Dale County v. Gunter

46 Ala. 118

• Court: Supreme Court of Alabama
• Decided: June 15, 1871
• Status: Published

Opinion

PECK, C. J.

But two questions need be considered in disposing of this case. First. Is the cause of action disclosed in the complaint a claim required to be presented to the court of county commissioners, to be allowed or rejected by said court before suit brought ? Second. Do the facts admitted and agreed upon by the parties prove that the plaintiff’s husband, William T. Gunter, was murdered or assassinated by an outlaw, or by a person or persons in disguise, or by a mob, within the purview and. meaning of the first section of the act entitled “ An act to suppress murder, lynching and assaults and batteries,” approved December 28, 1868, Book of Acts, p. 452, a.

First. — Sections 907-8-9 of the Revised Code are as follows : § 907 declares that “ the court of county commissioners must, in term time, audit all claims against their respective counties; and every claim, or such part thereof as is allowed, must be registered in a book kept for that purpose ; and the judge of probate must give the claimant a warrant on the treasury for the amount so allowed.”

Section 908 says: “ If the claim is rejected, or not allowed in full, the claimant may withdraw the same.” And section 909 enacts, that “ all claims against counties must be presented for allowance within twelve months after the time they accrue or become payable, or the same are barred, unless holden by minors or lunatics, who are allowed twelve months after the removal of such disability.”

The interpretation of these sections is, 1st that such claims only are required to be presented to the court of county commissioners as the said court is competent to allow, and when allowed, may be paid out of the funds of the county that may be in, or come to the treasury thereof, by a warrant of the judge of probate in favor of the claimant on the same; 2d, that if such a claim, when presented, is rejected, or not allowed in full, the claimant may withdraw the same, and may then proceed to collect such claim in the usual way, by suit against the county ; but 3d, that no suit can be maintained against the county on any such claim, until the same has been presented for allowance, and if not presented witbin twelve months after the same accrues, or is payable, then such claim is barred, (saving the rights of minors and lunatics,) and ceases to be a claim that the county is legally bound either to allow or pay by warrant on the treasury, or in any other way.

If a claim is given against á county by statute, and no mode is prescribed for its payment, then it must be presented for allowance like other claims, and paid out of the county treasury in the usual way, by a warrant of the judge of probate. If such claim, when presented, is rejected, or not allowed in full, then it may be collected by suit against the county, as other claims are collected that have been presented and rejected, or allowed only in part. But, on the contrary, if the statute by which the claim is given prescribed the way in which the claim is to be collected, and how the means are to be obtained by which it is to be paid; then tbe claim must be enforced and paid in the mode and manner provided, and in no other way.

The claim in this ease is peculiar in its character, and is given by the first section of the act above referred to. It enacts that “ whenever in any county in this State, any person shall be assassinated or murdered by any outlaw, or person or persons in disguise, or mob, or for past or present party affiliation or political opinion, the widow or husband of such person so murdered or assassinated, the next of kin of such person, shall be entitled to recover of the county in which such murder or assassination occurred, the sum of five thousand dollars as damages for such murder or assassination, to be distributed among them according to the laws of Alabama regulating the distribution of the estates of intestate decedents.”

The second section provides how these damages are to be recovered, to-wit, by an action in the circuit court by summons and complaint, and not by presenting them to the court of county commissioners, as a claim against the county.

The third section declares how the judgment, when recovered, shall be provided for and paid, and says : “When judgment is rendered for the claimants, the court shall enter with the judgment, an order to the court of county commissioners of the county, notice of which shall be issued by the clerk of the court, and served on the probata judge by the sheriff, commanding said court [of county commissioners] within sixty days to assess on the State tax of said county such a per centum as will realize the amount of said judgment for damages and costs.” The fourth section enacts that “ the assessment so made shall be delivered to the tax assessor of the county, who shall collect the same as the State tax is collected, within sixty days.”

Here we see the legislature has provided how these damages shall be recovered, and the way and means by which they are to be paid.

It seems to me, giving the language here used its clear and manifest meaning, that these damages are not to be presented to the commissioners court, but can only be recovered by suit, and when judgment is rendered for the plaintiff, it is not to be paid by a warrant of the judge of probate on the county treasury, nor is it to be collected like ordinary judgments, by execution, but in the mode prescribed by the third and fourth sections of said act. It is unnecessary to inquire into the purpose or policy of the legislature in prescribing the remedy and means of payment in such cases. The law being plain, it is the duty of parties and the courts to obey it, unless it is in conflict with some fundamental law of the land; but I do not understand any objection of this sort to be made against this statute. To my mind, however, the purpose or policy of this law is by no means obscure. In the first place, the legislature intended the question, whether the assassination or murder was perpetrated by an outlaw, or by a person or persons in disguise, or by a mob, should be inquired into and determined by a jury, and not by the court of county commissioners. It is a question rather of fact than of law, and, therefore, peculiarly proper for the consideration of a jury* Such a trial is required for the security and protection of both parties, the county, as well as the plaintiff. When the fact and character of the assassination or murder is ascertained, the law itself fixes the amount of the damages; it is five thousand dollars, and the jury can find neither more nor less.

In the second place, the manner of payment is obviously intended to operate in the nature of a penalty and punishment upon each individual tax-payer in the county, according to the value of his property, and by this means to bring home to each individual the importance of using his influence to promote a humane and just public sentiment; a public sentiment that will not only discourage and make violence and crime disreputable and disgraceful, but also stimulate every member of the community to be active to ferret out and bring to punishment violators of the laws and disturbers of the peace and good order of society. For these reasons, we hold that the plaintiff’s demurrer to the second and third pleas was properly sustained.

2. The second question to be considered is, do the facts admitted and agreed upon prove that the plaintiff’s husband was assassinated or murdered by an outlaw, or by a person or persons in disguise, or by a mob, within the purview and meaning of the first section of the said act of the 28th of December, 1868 ?

The difficulties surrounding this question are, in determining who is an outlaw, within the meaning of this section of said act, and what we are to understand by the phrase there used, “person or persons in disguise,” As to the word “ mob,” no trouble need be taken about it, as it is not claimed that the plaintiff’s husband was assassinated or murdered by such an assemblage of persons, or that he was assassinated or murdered for “ past or present party affiliation or political opinion.”

In examining .this question, thus narrowed down, it must not be forgotten' that the penalty inflicted by this section on a county is not inflicted for any or every assassination or murder, but only when the assassination or murder is perpetrated by an outlaw, or by a person or persons in disguise.

The word “ outlaw,” as used in that act, does not mean an “ outlaw ” in the common law sense of that term. If it does, then I am prepared to hold that there is, and can be, no such outlawry in this State.

By the common law, an outlaw is one who has been so declared by the judgment of a eourt of justice, in some regular proeéeding for that purpose; and this could take place in either a civil or criminal proceeding. — Bl. Com., Wendell’s, 3d vol., 283-4, 319; Bacon’s Abr. 3d vol., title Outlawry, 746. This author says: “ Outlawry is a punishment inflicted on a person for a contempt and contumacy, in refusing to be amenable to, and abide by, the justice of that eourt which hath lawful authority to call him before them; and is a crime of the highest nature, being an act of rebellion against that state or community of which he is a member. So doth it subject the party to divers forfeitures and disabilities; for thereby he loseth liberam Zegum, is out of the king’s protection,” &o. In a civil case, outlawry puts a man out of the protection of the law, so that he is incapable to bring an action for the redress of injuries; and it is also attended with a forfeiture of all his goods to' the king. — 3 Bl. Com. 283-4. The punishment for outlawry upon indictment for a misdemeanor, is the same as for outlawry upon civil actions; but outlawry in treason or felony amounts to a conviction and attainder of the offense charged in the indictment, as much as if the offender had been found guilty by his country. — 4 BI. Com. 320.

Outlawry by the commdn law, if not inconsistent with the letter of our bill of rights, is so with its spirit. 1. It not only puts a man out of the protection of the law, but also renders him incapable to bring an action for redress of injuries. This is in conflict with the 15th section of the bill of rights, which declares that “ all courts shall be open, that any person for any injury done him in his lands, goods, person or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay.” % It works forfeiture of goods, and in case of treason or felony, of lands also. This is repugnant to the 21st section of the bill of rights, which says that “ no person shall be attainted of treason by the general assembly,” and that “ no conviction shall work corruption of blood, or forfeiture of estate.” If there can be no forfeiture of estate on a conviction for treason, certainly there can not be on conviction for any less offense.

Anciently, an outlawed felon was said to have caput lu■pinum, and might be knocked on the head like a wolf by any one that should meet him; but to avoid such inhumanity, since Bracton’s time it has been otherwise, and to kill an outlawed person wantonly is murder. — 4 BI. Com. 320.

By magna charta it is ordained that no freeman shall be outlawed, that is, put out of the protection and benefit of the law, but according to the law of the land. — 1 BI. Com. 142; 2 Part. Coke’s Institutes, 46.

In England there are statutes, and an ancient and well settled practice of the courts, according to which a man may be outlawed; but where, in this country, do we find any statutes or practice of the courts, by which a man in either a civil or criminal case, can be outlawed according to the law of the land ? I know of none. The English common law and statutes, on this subject of outlawry, have never been recognized, or in any wise adopted in this State, and the whole system is inconsistent with our institutions, and repugnant to our constitution and laws, and is without any force among us.

We must, therefore, look somewhere else for the meaning of the word outlaw, as employed in the act of the 28th December, 1868. That i& the only statute, so far as I know, in which this word is used, and,if possible, we must find a meaning for it not inconsistent with the constitution. Such a meaning, I think, is found in the act of the 26th of December, 1868, approved only two days before the act last named, and upon a kindred subject, entitled “ An act for the suppression of secret organizations of men disguising themselves for the purpose of committing crimes and outrages.” — Acts 1868, M4=. The preamble to this act recites that “ whereas, there is in the possession of this general assembly ample and undoubted evidence of a secret organization, in many parts of this State, of men who, under the cover of masks and other grotesque disguises, armed with knives, revolvers and other deadly weapons, do issue from the place of their rendezvous, in bands of greater or less number, on foot or mounted on horses, in like manner disguised, generally in the late hours of the night, to commit violence and outrages upon peaceable and law abiding citizens, robbing and murdering them upon the highway, and entering their houses, tearing them from their homes and the embrace of their families, and. with violent threats and insults inflicting on them the most cruel and inhuman treatment; and whereas, this organization has become a wide-spread and alarming evil in this commonwealth, disturbing the public peace, ruining the happiness and prosperity of the people, and in many places overriding the civil authorities, defying all law and justice, or evade detection by the darkness of night, and with their hideous eostumes,” &o. By the second section of this act it is declared that “ any person or persons found away from the place of their usual residence, disguised by mask or otherwise, so as not to be easily recognized, who shall commit, or threaten to commit, any assault or assault and battery, or any violence apon the person of another, or any trespass on the property or premises of another, .shall be held guilty of a felony, and his disguise shall be sufficient evidence of his evil intent and of his guilt, and on conviction shall be fined one thousand dollars, and be imprisoned in the penitentiary not less than five years and not more than twenty years, at the discretion of the court trying the samé; and any one who may shoot, or in any way kill or wound such person while under the cover of •such disguise, and while in the act of committing, or attempting, or otherwise, to eommit such violence or trespass, shall not be held guilty, before the law, of any offense against such person, or the State, or be made to suffer any penalty for such act.”

Here we have a certain description and character of persons who, when disguised by masks or otherwise so as not to be easily known, commit or threaten to commit certain offenses while so disguised, and it is made lawful for any one to shoot, or in any way to kill or wound them, while in the act of committing, or threatening to commit, such offenses, and the person slaying or wounding them is declared not to be guilty, before the law, of any offense against such person, or the State, or to be made to suffer any penalty for such act. This, in a very unteehnical, loose and indeterminate sense, may be said to be a kind of outlawry. By this I do not intend to be understood as holding that any one can be, in any proper and legal sense, outlawed by a legislative enactment ; that can only be done in a judicial proceeding, and “ by due process of law.” An act of the legislature is not “ due process of law.” Due process of law, means a proceeding- “ by indictment or presentment of good and lawful men, where such deeds be done, in due manner, or by writ original, of the common law.” — 2 Institutes, 50; Dorman v. The State, 34 Ala. 220-237; Weaver et al. v. Lapsley, 43 Ala. 232.

It is in this loose sense we must find the meaning of the word outlaw, as it is employed in the said act of the 28th of December, 1868, otherwise it must be treated as without meaning; and with this meaning it adds nothing, in reality, to the force and effect of the act. It was, no doubt, employed by the legislature without any very definite idea or comprehension of its true meaning, and to add a sort of force and strength to the expression “ person or persons in disguise,” having reference to the act for the suppression of secret organizations of men disguising themselves for the purpose of committing crimes and outrages. Both these expressions, then, as there used, must be held to mean substantially the same thing; and so it comes to this: does the evidence admitted and agreed upon prove that the plaintiff ’s husband was assassinated or murdered by a “ person or persons in disguise ?” This question, after the maturest reflection, I feel constrained to answér in the negative.

. The evidence of the plaintiff, as stated and admitted, says the plaintiff’s husband was shot by some person in ambush, or concealed in the bushes. The noun ambush means, 1st, the act of attacking an enemy unexpectedly from a concealed station; 2d, a concealed station, where troops or enemies lie in wait to attack by surprise; an ambuscade ; 3d, troops posted in a concealed place, for attacking by surprise. The verb ambush means, to lie in wait; to surprise; to place in ambush. Conceal means, 1st, to hide, or withdraw from observation; 2d, to withhold from utterance or declaration. The synonims of conceal are, to hide; disguise, dissemble; secrete. To hide, is generic ; conceal, is simply not to make known what we wish to secrete; disguise, or dissemble, is to conceal by assuming some false appearance; to secrete, is to hide in some place of seeresy. A man may conceal facts, disguise his sentiments, dissemble his feelings, or secrete stolen goods. The verb disguise means, 1st, to change the guise or appearance of, especially to conceal by an unusitcd dress ; to hide by a counterfeit appearance; 2d, to affect or change by liquor; to intoxicate. The noun disguise means, 1st,' a dress or exterior put on to conceal or deceive ; 2d, artificial language or manner, assumed for deception; 3d, change of manner by drink; slight intoxication. This learning I derive from Mr. Webster, and I am satisfied with it. I can hardly conceive of things better distinctly marked and different, than that of a person or persons in ambush, or concealed in the bushes, where a person so concealed lies in wait to attack by surprise ; and a person or persons in disguise, or disguised by an unusual dress, or, in the language of the preamble to the act, to suppress secret organizations' of men disguising themselves for the purpose of committing erimes and outrages, by the use of masks, hideous costumes, and other grotesque disguises. If I were to write a dozen pages on this subject, I should probably not be better understood than I am now, and certainly I should not be more thoroughly convinced myself. My conclusion is, that the written charge of the court, given at the request of the plaintiff, is not sustained by the evidence, and should have been refused.

Let the judgment be reversed and the cause remanded, at the appellee’s cost.