Miner v. Markham

Dyer, J. Upon the presentation of facts thus made, the question to be decided is, was the defendant exempt from the service of civil process on him at the time the summons in each of these actions was served? Two propositions are involved in the consideration of this question: First, does the privilege from arrest specified in section 6, article 1, of the constitution of the United States include a privilege from the service of civil process? Second, if it does, to what .extent in period of time, with reference to going to'and returning from the discharge of public duty, may the privilege be invoked? 1. Section 6, art. 1, of the constitution of the United States provides that representatives “shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.” In Juneau Bank v. McSpedan, 5 Biss. 64, it was held that a nonresident defendant, coming within a state for the purpose of defending his suit, cannot be legally served with process in another suit; and Judge Miller, in the opinion, says: “In England the privilege — 391 — from arrest has always been construed to include the service of a summons. So in this country from an early period.” In Atchison v. Morris, 11 Biss. 191, S. C. 11 Fed. Rep. 582, Judge Drummond, on a review of the cases, held, in accordance with the rule established in New York and .Pennsylvania, that as to a witness the privilege extends to freedom from the service of civil process, and is not to be limited, as is held in some cases cited in the opinion, to freedom from arrest. It is observed by Judge Drummond, in deciding the question before him, that in the federal courts the weight of authority seems to be in favor of a more liberal view of the subject than is taken in some of the state courts. See, also, U. S. v. Bridgman, 9 Biss. 221; Brooks v. Farwell, 4 Fed. Rep. 166. In Gyer's Lessee v. Irwin, 4 Dall. 107, decided in 1790, it was held that “a member of the general assembly is undoubtedly privileged from arrest, summons, citation, or other civil process during his attendance on the public business confided to. him.” In Bolton v. Martin, 1 Dall. 317, it was adjudged that a member of the state convention, which assembled in Philadelphia to consider the constitution of the United States, was privileged from the service of a summons or arrest during the session, and for a reasonable time before and after it. This decision was before the ratification of the constitution proposed for the government of the United Stales by the federal convention. The opinion of the court reviews the old law on the subject, and it is there said that “upon an attentive perusal of the statute of 12 & 13 Wm, III., no other authority will be wanting to show what the law was upon this subject before the passing of that act. From the whole frame of that statute it appears clearly to be the sense of the legislature that before that time members of parliament were privileged from arrests and from being served with any process out of the courts of law, not only during the sitting of parliament, but during the recess, within the time of privilege, which was a reasonable time eundo and redeundo.” In the same case the court, referring to a citation from Blackstone’s Commentaries, 165, to the effect that a member of parliament might be sued for his debts though not arrested, during the sitting of parliament, says: “This will appear to be expressly confined to actions at the suit of the king under a particular provision in the statute of William ill., and by the strongest implication shows that it could not be done at the suit of a private person.” Reference is then made to another passage from Blackstone, where he says: “ISTeither can any member of either house be arrested or taken into custody, nor served with any process of the courts of law, * * * without a breach of the privilege of parliament.” . In a note to this ease it is said that— “In the case of U. S. v. Edme, 9 Serg. & R. 147, the court said that the privilege of protection • has extended itself in process of time to every case — 392 — where the attendance wms a duty in conducting any proceedings of a Judicial nature;' and the case in the text shows that the privilege extends to protect all persons engaged in public business of a legislative character from the service of a summons as well as from arrest. To the same effect (in the case of suitors) is Miles v. McCullough, 1 Bin. 77.” In Parker v. Hotchkiss, 1 Wall. Jr. 269, it was held that a suitor in court residing without the circuit is privileged from the service of a summons; overruling the case of Blight’s Ex’r v. Fisher, decided by Judge Washington in 1809, (1 Pet. C. C. 41,) in which this privilege was limited to exemption from arrest. Parker v. Hotchkiss was decided by Judge Kane, whose opinion was concurred in by Mr. Justice Grier and Chief Justice Taney. In Gentry v. Griffith, 27 Tex. 461, it .was decided that members of the legislature are not privileged against service of citation in civil suits by virtue of the provision in the constitution of the state granting an immunity from arrest to such members during the session of the legislature, and while going to and returning from the same. In Case v. Rorabacher, 15 Mich. 587, it 'was held that there is no general exemption from the service of process without arrest, merely because a party is attending court awaiting the trial of a case. This ease appears to be in antagonism to Juneau Bank v. McSpedan, Brooks v. Farwell, and Parker v. Hotchkiss, ubi supra, and to Lamed v. Griffin, 12 Fed. Rep. 590, which is an instructive case in its collation of the authorities. . In Doty v. Strong, 1 Pin. 84, the question was whether the privilege from arrest guarantied by the constitution of the United States to members of congress extended to delegates from the territories; and if so, whether it was not only a privilege from arrest, but also from trial. The affirmative of both of these propositions was there adjudged, and the court, speaking by Mr. Justice Miller, in passing upon the questions,Suses this language: “In order to render this provision [meaning section 6 of article 1 of the constitution of the United States] available to the extent of its necessity, it will not do to construe the words ‘ privilege from arrest ’ in a confined or literal sense. A liberal construction must be given to these words upon principle and reason. It is just as necessary for the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress for the purpose of defending his private suits in court, as to be exempt from imprisonment on execution. If the people elect an indebted person to represent them, this construction of the constitution must also be made to protect his rights and interests, although it may operate to the prejudice of his creditors; but the claims of the people upon his personal attendance are paramount to those of individuals, and they must submit.” In Anderson v. Rountree, 1 Pin. 115, the subject was more thoroughly reviewed and considered, reference upon the question of privilege being made to 5 Bac. Abr. 618, Tidd, Pr. 257, and 1 Dunl. Pr. 92, and to the principal adjudged cases then extant, and it was held that the privilege from arrest secured to members of the legislative — 393 — assembly not only exempted their persons from actual arrest, but, also from suit or any civil process which might interfere with their public duties during the continuance of their privilege. Thus it will be seen that the decisions are not entirely harmonious upon the question of the extent of the privilege in question; but it has been the law in this jurisdiction from territorial times that the privilege in such a case as that at bar extends to exemption from civil process, with or without actual arrest; and in tire absence of more authoritative exposition of the constitutional provision from the supreme court of the United States, I shall hold that under that provision, the defendant, as a member of the congress of the United States, was entitled to exemption from service of process upon him, although it was not accompanied with an arrest of his person, provided the privilege was in force at the time of such service. 2. This brings us to the second proposition involved, namely: Was the defendant,when served with-process, “going to” the capital to attend a session of the house of which he was a member, within the meaning of the constitutional provision? No fixed time is prescribed by the constitution during which, before and after the close of the session, the privilege in question shall extend. The clause is: “During their attendance at the session of their respective houses, and in going to and returning from the same.” It would be a superfluous task to go into all the old law on this subject as it once existed in England, when members of parliament were allowed prescribed periods of exemption from arrest, before and after sessions of parliament. An exhaustive review of the law, and of the English authorities, may be found in the case of Hoppin v. Jenckes, 8 R. I. 453, and nothing can be profitably added to what is there said on the subject. In Gushing’s Law and Practice of Legislative Assemblies, at section 582, it is said: “In the federal government, and. in many states, members are privileged while going and returning merely, without other limitation oí time. Where the duration of the privilege is thus stated, members are entitled to a reasonable, or as it ivas expressed by the house of commons, on occasion, a convenient time for going and returning. Thus they are not obliged at the close of the session to set out immediately on their return home, but may take a rai-son able time to settle their private affairs, and prepare for the journey; nor will the privilege be forfeited by reason of some slight deviation from the most direct road.” The Manual of Parliamentary Practice, published by authority of the house of representatives in 1860, states the rule thus: “The time necessary for going to and returning from congress not being defined, it will of course be judged of in every particular case by those who will have to decide the case. While privilege was understood in England to extend, as it does here, only to exemption from, arrest, eundo morando et redeundo, the house of commons themselves decided that a convenient time was to be understood. 1 Hats. 99-100. Nor is the law so strict in point of time as to require the party to set out immediately on his return, but allows — 394 — him time to settle his private affairs, and to prepare for his journey, and does not even scan his road very nicely, nor forfeit his protection for a little deviation from that which is most direct, some necessity perhaps constraining him to do it. Str. 986-987.” Such, also, is in substance the language of Judge Story, in his work on the Constitution, § 864. As a result of the authorities that bear on the question, it is held, in Hoppin v. Jenckes, supra, that the privilege from arrest of a member of congress is limited to the continuance of the session, and to a reasonable time for going and returning; and this is now the law in this country. What is a reasonable time for “going to and returning” from the seat of government must depend upon circumstances, and may be difficult to determine. The observations of Judge Story, that the law does not scan the road which the member may take in his journey very nicely, nor forfeit his protection for a slight deviation from the route which is most direct, nor, it may be added, measure with precision the time absolutely necessary for going to or returning from the capital, furnish a just and sensible test in considering the question. To entitle the defendant to the privilege here invoked, he must have been in good faith on his way to the seat of government to enter upon the discharge of his public duties; that must have been the primary object of his journey. He must have left his residence in California with the intent of then going to Washington to take his seat in the congress to which he was elected, and the time taken for the journey must have been reasonable. He had a right, without forfeiture of his privilege, to set out from his residence at such time before the session should open as would enable him conveniently to establish his quarters, and settle his family and household affairs at the capital, and also, I think, to enable him to inform himself as a new member regarding pending legislation, so that he might enter advisedly upon the discharge of his duties. A slight deviation from the usual route for rest, convenience, -or because of family sickness, ought not to cause a loss of his privilege, if such deviation was but an incident to the principal journey. Nor ought the duration of the privilege to be strictly measured by the exact number of days, with the present facilities for travel required for a journey from his residence in California to Washington. At the same time, his privilege could not and ought not to avail him if the deviation was equivalent to an abandonment of the original journey for purposes of pleasure or family visiting. If, when he left his home in California, his intention was to make a journey, not to Washington but to Milwaukee, there to spend an indefinite time visiting relatives, and then to go from Milwaukee to Washington after such prearranged delay at the former place as would still enable him to arrive at the capital in reasonable tipie to enter upon his public duties, so that it might be fairly said that the object of his journey at the time he set out upon it was not then to go to the capital, but elsewhere, it is clear that while in Milwaukee — 395 — he could not assert the constitutional privilege of exemption from arrest or service of process. Applying these principles to the facts as hero presented, I am of the opinion that the defendant was privileged from the service of process upon him in these cases. It is evident that when he set out with his family from Pasadena, his intended destination Was Washington. The primary object of the journey was to go to the capital to prepare for and enter upon his duties as a member of congress. He had a right to exercise a reasonable judgment in connection with the settlement of his family in Washington, as to the time required for the accomplishment of his primary purpose, with its necessary incidents. It cannot be said from the facts shown that his destination was Milwaukee. It is evident that the health of his family to a large extent controlled his movements. Under the circumstances, his deviation from the direct route was not such as to justify an inference of abandonment of the original journey or its primary object. His privilege, in view of all the facts shown, ought not, I think, to be adjudged forfeited by such deviation, nor ought the court to measure with mathematical accuracy the days and hours required by the most rapid course of transit to travel from Pasadena to Washington. In short, the defendant was in good faith on his way to the seat of government to enter upon his public duties as a member elect of the forty-ninth congress when the process in these cases was served upon him. His deviation to Milwaukee was but an incident in the journey, and seems to have been occasioned by circumstances which made the deviation justifiable if not absolutely necessary. He was therefore entitled to the protection of his privilege. The defendant, having appeared specially in the state court both in his motion to set aside the service of the summons in these cases and in his application for the removal of the cases to this court, and the motion made in the state court having been denied without prejudice to a renewal of the same, the defendant has not waived his privilege, and can assert it here with the same force and effect as if the suits had been brought and the motion made in this court in the first instance. Atchison v. Morris, supra; Harkness v. Hyde, 98 U. S. 476; Sanderson v. Ohio Cent. R. & C. Co., 61 Wis. 609; S. C. 21 N. W. Rep. 818. Motion to set aside the service of summons granted.