12 Cal. 500 | Cal. | 1859
Lead Opinion
This is a proceeding under the Statute concerning Forcible Entry and Unlawful Detainer to recover possession of certain premises known as the State prison, with damages for the detention.
The facts, as disclosed by the record, are as follow: In 1856, Jas. M. Estill was in possession of the premises, under a lease from R. M. Anderson, Henry Bates and G. W. Whitman, styling themselves “ State Prison Commissioners after retaining possession for about one year, Estill assigned the lease and delivered the possession of the premises to plaintiff, who remained in possession by himself and his agents and employes until the first of March, 1858, when the alleged forcible entry was made.
At the time of this entry, plaintiff himself was not upon the premises, but the same was in charge of his agent Sims. Defendant, accompanied by several others, entered a building connected with the prison, and informed Sims that he was the Governor of the State, and had come with the intention to take possession of the premises, pursuant to an Act of the Legislature passed a few days previous. Upon the
A judgment was rendered by the Court below in favor of plaintiff for a restitution of the premises, with damages, and defendant appeals.
The errors assigned are: ' 1st. The refusal of the Court to change the place of trial; and, 2d. The refusal to grant a new trial.
The application for a change of venue was made upon affidavits setting up that defendants could not have a fair and impartial trial in the Court below, on account of the bias of the presiding Judge of the County Court, who was charged with having been present, consulting and advising with the agent and counsel of plaintiff during the trial before the Justice; and having, during the progress of such trial, expressed himself so strongly in favor of plaintiff’s right to recover, as to occasion remonstrance from bystanders upon the impropriety of such conduct on the part of a judicial officer.
The statute authorizes a change of venue “ when, from any cause, the Judge is disqualified from acting.” The things which disqualify a Judge are specified in section 87 of the Act “ concerning the Courts and Judicial officers,” Wood’s Digest, p. 157; 1st. When he is a party to, or interested in the action. 2d. When he is related to either party within the third degree; and, 3d. When he has been attorney or counsel for either party.
These are the only causes which work a disqualification of a judicial officer. The exhibition by a Judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of a controversy, though exceedingly indecorous, improper and reprehensible, as calculated to throw suspicion upon the judgments of the Court and bring the administration of justice into contempt, are not, under our statute, sufficient to authorize a change of venue on the ground that the Judge is disqualified from setting. The law establishes a different rule for determining the qualification of Judges from that applied to jurors. The reason of this distinction is obvious. The province of the jury is, to determine from the evidence the issues of fact
The province of a Judge is to decide such questions of law as may arise in the progress of the trial. His decisions upon these points áre not final; and, if erroneous, the party has his remedy by bill of exceptions and appeal.
If forming or expressing an opinion upon the merits of the controversy was sufficient to disqualify a Judge, it would be necessary that the venue of a cause should be changed', after a mis-trial or the granting of a new trial; for, after hearing the evidence and argument of counsel upon a mis-trial, the Judge would, of course, have formed an opinion upon the mesits of the controversy; and the fact of granting a new trial is often equivalent to the expression of -such opinion.
The refusal to change the venue is no sufficient ground for reversing the judgment.
Under the second assignment of error, appellants seek to raise a question as to the validity of the lease to Estill, and the assignment of such lease to plaintiff. These points do not arise in the case under consideration, nor can they be considered or determined in this form of action.
The action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant—the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right. Questions of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title and present right of possession are shown to be in the defendant. The authorities on this point are numerous and uniform. We have, therefore, declined to consider the objections which are taken in the briefs of counsel to the validity of the lease and assignment.
First. “ That, admitting the contract to be valid, the State had, at any time, a right to rescind, violate or annul it without the assent of the lessee or his assignees.”
Second. “ That the title of the premises being in the State, she had the right to take the same for public purposes, by providing just compensation therefor; and that such compensation was provided.”
Upon the first point, the only authority cited is part of a paragraph taken from the opinion of one of the former Judges of this Court upon an entirely different state of facts; and which, when taken in connection with the context, is not at all applicable to the case under consideration.
Upon the second point, numerous authorities, both English and American, are cited, none of which, as we conceive, are directly applicable to the case under consideration. The English authorities show that an action of ejectment will not lie at the suit of the King; for the reason that the Sovereign cannot be disseized: but it does not follow that he may therefore expel by force a party in possession of lands belonging to the Crown; there are other remedies to which he may have recourse.
“ If a man intrude upon the King’s lands, an information for intrusion lies in the name of the Attorney General.” (Comyn’s Dig. Barogatine, D. 74, S. Bacon’s Abr. 101) by which proceeding the intruder and all claiming under him could be ousted and enjoined from further interfering with the possession;
The fact that such a remedy is provided to enable the King to recover lands held by a mere intruder, would seem to imply that the right to seize forcibly without legal process, did not exist at common law. In the State v. Arledge and Gaither, 1 Bailey South Carolina Rep. 562, quoted by appellants, the Court held that the State could not maintain the action of ejectment. Mr. Justice Johnson says: “It is very clear that in England the King cannot maintain an ejectment to recover lands; and the reason given by Blackstone is, that, on account of his legal ubiquity, he cannot be disseized or dispossessed. All the elementary writers hold the same doctrine; and it is even more strikingly applicable, where the sovereign power and right are
It is undoubtedly the practice of the United States Government to remove intruders upon the public lands without legal process; this proceeding is authorized by Act of Congress of March, 1807, the validity of which Act is sustained by the opinions of various Attorney Generals of the United States. The provisions of this Act, however, and the principles announced in the opinions referred to, apply only to intruders or trespassers on the public domain without claim or right, and have in no case been extended to a bona fide possession under color of title. On the contrary, it has been expressly held not to apply to such cases. Public Lands, Laws, Instructions, and Opinions, vol. 2, page 166.
Chief Justice Taney, while Attorney General, asserted the power of the United States, under the Act of 1807, to expel intruders from lands ceded by the Creek Indians, on the ground that the parties were mere wrongdoers, “ who, without any pretense of title, and in open violation of the rights of the United States, intrude upon the public property and appropriate it to their own useand that “ the United States had never abandoned their possession, and the intruders had never acquired a lawful possession against them,” but were mere naked trespassers upon the public domain. See Public Lands, Laws, etc., vol. 2, p. 181,
There is a vast difference between the case of a mere wrongdoer, and one who enters by the license and consent of the Government.
In the present case, it appears that plaintiff and his assignor had been in the actual peaceable possession of the premises for a period of nearly two years, under color of title purporting to be derived from the State. The legality of his possession, and the validity of the contract under which he held, had been recognized by the successive Legislatures, as appears by the Acts of 1856 and 1857, by which appropriations were made pursuant to the terms of the contract, and
It is said that the State cannot commit a forcible entry. This position will not, I presume, be controverted; but the defendant is not the State; and certainly there is no reason why a public officer, who acts without authority, or under a void authority, or who transcends the authority conferred by law, should not be held to strict accountability for such act.
The objection that the entry complained of was not forcible, is entirely unsupported by the facts disclosed by the record. Several men go to an outer building, occupied by the agent of plaintiff, and in which were the keys of the premises, against the will, and notwithstanding the protest of this agent; an inner door is forced and the keys taken, with which an entry into the main building is effected. The acts of the parties warranted no other conclusion than that any attempt on the part of the plaintiff to resume possession would be resisted by force.
“ To constitute forcible entry and detainer, it is not necessary that violence and outrage upon the prison and property should in fact be resorted to. If the actual possession of another in a house or tenement be taken and held under circumstances which show that it will not be surrendered without a breach of peace on the one side or the other, this constitutes a ease of forcible entry and detainer.” Childers v. Black, 9 Yerg. 317 ; 1 Seam. 407.
The statute was intended to prevent bloodshed, violence and breaches of the peace, too likely to result from wrongful entries into the possession of others; and it would be absurd to say, that to enable a party to avail himself of its provisions, there must have occurred precisely the evil which it was the object of the law to prevent. The power of the Legislature to absolutely control the custody and disposition of the State prisoners, and to enter upon the premises for the purpose of
The simple question involved in the record is, whether premises, which were in the peaceable and actual possession of plaintiff, were forcibly and unlawfully entered and detained.
The last point is, that, “ admitting these premises to be the private property of plaintiff, still the State had the constitutional power to take it for public purposes, by providing just compensation therefor ; and it is immaterial whether the compensation was provided in the Act directing the seizure of the property, or by subsequent Act.”
The first proposition is entirely true, but the Act under which defendant justified his entry, made no sort of provision for any compensation whatever, and was clearly in violation of the eighth section of article one of the Constitution. For the second proposition, we can find no authority ; and we are unable to see how an illegal entry on the first of March can be affected by the passage of an Act some two months thereafter.
It is well settled, and upon this point there is no conflict of authority, that when private property is taken for public use, the means of compensating the owner must be provided before the property can be taken. Smith Com., 473, et seq.; San Francisco v. Scott, 4 Cal. 114; McCann v. Sierra Co., 7 Cal. 121.
The judgment of the Court below is affirmed.
Concurrence Opinion
The validity of the lease from the State cannot be tried in the present action, nor can the plaintiff be deprived of the advantages resulting from the possession of the premises, by a forcing ouster under any legislative enactment. Assuming the lease to- have been valid, there was in the plaintiff a property of which he could not be divested’ for public use without just compensation. His right, so far as the land and buildings were concerned, was in no respect affected by the fact, that they were designed as a place for the confinement of convicts. The purposes for which premises are leased cannot alter the nature of the leasehold interest as property. To take such property without compensation is beyond the reach of legislative power. Such compensation must be made, or a fund provided from which it
In Bloodgood v. The Mohawk and Hudson Railroad Co. (18 Wend. 17) Chancellor Walworth, in expressing his dissent to a decision of his predecessor, in Jerome v. Ross, (7 John. Ch. 344) that it was not necessary to the validity of a statute authorizing private property to be taken for public use, that a remedy for compensation to the owner should be provided, said:
“ On the contrary, I hold that, before the Legislature can authorize the agents of the State and others to enter upon and occupy, or destroy or materially injure the private property of an individual, except in cases of actual necessity which will admit of no delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound to trust to the justice of the Government to make provision for such compensation by future legislation. I do not mean to be understood that the Legislature may not authorize a mere entry upon the land of another, for the purpose of examination, or of making preliminary surveys, &c., which would otherwise be a technical trespass, but no real injury to the owner of the land, although no provision was made by law to compensate the individual for his property, if it should afterwards be taken for public use. But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice
The same effect are the decisions of the Court. In the case of the City of San Francisco v. Scott, (5 Cal. 114) a street was extended through the property of one Price, by ordinance of the Common Council of the city, and in conformity with the requirements of its charter, assessments were, made of the damages caused to each individual by the extension. To Price, who was in possession of a portion of the land appropriated, an award of SI,925 was made. Shortly afterwards, the street was opened, and it remained open for four or five months, during which period it was used as a public thoroughfare. At the expiration of this period, the award not being paid, the defendant, as agent of Price, entered upon the land and obstructed the street, claiming, on behalf of his principal, the right to reappropriate the same to private use. For the obstruction the defendant was prosecuted before the Recorder, by whom judgment was passed against him. On appeal, the judgment was reversed, with the concurrent opinion of all the Judges. “ Our bill of rights,” said the Court, “provides that private property shall not be taken for public use, without just compensation being made therefor; and it is now the better opinion, that such compensation must be made before the citizen can be divested of his rights. It is not sufficient that the law points out the mode by which the damage may be ascertained, and provides the party with a remedy to enforce his rights; no such obligation can be imposed upon him; he is entitled to the damages which he has sustained^ without resorting to a legal tribunal to enforce the payment. The law watches the exercise of this prerogative of sovereignty with a zealous regard for the rights of the citizen.
“ Admitting all the steps for opening this street were properly and legally taken, (a proposition denied by appellant’s counsel) it is evident the premises in question did not become a public street by virtue
In McCann v. Sierra County, (7 Cal. 121) the Supervisors of that county had, by resolution, extended a street or thoroughfare through the land of the plaintiff, without providing any compensation for the private injury consequent thereon; and the Court, all the Judges concurring, said : “ The Constitution of California provides,6 that private property shall not be taken for public use, unless just compensation be made therefor.’ A similar provision is to be found in the Constitution of every State in the Union; and the result of the decision on this subject may be briefly stated thus : That compensation must be made in advance, or a fund must be provided, out of which compensation shall be made, so soon as the amount can be determined. The property of the citizen cannot be taken from him without ample means of remuneration are provided. From this it results that the act of the Supervisors of Sierra county, in appropriating the property of the plaintiff to public uses, before making provision for paying him the value thereof, was illegal, and that he might resort to the Court of Equity to restrain them from interfering with the freehold.”
It is, then, the settled law, that the compensation, or the offer of it, must proceed or be concurrent with the seizure and entry upon private property of the citizen. It may not be absolutely essential that the compensation should be provided in the same Act which authorizes the siezure; but it is essential that it should be provided before the seizure can be enforced or justified. Little, indeed, would be the security afforded to the citizen, if his property could be taken by the agents of government, and himself left to the future sense of justice of the Legislature. It would be poor consolation to the head of the family, stripped of his entire possessions, to be informed that the Legislature would, at some subsequent day, deal fairly by him.
The statute upon which the Governor bases his defense and justifies his acts in terms, authorizes and empowers him, and, in fact, makes it his duty, to take immediate possession of the State prison and grounds,
What I have thus far said, has been upon the supposition that the lease from the State is valid, for its invalidity cannot be questioned in this form of proceeding. In any view, whether valid or invalid, it gave a color of title to the plaintiff. It took from his possession the character of intrusion without claim of right, which alone the government can remedy by force. Where private right is asserted, the
Nor could the validity of the assignment from Estill to the plaintiff be the subject of consideration in the present action. The plaintiff was in peaceable possession ; the defendant ousted him by force; and before the legality of the title of the parties to the premises can be the subject of consideration, they must be placed in statu quo with reference to the property. The law will not suffer the defendant, or those whom he represents, to enjoy the advantages resulting from the possession when obtained by violence and force.
Nor can the defendant rest his justification upon any possible forfeiture of the lease. Such forfeiture cannot be asserted except by force of a judicial determination. The Legislature cannot take upon itself, nor the officers of government upon themselves, to adjudge what right has accrued to the State, and then proceed to enforce it, any more than a private citizen. For the recovery of money due, or the possession of property withheld under a claim of right, the Legislature, and the highest officer, and the humblest citizen, stand upon the same footing, and must pursue the same course.
There may be, and probably is, great truth in the observance of the Attorney General, that in the hands of the defendant and those associated with him, the management of the State prison has been eminently wise and economical, and one which reflects great credit upon him and them. This may all be so, but it is difficult to see what bearing it can have upon the rights of the plaintiff. There would undoubtedly have been the same wise and economical management, if the Governor had taken by force, for the confinement of the prisoners, any other equally capacious property, belonging to any private citizen, other than the plaintiff.
I concur in the affirmance of the judgment.