Pundt v. Pendleton

• Decision Date: 11 February 1909
• Parties: PUNDT v. PENDLETON, Jailer.
• Court: U.S. District Court — Northern District of Georgia

167 F. 997

PUNDT v. PENDLETON, Jailer.

United States District Court, N.D. Georgia, Northwestern Division.

February 11, 1909

John W Henley, for complainant.

William E. Mann, for defendant.

NEWMAN District Judge.

The matter for determination here arises on a petition for writ of habeas corpus issued on behalf of the petitioner, W. A Pundt, the answer of the jailer of Catoosa county, to whom the writ was directed, and agreed statement of facts together with certain documentary evidence. The statement of facts, which will show clearly the question raised, is as follows:

'Agreement.

'It is agreed by and between John W. Henley, Assistant United States Attorney, representing the petitioners, and William E. Mann, attorney at law, representing the respondent in the above-stated case, that the following evidence and facts be submitted to the court for determination of said cases, and that the same constitute the material evidence in said cases, as follows:

'(1) That each of said petitioners has continuously resided at Ft. Oglethorpe, on the premises known as 'Fort Oglethorpe Military Post,' as follows: James Price more than twelve months; James L. Kennedy about three years; G. K. Peavey about three years; D. A. Mowery since 1906; W. A. Pundt three years. During all this time each of them has been employed as teamster in the Quartermaster's Department of the United States military service at Ft. Oglethorpe, and has been domiciled in a building of the government at said fort, which building is a part of the fort. That on or about the 2d day of December, 1907, each of said petitioners was warned by the road overseer to meet him at Cloud Springs Church on the 4th day of December, 1907, to work the public road; that said road is situated outside of said military post, and outside of the Chickamauga and Chattanooga National Park, within the road district wherein said road commissioners resided. That said teamsters, under the rules and regulations of the Quartermaster's Department and the Army Regulations, are required to obey strictly and execute promptly the orders of their superiors as required by Army Regulations 1 and 730; that they are subject to the order of the Quartermaster's Department at said post, and their duties are necessary and important in said department. That on account of their duties to the government they did not obey said summons and did not work the public roads. That on account of said default the road commissioners of Catoosa county caused to be served on D. A. Mowery, W. A. Pundt, George L. Kennedy, and G. K. Peavey notice to appear before said road commissioners on the 28th day of December, 1907, to answer said default. That no notice was served on James Price, except by posting notice as required by section 546, Code Ga. 1895, which notice was posted in compliance with said section. That the said James Price did not appear for trial under said notice, either in person or by attorney, and was not present when the road commissioners adjudged him to be in default and made an order committing him to Catoosa county jail for thirty days in default of the payment of the sum of $12 adjudged by them against him. The other petitioners in this case did appear before said commissioners on the 28th day of December, 1907, and testified in their own behalf. That said road commissioners on the 28th day of December, 1907, passed an order and judgment in each of said cases requiring each of them to pay a fine of $12 and all costs of the proceeding, to be collected by execution, or in default that each of them be committed to the common jail of said county for the term of thirty days. That on the same day the said road commissioners passed an order in each of said cases to the effect that, each of said petitioners refusing to pay the above-adjudged penalty or judgment, it is the order of the road commissioners' court of the 1096th district that he (each of the petitioners in this case) be committed to the common jail of said Catoosa county for the term of thirty days, there to be received and safely kept by the jailer for said term; that on the same day the said road commissioners passed a further order with reference to each of these petitioners, to the effect that, he having appeared before us as a road defaulter, after hearing the evidence, it is ordered that he be committed to the common jail of said county for a term of thirty days, and be safely kept by the jailer for said term; that on the same day the following order was passed with reference to each of said petitioners, to the effect that he (each of the said petitioners) has been committed to the common jail of said county as a road defaulter by us for a term of thirty days, may be discharged from prison by paying the penalty adjudged by us for four days at $12, also the further sum of $1.75, costs of this suit.

'(2) It is further agreed that petitioners in this case applied for and obtained the sanction of the writ of certiorari, which came on for hearing before Judge Fite at Dalton on 12th day of October, 1908, and that, after argument on the motion to dismiss, the court ordered and adjudged that the certiorari in each of said cases be dismissed upon the ground that no notice had been served upon the opposite party in interest as required by law, and that the judgment of the court below be affirmed, and that each of said petitioners in certiorari and his surety on his bond pay the costs of said proceeding. And further ordered that the execution of the remainder of the sentence of imprisonment imposed by the road commissioners be suspended until the 22d day of October, 1908, and that each of said plaintiffs in certiorari then appear and abide and perform said sentence of imprisonment. That the certiorari in said cases was not heard upon its merits. That each of the petitioners in this case appeared at Ringgold on the 22d day of October, 1908, and entered upon the execution of the sentence of imprisonment rendered by the road commissioners imposing the sentence of imprisonment for a term of thirty days in Catoosa county jail. That they and each of them were so imprisoned and were in the custody of James B. Pendleton, jailer of Catoosa county, at the time their petition for writ of habeas corpus was made in this case, and at the time the writ of habeas corpus was served.

'(3) It is further agreed that the lands on which Ft. Oglethorpe is situated, where petitioners resided at the time they were required to work the road, was acquired by the United States by purchase with the consent of the Legislature of the state of Georgia as expressed in an act of the General Assembly of Georgia as set forth in Georgia Laws 1890-91, vol. 1, p. 200.

'(4) It is further agreed that all the roads on Ft. Oglethorpe Military Reservation, and all the roads on Chickamauga and Chattanooga National Park, and the road from Ringgold to said park, as well as the road from Lafayette to the Tennessee state line, aggregating about one hundred miles, are maintained, worked, and kept up by the United States government. That the roads on Ft. Oglethorpe Military Reservation are worked and kept up by the Quartermaster's Department at said reservation.

'(5) It is further agreed that George L. Kennedy claims to be a resident of the state of Alabama; D. A. Mowery claims his residence in the state of Kentucky; G. K. Peavey claims his residence in Dooley county, Ga.; W. A. Pundt claims to reside in the state of Texas.

'(5a) It is further agreed that the certiorari proceedings in the cases of each of these petitioners against L. R. Williams, C. S. Benton, and A. D. Beaver, district road commissioners of Catoosa county, so far as may be necessary on the investigation of this case, be submitted as a part of the evidence.

'(6) It is further agreed that Ft. Oglethorpe was designated and established in compliance with the laws of the United States.

'(7) That petitioners can resign and quit their employment by the government at their option, except as bound by contract.

'This 5th day of November 1908.

'(Signed) John W. Henley, Asst. U.S. Atty., for Petitioners. 'W. E. Mann, Atty. as of Record.'

The statute of the state of Georgia on the subject of road duty provides:

'All male inhabitants of this state between the ages of sixteen and fifty shall be subject to work on the public road.'

To this general duty there are certain exceptions not material here.

The petitioner was employed as a teamster in the Quartermaster's Department in the United States army in connection with the troops of the regular army of the United States stationed at Ft. Oglethorpe. The land on which Ft. Oglethorpe and the buildings appurtenant to it are situated is a part of a tract of land of which jurisdiction was ceded to the United States by an act of the Legislature of Georgia (Laws Ga. 1890-91, vol. 1, p. 200), as follows:

'Be it enacted by the General Assembly of the state of Georgia, that the jurisdiction of this state is hereby ceded to the United States of America over all such lands and roads as are described and referred to in the foregoing preamble to this act, which lie within the territorial limits of this state, for the purpose of a National Park, or so much thereof as the national Congress may deem best; provided, that this cession is upon the express condition that the state of Georgia shall so far retain a concurrent jurisdiction with the United States over said lands and roads as that all civil and criminal process issued under the authority of this state may be executed thereon in like manner, as if this act had not been passed; and upon the further express conditions, that the state shall retain its civil and criminal jurisdiction over persons and citizens in said ceded

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