Doty v. Strong , 1 Pin. 84 ( 1840 )

Milled, J.

Three errors have been assigned by the plaintiff in error on which he asks this court to reverse the judgment against him in the district court of Iowa county.

1. The court erred in refusing a change of venue.

2. The court erred in overruling the motion to continue the trial of the cause made on behalf of Doty, the defendant, on the ground that he was at the time a delegate in congress from this Territory, and then absent at Washington in his attendance upon Congress, then in session.

3. The court erred in entering judgment against the defendant alone, while two other persons were included in the writ as defendants, but not served, the,, statute requiring judgment to be recorded against all the defendants named in the writ, whether served with process or not.

As the case is to be remanded to the district court, and as there has been lately enacted by our legislature a law authorizing a change of venue in this Territory, it is unnecessary to decide this question. Similar- reasons to those embraced in the application in this case are included in the law lately enacted and now in force, and a new application can be made to the judge if desired. This disposes of the first assignment of error.

On the third error it is considered not necessary to adjudicate at this time, it being probably a subject of correction, if necessary, on the record in the district court.

The cause turns upon the second error assigned. An application for a continuance is generally addressed to the discretion of the court, and is not probably the subject of a writ of error in this Territory. But of this we give no positive opinion. This case is decided exclusively on the question of privilege. When the cause was called in the district court for trial, Doty, by his counsel (he being the only defendant who was served with process and had pleaded to the action), presented an affidavit to the court setting forth in substance the facts contained in the assignment of error. In this he pleaded his privilege, informally, but substantially, which was ■ overruled by the court. The defendant relied upon the” 6th section of the 1st article of the constitution of the United States, which, in speaking of the senators and representatives in congress, contains the foEowing language : “ They shaE, in aE cases except treason, felony and breach of the peace, be privEeged from arrest during their attendance at the session of their respective houses, and in going to or returning from the same.” The reason of this provision is obvious. The people elect their representatives to congress to protect their rights and advance their interests, which should not be jeoparded by the arrest of their representative for debt or private contract of his own, and it is equaEy necessary that his rights and interests should be protected while absent in the public service.

In order to render this provision available to the extent of its necessity, it wiE not do to construe the words privilege from arrest in a confined or literal sense. 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 repre- | sentative 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 the constitution must also be made to protect his 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. We have only been able to find one authority on this subject, after a careful search. It is a decision of the supreme court of Pennsylvania, in the case of Geyer's Lessee v. Irwin, 4 Dall. 96. That decision was made upon the same provision in the constitution of that State, and couched in the same language as that under consideration. The court in that case declared that ‘ ‘ a member of the general assembly is, undoubtedly, privileged from arrest, summons, certiorari or other civil process, during his attendance on the public business confided to him, and that, upon principle, his suits cannot be forced to a trial and decision while the session of the legislature continues.”

It was urged in the argument that this provision did mot apply to this case, as the defendant is only a delegate /from a Territory, and not a member from a State. ¥e do not think so. He is entitled to a seat on the floor of the house as the representative of the people of the Territory, elected with all the powers, rights and privileges of a member from a State, except the power to vote. With this exception he is a member of the house of representatives, and entitled to the same constitutional privileges.

It is the opinion of the majority of the court (his honor, Chief Justice Dunn, dissenting), that the judgment in this case be and the same is hereby reversed, with costs, and that the same be certified to the district court of Iowa county, to be further proceeded in as to justice and right may appertain.