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to show that they had been willing to support and maintain the plaintiff in comfort and decency, and that it was her own fault and choice that she had not been so maintained. The evidence being closed, the counsel for the defendants requested the court to charge the jury that, unless there was fraud in obtaining the deed of trust,

the plaintiff could not take the money out of their hands by this action, This charge the court refused to give, and thereupon the defendants excepted to their opinion. It was said: "The court ought to have given in charge to the jury that the plaintiff had no right to avoid her deed, unless fraudulently obtained." H. C. J.

EX PARTE WILLIAM SCHATZ.

Missouri Supreme Court (In Banc) - February 17, 1925.

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Constitutional law, $ 429 — requiring discharged convict to leave county -

validity. 1. A statute making failure of a convict discharged from the penitentiary to leave the county within which the penitentiary is located, within a specified time, a misdemeanor, unconstitutionally deprives him of the equal protection of the laws, notwithstanding his conviction deprives him of the right to vote.

[See note on this question beginning on page 1036.] Habeas corpus, 39 – authority of Constitutional law, $ 429 — privileges officer under commitment.

and immunities — favoring speci2. The right of an officer to restrain fied county. a citizen of his liberty must appear

5. A statute making failure of a upon the face of the warrant of com-'

convict discharged from a penitentiamitment.

ry to travel beyond the confines of Courts, § 82 statute validity

two counties specified, within a speciwhat parts considered. 3. In determining the constitution

fied time, is unconstitutional, as conality or validity of a statute the court

ferring special privileges and immunimay consider all portions of it, in

ties upon the counties names. cluding a proviso, if it will lend aid in its construction.

Habeas corpus, § 38 – to discharge [See 25 R. C. L. 986.]

one in custody under void law. Words and phrases — "discharged.”

6. One held in custody under a void 4. The word “discharged,” in a stat

law should always be discharged by ute requiring one discharged from a

writ of habeas corpus. penitentiary to leave the county, [See 12 R. C. L. 1199; 2 R. C. L. means restored to freedom.

Supp. 1571.] (Ragland, J., dissents.)

.

APPLICATION for a writ of habeas corpus to secure petitioner's release from custody to which he had been committed for alleged violation of a statute requiring all convicts, on discharge from the penitentiary, to leave the county. Petitioner discharged.

The facts are stated in the opinion of the court.
Mr. H. P. Lauf, for petitioner:

12 C. J. 442; 1 Bl. Com. 134; PinkerSection 12,523, Rev. Stat. Mo. 1919, ton v. Verberg, 78 Mich. 573, 7 L.R.A. under which petitioner was impris- 507, 18 Am. St. Rep. 473, 44 N. W. 579; oned, is unconstitutional.

St. Louis v. Fitz, 53 Mo. 582; Ex parte (- Mo. -, 269 S. W. 583.) Smith, 135 Mo. 223, 33 L.R.A. 606, 58 “Comes now L. C. Withaup, sherAm. St. Rep. 576, 36 S. W. 628; St. iff of Cole county, Mo., and, for reLouis v. Roche, 128 Mo. 541, 31 S. W. turn to the writ of habeas corpus 915; St. Louis v. Gloner, 210 Mo. 502, issued out of the honorable supreme 15 L.R.A.(N.S.) 973, 124 Am. St. Rep.

court of Missouri and directed to 750, 109 S. W. 30; Lancaster v. Reed, Mo. App. —, 207 S. W. 868; State v.

him in the case of Ex parte William Missouri P. R. Co. 242 Mo. 339, 147 S.

Schatz, states that he has the said W. 118; State v. Julow, 129 Mo. 163,

William Schatz in his custody, and 29 L.R.A. 257, 50 Am. St. Rep. 443, 31

that the said William Schatz is deS. W. 781; State ex rel. Wyatt v. Ash- tained by him in the Cole county brook, 154 Mo. 375, 48 L.R.A. 265, 77 jail as such sheriff, by virtue and Am. St. Rep. 765, 55 S. W. 627; Mc- under authority of a capias issued Lean v. Arkansas, 211 U. S. 539, 53 L.

out of the office of the clerk of the ed. 315, 29 Sup. Ct. Rep. 206; Young

circuit court of Cole county, Mo., on v. Com. 101 Va. 853, 45 S. E. 327; State

the 27th day of January, 1925, comv. Goodwill, 33 W. Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S. E. 285;

manding him to take the body of Re Jacobs, 98 N. Y. 98, 50 Am. Rep. William Schatz, and him safely 636; Ex parte Jilz, 64 Mo. 205, 27 Am. keep, so that said sheriff have his Rep. 218, 2 Am. Crim. Rep. 217; Black, body before the circuit court of Cole Const. Law, pp. 437, 535.

county on the first Monday in March Mr. Samuel Haley for the sheriff.

next, then and there to answer unto Graves, Ch. J., delivered the opin- the state of Missouri on an informaion of the court:

tion for his not having left Cole There may be some extraneous county, Mo., after his discharge matter charged in the complaint of

from the Missouri state penitentithe petitioner, in that he pleads mat- ary, whereof he, the said William ter which might be considered as an Schatz, stands charged, a copy of excuse for being in Cole county, which capias is hereto annexed : Missouri, at the time that he was ar

“And the said L. C. Withaup, rested and thrown into jail. The sheriff as aforesaid, in obedience to complaint charges he was charged said writ of habeas corpus, now prowith a violation of § 12,523, Rev. duces the body of the said William Stat. 1919, which section reads: Schatz before the court, to be dealt “All convicts, upon being discharged with according to law.” from the penitentiary, shall imme- The capias is in ordinary form diately leave the city of Jefferson, and need not be further noted. It and within twenty-four hours shall must be considered that the return, travel beyond the confines of Cole or as well as a certified copy of the Callaway counties, unless such con- information filed with the petition, vict was sentenced to the penitenti- simply charges that petitioner failed ary from one or the other of the to leave Cole county. The informaabove-mentioned localities. Any vi- tion, duly certified and in evidence, olation of this provision shall be upon this point, says: "Comes now deemed a misdemeanor, and upon Sam S. Haley, prosecuting attorney conviction shall be punished by im- within and for the county of Cole prisonment in the county jail for a and state of Missouri, upon his oath term not to exceed one year: Pro- of office, and upon his information, vided, however, if any convict dis- knowledge, and belief, and informs charged by reason of his good be- the court that one William Schatz, havior shall violate any of the pro- was on the day of September, visions of this section, he shall, upon 1924, discharged from the Missouri conviction before the judge of the state penitentiary, situate at Jeffercircuit court of Cole county, be re- son City, Cole county, Missouri, and manded to the penitentiary to serve that he did not immediately, upon out the remainder of his sentence.being discharged from said peniLaws 1917, p. 155.

tentiary, and within twenty-four The return is short, and reads: hours, travel beyond the confines of

authority of

Cole county, and that the said Wil- guilty now, and never has been guilliam Schatz was on the day of ty as charged in said information, January, 1925, and for several days and that he is therefore being held prior thereto, in the city of Jefferson unlawfully and without just cause City, Cole county, Missouri, against or excuse in the Cole Wunty jail, the peace and dignity of the state." Jefferson City, Missouri." • The information followed the lan- These facts may not be very maguage of the statute, which requires terial in this action. We could imthe released convict to leave Cole agine more materiality if such peticounty within twenty-four hours tioner was on trial upon this inforafter his discharge, and his failure mation. The only possible materialso to do is made a misdemeanor. ity of such last-mentioned facts The information, which is the guide- would be upon the theory that, if post for the consideration of this we found the statute valid, yet it case, says nothing about Callaway did not require petitioner to remain county, so that portion of the statute away from Cole county. This, howis only involved by reason of the di- ever, would only be a defense to the vers constitutional questions raised action, and hardly available upon as to validity of this law.

habeas corpus. The serious ques. The petition avers that petitioner tion is the validity of the law. did leave Cole county within twenty- I. A process of elimination will four hours after his discharge from shorten this opinion. The officer's the penitentiary. His plea in this right to restrain the citizen must regard, sustained by his evidence, is appear upon

the as follows:

face of the warrant

Habeas corpos, Petitioner states that he was dis- of commitment-in officer under

commitment. charged from the Missouri peniten- this case the capias tiary, Jefferson City, Cole county, issued upon the information. Re Missouri, on or about the — day of Hagan, 295 Mo. 435, 245 S. W. 336. September, 1924; that he did im- The pleadings and writ in this case mediately, and within twenty-four preclude us from considering the hours after his discharge, leave and last four lines of said § 12,523, Rev. travel beyond the confines of Jeffer- Stat. 1919; in other words, the proson City and Cole county, Missouri, viso of the section.

viso of the section. Petitioner is and that he has been away from Jef- not held by virtue of this proviso to ferson City and Cole county from this section. The information and that date to on or about the 16th the writ charge him with a misdeday of January, 1925, when he re- meanor, created by virtue of the turned to said county; that during previous portion of the section, and said interval of time he has been em- no claim is made that he can be dealt ployed in St. Charles, Missouri, and with further than is permitted by that he intended to return to his em- the misdemeanor portion of the statployment on January 26, 1925, to ute. To guard against any misapresume his former work, but that he prehension, we will add, however, was arrested in Jefferson City, Mis- that, in determining

the constitutional- validity

Courts-statute souri, on January 24, 1925, and held in the Cole county jail to this date; ity or validity of the what parts con

sidered. that a writ of capias (a certified law, we can considcopy of which is hereto attached and er all portions of it, including the made a part of this petition) was proviso, should it lend aid in the conserved upon him in the Cole county struction. jail on the — of January, 1925. II. The information, all vital

"Petitioner states that he has not parts being fully quoted supra, violated $ 12,523 as herein set out, shows that petitioner was disas shown by the true facts herein charged from the Missouri state alleged, and said petitioner, William penitentiary in September, 1924. Schatz, further states that he is not The statute places no restrictions or

a

(- Mo. -, 269 S. W. 383.) limitations upon the word “dis- had the right of any other citizen as charged,” as used therein. Without to selecting his place of abode. Unsuch, it (the word "discharged”), til recently the women could not in a case like this, has the meaning vote; yet they were citizens, and Words and

could choose their own place of being restored to phrases,"dis- freedom.

It may

abode. So, with the discharged concharged."

not mean that he vict; he has paid his debt to the has been given the right of suffrage, state, and is yet a citizen in the mator the right to hold office, if such ter of selecting his home. The Conhave been taken from him by the stitution does not limit his general conviction, but it does mean that in rights as a citizen. He can own all other respects he is a citizen, and property, go from place to place, do fully protected in his rights under business, and all things that the votthe organic law. If before his con- ing citizen can do, unless the Conviction he had the constitutional stitution says contra, or the general right to choose his place of abode, assembly, by a constitutional act, which he undoubtedly possessed, has restricted his rights. He is enthen his discharge by the state titled to the equal protection of the would leave to him that right, or, law, and this by constitutional manotherwise, he would not have the date, both state and Federal. Other privilege in this respect accorded to citizens of the state can live, own other citizens. Whether this man property, and do business in both has been restored to the right to vote Cole and Callaway counties. Is and hold office, and therefore repos- there equal protection of the rights sessed of all the privileges of a citi- of these citizens, as compared with zen, is not the real question. His other citizens, to preclude their redischarge so far reinstated him in siding in these particular two counthe position of citizen that he could ties? One of the things contemplatgo from place to place within the ed by punishment for crime is the state, and within Cole and Callaway reformation of the citizen. Why counties, and within the United

cannot they carry out the reformaStates. For his wrong he had paid tion in Cole and Callaway counties, his penalty to the satisfaction of the as well as in other counties of the state, and by the state has been state? If the discharged citizen be“discharged," i. e., restored to the

comes unsavory, he can be as well right of selecting his own home any- tried and punished in these two where within the confines of the counties as elsewhere. If he does state, or within any county therein. not choose to work, we have a vaSection 8 of article 8 of the Missouri

grancy law of general application. Constitution prohibits certain per- But, back of all this, a discharged sons from voting, and among others convict is a citizen, and entitled to those then confined in a public pris- all constitutional rights not taken on. Section 10 of the same article from him. authorizes the general assembly to The unregistered voters in many enact laws excluding persons con- cities of the state cannot vote, but victed of a felony or other infamous they are nevertheless citizens, and crime, etc., from the exercise of clothed with all other rights of a suffrage. But this does not author- citizen. This law is

Constitutional ize a law prohibiting a citizen from

wrong in

funda- law-requiring selecting his place of abode. For- mental

principles, viet to leave merly soldiers and marines were dis- and we think clear- county-validqualified from voting, but this did ly unconstitutional, not affect their other rights as citi- as we shall further undertake to zens.

Section 11 of article 8, re- demonstrate. placed by a new section in 1921, III. If it be urged that the law Laws of 1921, p. 710. The soldier is a police regulation, it cannot musor marine, while deprived of a vote, ter strength, because there must

con

ity.

be proper classifications in police discharged convict can, after twenlaws. Here we have a statute that ty-four hours, again set his foot upsingles out but two counties, out of on the soil of either county without a number of counties surrounding committing a crime, and this, too,

a a great penal institution, and under- after he has paid his debt to the takes to protect them. The law does state and been given his liberty, and not even cover those counties which this, too, when such persons can live join or bound Cole county, the situs in all the other adjoining counties to of the penal institutfon. If the idea the county of Cole. The law makes was to protect close communities a classification (discriminatory in from an influx of discharged crim- character) which cannot be upheld, inals, why not protect Osage, Miller, and which renders the law void. Moniteau, and Boone, as well as Cole One held in custody and Callaway? There is and can be under a void law

to discharge one no constitutional reason for limiting should always be in custody un

this law to Cole and discharged by writ -privileges and immunities Callaway counties. of habeas corpus. The petitioner is favoring speci.

It is a special law accordingly discharged from the fied county. for their benefit, if custody of the sheriff

of Cole county. there be benefit either one way

Much could have been added to this or the other. If this law is to opinion, but this suffices. be given any reasonable meaning, All concur except Walker, J., abit must be said to mean that no sent, and Ragland, J., who dissents.

Habeas corpo

law.

ANNOTATION. Constitutionality of statute prescribing course of conduct for discharged

convict.

In the reported case (EX PARTE victs as a class. The investigation did SCHATZ, ante, 1032) the court holds not include cases dealing with the conthat a statute requiring a discharged stitutionality of a statute that deconvict to leave the county in which prived one convicted of a crime of his the penitentiary is situated, within

civil rights, since such a statute retwenty-four hours after his discharge,

lates back to the conviction, and not is unconstitutional, as denying the

to the fact of discharge, and thus apequal protection of the law, and as

pears to be without the scope of the being a special law for the benefit of

annotation. the county named therein.

Likewise, no discussion A careful search has failed to re

has been attempted of cases dealing veal any other case discussing the con

with the constitutionality of a statute stitutionality of a statute which places imposing heavier penalties on one a personal duty on discharged con- previously convicted of crime. victs, or deals with discharged con

W. Q. F.

AUSTIN G. BROWN

v. FREDERICK A. ALTER.

Massachusetts Supreme Judicial Court - February 27, 1925.
(- Mass.

146 N. E. 691.) Automobiles, § 44 — necessity of due care to recover against automobile

nuisance. 1. One cannot recover for injuries occasioned by a nuisance consisting

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