Berlet v. Weary

• Decision Date: 08 January 1903
• Docket Number: 12,480
• Citation: 93 N.W. 238,67 Neb. 75
• Parties: PETER BERLET v. EDWIN D. WEARY
• Court: Nebraska Supreme Court

93 N.W. 238

67 Neb. 75

PETER BERLET v. EDWIN D. WEARY

No. 12,480

Supreme Court of Nebraska

January 8, 1903

ERROR from the district court for Lancaster county. Action on account for goods sold and delivered. The defendant pleaded inter alia, his privilege and immunity from civil process, as a member of the legislature of the state. Tried below before FROST, J. Judgment for plaintiff. Affirmed.

AFFIRMED.

Jefferson H. Broady, Paul F. Clark and Charles S. Allen, for plaintiff in error.

Love & Frampton, contra.

LOBINGIER C. HASTINGS and KIRKPATRICK, CC. concur.

OPINION

LOBINGIER, C.

This action was commenced in the district court for Lancaster county, December 31, 1900, on an account for merchandise alleged to have been sold by plaintiff to defendant. The latter filed objections to the jurisdiction and a motion to quash the service, alleging that he was a member of the Nebraska state senate, which convened on January 1, 1901, and that he was in Lancaster county on the day previous for the sole purpose of attending the legislative session. The motion and objections were overruled and defendant then answered, again claiming privilege from service in Lancaster county, admitting the purchase of most of the merchandise, but not from plaintiff, alleging that the items charged in the account were "unreasonable, unjust and exorbitantly high" and that part of the goods were damaged when received. The answer also contained a general denial. There was a trial to a jury which found for the plaintiff, but the only evidence contained in the bill of exceptions relates to the matters set forth in the objections to jurisdiction and motion to quash, and the petition in error from the judgment rendered on the verdict is restricted in its assignments to the same matters.

Defendant contends that he was not voluntarily in Lancaster county on the day when he was served, but was there in pursuance of official duty; that his presence might have been compelled by a call of the house; and that while he might have been served at his home in Nemaha county, the service in Lancaster county was unauthorized and invalid. This contention calls for an investigation as to the extent of a legislator's immunity from judicial process. It is conceded that there are no constitutional or statutory provisions in this state which exempt a legislator from the service of civil process, and the exemption here claimed, if it exists at all, must be derived from the common law. We are first to inquire, then, what was the common-law rule.

From time immemorial members of parliament were privileged from arrest during the sessions of that body and for a reasonable period before and after, so as to permit them to attend and return home. The privilege appears to have originated in the necessity of maintaining the independence of the legislature as against the aggressions of the crown and of preventing the coercion of members by the use or abuse of criminal process. The privilege was not, however, restricted to such process, but extended to all cases where the member's person might be taken into custody. So long, therefore, as imprisonment for debt was in vogue, the peers and commons were exempt from this also, and from such of the civil writs as were executed by seizing and confining the person of the defendant. Thus, as late as 1841, it was held to be irregular to issue a capias ad satisfaciendum (which was executed by imprisoning the defendant until the debt and costs were paid) against a member of the house of commons in an action of assumpsit. Cassidy v. Steuart, 2 M. & G. [Eng.] 437.

The freedom of members from process of this kind, whether criminal or civil, rests upon the highest grounds of public policy. As was said by Lord Denman, C. J. in Stockdale v. Hansard, 9 Ad. & El. [Eng.] 1, 114: "The proceedings of parliament would be liable to continual interruption at the pleasure of individuals, if every one who claimed to be a creditor could restrain the liberty of the members." Another ground, as pointed out by a learned constitutional historian, is "the supreme necessity of attending to the business of parliament, the king's highest court." Stubbs, Constitutional History of England, vol. 3, sec. 452, p. 512. But this immunity and the reasons therefor appear to have existed only as to process which required the detention of the person. After a diligent search we have been unable to find a single English case which decides that a member of parliament or other legislative officer is exempt from the service of a mere summons at any time. That such exemption was sometimes claimed by the members themselves is true, but we find no instance where it was recognized and enforced by the courts. And as was said by the eminent chief justice in the case last cited (p. 114): "When this privilege was strained to the intolerable length of preventing the service of legal process, or the progress of a cause once commenced against any member during the sitting of parliament, or of threatening any who should commit the smallest trespass upon a member's land, though in assertion of a clear right, as breakers of the privileges of parliament, these monstrous abuses might have called for the interference of the law, and compelled the courts of justice to take a part." Mr. Justice Wylie, in his learned and exhaustive opinion in Merrick v. Giddings, McArthur & Mackey [D. C.] 55, mentions two cases (Doune v. Welsh and Ryver v. Cosins) in the reign of Edward IV. (1461-1483), where "it was held that the privilege from arrest during the session of parliament did not protect him [the member] from being impleaded, but only that he should not be arrested." In Benyon v. Evelyn, Orlando Bridgman's Judgments, 324, decided about the middle of the seventeenth century, it was declared to be "lawful to sue out an original writ against a member of the house of commons although parliament is sitting." It is true that some of the text-writers appear to announce a different rule as applicable to this period. In 4 Coke's Institutes, 24, there is a passage where the author, in speaking of a member of parliament, says "the serving of the citation did not arrest or restrain his body, and the same privilege holdeth in case of subpoena." This passage, however, has been much criticised and declared to be unwarranted from the record on which the author relies. "The truth is," observed Chief Justice Bridgman in Benyon v. Evelyn, Bridgman's Judgments, 324, "that Lord Coke's treatise of the jurisdiction of parliament is a posthumous work; and though I shall attribute as much to his learning in the law as to any sages in the law whatsoever, yet there not being that freedom in former times of having copies of the records at large as hath been since, when he comes to cite them he is guided by abstracts, which occasions miserable mistakes, and by the modus tenendi Parliamentum, which, as to the time of making it, was most certainly a counterfeit piece. So that there are a multitude of errors in his chapter concerning parliaments, and in particular both those records are grossly mistaken." See also Hatsell, Precedents, p. 6; Merrick v. Giddings, McArthur & Mackey [D. C.] 55, 59. So in Stubbs, Constitutional History of England, vol. 3, sec. 452 et seq. the author speaks of members of parliament as privileged "from being impleaded in civil suits, from being summoned by subpoena or to serve on juries," etc.; but, while he mentions many cases of exemption from criminal process, he refers to no instance of immunity from the mere service of civil process, and it is evident that he is here speaking of privileges claimed by the members, rather than those recognized and enforced by the courts.

But whatever may have been the law at this time and whatever the claims of the members, parliament itself at an early period undertook to restrict the exemption to process which restrained the liberty of the member. In 1649 the house of commons ordered that in case of a legal proceeding against a member he should receive written notice of its pendency and that then "the member is enjoined to give appearance and proceed as other defendants in case of like suits or actions ought to do, or in default thereof, both their estates and persons shall be liable to any proceedings in law or equity as other members of the Commonwealth." See Journal of House of Commons ^[*] quoted in Hoppin v. Jenckes, 8 R.I. 453, 457. In 1700 parliament passed an act providing for the commencement of actions and the issue and service of process against members of parliament "at any time from and immediately after the dissolution or prorogation of any parliament, until a new parliament shall meet, or the same be reassembled and from and immediately after any adjournment of both houses of parliament for above the space of fourteen days, until both houses shall meet or reassemble." ^[+] In 1769 a statute was enacted which provided that: "Any person or persons shall and may, at any time, commence and prosecute any action or suit in any court of record, or court of equity, or of admiralty, and in all causes matrimonial and testamentary, in any court having cognizance of causes matrimonial and testamentary, against any peer or lord of parliament of Great Britain, or against any of the knights, citizens, and burgesses, and the commissioners for shires and burghs of the house of commons of Great Britain for the time being, or against their or any of their menial or any other servants, or any other person entitled to the privilege of parliament of Great Britain; and no such action, suit, or any other process or proceeding thereupon, shall at any time be impeached, stayed, or delayed, by or under colour or pretence of any privilege of parliament." ^[++]

Thus the law stood at...