Ex parte Harrison | Cases | Westlaw

This is a proceeding under the habeas corpus act, in which petitioner seeks to be discharged from further prosecution under an information filed by the prosecuting attorney of Jackson county, in the criminal court of said county on the 9th of March, 1908, charging the petitioner with a violation of an act passed by the Legislature of this state and approved April 12, 1907, entitled “An act to regulate civic leagues and like associations and providing how their reports and recommendations shall be published and what they shall contain, and fixing a penalty for the violation of, and liability for the same.” Laws Mo. 1907, p. 261. A warrant was duly issued upon the information, and the petitioner was arrested. The said information charges:

That the Kansas City Civic League is and was at all times therein mentioned a league, society, and association incorporated under chapter 12, art. 11, Rev. St. 1899 (Ann. St. 1906, pp. 1103–1119), and was formed for the purpose of investigating the character, fitness, and qualifications of candidates and nominees for public office. That it was at all times mentioned, and for a long time prior thereto, the custom and purpose of said Kansas City League to make reports and recommendations on such candidates. That on the 24th of December, 1907, in Kansas City, Jackson county, Mo., the said Kansas City Civic League did, through its executive committee then and there in executive session assembled, write, make, and adopt a recommendation and report upon the fitness and qualification of John M. Rood and William J. Campbell, who were then and there candidates and nominees for the election to the office of sheriff of Jackson county, Mo., at the special election to be held in said county on the 27th of December, 1907, which said recommendation and report, with the signatures of the president and secretary of the said Kansas City Civic League, is in words and figures as follows:

“Report of the Kansas City Civic League on Candidates for Sheriff to be Voted for on December 27th, 1907.

“John M. Rood, Democrat. Born on a farm near Quincy, Illinois, in 1858. Went to Carroll county, Missouri, in 1877. Taught school and was engaged in general merchandise business at Carrollton, Missouri, until 1887, when he came to Kansas City, since which time he has been engaged in the lumber business. He served one term in the upper house of the city council, 1900 to 1904. His record was approved by the Civic League at the end of his term. We regard Mr. Rood as a citizen of high type, and well qualified for the office of sheriff.

“William J. Campbell, Republican. Was born in Ripley, Ohio, in 1863, and came to Missouri about 1879. Was station agent for the C., B. & Q. Ry. Company at Parkville from 1884 to 1887. Was in the general merchandise business at Parkville from 1887 to 1889, when he came to Kansas City and became a member of the present real estate and insurance firm of Tilhor & Campbell. He served one term in the lower house of the city council from 1900 to 1902. The Civic League said of him at the end of his term: “He made a good record in the council.” He was appointed sheriff of Jackson county on September 30, 1907, by the county court. The service of both Mr. Campbell, and the deputies under him, have been highly satisfactory, and the league consider him well qualified for the office.

“By order of executive committee.

That said report and recommendation did not state in full on what facts the said report and recommendation was based, and did not give or contain the name or address of any person or persons furnishing the information *710 of and concerning said candidates and nominees in said report and recommendation contained, or upon which said report was based. That on the 24th day of December, 1907, said Allen O. Harrison, who was then and there a secretary of said Kansas City Civic League, did unlawfully and willfully deliver a copy of said report and recommendation to the Burd & Fletcher Printing Company in Kansas City, Jackson county, Mo., and caused 250 copies thereof to be printed and published by said printing company upon postal cards of the United States, and did thereafter on said 24th of December, 1907, unlawfully and willfully place upon said postal cards, upon which said report and recommendation had been printed, the names and addresses of 250 different persons residing in said Kansas City, and willfully and unlawfully circulate said postal cards by depositing the same in the United States post office in said city, with intent that they should be delivered to the persons to whom they were addressed, contrary to the statute of this state.

Petitioner seeks his release from imprisonment on said charge on the ground that said act of April 12, 1907, is unconstitutional and void because in contravention of section 14 of article 2 of the Constitution of Missouri (Ann. St. 1906, p. 135), which provides: “That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.” And also of section 53 of article 4 of the Constitution of Missouri (Ann. St. 1906, p. 197) which forbids special or class legislation. Section 1 of the act of the Legislature of April 12, 1907, providing how reports and recommendations of civic leagues and like associations shall be published, provides: “Leagues, committees, associations or societies incorporated or formed for the purpose of investigating the character, fitness or qualifications of candidates or nominees for public office and making reports on the same shall in each and every printed or published report or recommendation as to such candidates or nominees state in full on what facts they base their report or recommendation giving the name and address in full of all persons furnishing the information of and concerning such candidate or nominee and state in full the information furnished by such party. Any report or recommendation printed or published by such league, association or society, which does not contain all of the above information shall be unlawful and any person printing, publishing, or causing to be printed, published or circulated any such report or recommendation without such information, shall be guilty of a misdemeanor, and upon conviction, shall be fined in the sum of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail for not less than one month nor more than one year, or by both such fine and imprisonment.” The constitutional liberty of speech and of the press grants the right to freely utter and publish whatever a citizen may desire and to be protected in so doing, provided always that such publications are not blasphemous, obscene, seditious, or scandalous in their character, so that they become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation, or pecuniary interest of individuals. State v. Van Wye, 136 Mo. 234, 37 S. W. 938, 58 Am. St. Rep. 627; Patterson on Liberty of Speech, p. 5; Cooley on Constitutional Limitations (6th Ed.) 518; State v. Shepherd, 177 Mo. 244, 76 S. W. 79, 99 Am. St. Rep. 624.

The General Assembly, under the legislative power granted it by the people, subject to the limitations of the state and federal Constitutions, unquestionably has the power to enact penal statutes and prescribe civil remedies, “for all abuses of that liberty” of speech, or publication. If a publication is neither blasphemous, obscene, seditious, or defamatory, then, under the Constitution of this state, no court has the right to restrain it, nor the Legislature power to punish it. The report which the petitioner published has nothing in it either blasphemous, seditious, obscene, or defamatory, and clearly falls within the liberty of speech or publication granted by the Constitution; but it is equally certain that this publication was forbidden by the statute of April 12, 1907, because it did not state in full all the facts on which said report or recommendation was based, and did not give the name and address in full of all persons who furnished any information concerning the said nominees therein mentioned for the office of sheriff, and did not state in full the information furnished by each of the persons who furnished the same. It seems too clear for argument that this statute is in conflict with section 14, art. 2 of the Constitution. Prior to the enactment of the act of April 12, 1907, it is not to be doubted that the petitioner would have had the right to have stated all that was said in the said report and recommendation without stating anything more; but under this act that right is now denied, unless he prepares and pays for publishing all of the facts upon which he based said recommendation and report and gives the names and addresses of all persons who gave him any information of or concerning either of said candidates and a full statement of all the information that each of them furnished him. Anything which makes the exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right.

In Gladney v. Snydor, 172 Mo., loc. cit. 328, 72 S. W. 537, 60 L. R. A. 880, 95 Am. St. Rep. 517, it was said by this court: “‘Impair’ means to make worse; to lessen the power; to weaken; to enfeeble; *711 to deteriorate.” The right to speak freely is necessarily attended by the correlative right to remain silent. In Wallace v. Railway, 94 Ga. 732, 22 S. E. 579, it appears the Legislature had passed an act entitled “An act to require certain corporations to give to their discharged agents, or employes, the cause of their removal or discharge, when discharged or removed.” The Supreme Court of Georgia held said act unconstitutional, and in doing so said: “A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort, with their discharged agents and employés, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence, enjoyed in this state by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law.” The act of April 12, 1907, is not confined to forbidding and punishing abuses of the liberty of speech or publications, but undertakes to punish speech or publication without any reference to whether they fall within the legal exceptions of blasphemy, obscenity, sedition, or defamation.

Without further discussion or elaboration, we think it is perfectly obvious that the act of April 12, 1907, transcends the power of the Legislature, and is in conflict with the Constitution, and therefore void. As an unconstitutional act is utterly void, the petitioner is entitled to be discharged under the habeas corpus act from further prosecution on the information filed in the criminal court against him. Ex parte Neet, 157 Mo. 527, 57 S. E. 1025, 80 Am. St. Rep. 638; Ex parte Lucas, 160 Mo. 218, 61 S. W. 218.

The prisoner is discharged.