Ex parte Rhodes

• Citation: 79 So. 462,202 Ala. 68
• Decision Date: 30 May 1918
• Docket Number: 6 Div. 732
• Parties: Ex parte RHODES. v. McWILSON. RHODES
• Court: Supreme Court of Alabama

79 So. 462

202 Ala. 68

Ex parte RHODES.

RHODES v. McWILSON.

6 Div. 732

Supreme Court of Alabama

May 30, 1918

On Application for Rehearing, June 29, 1918

Certiorari to Court of Appeals.

Action by Thomas McWilson against J. Turner Rhodes. Judgment for plaintiff affirmed by Court of Appeals (77 So. 465), and defendant brings certiorari. Denied.

Anderson C.J., and McClellan and Gardner, JJ., dissenting.

Horace C. Wilkinson and M.M. Ullman, both of Birmingham, for appellant.

MAYFIELD J.

To hold that the arrest in this case is lawful and reasonable is to hold that any person may be lawfully seized, arrested detained, and, unless he give bond, imprisoned, by any policeman of the city of Birmingham, on a mere verbal request of any other citizen, who says to the policeman that the person to be arrested has violated some criminal law of this state, or some ordinance of the city of Birmingham; that such arrests may be lawfully made, as for any misdemeanor, or for the violation of any municipal ordinance of Birmingham, by any policeman in the city of Birmingham, though the offenses is not committed in the presence of the arresting officer, and though he have no probable cause to believe that that offense or any other, has been commmitted, and without the affidavit or oath of any person, and even when the officer and the person requesting the arrest know that the person to be arrested has committed no offense whatever, and that the arrest is for the purpose of allowing the person making the request to get possession of the property of the person arrested. That this court on the former appeal, and that of the Court of Appeals on this appeal, as to what the undisputed evidence shows. 192 Ala. 675-682, 69 So. 69; Id., 77 So. 465.

To hold an arrest lawful and reasonable, such as is shown in the opinions to which reference is made, is in legal effect to nullify several provisions of our Bill of Rights, as well as section 89 of the Constitution.

Opinion.

When the people of this state, through their representatives, met in convention to form this state government, they reserved to themselves and their descendants and successors certain rights, liberties, privileges, and immunities, which they did not surrender or cede to the government to be created by the convention. They also exacted guaranties of the government so formed to protect each person in the state, and secure to him the enjoyment and exercise of these rights, liberties privileges, and immunities, so reserved against encroachment or destruction thereof by other persons, whether majorities or minorities of the whole, or officers of any department of the government itself. Some, but not all, of these rights, liberties, privileges, and immunities, are enumerated in the Bill of Rights, which comprises the first 36 sections of our Constitution. That all this is true is obvious from a reading of the last two sections of the Bill of Rights, as follows:

"Sec. 35. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.

"Sec. 36. That this enumeration of certain rights shall not impair or deny other retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate."

The right, liberty, privilege, or immunity which is encroached upon if not destroyed by this arrest is expressly enumerated or included by implication in several sections of the Bill of Rights. Section 5 in part declares:

"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches."

While section 7 of the Constitution in part declares:

"That no person shall be accused or arrested, or detained, except in cases ascertained by law, and according to the form which the same has prescribed."

The Constitutions, state and federal, in several provisions or clauses, not only declare but guarantee that no citizen shall be deprived of his life, liberty, or property, except by due process of law. Can it be said that this plaintiff in judgment is not within the protection of these guaranties, or that no right, liberty, privilege, or immunity of his has been encroached upon, or denied him, by this arrest?

When the delegates to our first constitutional convention, who were the representatives of the people and not of the government to be created, were assembled in 1819, and were making our Constitution, there was then applicable in the Alabama territory a system of laws called "The Law of the Land," or "Due Process of Law." This consisted mainly of a great body of American laws, the American common law, together with some written laws, the acts of the Alabama and Mississippi territorial Legislatures, the Constitution of the United States, and the acts of Congress. The various phrases and clauses used by the convention to described the reserved rights, liberties, immunities, and privileges then had well-known meanings; many of them are to be found in the Magna Charta and other charters of liberties then claimed by our ancestors as a part of the law of the land; and many of them were then imbedded in the Constitution of the United States and had been construed by the Supreme Court of our country to mean what they meant at common law. It would be unreasonable to suppose that our Constitution makers used these phrases or clauses otherwise than as then defined by the common law or the law of the land. The first clause in the fifth section of the Bill of Rights. "That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches," then had a well-known meaning, and the same phrase had been often defined by the courts, state and federal. It must be presumed that the makers of the Constitution adopted it under its then construction. If it was not intended to prevent the government then being formed from authorizing or legalizing arrests like this, then the part which applies to the seizure of the person is worthless. If the arrest under consideration was lawful, or can be made so without amending the Constitution, then this guaranty of the Bill of Rights has failed of its purpose, to secure the people from unreasonable arrests. Surely the phrase "unreasonable seizure" included an arrest like the one now under consideration. If not, it would be difficult to suppose a seizure or arrest of the person that would be unreasonable.

The same is true as to the phrase "due process of law." Surely any seizure or arrest of a citizen is not reasonable, or any process is not "due process," merely because a Legislature or a municipality has attempted to authorize it. These phrases are limitations upon the power of the Legislature, as well as upon that of the other departments of government, or of their officers.

It is an error to suppose, because the last clause of section 5 of the Bill of Rights does not prohibit an arrest without a warrant, but only prohibits the issuance of a warrant without an oath or affirmation, as has been often reaffirmed and uniformly acted upon, that there is no constitutional limitation upon, or prohibition against, arrests, and that the Legislature is without limitations of its power to authorize arrests without warrant. There are other provisions in the Bill of Rights which do prohibit arrests like the one in question, one of them in the very section which prohibits the issuing of a warrant without oath or affirmation. The first clause of section 5 deals with arrests generally, and the latter clause deals with the warrant or written authority for arrests. The fact that the last clause does not condemn a given arrest, but only the issuing of the warrant, does not make it follow that other clauses of the Bill of Rights do not prohibit such arrests.

The general rules for the construction of statutes--that they are valid unless their prohibition can be found on the written pages of the Constitution, state or federal, and that they must be held valid unless the court can say beyond a reasonable doubt that they are void--do not apply when the reserved rights, liberties, immunities, and privileges of the citizen are involved. That is, when the inalienable rights of the citizen are involved. As section 36 of the Bill of Rights declares:

"This enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate."

These were therefore expressly excepted out of the general powers of the whole government--the legislative branch, as well as the executive and judicial branches. This distinction was at an early date made by this court, in the famous case of Ex parte Dorsey, reported in 7 Port. 293-419. In that case, after quoting the above section of our Bill of Rights, Justice Ormond said:

"By this it appears, not only that the rights asserted in this instrument are reserved out of the general powers of government, but also that this enumeration shall not disparage others not enumerated; and that any act of the Legislature which violates any of these asserted rights, or which trenches on any of these great principles of civil liberty, or inherent rights of man, though not enumerated shall be void.

"It cannot, I think, be successfully maintained that this last and not least important clause of the Bill of Rights is void of meaning. Is it unreasonable to

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