State ex rel. James v. Gatzweiler

• Decision Date: 31 October 1871
• Citation: 49 Mo. 17
• Parties: STATE OF MISSOURI, TO USE OF JAMES JUDGE, Respondent, v. FREDERICK W. GATZWEILER et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 17

STATE OF MISSOURI, TO USE OF JAMES JUDGE, Respondent,

v.FREDERICK W. GATZWEILER et al., Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Warren Circuit Court.

T. T. Bruere, for appellants.

Defendant is protected by section 4, article XI, of the State constitution, and the defense is sufficiently pleaded. If, whenever this section is invoked, defendant must show the legality of the military order under which he acted, the section would be nugatory. (Clark v. Dick, 9 Am. Law Reg. 742.) This court has held that the circumstances under which the order was issued, such as the pressure of military necessity, or at whose instance it issued, need not be shown. (Drehman v. Stifel, 41 Mo. 203.) The existence of the urgency or military necessity will be conclusively presumed from the order itself. The only facts required to be proved by defendant are: first, that the military order existed; second, that those issuing it were then clothed by the United States with military authority over Missouri. (Clark v. Dick, supra.)

It is immaterial, under the section referred to, that defendant was a private citizen. (See same case.)

That section is not a bill of attainder nor an ex post facto law. (Drehman v. Stifel, 8 Wall. 595.)

Nor is the law void as being retrospective. Retrospective laws are not void for that reason, unless they are made so by express constitutional provisions. Now this is not a statute law, but a part of the constitution of Missouri itself--a part of the fundamental law of the State, which cannot by implication be nullified by another part of that same instrument prohibiting the Legislature from passing retrospective laws. (Const., art. I, § 28.)

Section 4 of article XI did not impair the obligation of defendant's contract as contained in his sheriff's bond. (Drehman v. Stifel, 8 Wall. 601.) The obligation of the bond was not to pay over the $10,000 to Judge, but to faithfully discharge his official duties. The “duties” meant were certainly not those imposed on him at the time the bond was executed, otherwise they could not afterward be altered by the Legislatnre. Yet undoubtedly that body might require the sheriff to pay the balance in his hands into court, or into the county treasury; or the State convention could direct him to pay it over in obedience to military orders. If there was no legal authority for the military order, defendant has his remedy against the government.

This suit is barred by the Congressional statute of limitations. (12 U. S. Stat. 755, § 7.)

The action was brought more than two years after the execution was returned satisfied. From that date, and not the time of demand, the statute began to run. (See Clark v. Dick, supra, and Bigelow v. Forrest, 9 Wall. 348-9.) And the operation of this act is not confined to the case when arising in the Federal court, but affects it in a State court as well. (See Mayor of Nashville v. Cooper, 6 Wall. 247; Clark v. Dick, supra.)

Defendant was a mere bailee, and responsible only for ordinary care and diligence. He was certainly not liable if the money was taken from him by irresistible force, and under threats of his personal liberty.

E. A. Lewis, for respondent.

I. By the terms of his bond, defendant in effect contracted to pay over to plaintiff any surplus in his hands after satisfying the execution; and section 4, art. XI, of the State constitution, in so far as it released defendant from that obligation, “impaired the obligation” of his contract. This section in the case at bar would not merely modify plaintiff's remedy, but would take it away altogether.

In the case of Drehman v. Stifel, 8 Wall. 595, this section was permitted to govern, solely because it did not bar plaintiff from his right to recover property rights, but only from a specific form of action. It was said that the result might be different if “by giving effect to the provision the party was precluded from asserting a title or enforcing a right.” That suit was for the recovery of property which plaintiff charged to have been tortiously taken from him, and the action was not for the enforcement of a contract, but a preventive remedy for a forcible and wrongful ousting.

In this case the action is brought specifically for the enforcement of a contract, under which the plaintiff had acquired vested rights at the time of the adoption of the constitutional provision which is here arrayed against him.

II. Even supposing the provision to be constitutional, it has no application here. Defendant had no military authority; nor, properly speaking, was the act done by him under “orders received by him” from one vested with such authority. A private soldier may receive an order from his superior officer. But the law could not have been intended to apply to any unauthorized direction given by a military officer to a person not subject to his control, and under no obligation, military or civil, to obey him. Such a construction would give perpetual license to the commission of all the crimes in the calendar. The defendant stood in no relation of subordination to the military officer whose dictates he chose to obey. But further, under this law the person who gives the order must also have “authority vested in him by the government of the United States, or that of this State, to do such act.” The provost marshal never was vested with authority from either government to deprive Judge of his lawful property. The whole proceedings of the military commission under which he acted were void, and could not validate any act, order or sentence of theirs which had no other “authority” to sustain it.

III. The Congressional statute of limitation has no application, as demand was made not far from January 1, 1867, at which time the cause of action accrued, and suit was brought April 23d of that year. (Kivett v. Massey, 63 N. C. 240; Pope v. Hays, 1 Mo. 450.)H. C. Lackland, for respondent.

The “authority” referred to in section 4, art. XI, is legal military authority, such as the government possessed under the constitution and laws to clothe its officers with. The provost marshal had no authority whatever over the sheriff, who was a mere civil officer and not under his control. The case of Drehman v. Stifel, and every case where section 4 has come up, were cases where the acts complained of were military acts and done by persons in the military service, or subject to military order. This case does not come within the principle of those cases. (See Smith v. Owens, 42 Mo. 508; Edmondson v. Kite, 43 Mo. 176.) The case of Wellman v. Wickerman, 44 Mo. 484, went off on a question of eminent domain.

The Congressional act of limitations was never designed to establish a rule in State courts limiting suits on sheriffs' bonds.

If the sheriff were overpowered by the military force, he ought to have gone to prison rather than to have paid the money. Robbery or theft is no defense to a suit on a sheriff's bond for money collected on execution. (United States v. Prescott et al., 3 How. 578; Thompson v. Board of Trustees, 30 Ill. 99; Commonwealth v. Cowley, 3 Penn. St. 372; Haller v. State, 22 Ind. 125.) (Counsel argued other points embraced in the brief of E. A. Lewis.)

WAGNER, Judge, delivered the opinion of the court.

This was an action on the official bond of defendant as sheriff of St. Charles county. The petition averred that an execution was placed in his hands against the plaintiff from the St. Louis Circuit Court, on a judgment rendered May 5, 1864, for the sum of $15,000, with interest and costs; that upon a sale of the plaintiff's property by the defendant there remained in his hands the sum of $5,695.40, after satisfaction of the execution, which he failed and refused to pay over to plaintiff on his demand as required by law. Judgment was therefore asked for the penalty of the bond, with an assessment of damages, etc.

Defendant's answer admitted the execution of the bond sued on. It also admitted the execution, sale and receipt of the proceeds, as stated in the petition, but set up as a special defense that he (defendant) was ready and willing to pay over the alleged surplus to plaintiff at the proper time, but was restrained and prevented from doing so by orders from the provost marshal general of the department of Missouri, who was vested with military authority by the government of the United States over the State of Missouri; that by order of said provost marshal he was compelled to pay over the said surplus to one Arnold Krekel, in part satisfaction of a fine of $10,000 which had been adjudged against the plaintiff by a military commission before whom he was tried.

Defendant therefore pleaded section 4 of art. XI of the State constitution, and the convention ordinance of March 17, 1865, in bar of the suit. He further pleaded and relied on section 7 of an act of Congress, approved March 3, 1863, providing a limitation as therein stated in certain cases. It was also set up and pleaded that the defendant was compelled by overpowering force and under threats to his personal liberty to pay the said money over to Krekel as before alleged.

To all of the above part of the answer the defendant demurred on the ground that it constituted no defense to the action. The demurrer was sustained by the court, and the defendant excepted. The trial then proceeded on the other issues raised by the answer and reply, involving mainly the fact or sufficiency of the plaintiff's demand before commencing this action, and judgment was finally given for the plaintiff.

Upon the part of the defendant it is insisted that the constitutional provision set up in the answer as a bar, affords a complete defense and amounts to a full protection for the defendant, while the plaintiff's counsel take the ground that the case is not within the terms of the section of the constitution relied on, and therefore is unavailing for the purposes for which it is pleaded.

The section in the constitution referred to is as...