Swan v. United States

• Citation: 3 Wyo. 151,9 P. 931
• Parties: SWAN v. UNITED STATES
• Decision Date: 23 January 1886
• Court: Wyoming Supreme Court

9 P. 931

3 Wyo. 151

SWAN v. UNITED STATES

Supreme Court of Wyoming

January 23, 1886

Error to district court, Laramie county.

Action by the United States against Alexander H. Swan for the penalty of a bail bond given by one George R. Thomas as principal and said Swan as surety. Judgment for plaintiff and defendant brings error. Affirmed.

Judgment affirmed.

W. W Corlett, for plaintiff in error.

A. C Campbell, for the United States.

PARKS J. BLAIR, J. and LACEY, C. J., concurring.

OPINION

PARKS, J.

The statement of the case by plaintiff in error is correct, and is as follows: This was an action brought in said district court by said defendant in error against said plaintiff in error, to recover the sum of $ 500, being the penal amount of a certain bond given by one George R. Thomas, as principal, and said Alexander H. Swan, as surety, to the said United States. Said bond was taken by said district court while exercising the same jurisdiction as is vested in circuit and district courts of the United States, and was taken to secure the appearance of the said Thomas before said district court for trial upon an indictment for forgery found therein. The said crime of forgery was committed against the laws of the United States. The said Thomas did not present himself according to the condition of said bond, and thereupon said district court ordered the default of said Thomas and said Swan to be entered upon its records, and that said bond be declared forfeited to said defendant in error, which was done.

To the cause of action as thus set forth the defendant in the court below, said Alexander H. Swan, filed a general demurrer, alleging that said amended petition did not state facts sufficient to constitute a cause of action in favor of the United States of America and against said Alexander H. Swan.

On January 5, 1885, the said district court overruled said demurrer, to which order and ruling exception was duly taken by the counsel for plaintiff in error. On January 17, 1885, said district court rendered a final judgment in said action against said plaintiff in error for the sum of $ 500, from which judgment a writ of error has been prosecuted to this court. Upon the overruling of the demurrer the plaintiff in error elected not to answer in the case, but stood upon his demurrer. The final judgment in the case was therefore rendered upon default.

The issue presented to this court is wholly one of law, and is embraced in the single question as to whether the trial court erred in overruling the demurrer of the plaintiff in error to the amended petition of the defendant in error, and thereafter in rendering a final judgment against the plaintiff in error. This is the only assignment of error presented to this court in this case. The precise question to be presented is whether or not, a bond instead of a recognizance having been taken to secure the appearance of the said Thomas at a succeeding term of said court upon an indictment for an offense against the United States, an action can be maintained upon such bond in favor of the United States.

On the part of plaintiff in error it is claimed that no warrant or authority existed for taking such bond, and hence that it was void; that notwithstanding the bond the defendant could have been arrested at any time, and as there was no consideration to support the bond it is not such an instrument as will support an action. The bond thus claimed to be void by plaintiff in error was taken under the territorial act of December 13, 1879, entitled "An act to provide for the manner of taking bail in criminal cases."

In his argument plaintiff in error says:

"It is not meant to be asserted that the territory may not legislate as to many matters affecting the proceedings in United States cases. It may undoubtedly do so as to any matter affecting the procedure in United States cases where such legislation is not inconsistent with provisions of the federal law regulating and controlling the same subject; but where congress has provided for any of these matters, then the territory, notwithstanding its ample legislative power, is prohibited from legislating upon the same subject in a manner in any degree in conflict with the federal legislation."

It is assumed by plaintiff in error that the matter of taking bail in United States criminal cases in the territories is provided for in the judiciary act of 1789 by recognizance, and that the legislation of this territory does not and cannot provide for doing the same thing by bail bond. But the legislation of congress upon this subject, in terms, applies only to the states. The territories are not mentioned or referred to. There were not in 1789, and never had been, any territories or territorial courts, as now organized. The ordinance of 1787 for the government of the North west territory, ordained by the continental congress more than a year before the adoption of the federal constitution, and more than two years before the judiciary act became a law, was very different from the modern organic acts of the territories, and contained a provision which they do not, covering the matter and manner of taking bail. It seems to us a very broad and liberal construction of section 1014 of the act of 1789 to say that the powers conferred by that section upon the courts, judges, and other officers therein named were intended to be exercised by a different class of courts and judges not in existence, and not provided for or contemplated or referred to in that law.

But let it be admitted that the judiciary act of 1789 is "not locally inapplicable," and may be resorted to by the territorial courts and judges for authority to act ex necessitate rei in cases where there is no other law upon the subject; and that section 1014 of that act will justify a territorial court or judge in taking bail in United States criminal cases; and that the method provided in the act is by recognizance; it does not follow from all this that the mode provided by congress is exclusive of any other mode provided subsequently by the territorial legislature, unless, to use the language of the organic act, the two methods are "inconsistent." Inconsistency implies opposition, antagonism, repugnance. One definition given by the lexicons of "inconsistency" is "repugnance" and one definition given of "repugnance" is "inconsistency." These words, though not exactly synonymous, may be, and often are, used interchangeably. A law providing for a bail bond in criminal cases is different from a law providing for a recognizance in such cases; but it is neither repugnant to nor inconsistent with it. It is merely cumulative; both methods may obtain in the same jurisdiction, and both do co-exist in several of the states. In some of the states the courts speak of "bonds of recognizance" and "recognizance bonds." These expressions imply harmony and union between the two modes of taking bail, and not inconsistency or repugnance.

If there were reasonable doubt upon the question of "inconsistency" raised by plaintiff in error, we should still sustain the law in question. The authorities are abundant that the courts should not set aside an act of the legislature merely because there may be doubts of its validity or constitutionality. Chief Justice SHAW informs us that courts will "never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained." The court of appeals of New York declare that "before proceeding to annul by judicial sentence what has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption." People v. Supervisors, 17 N.Y. 235. The supreme court of Illinois hold that "whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law such construction...