Drehman v. Stifel

• Decision Date: 31 March 1867
• Citation: 41 Mo. 184
• Parties: HENRY DREHMAN, Appellant, v. CHARLES G. STIFEL, Respondent.
• Court: Missouri Supreme Court

41 Mo. 184

HENRY DREHMAN, Appellant,

v.CHARLES G. STIFEL, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

The plaintiff offered testimony tending to prove the forcible entry and detainer by defendant.

The defendant, to prove that he acted by military orders and authority, called C. W. Bissell, who testified that he was assistant adjutant-general to Gen. Lyon, first; that he was then assigned to duty with Gen. Sweeny; the defendant was colonel of the 5th regiment reserved corps Missouri volunteers; he was appointed adjutant soon after the street fight. “I was ordered by Gen. Nathaniel Lyon to examine these head-quarters with others, with a view of putting them in a state of military defence against attack, which was supposed might be made, and report their condition. I made a report in writing and General Lyon approved it. I then received a positive verbal order from Gen. Lyon; but he told me not to have it then executed, but to request Gen. Sweeny to go with me and examine the premises at both head-quarters. Gen. Sweeny and myself went to the brewery of defendant, and, after a thorough examination, General Sweeny gave a positive order to the defendant, Col. Stifel, to have all those old ruins pulled down and removed, the grounds smoothed, and to put all the ground at and adjoining the brewery under the same fence for parade ground and other military uses. This was after the 8th of May, 1861, and probably as late as June, 1861. Gen. Lyon was then an officer in the United States army, and was in command of the Department of Missouri. Gen. Sweeny was also an officer in the United States army, and was in command of all the forces in St. Louis. I do not know that either Gen. Lyon or Gen. Sweeny had been promoted to the rank of general, but their commands were as I have stated.”

Cross-examined.--“I do not know the date Gen. Harney was relieved of the command of this department and Gen. Lyon was assigned to it; I think it was about the 4th of May, 1861. I never saw Gen. Lyon's commission. or Gen. Sweeny's, as generals; but I saw Gen. Sweeny mustered in, and saw his muster-roll as a general, and I was recognized and paid as a colonel on his staff as early as July, 1861, he was recognized and paid as a general at the same time by a United States paymaster. I I know the Government leased the south wing of the brewery of defendant, and the Government had an addition built to it in 1861 for military purposes; the removal of Drehman's house was suggested first by Col. Stifel, and it was at his suggestion that it was acted upon. I consulted fully with him as I did with other regimental commanders as to what was necessary to be done with reference to putting all the posts in a state of military defence.”

Plaintiff's instructions;

1. The jury have nothing to do with the title of either party to the ownership of the land. It is a question of possession only in the plaintiff, and of forcible entry and detainer by the defendant; therefore, if the jury find that the plaintiff was in peaceable possession of the premises in dispute, and that defendant, acting by his agents or servants, entered upon the same against the will of the plaintiff, and took possession thereof and detained the possession, the verdict must be for the plaintiff.

The above instruction was given by the court with this addition; “Unless the defendant has established his defence according to the instructions given at his request.”

2. In order to constitute such a possession in the plaintiff as will sustain this action, it is not necessary that the plaintiff should stand on the land, or keep an agent or servant there; but any act done by himself on the premises indicating his intention to hold the possession thereof to himself, will be sufficient to give him the actual possession, and the right to maintain this action.

3. If the jury find for the plaintiff, they will assess damages for waste and injury committed upon the premises, as well as for all rents and profits of said premises up to the present time; and they will also find what is the value of the monthly rents and profits of said premises.

4. If the defendant was a military officer of the State or the United States, he might lawfully take possession of the property of plaintiff to prevent it from falling into the hands of the public enemy; but, in order to justify the seizure for that purpose, the danger must be immediate and impending, and not remote or contingent. He might also have taken them for public use and impressed them into the public service, but in order to justify such taking there must have been an immediate and pressing danger or urgent necessity existing at the time, but not otherwise; and, unless the defendant has shown the necessity or emergency existing at the time of the alleged order and destruction of plaintiff's property, it is no defence or justification, and the jury must find for the plaintiff.

5. The 2d section of the ordinance plead in bar of this action is a law retrospective in its action, and in violation of the Constitution of the State of Missouri existing at the time of the passage of said ordinance. and of no validity.

6. Although the jury may believe from the evidence that defendant took possession of the premises of the plaintiff, and destroyed the improvements thereon, in pursuance of an order from one Lyon, or Sweeny, or the witness Bissell, under whom the defendant was acting in a subordinate capacity; yet, unless he shall have shown an authority from the Government of the State, or the United States, vested in said Lyon, or Sweeny, or Bissell, or defendant, at the time the act was done, to do the act, then the ordinance is no protection to the defendant, and the jury must find for the plaintiff.

7. The jury are instructed that the testimony of the witness Bissell, in relation to the orders of Lyon, or Sweeny, to defendant, are excluded from their consideration, and are not evidence in the cause.

8. The 2d section of the ordinance plead in bar of this action is a bill of attainder within the meaning of the Constitution of the United States, and of no validity.

The court gave Nos. 1, 2 and 3, but refused to give Nos. 4, 5, 6, 7 and 8.

The defendant asked the following instructions.

1. If the jury believe and find from the evidence in the cause, that the act of forcible entry and detainer complained of in this action against the defendant was an act by him done, performed and executed after the 1st day of January, 1861, by virtue of military authority vested in him by the Government of the United States to do such acts, or was by him so done, performed and executed in pursuance of an order received by him from a person vested with such authority, then the plaintiff is not entitled to recover in this suit, and your verdict should be for the defendant 2. The jury are instructed that if Gen. Sweeny, with the approval of Gen. Lyon, issued a military order for tearing away and removing the premises in question, directed to the defendant (if the defendant was at said time in the military service of the United States Government, and subject thereby to the authority of the said generals), then the matter of how said order was procured, or at whose instance, or under what circumstances, cannot be considered by them; for the order, when issued by competent authority, is a justification of the doing of the act by a military subordinate.

3. If the jury believe and find from the evidence that Gen. Lyon was on the 15th June, 1861, in the military command of the city of St. Louis and State of Missouri, and that General Sweeny was in command at the same time of the United States reserve corps, and of which corps the 5th regiment was under the command of Col. Stifel, the defendant; and that on or about that time an order was issued by Gen. Sweeny, with the approval of Gen. Lyon, directed to the defendant, commanding him to tear away and remove the building and building materials upon the premises in question, and enter upon and hold the same for military purposes, and that the defendant, in execution of such order and in obedience to the same, did tear away and remove the said building and building materials, and enter upon the said premises and hold the same, and that the said entry and holding under such circumstances constitute the forcible entry and detainer complained of in this action, then the plaintiff cannot recover herein, and in such case it makes no difference (and the jury are not permitted to inquire into) whether such act was an act of military necessity or otherwise.

4. The jury are instructed that if the entry upon the premises in question was made by the defendant as a military act, done under military authority, and in the doing of which he was and is to be protected under the provisions of the ordinance of the people of the State providing for the vacating of certain civil offices in the State, filling the same anew, and protecting the citizen from injury and harassment, pleaded in the cause, then the subsequent detainer of said premises at any time afterwards by the defendant, if he did so detain them, cannot afford any cause of action against the defendant under the proceedings in this cause.

Which were all given.

The jury found their verdict for the defendant.

The plaintiff, having unsuccessfully moved for a new trial, appealed.

P. L. & J. P. Hudgens, and Doniphan & Field, for appellant.

I. Appellant insists that the construction given by the court to sec. 4 of art. 11 is incorrect, and in violation of every known rule of statutory o constitutional construction.

It is a well established rule of construction that the whole Constitution, or all of the acts of the same Convention, must be construed so as to be consistent in all their parts; and if sec. 4 of art. 11 is susceptible of two constructions, only one of which is in harmony with the other parts of the Constitution, that construction must be adopted as the...