Howard v. Citizens' Bank & Trust Co., 12 App. D.C. 222

Howard v. Citizens' Bank & Trust Co.

12 App. D.C. 222 | D.C. Cir. | 1898

Mr. Justice Shepard

delivered the opinion of the Court:

1. The first question for consideration arises on the plea of privilege. This was denied in a carefully considered decision of the Supreme Court of the District of Columbia, *232in general term, made nearly twenty years ago, the soundness of which, until now, has not been questioned. Merrick v. Giddings, 1 MacA. & M. 55.

Having examined the question anew, in the light of the able argument made on behalf of the appellant, we can not agree to the contention that that decision is not sound on principle; nor are we satisfied that it is'not in accord with the weight of judicial opinion, even in England, to the common law of which, it is contended, we must resort.

That parliament itself made most extravagant claims of privilege, and often enfoi'ced the same, is undoubtedly true; but when opportunity occurred, these were often denied by the judiciary.

In the famous case of Stockdale v. Hansard, 9 Ad. & El. 1; S. C. 36 E. C. L. 2782, Lord Chief Justice Denman, after reviewing at length the early claims of parliamentary privilege, and conceding the propriety of exemption from arrest and from liabilities that would necessarily interfere with the performance of public duties, said: “In early times their very horses and servants might require protection from seizure under legal process as necessary to secure their own attendance; but when this privilege was strained to the intolerable leiigth of preventing the service of legal process, or the progress of a cause once commenced against any member during the sitting of parliament^ or of threatening any who should commit the smallest trespass upon a member’s land, though in assertion of a clear right, as breakers of the privileges of parliament, these monstrous abuses might have called for the interference of the law and compelled the courts of justice to take a part.”

"Before the American Devolution, the parliament itself obviated the necessity of the courts of justice taking partin th,e matter of a claim of exemption from the service of civil process, unaccompanied by arrest, by the enactment of a statute expressly abolishing it. 10 Geo. III, Ch. 50.

We deem it neither necessai’y nor important to inquire *233whether that statute has been regarded as in force in the American colonies or States before or after the Revolution; nor whether the privileges of legislative bodies, as exercised or claimed in England, prior thereto, constitute apart of the common law as adopted or recognized in those colonies and the succeeding States.

Strange as the doctrine may seem after a revolution destructive of the special privileges of class and person, we are not called upon to deny it. It is a question peculiarly for the tribunals of the several States in dealing with the privileges of their respective legislatures, and these have not been uniform in their decisions.

What we are considering here is the privilege claimed for members of the Congress of the United States in this jurisdiction, and we need only look to the Constitution, which enumerates their powers and grants the only privileges to which they are entitled.

Article 1 of Section V. declares that Senators and Representatives “shall, in all eases, except treason, felony, and breach of the peace, bo privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same. . . .” Language so plain does not leave room for interpretation.

Save in certain cases mentioned, Senators and Representatives are exempted from arrest, and nothing more. The court was right in sustaining the demurrer to the plea.

2. The motion to quash the attachment because the supporting affidavits were made before a notary public of the State of Tennessee, was correctly overruled.

The practice of granting attachments upon ■ affidavits made before notaries in other jurisdictions has obtained for years in this District, and we see no reasonable ground upon which it can be questioned. The statute permits the clerk to issue the writ whenever an affidavit of certain facts shall be filed in his office. R. S. D. C., Sec. 782.

In construing the statute regulating actions of forcible *234entry and detainer in this District (R. S. D. C,, Sec. 684), the Supreme Court of the United States held that the requirement of a “written complaint on oath of the person entitled to the premises,” was satisfied by an affidavit made before a notary public of the State of New York. Harris v. Barber, 129 U. S. 366, 371.

The “affidavit” required in section 7.82 is synonymous with the “ written complaint on oath” required by the other.

Under that statute, as well as under the authority of Harris v. Barber, supra, it has been held that the affidavit required of the plaintiff or his agent under the Seventy-third Rule of the Supreme Court of the District of Columbia may be made before a notary public of any State. Towers v. Maneely, 11 App. D.C. 88. That rule, like the statute in this case, fails to designate any particular officer before whom the affidavit shall be made. See, also, Matthai v. Conway, 2 App. D. C. 45, 50.

3. Unless the defendant Howard was a nonresident of the District of Columbia, within the meaning of our statute, when the attachment was sued out, it was wrongfully issued and ought to have been quashed on motion.

We have had occasion to consider the meaning of that word in a case wherein the facts differed considerably,however, from those presented here. Therein it was said: “The word nonresident, as used in our statute, must be taken in its ordinary and usual signification. A man’s residence is where he actually dwells at the time, not merely where he may carry on business regularly. A man’s domicile may be in one State, his residence in another, and his place of business in a third. A man’s home, the place where his wife and children actually reside, is ordinarily and yet not necessarily his place of residence. He may for purposes of business establish himself in another State for an indefinite period, away from his family, and remain there so continuously as to make himself a resident thereof for all the purposes of the attachment laws generally. But he can not be *235a resident of two distinct places at the same time.” Robinson v. Morrison, 2 App. D. C. 105, 124; Barney v. Oelrichs, 138 U. S. 529, 532, 533. In the case last cited it was said that “the words, ‘to reside out of the State,’ mean the taking up an abode or dwelling place elsewhere, and not a mere temporary sojourn for transient purposes.” It was also said, following Frost v. Brisbin, 19 Wend. 11, that the word “inhabitant” implies a more fixed and permanent abode than the word “resident.”

Bearing the above in mind, it remains to consider whether the facts set out in the affidavit of defendant are sufficient to show that he was, at the time, a resident of this District, and not of the State of Alabama.

It is to be presumed that at the time of his election to Congress, both in November, 1894 and 1896, defendant was, as required by the Constitution, an inhabitant of the State of Alabama. The Constitution, however, does not require that he shall remain an inhabitant or resident of his State during his term of office; nor does it require that he shall reside in the Capital, as is provided by law in the case of some executive officers. Butterworth v. Hill, 114 U. S. 128.

Admitting, as his affidavit does, that he has not abandoned his domicile in Alabama, where he still has a dwelling house, it is incumbent upon him to show clearly that he has come into the District with the intention of settled, fixed abode, though not necessarily a permanent one. He must show that he is a bona fide resident as contradistinguished from a mere sojourner or transient visitor, for purposes of pleasure or business and for an indefinite time.

Stating facts peculiarly within his own knowledge, and tending to establish a conclusion into which the intention with which these acts were done enters largely, his affidavit ought to be construed strictly, and wherever the statement is ambiguous the doubt should be resolved against him. Taking this view of the affidavit, which has been set out in full in the statement of the case made above, we do not *236regard it as sufficient. The whole statement of the facts tending to show residence is qualified and restrained by the paragraph preceding the same, wherein he says: “That as a Representative in Congress, it has been the duty of affiant to reside in the city of Washington during the sessions of Congress held since the 4-th of March, 1895, and that affiant has, in the discharge of such duty and of the other duties incident to his membership, resided in the city of Washington during such sessions, and also at various times and various periods in the recesses of Congress, and between such sessions.”

Although he owed no express duty, as we have seen, to reside in the city of Washington, he makes it appear that it was the duty of attendance upon the sessions of Congress which brought him here, and nothing more. As to his place of residence between sessions, the statement is vague and uncertain. Beginning as this residence does in March, 1895, nothing is said of his residence in November, 1896, at the time of his re-election to Congress. And yet, in the absence of a statement to the contrary, we must presume that he was, at that time, an inhabitant of the State of Alabama, as required by the Constitution.

Again he says that “he has no lodging place outside of the District of Columbia, except his dwelling house at Fort Pajme, in the State of Alabama, the place of his domicile”; and then, after stating that he has actually dwelt and resided in Washington continuously, “except for such occasional temporary absences as are above mentioned,” he concludes by saying “that he intends and expects to continue so to reside in said city until the end of the present session of Congress, and so much longer as his public duties and private business may require.”

It nowhere appears that he.was engaged in any private business in Washington. Public duties, solely, brought him to the District of Columbia. As said in the affidavit supporting his plea, he was,’when sued, “in the said District for the purpose of attending and being present upon *237the convening of the House of Representatives.” He has “a dwelling place” in Alabama, and his apparent purpose is to return there when his public duties shall permit. In the absence, then, of a plain, unequivocal statement to the contrary, we must regard the appellant as an inhabitant and resident of Alabama, a visitor only to the District of Columbia; and therefore a nonresident of the latter within the meaning of the statute. The court was right in overruling the motion.

Finding no error in the record, the judgment will be affirmed with costs. And it is so ordered. Affirmed.