Hess v. Johnson , 3 W. Va. 645 ( 1869 )

Brown, President.

This is an action of trespass for taking goods during the war. The article taken was whisky, which was an article claimed to be prohibited from introduction into and along the military lines of the army, operating in the field in actual hostilities. And the defence is that it was taken by the defendants under orders or authority of an officer, civil and military, of the United States, of this State, or in aid of the purpose or .policy of the said authorities in retarding, cheeking and suppressing the existing rebellion. Two instructions were given to the jury and exception taken,.and a verdict found for the plaintiff. The instructions are inconsistent with each other, and the question is which propounds'-the law correctly, if both do not. The act of February 27th, 1866, passed at the close of hostilities, but before the status of civil war was terminated by the only competent authorities, is but another instance of a series of measures superinduced by the exigencies of the times and the necessities of the case. It was intended as a shield to those whose patriotic zeal in the country’s cause may have involved them, though acting in good faith for the public good, in complications, by which the public may be supposed to have profited, at their peril. It is consonant with the principle of protection which every State owes to its loyal citizens as a correlative of their allegiance and support in the hour of adversity. And though its validity has not been directly questioned by the parties to tbis controversy, it yet becomes necessary to determine that question in deciding tbis case, because the court having given two instructions which are inconsistent with each other, the former of which is undoubtedly the law if the latter is not, but cannot be if the latter is.

In the case of Drehman vs. Stifel, 41 Mo., 185, an ordinance of the convention of Missouri of like character and import with the statute under consideration was held valid. In th.at case the court said, “ that it is a bill of attainder, as contended, there can not be any rational pretence. There is nothing in it that relates to the proceedings of a criminal nature in the sense of a bill of attainder, nor does it confiscate private property, nor punish anybody. It is rather an act of indemnity, oblivion and pardon ; of indemnity, in so far as it makes military orders and authority a justification for acts done by virtue thereof; of oblivion and pardon, in so far as it prohibits criminal prosecutions for acts done by such authority. It is not necessarily inconsistent with anything contained in the bill of rights in the same constitution. So far as the ordinance operates retrospectively upon the plaintiff’s case it may be said to deprive him of his right to recover, but it does not take away nor infringe any vested right of property. A right to recover damages in an action of forcible entry and detainer is not a vested right of property.

“Now it would seem to be reasonable that in order to make this statute applicable to a military officer acting under express orders from the highest military authorities in time of civil war, and under circumstances of great public peril, in the midst of treasonable insurrection, when speedy action and the utmost energy were required, the clearest proofs of the want of lawful authority, of arbitrary abuse of power, and a plain perversion of military orders to malicious purposes, or selfish, private ends, ought to be demanded. Even if this were a case in which the existence of pressing danger or urgent necessity were to be submitted to a jury as a matter of fact, where the officer produces unequivocal evidence, of both military authority and express orders, for what was done iu justification of his acts, something like direct and positive evidence to the contrary, ought to be expected. It may be that the plaintiff was not aware of any urgent necessity. A sagacious commander is apt to see necessities that are not apparent to everybody.”

A like act of oblivion was passed in England after the restoration of the monarchy; this act operates pro tanto like a treaty of peace. It is incident to the right of self-defence, which every State has in time of war, and looks only to the protection of those who acted in good faith in aid of the purposes and policy of the proper authorities in retarding, checking and suppressing the late rebellion. It is not therefore, repugnant to the constitution. According to one instruction given to the jury by the court, the defendants could not justify under the orders of Craft, who it w.as claimed was an officer, unless they showed that he had lawful authority to do as they had done. But according to the other instruction given by the court to the jury, the defendants were allowed to justify under orders of any civil or military officer of the State or United States; or that the act was done iu aid of the purposes or policy of said authorities in retarding, checking and suppressing the late rebellion.

This was based on the act of February 27th, 1866, which was evidently intended to enlarge the ground of defence and relieve parties within its provisions from the stringent rule laid down in the first instructions above mentioned; this inconsistency and conflict between the instructions given, was calculated to mislead the jury.

In conformity with the course pursued in the case of Beckwith vs. Mollohan, 2 W. Va., 477, and Thompson vs. Updegraff, decided at the present term, it is deemed proper to express no opinion on the motion for a new trial, so far as it respects the ground on which it was made in- the court below, viz: that the verdict is contrary to, and not warranted by, the evidence, since by the views above indicated, the judgment must be reversed for the misdirection of the court, and the cause sent back to be retried by another jury.

I am of opinion, therefore, to reverse the judgment, and remand the cause for further proceedings to be had therein in conformity with the principles above mentioned.

Maxwell, J., concurred.

Judgment reversed.