The Union times. [volume] (Union, S.C.) 1894-1918, 1897-04-09

is that he has acted under the or
ders of the government In these cases
he Is sued not as or because he is the
officer of the government but as an in
dlvldual and the court is not ousted Of
jurisdiction because he asserts author.
ity as such officer. To make out his
defence he must show that his author
ity was sufficient in law to protect him.
1t is necessary therefore for such de-
fendant in order to complete bis de-
fense to produce o law of the State
which constitutes his commission as its
agent and warrant for his act. This
the defendant has undertaken to do. I"
The act which he sets up is in contra
vention OF the Constitution of the
United States and is void, and therefore
Is not law of the State of Virginia.
He stands therefore stripped of his
official character and confessins q per-
sonal violation of the plaintiffs rights,
for which he must answer personally. i"
The same case says further, page 800;
THAT which therefore is unlawful be-
cause made so by the supreme law, the
Constitution of the United States, is
not the work or deeds of the State, but
is a mere wrong and trespass of those
individuals who falsely speak and act
in her name"
the State in any shape or form. Penn
oyer VS.. Connaughty, 140 U. g., at
page 10. Donald VS.. Scott, supra.
Are the defendants protected from
arrest? The purpose of section As above
quoted, is to protect any officer or per-
son having duties to perform under the
statute, in the performance of those du-
ties. And if the statute does not, or
cannot, prescribe to them certain acts as
duties, it cannot instruct them to vio-
late the laws and say they will be pro-
tected. 1t cannot be claimed that the
State constables enjoy absolute inn
munity for any, crime or any act they
may commit whilst they are constables
and processing to carry out the act, such
as murder, larceny. embezzlement,
or any crime in the decalogue. And
why? Because the dispensary law could
not excuse the performance of OF ex-
empt from liability for an net clearly
unlawful. And when seizure of pro-
perty in transit, in the hands of a COM
mon carrier, has been declared by the
highest authority in tho land clearly
unlawful, it cannot be excused by the
dispensaay law.
Every citizen is protected in his prop
erty. No man can violate his right
with impunity if he takes that property
fense stands here solely upon the abso-
llte immunity from judicial inquiry of
every one who asserts authority from
the executive btanch:o oft government,
however clear it is that the executive
possessed no such power. Not only no
such power is given, but it is absolute
ly prohibited both to the executive and
the Legislative department., to deprive
anyone of life, liberty or property with
out due process of law. "No man in
this country is SO high that he is above
the law. No officer of tho law can set
that law at defiance with impunity All
of the officers of the law, from the high
est to the lowest, are creatures of the
law and are bound to obey it." United
States VS.. Lee. 106 U. S., 22O.
The learned Encouragement con-
tends that the mode of ARE. is pro-
visional remedy, granted only in special
cases, and that the Legislature can di-
rect to what cases it shall apply. True.
But the Legislature cannot say to what
persons it shall not apply. All persons
are entitled to the same protection from
the laws which others enjoy. (Consti-
tuition of South Carolina, article l, sec
ton 5.l Constitution of the United
States, article II, section L.
'How else can principles of individ-
"sti iibSitN bC IL
when violated. the judicial tribunals
are forbidden to visit penalties upon
the individual Offenders, who are the
instruments of wrong whereon they in
terpose the shield of the State? The
doctrine is not to he tolerated The
whole frame and scheme of the politi-
cal instruments of this country, State
and Federal, protest against it. The
continued existence is not compatible
with it.
''It is the doctrine of absolutism,
pure, simple, naked and of communism
which is it twin, the double progeny of
the same evil birth" Virginia Cou-
pom cases, ia U. S., 291.
The motion is refused
CHARLES II. SIMoNToN,
March 81, 1897. Circuit Judge.
NJ. Herskowitz vs.. J. NJ. Scott and
w. j. Harling.
This case is governed by the same
principles and must reach the same con-
clusion as the case of William Beck
roge against w. j. Harling and Lucius
G. Roach, just decided. Very much
appeared i'll the affidavits which may
go far to mitigate the damages, if any
are allowed. But this does not affect
the principle.
The motion is dismissed.
CHARLES III. SIMoNToN,
Circuit Judge.
March 81, 1897.
Gen. Townsend stated in his argu-
ment that such decision would nulli-
fy the ilSpenSary law and preyent its