Worth v. Norton

33 S.E. 792, 56 S.C. 56, 1899 S.C. LEXIS 159

Opinions

The opinion of the Court was delivered by

Mr. Justice Pope.

Plaintiffs commenced an action against defendant in the Court of Common Pleas for Marion County, in this State, by the service of a summons and complaint upon him while he was at Florence C. H., in Florence County, in this State, bn the 6th day of July, 1898, for the recovery of a money judgment. Thereupon the defendant, by his counsel, served the following notice: “The defendant, James Norton, by his counsel, Sellers & Sellers, without at present answering the complaint herein, alleges: 1. That he is a representative from, the Sixth District of the State of South Carolina in the Congress of the United States of America; that, as such, he is not amenable to process, either criminal or civil, except in specified cases, during the session of the said Congress, or in going to> or returning from the same. 2. That on the 6th day of July, 1898 (the day on which copy of summons and complaint was served upon him, in the town of Florence, S. C), the said Congress was in session in the city of Washington, D. C., he being absent therefrom on leave. Wherefore, you will take notice that defendant, by his counsel, will move the Court of Common Pleas, at 12 o’clock M., on the first day of the next term thereof for said county, or as soon thereafter as counsel can be heard, to set aside the service of said summons and complaint as being unconstitutional, illegal and void; and failing in that motion, he hereby reserves the right, by leave of the Court, to- answer said complaint nunc pro tuncIt was admitted at the hearing that on the 6th day of July, 1898, the time of service of summons and complaint, James Norton, defendant, was a representative in Congress from this State, and at the time of service he was in Florence, S. C., on private business, being absent on leave from Congress, then in session, and that Congress adjourned sine die on the 8th day of July, 1898.

The motion being heard, his Honor, the presiding Judge, passed the following order: “The motion made in above case to set aside the service of the summons and complaint, on the grounds set forth in the notice served upon plaintiff’s counsel, 25th July, 1898, having been -heard, and after argument of counsel, it is ordered, that the service of said summons and complaint be set aside as illegal and void, it being admitted that Congress was in session, and that James Norton was a member thereof, and absent therefrom on leave.”

The plaintiffs, through their counsel,- gave due notice of appeal and subsequently filed their exceptions, as follows: “It is submitted that his Honor, the Circuit Judge, erred: 1. In dismissing the service of the summons and.complaint, and in holding the same to be illegal and vo-id, on the ground that ‘Congress was in session, and that James Norton was a member thereof, and absent therefrom on leave.’ 2. In not holding that the service of the summons and complaint was legal and valid, because the same was not an arrest, and the defendant was neither in attendance -upon Congress nor going to or returning from the same. 3. In not holding that representatives in Congress, are privileged solely from arrest, except- in treason, felony .and breach of the peace, during their attendance upon Congress while in session, and in going to and returning from the same, and in not holding that a representative in Congress is at .all times amenable .to the service of a civil process of the character served upon the defendant.” • . ..

The language of the Federal Constitution is as follows: Art. I., sec. 6: “The senators and representatives shall .receive a compensation for their services, to be ascertained by law and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged fr.om arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in an)'- house they shall not be questioned at any other place.” Of course, the question we are called upon to settle depends upon the meaning to be given to the words “privileged from arrest.” If we adhere to the literal meaning of the word “arrest,” the Circuit Judge was in error. But is such a restricted meaning proper? In the judgment of the writer of this opinion, the words “privileged from .arrest;” • as used in the Federal Constitution, are words of art,, meaning freedom from service of any civil process. These are the words of the common law and of the mother country. It is to be regretted, that the Supreme Court of the United States has not spoken in regard to the true meaning to be accorded the words “privileged from arrest.” In our own State, in the case of Tillinghast and Arthur v. Thomas Carr, 4 McCord, 152, when the privilege of a member of the House of Representatives of the State of South Carolina. was invaded by a summons in a civil proceeding, the Court held that the language of the 14th section of article.I. of the State Constitution, which was in these words: “The members of. both houses shall be protected in their persons and estates, during their attendance on, going to, and returning from. the legislature, and ten days previous to the sitting and ten days after the adjournment of the legislature; but these privileges shall not be extended so as to protect any member who -shall be charged with treason, felony or breach of the peace,” were broad enough to cover the cases, not only of arrest but summons in a civil proceeding. The Court in its reasoning uses this language: “It must be obvious that a member may be much harassed by suits, although his body is not arrested. His mind must, of course, be greatly disturbed and drawn off from his business; besides, it brings upon him a sort of odium which lessens his usefulness. If it be admitted that he may be served with a summons while attending on the legislature, it follows that he may be served with a summons eundo et redeundo, and 'thus he might, by ill natured and malicious creditors, be sued in every district through which he passed, going and returning, and might be required to attend a Court, which might be sitting while the legislature was convened, and thus perhaps an undue advantage taken of him, &c.” It must be admitted that the Judge who prepared this opinion (Judge Colcock) did not understand the word “arrest” to be synonymous with the words just quoted from the State Constitution.. This was not necessary to- the decision of the Court. There are at least two decisions of Courts in other States which have construed the meaning of the word “arrest” in the Federal Constitution, as used in the section of that instrument already quoted herein, to be freedom from a summons in a civil action as well as actual arrest in such an action. The case of Doty v. Strong, 1 Penney’s Wisconsin Reports, 84, was when a delegate in Congress from the territory of Wisconsin had been served with summons in a civil action. He pleaded his privilege as a member of Congress in freedom from arrest and summons in a civil action. The Supreme Court held that as a member of Congress, under the Federal Constitution, he was free not only from actual arrest but also from any summons in a civil action. Here is the language used by Mr. Justice Miller, in delivering the opinion of the Court: “The defendant relied upon the 6th section of the 1st article of the Constitution of the United States, which, in speaking of the senators and representatives in Congress, contains the following language: ‘They 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 or returning from the same.’ The reason of this provision is obvious. The people elect their representatives h> Congress to protect their rights and advance their interests, which should not be jeopardized by the arrest of their representative for debt or private contract of his own, and it is' equally necessary that his rights and interests should be protected while absent in the public service. In order to render this provision 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 to- the protection of the rights of the people that their representative should be relieved from absenting himself from his public dutjr 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. We have only been able to find one authority on this subject, after a careful search. It is a decision of the Supreme Court of Pennsylvania, in the case of Geyers, lessee, v. Irwin, 4 Dall., 96. That decision was made upon the same provisions in the Constitution of that State, and couched in the same language as that under consideration. The Court in that case declared that ‘a member of the General Assembly is. undoubtedly privileged from arrest, summons, certio-rari, or other civil process during his attendance on the public business confided to him, and that upon principle, his suits cannot be forced to a trial and decision while' the session of the legislature continues.’ ” There has been a more recent case, that of Miner v. Markham, 28 Federal Reporter, 387, where Judge Dyer of the United States Circuit Court, in 'construing this same provision of the Federal’ Constitution, held, that “a member of Congress is entitled to exemption from service of process, although not accompanied with an 'arrest- of the person, while on his way to attend a session Of Congress.” Although this is only a Circuit’opinion, Judge Dyer has done his work in defending the construction of this provision of the Constitution so ably, that we are strongly tempted to quote at length from such an admiráble opinion; but we have already’quoted quite enough to set forth the principle upon which we rely in sustaining the Circuit judgment of Judge Watts in the case at bar. The’decision of this ^question renders unnecessary any prolonged notice of that ground of appeal which claims that the Circuit Judge overlooked the fact that service of process was made upon Norton in his absence from his seat in Congress, and on two days before the Cong’ress adjourned. Mr. Norton, although absent on leave from his seat in Congress, was liable to- be summoned to return to- Congress at any moment. Besides, Congress was in session when he was served with process. Public policy as well as the Federal Constitution demand that these gentlemen, who are elected by the people as their representatives in the lower house of Congress, shall not be harassed by civil suits while Congress is in session, and also- for a reasonable time in going to and returning from Washington. In my opinion, o-ur judgment should be: “It is the judgment of this Court, that the order o-f the • Circuit Court, which was appealed from, be affirmed.” But the majority o'f the Court think otherwise.'

Hence it is my duty to state that the judgment of the Circuit Court be reversed, and the cause remanded to- the Circuit Court, with leave to the defendant to answer in twenty days after the remittitur reaches the Court below; but that in the event the defendant fails to- answer in said twenty 'days, that the plaintiff have leave to apply to- the Court for judgment, but I dissent from this judgment. ■