstitutional because the law takes no notice of and has noconcern with mere guilty intention unconnected with any overtact or outward manifestation. The courts will go reasonablyfar in permitting legislation of a preventive character, bntwhen it comes to trying a man for thinking, the Supreme Courtof Missouri held up its heavy hand and called a halt. Theyhave attempted to say, "Thus far shalt thou go and no far-therl"In 1908, thirteen years later, in the case of Saint Louis vs.Gloner, the court again laid its arresting hand upon the over-zealous legislator and gently slapped him in the face with thissort of a decision. As long as a man doing what is termed"striker's picket duty" did not interfere with the rights ofany other person or in any wise engage in disorderly conductor disturb the peace, he could not be prosecuted under anordinance against lounging around street corners. An ordi-nance so providing was held invalid in the above case.Under subdivision 2 falls Ex Parte Harrison,2 . decidedjust two months later than the Gloner case (supra). Thestatute which was declared void here, made criminal the re-port by a civic league of the qualifications of candidates forpublic office, without stating in full the facts upon which suchreport was made. Aside from the fact that there was onlyone decision possible in this case, it is of extreme interest thatthis conclusion was reached by a Democratic Bench, duringthe administration of a Democratic Governor elected by a1. 210 Mo. 502.2. 212 Mo. 88 (May 1908).https://openscholarship.wustl.edu/law_lawreview/vol10/iss2/7UNCONSTITUTIONAL LEGISLATION IN MISSOUBIRepublican majority with a decidedly Republican Legislature.The basis of the opinion was that the law impaired the freedomof speech and was therefore void.The statute under fire expressly stated also, that whetherscandalous, obscene or not, the facts upon which such reportwas made must be stated in full. This does not quite harmo-nize with the accepted judicial dictum, "The constitutionalliberty of speech and of the press, as we understand it, im-plies a right to freely utter and publish whatever the citizenmay please, and to be protected against any responsibility forso doing, except so far as such publications, from their blas-phemy, obscenity, or scandalous character, may be a publicoffence or against the public conscience." It may be inferredthen that the Missouri court would, should the occasion arise,declare unconstitutional any law which was in conflict withthe following dictum: "So also, is it not to be inferred froma prohibition of the censorship of the press that the press can,without liability for its wrongful use, make use of the constitu-tional privilege for the purpose of inciting the people to thecommission of crime against the public. The newspapers ofanarchists and nihilists cannot be subjected to a censorship, orbe absolutely suppressed; but if the proprietors should in theircolumns publish inflammatory appeals to the passions of dis-contents, and urge them to the commission of crimes againatthe public or against the individual, they may very properlybe punished, and without doubt, the right to the continuedpublication may be forfeited as a punishment for the crime."As to the third subdivision, the general impression one re-ceives from glancing over the digest is that everyone has aright to pursue in a lawful manner any lawful calling whichWashington University Open ScholarshipST. LOUIS LAW REVIEWhe may select. The court has given us to understand that aperson cannot be prohibited from engaging in any lawfulbusiness, provided he does so in a lawful manner. The courtwill also uphold legislation which subjects all occupations toa reasonable regulation, where such regulation is required forthe protection of -public interests, or for the public welfare.These regulations are subject to the restraints against classlegislation and arbitrary classifications. So in the case ofState vs. Webber,3 the statute requiring a peddler to have alicense was not a revenue measure, but a police regulation ofcertain persons following a certain business, and not a tax uponproperty. If the law is uniform as to all vendors of a par-ticular article, the classification is not arbitrary, nor the lawspecial. It seems reasonable to suppose that any regulationprohibiting women from engaging in the keeping of bar-rooms,billiard-saloons, etc., would be upheld for the reason that theywould prove highly injurious to the public morals, while thereis no such peculiar objection to the keeping of such places bymen.The decisions relating to personal liberty are very closelymixed with those concerning police regulaLions of a moregeneral nature. To draw a broad conclusion, it may be saidthat the trend of the courts has been to let down the barriersplaced by the constitution by designating certain statutes andordinances, police regulations, within the police power of thestate. As early as 1873, the court decided that a law provid-ing for the disposal of dead animals, in spite of the fact thatit restrains a person from disposing of his property, is validas being a police regulation passed in good faith, for the pur-3. 214 Mo. 272.138https://openscholarship.wustl.edu/law_lawreview/vol10/iss2/7UNCONSTITUTIONAL LEGISLATION IN MISSOURIpuse of preserving the public health and abating nuisances.The conservation of private rights is attained by the im-position of a wholesome restraint upon their exercise, sucha restraint as will prevent the infliction of injury upon othersin the enjoyment of them; it involves a provision of means forenforcing the legal maxim, which enunciates the fundamentalrule of both the human and natural law, sic utere tuo, ut aie-num non laedas. It must of course, be within the range oflegislative action to define the mode and manner in which everyone may use his own as not to injure others. Any law whichgoes beyond that principle, which undertakes to abolish rights,the exercise of which does not involve an infringement of therights of others, or to limit the exercise of rights beyond whatis necessary to provide for the public welfare and the generalsecurity, cannot be included in the police power of the govern-ment.In spite of the immense amount of power, the inclinationof the courts to construe certain legislation as being policeregulations, gives to the legislature in transgressing the con-stitutional guaranties, the Texas Cattle Cases show a clear de-termination not to go too far.4 These decisions, followingR. R. vs. Husen,5 decided that that type of legislation wouldnot do. The statute prohibited the introduction of Texascattle into the state between certain periods. The court heldthat while the intention -of the Legislature was a worthy one,it was so ultra-patriotic to the State of Missouri, so over-zealous, that it had overlooked the Federal provisions that4. Gilmore v. Hannibal and St. Joseph It t. Co., 67 Mo. 323. (1878).Grimes v. Eddy, 126 Mo. 168 (1894). Selvege v. St. Louis & San FranciscoR. It. Co., 135 Mo. 163 (1896).5. 96 U. S. 465,Washington University Open ScholarshipST. LOUIS LAW REVIEWonly Congress has the power to regulate commerce betweenthe several states. As a police regulation, the Railroad Com-pany can be restrained from bringing cattle into the state,but not in bringing them through the state. The courts how-ever, have shown a disposition to compensate for the ill effectsof bringing these innoculated cattle through the state, by de-cisions to the effect that if negligence is shown on the part ofthe Railroad 'Company in transporting them through, the Com-pany will be held in damages.In State vs. Borden,6 the court in effect said that while wehave been extremely lenient in construing laws to be valid be-cause of the police power, we are not going to stand for anylegislators pulling night-shades over our eyes with any suchstatute as this. In no uncertain words the court held that thelegislature cannot arbitrarily declare any article of food ingeneral use, and concededly wholesome, to be unhealthy, andits production and sale a crime. This case of State vs. Lay-ton,7 involved pureness of a baking powder produced by thedefendant, Layton. Still, however, considering this decision,it can still be said that the courts view with leniency regula-tions in good faith for the general welfare of the public. Asall the courts are not invulnerable, and the Missouri court isno exception, this inclination, which has become establishedis like good horses ridden to death by prejudiced Justices, andmany decisions show the indelible stamp of a narrow, preju-diced or biased purpose.In 1908, a Democratic Court saw fit to discipline a Republi-can Legislature by deciding that the police power must be6. 164. Mo. 221.7. 160 Mo. 474.140https://openscholarship.wustl.edu/law_lawreview/vol10/iss2/7IUrNCONSTITUTIONAL LEGISLATION IN MISSOURIjealously guarded and that a delegation of it to a commissionwhich was to have almost unlimited discretion, was an abusethat would not be tolerated. The Legislature provided for aState Grain Weighing and Inspection Commissioner who wisto have discretion to decide at what places State Grain In-spection was to be established. They thus had it in theirpower to say at what times and in what territory the statuteshall apply, or whether or not it shall be in force at any time.This was held to be simple despotism.8In 1916, the court in Kansas City vs. Pingilley,9 held thatthe ordinance declaring that any person who hires an auto-mobile, and refuses to pay the reasonable pri. • shall be deemedguilty of a misdemeanor, and on conviction shall be fined, etc.,is in the absence of all fraud on the part of the hirer, invalidas an indirect effort to evade the constitutional provision pro-hibiting imprisonment for debt. The police power cannot beused as a cloak to overthrow the constitutional inhibition ofimprisonment for debt.Excepting these few cases in which statutes were refusedthe judicial sanction as police regulations, the trend of Su-preme Court decisions is decidedly one of laxity with regardto this convenient subdivision of the law. The exceeding com-plexity of the mechanical world has made necessary a certainamount of elasticity in the unbending provisions of the consti-tution, and the courts have with very good grace provided theloop-hole by permitting statutes as police regulations. As amodern example, it has been found better to regulate the pro-duction of milk in the cities, than to hang to the seemingly un-q. Mprebants Exchange v. Knott, 21 Mo. 616.9. 269 Mo. 59.Washington University Open ScholarshipST. LOUIS LAW REVIEWbending right of the individual to pursue whatever employ-ment he pleases in whatever manner he pleases.The recognized tests of constitutionality are from the verynature of the case less definite in this field and so leave moreto judicial bias than in other fields of constitutional interro-gation. There are a number of hazy expressions such as,-"for the welfare of the people"; "for the better health ofthe public, their morals, etc.", and a host of similar phrases.It can easily be seen that there is a sufficient amount left tothe discretion of the judge in determining whether a particu-lar statute or ordinance is a valid exercise of the police powerof the State. The rapidly increasing amount of litigation inthis field, of course, will encompass and tie down the courtsin the construction of statutes of this type more and more, un-til finally there will be very little room for judicial bias anddecisions bearing the stamp of arrogant, narrow, and unjustjudges.Loins M. BoHNBmNrn,, '25.https://openscholarship.wustl.edu/law_lawreview/vol10/iss2/7

Unconstitutional Legislation in Missouri: Its Trend As Indicated by Personal Liberty Statutes and Police Regulations

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Unconstitutional Legislation in Missouri: Its Trend As Indicated by Personal Liberty Statutes and Police Regulations

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