State v. Bush

• Decision Date: 08 April 1915
• Docket Number: 335
• Parties: STATE v. BUSH.
• Court: Alabama Court of Appeals

68 So. 492

12 Ala.App. 309

STATE v. BUSH.

No. 335

Court of Appeals of Alabama

April 8, 1915

Appeal from Probate Court, Houston County; A.C. Craw, Judge.

C.C Bush brings habeas corpus for his discharge, and, decree being entered discharging him, the State appeals. Affirmed.

The charge was made before W.J. Baxley, a notary public and ex officio justice of the peace, the affidavit being that said Bush, within 12 months before the making of the affidavit sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors; also that he sold spirituous, vinous, or malt liquors without license and contrary to law. The warrant followed the affidavit and commanded the officer arresting said Bush to bring him before the circuit court of Houston county, Ala.

E.S Thigpen and Lee & Thompkins, all of Dothan, and W.L. Martin Atty. Gen., for the State.

BROWN J.

The principle that no man shall be deprived of his liberty or property except by "the law of the land" is said to be more ancient than written constitutions, "and breathes so palpably of exact justice that it needs no formulation in the organic law." It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual in working out his destiny, and finds expression in our Constitution in these words:

"That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; *** and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property except by due process of law," and "that all courts shall be open; and that every person, for an injury done him, in his *** person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." Constitution of Alabama 1901, §§ 6, 13.

Speaking of "due process of law," our Supreme Court has said:

"The definitions of this phrase *** are so various in the reported American decisions that it would be unsatisfactory to attempt an accurate definition of it here. 'Omnis definitio in jure periculosa est' is a wise maxim of judicial caution, a want of proper regard for which has aggravated that proverbial uncertainty of the law so frequently charged to be its chief reproach." Davis v. State, 68 Ala. 63, 44 Am.Rep. 128.

The manifest purposes of the quoted constitutional provisions, where life, liberty, and property are affected, are to secure the citizen against the arbitrary action of those in authority, and to place him under the protection of the law. The expression "due process of law" has been held to be the equivalent of "the law of the land." 3 Words and Phrases, 2228; Missouri Pac. R.R. v. Humes, 115 U.S. 512, 6 Sup.Ct. 110, 29 L.Ed. 463.

"Whatever difficulty may be experienced in giving to these terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They *** mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565; 3 Words and Phrases, 2234, and authorities there cited; Ex parte MacDonald, 76 Ala. 603; Mead v. Larkin, 66 Ala. 87, 88; Zeigler v. S. & N.A.R.R. Co., 58 Ala. 594.

The affidavit, the basis for the issuance of the warrant under which the petitioner was held by the sheriff when he sued out the writ of habeas corpus, charged an offense which was not within the final jurisdiction of the justice of the peace. Code 1907, § 6733. The justice had no jurisdiction under section...