Ex parte Roberts , 1901 Mo. LEXIS 324 ( 1901 )

SHEBWOOD, P. J.

Petitioner Eoberts, being confined in tbe penitentiary, has presented a petition praying for the issuance of a writ under the Habeas Corpus Act, and that his cause be heard and he be discharged from the custody of the warden.

Petitioner was convicted under the provisions of section 1892, Bevised Statutes 1899, which relates to, and prohibits a man from the making, mending, etc., etc., of burglars’ tools, false keys, etc., or the having the same in his custody or concealed about his person, etc.

The offense is a felony. Under this section, petitioner was found guilty and sentenced to the penitentiary for the term of five years.

The petition and a copy of the indictment which has been filed therewith, will accompany this opinion.

The petitioner relies for his release from confinement and his discharge, upon the unconstitutionality of the section aforesaid, asserting that it violates section 30 of the Bill of Bights, which declares: “That no person shall be deprived of life, liberty or property without due process of law.”

How, or in what way, section 1892 impinges section 30, we are not informed, nor have we been able to understand. Speaking generally, the Legislature of this State has the power to pass any law not prohibited by the Oonstitution. [Cass Co. v. Jack, 49 Mo. 196.]

“The legislative department (of a State) is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion.” [Cooley, Const. Lim. (6 Ed.), p. 104.]

“The rule of law upon this subject appears to be, that, except where the Oonstitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the. people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts can not assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It can not run a race of opinions upon points of right, reason, and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the Constitution, and the case shown to come within them.” [Ib., pp. 200, 201.]

Any theory for attacking the constitutionality of the statute under consideration, would be equally prolific in authorizing an attack upon any statute of.this State for the prevention of the punishment of crime. Laws for the punishment of having possession of burglars’ tools, or tools with which counterfeiting can be done, etc., etc., are quite common both in England and in this country.

Ve are unable to see in what way section 30 of article 2 of our Constitution has shortened the arm of legislative power or limited the range of legislative discretion in enacting into the forms of law section 1892. Looking at the matter from this point of view is what induced us, some little while ago, to deny the writ prayed for, because we did not think it necessary for us to go through the barren formality of issuing a writ of habeas corpus, which, as soon as issued, could only resült in the petitioner’s being remanded, because his petition was absolutely worthless, in that it contained no ground or semblance of a ground for relief.

In such circumstances a court is not bound to issue a useless writ, nor cart it be made amenable to the penalties of section 3601, Revised Statutes 1899, of the Habeas Corpus Act, because in the exercise of its judicial discretion it declines to issue such a writ. [State ex rel. v. Dobson, 135 Mo. 1.]

For the reasons aforesaid, and as at first ordered, we deny the writ.

All concur.