Drehman v. Stifel

Holmes, Judge, delivered the opinion of the court. This was an action of forcible entry and detainer upon a complaint made before a justice of the peace under the statute. The case comes here by appeal from the St. Louis Circuit Court. The proceedings were commenced in September, 1863. After several trials before the justice, and a recovery, at last, of some $7,000 damages, an appeal was taken to the Circuit Court, where it was tried again in May, 1866, after the passage of the ordinance of 1865, relating to such suits, which had been pleaded in bar, and a verdict and judgment were rendered for the defendant. The questions for consideration here arise mainly upon the instructions which were given or refused by the court below. Divested of all extraneous irrelevant, matters, the substance of the case made on the facts may be stated as follows : Sometime in the first half of June, 1861, during the first uprising of rebellion in Missouri, and in a time of civil commotion, great peril and actual war, while General Lyon had command at the Arsenal and post of St. Louis, a regiment of Home Guards under Col. Stifel (the defendant here), by order of the commanding officer of the post, occupied a certain brewery building in the tenth ward of the city as their camp and head-quarters, and as a position for the defence of the city and the protection of the community against insurrectionary violence. This brewery belonged to the defendant. A two-story building on the adjoining lot, belonging to the plaintiff, had twice taken fire and was partly burned, and, being rendered untenable, was vacated by the plaintiff, who left the premises under the charge of an agent residing in the neighborhood. Nobody was in the actual occupation of the premises. Upon a suggestion made by the defendant, as colonel in command,- to the commanding officer at the Arsenal, his adjutant was sent to examine the premises, with a view of putting the position in a state of military defence — 201 — (as the adjutant himself states) and to report their condition. Upon the report" of this officer a positive verbal order was given to him by the general in command, to examine the place again in company with the general officer commanding that immediate district, and, with his approval, to have these burnt ruins pulled down and removed, and to have all the grounds adjoining the building smoothed off for a parade ground and other military uses. After consulting fully with the general and other regimental commanders as to what was necessary to be done (as he says) with reference to putting all the posts in a state of military defence, the order was given to the defendant, under which, as expressly directed, he seized the premises for the public use, and proceeded to remove the ruins and clear the ground. The premises were occupied by this regiment for some time, but were evacuated by the military forces before the first day of January, 1862, and were not, after that date, claimed or occupied by the defendant, though the enclosure erected by the military authorities still remained there. The plaintiff offered some evidence tending to show that the defendant owned the brewery, and had some time previously purchased the reversion of the plaintiff’s lease of this lot, had refused to accept rent from the plaintiff, and had desired to purchase his lease. This evidence was properly excluded as irrelevant and immaterial. It had no direct bearing upon the issue, and could only tend to mislead the jury. Some slight circumstances having a like tendency were stated by some of the witnesses for the plaintiff, upon which his counsel have endeavored to construct a theory respecting the conduct and motives of the defendant, which, so far as we are able to discover from anything contained in the record, would seem to be in great part imaginary or wholly unfounded, and not at all warranted by the evidence produced, to the effect that the military order was procured by the defendant for a malicious or selfish purpose, and was a mere cover for his own private ends, and that the acts done were not done by virtue of any lawful military authority, nor — 202 — upon any immediate and pressing danger, or upon any.urgent necessity for taking private property for public use, but were an arbitrary abuse of military power, and, in fact, a lawless invasion of private property for individual purposes, without any military authority whatever. The plaintiff appears to have proceeded on the assumption that the Home Guards were an unauthorized military force, and that the acts of these officers were to be regarded as trespasses and forcible entries, and that the personal relations and individual transactions of these parties were admissible in evidence on the issues in the case. It is not apparent how the justification of a military officer for acting in obedience to positive orders can in any manner depend upon his private relations with the parties whose property happens to be taken for public use. We deem it unnecessary to dwell upon this part of the case. It is not otherwise important than in reference to the instructions. , We are not well satisfied that' there was any competent evidence before the jury which could have warranted them in finding the fact according to the theory supposed, but the instructions will be considered on the supposition that there was some evidence tending that way. The principal instruction refused for the plaintiff proceeds upon the law, as -it was laid down in Harmony v. Mitchell, 13 How. (U. S.) 115, that the existence of some pressing danger or urgent military necessity was a question of fact for the jury to determine. The defendant’s instructions, which were given, appear to have been framed with reference to the ordinance passed in Convention on the 17th of March, 1865, and subsequently incorporated into the Constitution of the State—Const. art. 11, § 34. It reads as follows: “No person shall be prosecuted in any civil action or criminal proceeding, for, or on account of any act by him done, performed, or executed, after the first day of January, one thousand eight hundred and sixty-one, by virtue of military authority vested in him by the Government of the Uni — 203 — ted States, or that of this State, to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall have heretofore been, or shall be hereafter instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.” The purport of these instructions was, that nothing was to be left to the jury to find, but the fact, whether or not the acts of forcible entry and detainer complained of were done after the first day of January, 1861, and by virtue of military authority vested in the defendant, or in pursuance of an order received by him from a person vested with such authority under the Government of the United States ; that it was immaterial, in such case, at whose instance or under what circumstances of military necessity the order was issued, and that if the acts were done by virtue of such military authority, or in obedience to such orders, it made no difference whether or not an urgent or pressing military necessity were otherwise proved ; in short, that the existence of a military necessity in such cases was not a matter of fact for the jury to determine, but a matter of law for the court under this ordinance, and upon the evidence adduced. So far as this ordinance affects the plaintiff’s case, it may be conceded that it operates to make such military orders and authority a complete justification for the acts done by the defendant in pursuance thereof, and to take away from the jury all consideration of the question whether there existed, in fact, any immediate and pressing military necessity for the issuing of such orders, and that it so far deprives the plaintiff of any right to recover damages from the defendant for acts done by virtue of such ’military authority, or- in obedience to such orders; but the questions whether such military authority or orders existed, in fact, or whether the acts complained of were actually done by virtue of such authority or orders, or whether they were done maliciously or for private and selfish ends, using the authority or orders as a mere pretence or cover, or were an arbitrary abuse or a wil — 204 — ful misuse of power for other purposes than those contemplated by such authority or orders, may still be a matter of fact for a jury to determine, under the ordinance. So far as the ordinance operates retroactively upon the plaintiff’s case, it may be said to deprive him of his right to recover, but it does not take away nor infringe any vested right of property. A right to recover damages in an action of forcible entry and detainer is not a vested right of property. The Federal Constitution does not prohibit a State' from passing retrospective ordinances of a civil nature, which merely take away a right of action or only divest rights vested by law in an individual, if it does not impair the obligation of a contract, nor divest settled rights of property. The ordinance is not, therefore, in this respect unconstitutional—Calder v. Bull, 3 Dall. 386; 2 Sto. Const. § 1398; Smith’s Com. Const. Law, §§ 266, 267, 378. That it is a bill of attainder, as contended, there cannot be any rational pretence. There is nothing in it that relates to proceedings of a criminal nature in the sense of a bill of attainder, nor does it confiscate private property, nor punish anybody. It is rather an act of indemnity, oblivion, and pardon; of indemnity, in so far as it makes military orders and authority’a justification for acts done by virtue thereof ; of oblivion and pardon, in so far as it prohibits criminal prosecutions for acts done by such authority. It is not necessarily inconsistent with anything contained in the bill of rights in the same Constitution. The Legislature, only, is prohibited from passing retrospective laws (Art. 1, Const., § 28); this is an ordinance of the people in their sovereign capacity, founding a civil government. They had the power to define liow much of the rights and liberty of the' citizen he should be required to surrender for the public good, and there was no other limit of positive law upon this power but the prohibitions of the Federal Constitution,, which do not reach this case. If this ordinance be deemed an unwise abridgement of the rights and liberties of the citizen, or whenever it shall be thought to operate op — 205 — pressively or unjustly, the remedy lies with the people in the power of amendment. We have only to declare the law as we find it. There is no evidence of any actual appropriation of the plaintiff’s property beyond the military occupation of the premises and the waste committed in clearing the ground for the use of camps and quarters. When the military occupation ceased there was nothing to prevent the plaintiff from retaking possession; or, if any private individual retained the possession, ho had his action of unlawful detainer, on demand made in writing under the statute, or his action of ejectment to recover the possession. His right of property in the lease was not taken away. The military possession for the public use was merely temporary. Eor this use of his lot, as well as for the value of the property destroyed, lie was entitled to look to the Government for compensation. He seems to have preferred to consider the whole proceeding as an individual trespass, a forcible entry and detainer by a private person, and an unlawful appropriation of the property in his individual capacity and for his own purposes, and wholly to ignore the military authorities. It is not a little remarkable that he should neglect to make an effort to regain the possession when the military forces evacuated the premises, but should resort to this form of action against the defendant nearly two years after that event. He is now seeking to recover, by way of damage, double the amount to be assessed as damages for the forcible entry and detainer, for the value of the property wasted, and for all rents and profits up to the finding of a verdict, under a statute which, was made for the protection of the citizen against forcible-invasion of private property by an individual, acting altogether without any authority of law. Now, it would seem to be reasonable that, in order to make this statute applicable to a military officer acting under express orders from the highest military authorities, in time of civil war, and under circumstances of great public peril, in — 206 — the midst of a treasonable insurrection, when speedy action and the utmost energy were required, the clearest proofs of the want of lawful authority, of an arbitrary abuse of power, and a plain perversion of military orders to malicious purposes, or selfish private ends, ought to be demanded. Even if this were a case in which the existence of pressing danger or urgent necessity were to be submitted to a jury as a matter of fact, where the officer produces unequivocal evidence of both military authority and express orders for what was done in justification of his acts, something like direct and positive evidence to the contrary ought to be expected. It may be that the plaintiff was not aware of any urgent necessity. A sagacious military commander is apt to see necessities that arc not apparent to everybody. It is probable that there were a great many who saw no military necessity for the capture of camp Jackson, but a short time before this transaction, until long after it was taken. The mere fact that personal relations of no very friendly character existed between these parties, or that the defendant was personally interested in this property, while it may tend to explain the course taken by the plaintiff, furnishes no satisfactory evidence of an abuse of power for private ends ; nor was there any evidence tending to show that no such military exigencies existed, or that these premises were not needed for the public use. On the other hand, there was direct and positive evidence that two military-officers, besides the defendant, on personal inspection of the position, made report of the military necessity of what was ordered to be done. Not only the existence of the military orders, but the existence of the military necessity which justified them, was distinctly proved. There is a wide difference between this case and those which have been cited on behalf of the plaintiff. Where a naval commander under the orders of the admiral had pulled down the houses of some sutlers, who sold liquors to the sailors, on the coast of Nova Scotia, he was held liable to an — 207 — action for damages, because there was not the slightest pretence of any military necessity, nor was the act within the scope of military authority—1 Cowp. 180. In Mitchell v. Harmony, 18 How. (U. S.) 115, there was no pressing danger from the enemy, nor any occasion whatever for taking the private property for public use, but it seems to have been seized because it was thought it might contribute to insure the success of a distant expedition on which the officer was about to march. The jury had found the fact to be so, and the court held this was a question of fact for the jury to determine. The orders were proved, but the evidence showed that neither the orders nor the act were justified under military authority in that state of the case. This verdict might stand upon the law as laid down in that case, if it had been found under instructions to the same effect. It recognized the law to be, that a military officer, charged with a particular duty, might impress private property into the public service, or take it for the public use, and that the Government would be bound to make compensation; but that the officer should not be regarded as a trespasser when an urgent necessity was shown to exist, and that he would be justified in acting upon the information of others, as well as his own observation, affording a reasonable ground of belief that the peril was immediate or the necessity urgent, though it should turn out to have been erroneous or unfounded, and that he would not be a trespasser; but it was also held to be a matter of fact for the jury to determine, whether such emergency existed or not. Now, the only effect that need be given to the ordinance, in order to make it cover this case, and justify the instructions which were given for the defendant, is'this : that when the military authority and orders are made to appear, the existence of the emergency or military necessity shall be deemed to be conclusively proved and established by the judgment of the officer, and shall be presumed as a. matter of law. It operates so far to change the rules of evidence. It makes that a justification and a defence which would not — 208 — have been such before without further proof. In this, it is not unlike those statutes which make certain facts proven to have the effect to raise a conclusive presumption of negligence or liability. The military necessity only is thus conclusively presumed, but the questions whether the military authority or orders existed in fact, or whether the acts complained of were really done by virtue of such authority, or were the acts of the individual in his. private capacity, or were an abuse of power or a perversion of orders for private ends or malicious purposes, would be still open for determination by the jury. The evidence thus far makes a change in the law as it stood before, but we do not think it is for this reason unconstitutional. The first three instructions which were given for the defendant, left to the jury to say whether these officers had military authority under the United States, and whether the acts of the defendant in the premises were done in pursuance of orders issued by such authority. They took away from the jury the consideration of the military necessity and nothing more. We think the instructions were correct, and that the verdict was fully justified by the evidence. The fourth instruction for the defendant proceeded upon the ground that a detention of the premises by the defendant, as a private individual, after the military evacuation, would be an unlawful detainer only, and would not sustain an action for a forcible entry and detainer. In such case a demand in writing for the possession and a refusal would be necessary to give a cause of action under the statute. Such detainer would only amount to a disseizin—27 Mo. 377; R. C. 1855, p. 787, § 3. We see no material objection to the instruction. The fourth and fifth instructions, which were refused for the plaintiff, are sufficiently disposed of by what has been said above. The sixth instruction was rightly enough refused, for the reason that the military authority was amply proved, and there was no evidence to the contrary, and though it might — 209 — have been given, its refusal could do no prejudice to the rights of the plaintiff. The same question of fact was submitted to the jury in the instructions which were • given. There was no error in this of which the plaintiff can complain. As to the plaintiff’s seventh instruction, it may be observed that no objection was taken in the course of the trial to the admissibility of the evidence that was produced by the defendant to prove the military authority and the orders, and being once admitted without objection, even if any valid objection could have been taken, the court very properly refused to exclude it from the jury by an instruction at the close of the case. The eighth instruction refused needs no further consideration. There was no possible ground on which the ordinance could be called a bill of attainder. There being no error that can entitle the plaintiff to a reversal, the judgment will be affirmed. The other judges concur.