260 F. 309 | N.D. Cal. | 1919
As to the circumstances under which the action was commenced and the service had in this district there is little serious controversy — none as to the occasion which brought defendant into the state, the only disputed question of fact being whether he was necessarily detained here at the date service was made upon him. In that regard the affidavits in behalf of defendant tend to show, in substance, that defendant, a man over 80 years of age, has lived in Salt Lake City, engaged in the banking business, since 1873, and is the president of a bank at that place, which was at the time in question, and for some time previously, a member of the Federal Reserve Bank for the Twelfth Federal Reserve District; that in and prior to the month of August, 1918, the federal government was earnestly engaged, through its financial agencies, in selling certificates of indebtedness issued by the Secretary of
“San Francisco, California, 11:48 a. m., Aug. 5, 1918.
“W. S. McCornick, Pres., W. S. McCornick & Co., Bankers, Salt Lake City, Utali: You are invited and urgently requested to attend a very important one-day conference in Fairmont Hotel, San Francisco, at ten o’clock Friday morning, August ninth, of representative bankers from each state in Twelfth District,. to determine best ways and means of selling United States certificates, of indebtedness and to discuss general relation of'banks to government war finance. Delegates' will be entitled to reimbursement for transportation and hotel expenses. Please wire acceptance, and we will then engage your accommodations at Fairmont unless otherwise requested.
“James K. Lynch, Governor Federal Reserve Bank.”
That defendant regarded and treated this request of the governor of the bank, under the circumstances, as equivalent to a command, and that it was solely in obedience thereto, and not to subserve any personal end or interest, or that, of his bank, that he came to San Francisco; that, as stated in his affidavit, “I believed that under present conditions it was my duty to attend upon such conference as requested, and that my attendance thereupon would be in the performance of a public service in aid of the administration of governmental affairs,” in which statement defendant is fully corroborated by Mr. Cook, the director of sales for the state of Utah of such treasury certificates, who had personally urged upon defendant the necessity of his attendance in order “that his advice and experience might be availed of for the benefit of the government” ; that defendant arrived in San Francisco in time to attend the conference,, which convened at 10 o’clock a. m. of August 9th, and lasted until 7:30 p. m. of that date; that while in attendance thereon he was stricken with severe abdominal or intestinal cramps, followed by dysentery, which rendered him so ill and weak that he was physically unable to return at once to his home, as he had contemplated, and, feeling that he was incapacitated for undertaking the return journey to Salt Lake for several days, on the following day, August 10th, with the advice of his wife, he went to the home of a brother in Santa Cruz
The statements of defendant as to his illness and physical suffering while in San Francisco are corroborated by the affidavit of Mr. Badger, a banker of Salt Lake, also in attendance at the conference, who had been intimately acquainted with defendant for 20 years, who noted his physical suffering at the conference, and his having to absent himself for a time, and who states- that his appearance was such that he advised him that he was in no condition to make the return trip to his home without rest and recuperation; and by that of Mr. Raborg, likewise an intimate acquaintance in San Francisco at the time, who states that he saw defendant several times and that his appearance was such as to excite his anxiety for his welfare, and that he did not seem to improve while in San Francisco. The defendant’s affidavit further shows that, prior to the institution of the present action, suit had been brought in the United States District Court for the District of Utah by the plaintiff against this defendant upon the same cause of action as that sued on in this case, which action was still pending at the time the present suit was brought and the summons therein served.
As intimated, the counter showing affects only defendant’s physical condition while in the state as bearing on the question whether he was necessarily or reasonably detained here after the adjournment of the conference until the date of service; but as a whole it is of a meager and inconclusive character. It consists of several affidavits and some oral testimony. An affidavit by the process server, who had never before met the defendant, and was consequently wholly unacquainted with his usual appearance, is to the effect that when making the service he talked with the defendant, sitting in the hotel lobby, for “about a half hour,” and got the “impression” that despite his advanced years he “then was in a remarkable state of good health and vitality,” and appeared to him “as a man of the old pioneer stock who never grows old”; that he “marveled at his vigor and general excellence of good health”; and that he got the “impression” from his conversation that he and his wife “had come to California on a pleasure trip.” Oral testimony by Mr. Wilson, an officer of one of the banks in San Francisco, is to the effect that he had known the defendant for some 29 years; that1 he saw defendant twice while he was in the city, the first time at the conference, and the last the day before he was finally returning to his home in Salt Lake; when asked as to his apparent condition of health, he said, “It appeared to me usual, very fair for a man of his age” — which he stated was 82 years; that he did not remem
The entire counter showing, it will be observed, was purely negative in character, possessing little, if any, probative value. The somewhat enthusiastic and picturesque “impressions” received by the individual serving the summons, in his brief interview, as to defendant’s robust and vigorous appearance, and those of the hotel people in their casual, passing observations as to the apparent state of health of the defendant, may be dismissed as of no material value, and that of Mr. Wilson as of little weight. While the latter states that he had known defendant for 29 years, they were, it appears, at the time the statement was made, living at a long distance from each other, and there is nothing to indicate how often he had met him during that period, or that he had ever had any such intimacy with him as to render his judgment as to his apparent state of health of any weight. One may “know” another for an indefinite period without any '.such opportunity for observing his physical peculiarities as enables him to form an intelligent judgment of his state of health in a passing observation — a thing frequently beyond the ability of the
Taking all the facts and circumstances presented into consideration, I have no difficulty in reaching the conclusion that they fully sustain the claim that defendant’s physical condition afforded reasonable ground for his detention in the state, and that his remaining within the 'jurisdiction for that reason did not waive any right arising out of the circumstances which brought him here. Miner v. Markham (C. C.) 28 Fed. 387, and cases there cited. Indeed, in view of the advanced age of the defendant, a court might well hesitate, without the showing of any unusual physical condition of weakness, to hold that the brief period of rest taken by him before undertaking the return journey was so unreasonable as to deprive him of any right he might otherwise have.
This leaves but one question for consideration, but that the crux of the case: Whether the facts bring the defendant within the rule of immunity which he invokes.
The contention of the defendant is, in brief, that under well-settled principles of public policy one who temporarily enters a state or district other than that of his domicile, solely for the performance of a duty of a public nature, or to which a public interest attaches, is privileged from interference either by arrest under or service upon him of civil process, for a reasonable time in going to, returning from, and attendance upon the performance of such duty, and that the facts of this case clothe him with that privilege. • The contention of plaintiff, on the other hand, is, in substance, that except as extended by legislative enactment to other departments or functionaries, the privilege claimed is purely a “judicial” one, and attaches only to those who in some capacity, such as party or witness, are in necessary attendance upon a court or judicial proceeding; but that it has no application, in either aspect, to one engaged in the performance of a service such as that here involved.
The doctrine contended for had its origin at the common law, and undoubtedly in its inception, as administered by the courts of England,
“Now, this great object in the administration of justice would in a variety of ways he obstructed if parties and witnesses were liable to be served with process while actually attending the court. It is often matter of great im*315 portance to the citizen to prevent the institution and prosecution of a suit in any court at a distance from his home and his means of defense; and the fear that a suit may be commenced there by summons will as effectually prevent his approach as if capias might he served upon him. This is especially the case with citizens of neighboring states, to whom the power which the court possesses of compelling attendance cannot reach.”
It is these considerations which have actuated the courts in extending the protection of the rule, so limited in the beginning, until it has come to embrace practically every one who may be called to a strange jurisdiction in connection with a cause, and every proceeding or step in the action, either heard before the court or any of its officers, and to appearances before legislative committees and kindred investigations as well. Alderson, Judicial Writs and Process, § 121. And an examination of the authorities will disclose, I think, that it is upon quite cognate principles that the doctrine has been given application beyond the domain of judicial proceedings to embrace other departments of the public service.
“A liberal construction must be given to these words upon principle and reason. It is just as necessary for the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of Congress, for the purpose of defending his private suits in court, as to be exempt from imprisonment on-execution. If the people elect an indebted person to represent' them, this construction of*316 the Constitution must also be made to protect bis rights and interests, although it may operate to the prejudice of his creditors; but the claims of the people upon his personal attendance are paramount to those of Individuals, and they must submit.”
In Anderson v. Rountree, 1 Pin. (Wis.) 115, the same court gave like construction to the territorial statute exempting members of the Legislature from arrest, holding that it included immunity from service.
In Miner v. Markham, supra, the provision of the Constitution considered in Doty v. Strong was for similar reasons held to include the exemption of a member of Congress from service of process while in progress from his home to the seat of government to attend a session.
In Bolton v. Martin, 1 Dall. (Pa.) 296, 1 L. Ed. 144, it was held as early as 1788, by the court of common pleas of Philadelphia, that a member of a state convention called to consider the Constitution of the United States was privileged from service of civil process while in attendance upon the convention.
In Geyer v. Irwin, 4 Dall. (Pa.) 107, 1 L. Ed. 762, the Supreme Court of Pennsylvania, in the course of its opinion (rendered in 1790), states that “a member of the General Assembly is, undoubtedly, privileged. from arrest, summons, citation, or other civil process during his attendance on the public business confided to him.” It is claimed that this expression was mere dicta; but, if this be true, it is nevertheless of value as indicating the trend of judicial thought on the question in this country.
In Rand v. Rambo, 174 Pa. 566, 34 Atl. 207, the same court, as late as 1896, held, in the absence of a statute, but in pursuance of what was deemed established public policy, that members of the national guard, holding an encampment under authorization of the Governor, were exempted from service of process while on duty, and in going to and returning therefrom.
And in a discussion of the whole subject in his work on Federal Practice, Mr. Foster, upon a review of the authorities, states it as his opinion that “a similar exemption would probably be applied to any person while temporarily within the district in the discharge of a public duty.” Foster Fed. Prac. (5th Ed.) § 167.
These cases are strongly criticised by counsel for plaintiff as' being * based upon an entire misconception of the history of the doctrine; but I find myself unable to coincide with that view. I think, to the contrary, that while in a measure one or two of them may have involved a misapprehension of the then state of the law in England, they nevertheless disclose the distinct tendency of the courts of this country to give a broader and more comprehensive application of the doctrine than that obtaining in the English courts — springing perhaps from the strong tendency of the former to jealously protect and regard the rights of the people, and in obedience to what was regarded as a well-defined public policy.
As a result of these principles, while the present case may be said to be somewhat novel in its circumstances, and not precisely on all fours with any instance, heretofore presenting itself for adjudication,
Lastly, however, it is urged that the service rendered by defendant in attending this bankers’ conference was “completely extra legal, not recognized nor provided for by law.” But obviously if the president of the Reserve Bank had the authority to call the conference, which is not seriously questioned, when so called it certainly was a governmental function, and not a private one, and those who attended in obedience to his request were clearly in the performance of a “public service”; and that it was a public service within the scope and application of the doctrine under consideration I entertain no doubt.
This conclusion is reached with less reluctance in that, while avoiding great inconvenience and harassment to the defendant, it works no great hardship upon the plaintiff; no essential right being lost to him. His cause of action may readily be reasserted in the jurisdiction originally resorted to, as to which.no such question can arise, and where h'is rights may be as fully and completely adjudicated and protected as in this; and, moreover, should he desire to seek a review of the pending question, it may readily be accomplished (Stewart v. Ramsay, supra) well within the life of the obligation sued on.
The motion to quash the service will therefore be granted.