Morgan v. Beloit, 74 U.S. (7 Wall.) 613
Case details
Citation
74 U.S. 613
Full caption
Morgan v. Beloit, City an d Town.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Swayne (Justice)
Majority
Clifford (Justice)
Mor ga n v . Bel oit , City an d Town .
Where the legislature creates a city, carving it out of a region previously a town only, and enacts that all bonds which had been previously issued by the town should be paid when the same fell due, by the city and town, in the same proportions as if said town and city were not dissolved, and that if either at any time pays more than its proportion, the other shall he liable therefor, a bill will lie in equity to enforce payment by the two bodies respectively, in the proportion which the assessment rolls
*
The Commissioners of Knox Co. v. Aspinwall, 24 Howard, 376; Von r V' Quincy, 4 Wallace, 535; Riggs v. Johnson County, 6 Id. 166. oo J ’ t Not yet reported.
show that the property in one bears to the property in the other. A bondholder is not confined to mandamus or other legal remedies, if such exist.
Appea l from the Circuit Court for Wisconsin.
In 1853, the legislature of Wisconsin authorized the town of Beloit to subscribe to the stock of a railroad company, and to pay therefor in bonds of the town. The town subscribed and issued its bonds, a portion of which came to the hands of one Morgan, a bond fide purchaser.
In 1856, the legislature created the city of Beloit, this city being carved out of a portion of the territory which had constituted the town of Beloit. The charter of the new city thus provided:
“ All principal and interest upon all bonds which have heretofore been issued by the town of Beloit, . . . shall be paid when the same or any portion thereof shall fall due, by the city and town of Beloit, in the same proportions as if said town and city were not dissolved. And in case either town or city shall pay more than their just and equal portion of the same at any time, the other party shall be liable therefor."
This provision was re-enacted in 1857.
After the date of this act, and between it and 1867 inclusive—the interest on the bonds being unpaid for every year after 1854—Morgan brought several suits, in the Circuit Court for Wisconsin, against “ the town of Beloit,” for the interest due for the years respectively, and on the 25th of September, 1867, got judgment against the town for it. The judgments being unpaid, he now filed a bill in the court below against the town and city of Beloit. The bill set forth facts above stated, alleged that the “ amount of said judgments ought to be paid by said defendants in the proportions respectively as provided in the said acts;” that the taxable property of the city exceeded that of the town; and that though the city “ ought to pay the proportion provided in the acts,” yet that the complainant was remediless at law. It then showed, by tabular exhibit, the amount of the interest due on the bonds held by him, in each year respectively, from 1855
Argument in support of the bill. •
to 1867 ; then by like exhibit the proportion in value, which, taking the rates of assessment made in each year as a basis, the taxable property of what was now the town bore to what was now the city, in every year, from 1855 to 1867 ; then showed, by similar exhibit, that, taking these relative exhibits, the town would be liable on the coupons for each respective year for so much and the city for so much, the balance, namely; the whole making, with interest from the date of the judgments obtained (which the bill alleged “ought to be paid by the said town and city respectively”), the sum of $60,443, as against the city, and $17,986, as against the town.
After alleging that “ the city and town ought respectively to pay interest” on the respective total amounts, from the day when the judgments were obtained till the actual payment of them, and “ ought each to pay one-half the costs recovered in the judgments,” the bill concluded thus:
“ To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may upon oath, &c. . . . and that your orator may have such other and further relief as the nature of his case may require, and as shall be agreeable to equity and good conscience.”
Prayer for subpoena, &c.
The defendants (town and city) demurred, and the bill was dismissed. Appeal accordingly.
Mr. Carpenter, for the appellant :
The complainant was clearly entitled to some remedy against the city for its proportion of the debt, and the question is, what was the appropriate remedy ?
On bonds given by the town, a joint action at law could not be maintained against the town and city.* To an action at law against the city alone, the plea of non èst factum would be true in tact and fatal in law. If any action at law could be maintained against the city, it would be debt founded on
*
Goodhue v. Beloit, 21 Wisconsin, 636.
• Argument against the bill.
the statute. But there would be the difficulty of settling, as between the city and the town, the proportion which each ought to pay, in an action where the town was not a party. This consideration alone gives a court of equity jurisdiction. If the town were compelled to pay the whole debt, it would be entitled, by the express provisions of the statute, to an action against the city for its proportion. Circuity of actions —that which courts desire to prevent—is therefore avoided by maintaining a suit in equity against both. A court of equity is the only tribunal that can render complete justice between all the parties.
Messrs. Palmer and Ryan, contra:
The bill is without any prayer for special relief. What, indeed, is its object? Is it for a declaratory decree of the proportions in which the judgments should be paid by the city and town, leaving the plaintiff to his mandamus to enforce a tax accordingly ? Or is it for a decree awarding execution against the defendants? No one can tell. The omission to make the proper prayer is fatal. Even under the dangerous and inconvenient rule, held in a few cases, that a prayer for general relief is sufficient, and that the special relief may be prayed for at the bar, on hearing, the bill must indicate by its frame the special relief sought, which this bill does not. But this court has wisely abrogated that rule, and by its twenty-first rule in equity, provides Jhat “the prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief.”
On merits, the case is not good. Though equity is liberal in the adaptation of her remedies, she does not give a remedy to every party merely because he is in difficulty, nor unless his difficulty be covered by some specific ground of equitable jurisdiction. Here there is an adequate legal remedy by mandamus. It may be a troublesome remedy. But he has it. And equity will not devise a new ground of jurisdiction because a speculator in town bonds is unlucky in his legal remedies.
Reply: The prayer is, in effect, a prayer for both special and general relief. But if it were for general relief alone, that would be sufficient, upon the facts stated in the bill.*
Mr. Justice SWAYNE delivered the opinion of the court.
The bill of the appellant presents the following case: In the year 1853, the legislature of Wisconsin, by an act duly passed, authorized the town of Beloit to subscribe for $100,000 of the stock of a railroad company authorized to construct a railroad from the city of Racine to the village of Beloit, and to make payment in its bonds to be issued for that purpose. The bonds were accordingly issued. A portion of them came into the hands of the appellant, and he recovered upon them the several judgments at law described in the bill. These judgments are all in full force and unsatisfied. By an act of the legislature, passed in 1856, the city of Beloit was created. It embraces a part of the territory which before constituted the town of Beloit. This act provides:
“That all principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, shall be paid, when the same or any portion thereof shall fall due, by the city and town of Beloit, in the same proportions as if the said city and town were not dissolved.”
This provision was re-enacted in 1857.
It is averred that the city and town ought respectively to pay the proportions set forth—of the judgments—with interest from their several dates. The prayer is for general relief. The appellee demurred. The court sustained the demurrer, and dismissed the bill. This appeal was thereupon taken.
The two corporations are as separate and distinct as if the territories they embrace, respectively, had never been united. It is obvious that, without a legislative provision to that effect, the city would not be answerable at law for the debts of the town, incurred before the former was created. Whether, p. 618but for the statute, the city there would have been chargeable in equity, it is not necessary to consider. The statute is conclusive as to a liability, to be enforced in some form of procedure. The only question before us is, whether there is a remedy in equity. It may be, as suggested by the counsel for the appellant, that an action would lie upon the statute. It is also possible that a proper case for a writ of mandamus might be made. But these inquiries are oijly material as bearing upon the question whether there is an adequate remedy at law.. If so, a suit in equity cannot be maintained. To have this effect, the remedy at law “ must be as plain, adequate, and complete,” and “ as practical and efficient to the ends of justice, and to its prompt administration, as the remedy in equity.”* When the remedy at law is of this character, the party seeking redress must pursue it. In such cases the adverse party has a constitutional right to a trial by jury.f The objection is regarded as jurisdictional, and may be enforced by the court sua sponte, though not raised by the pleadings, nor suggested by counsel.^ The provision upon the subject in the sixteenth section of the Judiciary Act of 1789, was only declaratory of the pre-existing rule.
In the case before us the adjustment of the amount to be paid by the city, will depend upon accounts and computations founded upon the proper assessment rolls. In order to bind the town, it is necessary that it should, be made a party. This cannot be done in proceedings at law. If the town should be compelled to pay the entire amount, the right is given by the statute to recover back the proportion for which the city is liable. This would involve circuity of litigation. The remedy at law is, therefore, neither plain nor adequate.
The question, whether a bill in equity will lie, is disembarrassed of this objection.
The authority to tax for the payment of municipal p. 619liabilities, in cases like this, is in the nature of a trust.* The jurisdiction of a court of equity to interfere in all cases involving such an ingredient, is too clear to require any citation of authorities. It rests upon an elementary principle of equity jurisprudence.
“ The power is reserved to a court of equity to act upon a principle often above-mentioned, namely, that whenever there is a right it ought to be made effectual.”t Where there is a right which the common law, from any imperfection, cannot enforce, it is the province and duty of a court of equity to supply the defect and furnish the remedy.^
The decree is rev ers ed . A mandate will be sent to the Circuit Court directing that the demurrer be overruled, and the cause proceeded in according to the principles of equity and the rules of equity practice.
Bel oit v . Morg an .
1. A judgment in favor of a bondholder upon certain municipal bonds, part of a larger issue, against the town issuing them, is conclusive on a question of the validity of the issue on a suit brought by the same creditor against the same town, on other bonds, another part of the same issue; the parties being identical, and all objections taken by the town in the second suit having been-open to be taken by it in the former one. 2. A legislative enactment created the city of Beloit, carving it out of territory previously covered by the town of Beloit only. The statute enacted thus:
All principal and interest upon all bonds which have heretofore been issued by the town of Beloit, for railroad stock or other purposes, shall be paid when the same, or any portion of the same, shall fall due, by the city and town of Beloit, in the same proportions as if said town and city were not dissolved, such proportions to be apportioned, ’ ’ &c.
Held, that this made bonds issued by the town valid, assuming that previously to the act they were not so.
Appe al from the Circuit Court for Wisconsin.
The legislature of Wisconsin, by act of 1853, authorized p. 620the supervisors of the town of Beloit to subscribe to the capital stock of a certain railroad company, and to pay for the same in the bonds of the town, payable at the expiration of a term named, and with a rate of interest specified.
*
Von Hoffman ®. The City of Quincy, 4 Wallace, 555. t 1 Kaime’s Principles of Equity, 3. f Quick v. Stuyvesant, 2 Paige, 92.
The supervisors, professing to execute the authority so conferred, did subscribe to the stock of a certain railroad company and issued bonds; of many of which one Morgan became the holder, bond fide.
Whether the bonds were issued pursuant to the authority which the statute gave to the supervisors, soon became a matter of controversy between the holders of them and the authorities of Beloit. These last asserted that they were not so issued, but were made without any legal authority; were in violation of the act of the legislature, and constituted a corrupt and usurious contract. They would accordingly pay nothing on the bonds.
In this state of things the legislature of Wisconsin, in 1856, created the city of Beloit; carving it out of territory which constituted the former town of Beloit. The charter of the new city provided thus:
“ All principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, when the same or any portion thereof shall fall due, sha ll be paid by the city and town of Beloit in the same proportions as if said town and city were not dissolved.”
This provision was re-enacted in 1857, in an act amending the charter of the city.
With this act in force, Morgan brought suit at law for the interest of some of his bonds, against the town of Beloit, and on the 9th of January, 1861, obtained judgment against it.
He now also brought other suits against the town, on other of the bonds, not the same specific instruments, of course, as those on which he had obtained judgment, but part of the same issue, and a suit on which involved the same questions as did the suit on those on which he had already recovered.
Thereupon the town of Beloit filed a bill, the bill below, in the Circuit Court for Wisconsin, to enjoin the proceedings at law, and to compel a surrender of the bonds. The answer set up,
1. By way of estoppel, the judgment of 9th January, 1861, on certain of the bonds, as conclusive of the validity of the whole issue, and
2. The act of 1856 and its re-enactment of 1857, and alleged that it was the intention of the legislature to provide by those acts that the bonds in question should be paid; and that they were a legislative ratification of the bonds, with effect to cure any irregularity or want of authority.
The court below dismissed the bill. Appeal accordingly.
Messrs. Palmer and Ryan, for the appellant; Mr. Carpenter, contra.
Mr. Justice SWAYNE delivered the opinion of the court.
The bonds and coupons to which this litigation relates were issued under the same statute of Wisconsin, and for the same purpose, as those involved in the preceding case, just decided. The object of the bill is to enjoin the appellee from proceeding in the suits at law which he has instituted upon a part of the securities in his hands; and to have those and all others belonging to him, delivered up and cancelled. The court below heard and dismissed the case. It is brought here by this appeal for re-examination.
Numerous objections have been made to the validity of the bonds.
The argument on both sides has been learned and elaborate. The view which we have taken of the case will render it necessary to consider but two of the points to which our attention has been called.
I. On the 9th of January, 1861, the appellee recovered a judgment at law against the appellant upon another portion of these securities—though not the same with those in question in this case. The parties were identical, and the title involved was the same. All the objections taken in this p. 622case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, he might have brought the decision here by a writ of error for review. The court had full jurisdiction over the parties and the subject. Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between same parties touching the same subject-matter, though the res itself may be different.
An apt illustration of this principle is found in Gardner v. .Buckbee.* Gardner bought a vessel from Buckbee, and gave two notes for the purchase-money. Buckbee sued him upon one of the notes in the Marine Court. Gardner set up as a defence, fraud in the sale and a want of consideration. A verdict and judgment were rendered in his favor. In a suit upon the other note, in the Common Pleas of the City of New York, the judgment in the Marine Court was held to be an estoppel upon the subject of fraud in the sale. Bouchaud v. Dias,^ Doty v. Brown,X and Babcock v. Camp,§ are to the same effect and equally cogent. Such has been the rule of the common law from an early period of its history down to the present time.|| But the principle reaches further. It extends not only to the questions of fact and of law, which were decided in the former suit, but also to the grounds of recovery or defence which might have been, but were not, presented.
In Henderson v. Henderson,^ the Vice-Chancellor said: “ In trying this question, I believe I state the rule of the court correctly, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to bring forward their whole case, and will not, except under special
* 3 Cowen, 120. f 3 Denio, 238. J 4 Comstock, 71. § 12 Ohio State, 11. || Ferrer’s Case, 6 Reports, 8; Hutchin v. Campbell, 2 W. Blackstone, 831; Duchess of Kingston’s Case, 2 Smith’s Leading Cases, 656; Aurora City v. West, supra, 82.
3 Hare, 115. See also, Birckhead v. Brown, 5 Sandford’s Superior Court, 135.
circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted a part of their case. The plea of res judicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
A party can no more split up defences than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction.* The judgment at law established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them., Nothing is disclosed in the case which affects this condition of things.
IL The city of Beloit was chartered by the legislature of Wisconsin in 1856. It embraces a part of the territory which previously belonged to the town of Beloit. In the seventeenth section of the charter it is enacted that “ all principal and interest upon all bonds which have heretofore been issued by the town of Beloit for railroad stock or other purposes, when the same or any portion thereof shall fall due, shall be paid by the city and town of Beloit in the same, proportions as if said town and city were not dissolved,” &c.
This provision was re-enacted in 1857 in an act amending the charter of the city. No bonds were issued in payment for railroad stock but those to a part of which this controversy relates. The language used by the legislature is clear and explicit. No gloss can raise a doubt as to its meaning. It distinctly affirms, and the affirmation is repeated, that the bonds shall be paid.
The only point to be considered is the effect of this pro-
vision. That is not an open question in this court. Whenever it has been presented, the ruling has been that, in cases of bonds issued by municipal corporations, under a statute upon the subject, ratification by the legislature is in all respects equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execution.* The same principle has been applied in the courts of the States.f This court has repeatedly recognized the validity of private and curative statutes, and given them full effect, where the interests of private individuals were alone concerned, and were largely involved and affected.^ The earlier and more important of these authorities are so well known to the profession and are so often referred to, that it would be waste of time to comment upon them. We hold this objection also fatal to the appellant’s case.
Several other important propositions have been discussed by the learned counsel for the appellee. They have not been considered, and we express no opinion in regard,to them.
Dec re e aff irm ed .
The Bel fast .
1. In all cases where a maritime lien arises, the original jurisdiction to enforce it by a proceeding in rem, is exclusive in the District Courts of the United States, as provided by the ninth section of the Judiciary Act of 1789. 2. State legislatures have no authority to create maritime liens ; nor can they confer jurisdiction upon a State court, to enforce such a lien by a suit or proceeding in rem, as practised in admiralty courts. 8. Upon an ordinary contract of affreightment, the lien of the shipper is a maritime lien ; and a proceeding in rem, to enforce it, is within the ex-
* Gelpcke v. Dubuque, 1 Wallace, 220 ; Thomson v. Lee County, 3 Id. 827. f Wilson v. Hardesty, 1 Maryland Ch. Decisions, 66 ; Shaw v. Norfolk Co. R.R. Co., 5 Gray, 180.
J Satterlee v. Matthewson, 2 Peters, 380 ; Wilkinson v. Leland, Id. 627 ; Leland v. Wilkinson, 10 Id. 294 ; Watson v. Mercer, 8 Id. 88 ; Charles River Bridge v. Warren Bridge, 11 Id. 420; Stanley v. Colt, ö Wallace, 119; Croxall v. Shererd, Id. 268.
elusive original cognizance of the District Courts of the United States, albeit the contract be for transportation between ports and places within the same State, and all the parties be citizens of the same State, provided only that such contract be for transportation upon navigable waters to which the general jurisdiction of the admiralty extends.
4. The “saving,” in the ninth section of the Judiciary Act, “to suitors, in all cases, of the right of a common law remedy, where the common law is competent to give it,” does not authorize a proceeding in rem, to enforce a maritime lien, in a common law court, whether State or Federal. Common l&w remedies are not applicable to enforce such a lien, but are suits in personam, though such suits, under special statutes, may be commenced by attachment of the property of the debtor. Proceedings in a suit at common law, on a contract of affreightment, are the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. The judgment in such a case is not against the vessel, as the offending thing, but against the parties who have violated their contract ; and can only affect the vessel so far as the defendants may have property therein.
5. These principles applied to the provision of the statute Of 7th October, 1864, of the State of Alabama, under which contracts of affreightment are authorized to be enforced in rem through courts of the State, by proceedings, the same in form, as those used in courts of admiralty of the United States; and the statute held unconstitutional and void.
Error to the Supreme Court of Alabama.
The case was thus: The Constitution ordains that the judicial power of the United States shall extend “ to all cases of admiralty and maritime jurisdiction.” And the ninth section of the Judiciary Act of 1789, provides that the District Courts of the United States
“ Shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, . . saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.”
In this state of Federal law, fundamental and statutory, the State of Alabama, by enactments, entitled “Proc eed - in gs in Admir alt y ,”* provided that there should be a lien on all vessels for work and materials done or furnished, and for all debts contracted by the master, owner or consignee,
* Code, 2692, 2708.
VOL. VII.
and for the wages of the officers, crew, &c., in preference to other debts due from the owners thereof. By the terms of the code, the lien is to be asserted by filing a complaint in any county in which the vessel may be found, stating the amount and nature of the claim, and praying a seizure of the vessel. Thereupon the clerk is to issue a writ commanding the sheriff to seize the vessel, her tackle, apparel and furniture. At any time before judgment, the master, owner or other persons may release the vessel by entering into bond in double the amount of the claim, stipulating to pay the amount of the judgment. Any number of persons may unite in the same complaint, and if more than one complaint be filed the court must consolidate them, and render but one judgment against the vessel, which is to be considered several as to each complainant. If a stipulation be entered into, the stipulators are defendants. If none, the court must render a judgment ex parte condemning the boat, tackle, &c., to be sold in satisfaction of the claim; and the affidavit of complainant is made presumptive evidence of the justice of the demand.
Finally, the code provides that, “ unless where otherwise provided in this chapter, the proceedings to enforce the lien shall be the same as in the courts of admiralty of the United States, but either party may have any question of fact decided by a jury> uPon an issue made up under direction of the court.”
By the act of 7th October, 1864, “ to amend the admiralty laws of the State,” these provisions are extended to the contract of affreightment.
Under this statute, Boone & Co. filed their libel, March 30,1866, in the City Court of Mobile, claiming $5800 for the loss of certain bales of cotton, shipped to them from Vienna, in the State of Alabama, to Mobile, in the same State, and prayed “process in admiralty” for the seizure of the steamboat Belfast.
In the same court a libel was also filed by J. & S. Steers, claiming compensation for other bales, shipped by them from Columbus, Mississippi, to Mobile, in Alabama, already mentioned. And a libel by Watson & Co. claiming it for cotton shipped by them, from and to the same points.
All the navigation which was the subject of the case, was upon the Tombigbee River, navigable water of the United States.
Under these several libels, the sheriff, by virtue of writs of seizure, took the steamer into possession, and posted his monitions, and the causes, under the statute, were consolidated and heard together. The answer, applicable to the three • cases alike, set forth that the steamer was duly enrolled and licensed, in pursuance of laws of the United States, and that on the 15th January, 1866, she was regularly cleared at Mobile, Alabama, for Columbus, Mississippi, and that on her downward trip the cotton claimed was lost, and therefore, that the City Court, had no jurisdiction.'
A decree was rendered on 28th July, for the three libellants. Appeal was taken to the Supreme Court of Alabama, where one assignment of errors was: “That the City Court erred in overruling the protest to the jurisdiction.” The decree of the City Court was, however, affirmed by the Supreme Court; and deciding, as that court thus did, in favor of the validity of a statute of a State drawn in question on the ground of its being repugnant to the laws of the United States, the case was brought here under the twenty-fifth section of the Judiciary Act.
Not much contesting the point that if the court had no jurisdiction in the two cases where the carriage was not wholly within one State no agreement below could authorize what it did about these two (jurisdiction being of course to be conferred by the law alone), the matter of debate was reduced, here, chiefly to the first case, that, namely, of Boone & Co., where the whole carriage was within the State of Alabama, and to the question of constitutional law arising upon z7, to wit:
Whether the contract, made as it was, for the transportation of goods from one place to another, both in the same State, and without the goods being carried in transitu, into or through any other State or foreign dominion, was a contract which could be enforced by a proceeding in admiralty in the Federal courts alone ?
Argument against the jurisdiction.
If the State court had no jurisdiction in that case, a fortiori, it could have none in the two others.
Mr. P. Phillips, for the appellant:
It is matter of universal knowledge, that the admiralty jurisdiction of the Federal courts has undergone several changes since the establishment of this government, and we need not discuss at all the familiar cases of The Thomas Jefferson,* Waring v. Clarke J The Lexington,\ The Genesee Chiefs and some others of a past day. Whether they be all reconcilable or not, is unimportant now. The only thing important to be inquired into by us now, is the judgment of this court, as settled in its most recent decisions, determining the character and limit of the admiralty jurisdiction. And we have here two leading cases on this point. In The Moses Taylor,|| the action was on a contract for personal transportation. The court held that this was a maritime contract; that it was not distinguishable from a contract for the transportation offreight, and that the breach of either is the appropriate subject of admiralty jurisdiction.
And, further, that the clause of the Judiciary Act, which saves to suitors a common law remedy, does not save a proceeding in rem, as used in the admiralty courts. Such a proceeding not being a remedy afforded by the common law.
In The Hine v. Ti"evor,9^ the action was for a collision occurring on the Mississippi, near St. Louis. The record “ raised distinctly the question how far the j urisdiction in admiralty was exclusive, and to what extent the State courts could exercise a concurrent jurisdiction,” and, owing to the importance of the principles involved, the “case was held under advisement for some time, in order that every consideration which could influence the result might be deliberately weighed.” The court affirm the judgment given in The Moses Taylor, and reassert the doctrine declared in the case of The Genesee Chief, that the “principles of admiralty ju-
Argument in support of the jurisdiction.
risdiction, as conferred on the Federal courts by the Constitution, extend wherever ships float, and navigation successfully aids commerce, whether internal or external.” It further declares that the grant of this power under the act of 1789, is exclusive not only of all other Federal courts, but of all other State courts, and, therefore, State statutes which confer upon State courts a remedy for marine torts and marine contracts, by proceeding strictly in rem, are void.
The provisions of the Alabama code are those of the acts quoted in the above recent cases, and are subject to the same condemnation. Judgment, therefore, must be reversed.
Jfr. Carlisle, contra:
1. The case arose inland concerned alone, the internal commerce of the State of Alabama, and therefore it was one with which the laws of that State only could deal. It lay wholly beyond the region of Federal powers. And it is quite unimportant in what form, or by what system of pleading and evidence, the State might provide a remedy in such a case. The mere form cannot affect the substance. If the power exercised be one belonging to the State, and not to the Federal government, it does not concern the Federal government whether it be exercised in one form or another; or whether the proceeding be called a libel in admiralty, a bill in equity, or an action at common law; whether given by modern sfatute, or to be found in the Year Books.*
2. The particular remedy given by the Alabama statute, and adopted in these cases, is within the saving in the ninth section of the Judiciary Act. What is meant, as well in the act of 1789, as in the Constitution itself, by the “ common law,” has been settled by this court. The language of the seventh amendment is:
In suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
6.30 The Bel fast . [Sup. Ct.
Argument in support of the jurisdiction.
The language of the ninth section, and that just quoted, is' obviously used in the same sense. Now in Parsons v. Bedford* the court say:
“By ‘common law/ the framers of the amendment meant what the Constitution denominated in the third article ‘ law / not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in admiralty, a mixture of public law and of maritime law and equity were often found in the same suit. Probably there were few, if any, States in the Union in which some new legal femedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition and foreign and domestic attachment might be cited as examples variously adopted and modified.”
To show that the case at bar is a “ civil cause of admiralty and maritime jurisdiction,” shows nothing to the purpose, if it also appear that there was a common law remedy at the option of the suitors, and that they elected that remedy. They are the very persons who under the statute had the right to do so.
It is not necessary to make a case one at common law, that the suit be begun by the service of process, or by actually bringing into court, in any other way, the party whose rights are to be affected by the proceeding. A defendant may be brought into court as well by seizing his property, and bringing it into court, under circumstances giving him plain and reasonable notice of the cause of its seizure. If the statute makes provision for his personal appearance, and a day is given to him in court, with the right of trial by jury, then it is as much a common law case as if it had begun by a
* 8 Peters, 446-7.
capias ad respondendum, instead of a seizure of his property. And, on the other hand, though the suit be begun by a capias, and proceeded in throughout according to the most exact forms of a common law suit in all things but one, to wit, the trial by jury, if that be denied, it is no true case at common law. It is this distinctive quality alone which the Constitution guarantees and preserves from all innovation. And there is no instance in this court in which, where the subject-matter was the adjudication of purely legal rights, and the right of the trial by jury has been “preserved,” in which the case has been treated as other than a common law case, whether a concurrent remedy existed, either in admiralty or in equity, or not, and whatever may have been the Here form of the proceedings.
The Hine v. Trevor is no exception to this rule. There, as the report shows, there was, and could be, no jury trial. The Iowa statute, on which that case rested, made no provision to protect the owner of the vessel, and afforded him no opportunity, by his personal appearance, of converting the proceeding into a common law trial by jury. The proceeding was begun, continued, and ended, and could only be so, as a civil law proceeding in rem.
Mr. Justice CLIFFORD delivered the opinion of the court.
Persons furnishing materials or supplies for ships or vessels, within the State of Alabama, have a lien by the law of that State on the same for all debts contracted by the master, owner, or consignee thereof for the work done, and for the materials and supplies furnished, in preference to other debts due and owing from the owners of such ships or vessels. By the code of that State it is also provided, under the title, “ proceedings in admiralty,” that ■whenever any steamboat or other water-craft shall receive on board, as a common carrier, any goods or merchandise as freight, to be delivered at any specified place, and shall fail to deliver the same as directed in the bill of lading or other contract of shipment, the owner or consignee of such goods or merchandise shall have a lien on such boat or other water-craft p. 632for his loss or damage, to be enforced in the same manner and subject to the rules and regulations prescribed in relation to similar liens for labor, materials, and supplies furnished to such steamboats or other water-craft, as described in the antecedent provision.*
Pursuant to those statutory rules and regulations of the State, the libel in this case was filed in the City Court of Mobile, and the libellants alleged that they, on the twenty-third of January, 1866, shipped on board the steamboat Belfast, then lying at Vienna in that State, one hundred bales of cotton, to be transported to Mobile, in the same State, and there to be delivered to certain consignees, they paying freight therefor at the rate of five dollars per bale, the dangers of the river excepted; that on the way down the river, below Vienna, twenty-nine bales of the cotton were lost, not by the dangers of the river, and were never delivered to the consignees, whereby the libellants suffered loss to the amount of five thousand eight hundred dollars. Introductory allegations of the libel, also, are the same as in a libel in rem in the District Courts of the United States; and in conclusion, the “libellants pray process in admiralty” against the steamer, “ her tackle, apparel, and furniture,” and that the same may be condemned to satisfy their damages and costs. Process was accordingly issued, commanding the sheriff’ to seize and take the steamer, &c., into his possession, and to hold the same until released by due course of law. Respondents appeared as claimants, and alleged that they were the owners of the steamer, and they admitted that the cotton was shipped on board at the time and place, and on the terms and for the purpose alleged in the libel; but they excepted to the jurisdiction of the court, and alleged that the steamer, at the time the cotton was shipped, was duly enrolled and licensed under the laws of the United States; that she was then and there regularly engaged in commerce and navigation between the city of Columbus, in the State of Mississippi, and the city of Mobile, in p. 633the State of Alabama, and that the cotton described in the libel was lost in her trip down the river from the former city to her port of destination. Defence of the respondents upon the merits was, that the steamer and cargo were captured by a band of robbers in the trip down the river, within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States, and without any negligence or fault on the part of the officers and crew of the steamer. They also set up the defence, that it was agreed between the master and the shippers that the vessel should not be liable for the loss of the cotton, if it was captured by armed men during the voyage, withou any negligence or fault on the part of the carrier. Libellants excepted to that part of the answer denying the jurisdiction of the court, as insufficient and invalid; and they also excepted to the defence, as pleaded, that the steamer was robbed of the cotton, as no bar to a recovery in the case, and the court sustained the views of the libellants in both particulars, and the respondents excepted to the respective rulings of the court.
*
Revised Code, %% 3127, 3142.
Two other consignments of cotton were also on board the steamer at the time the alleged robbery occurred. Ninety bales were shipped by J. H. Steers & Company, at Columbus; and one hundred bales were shipped by John Watson & Company, at the same place. Both shipments were to be transported to the port of Mobile, and there to be delivered to certain consignees under a similar contract of affreightment as that alleged in the first case, except as to the price to be paid for the transportation. Steers & Company lost thirty-four bales of their shipment, and Watson & Company lost thirty bales, as alleged by the respective parties. Libels in the same form were also filed by those parties about the same time, in the same court, and the owners of the steamer appeared in each case as claimants, and pleaded the same defences in the three cases.
Evidence was introduced by the respective libellants, proving that the entire cotton lost, and not delivered, was of the value of four thousand dollars. They also introduced p. 634the several bills of lading, and the respondents admitted the shipments as alleged in the respective libels. On the other hand, the libellants admitted that the steamer was robbed, as alleged in the answer, and without any neglect or fault of the owners of the steamer, or those in charge of her navigation.
Agreement of the parties, as stated in the bill of exceptions, was that the three cases should be tried together, and they were all submitted at the same time and upon the same issues. Finding of the court was that the whole loss in the three cases was four thousand dollars, and of that sum the decree of the court allowed one thousand dollars to the libellants in the first case, fourteen hundred dollars to the libellants in the second case, and sixteen hundred dollars to the libellants in the third case, with costs to the prevailing party.
Exceptions were seasonably tendered by the respondents to the rulings and decision of the court, and the exceptions were duly allowed by the court. Appeals were then taken by the respondents to the Supreme Court of the State, where the objections to the jurisdiction of the court were renewed in the formal assignment of errors. The parties were heard, but the court overruled the objections to the jurisdiction of the court, and affirmed the respective decrees rendered in the subordinate court. Writs of error were then sued out under the twenty-fifth section of the Judiciary Act, and the respective causes were removed into this court.
Jurisdiction of this court to re-examine the questions presented in the pleadings may be assumed as existing without discussion, as it is conceded that the questions are the same as were raised and decided in the State courts, and it is not controverted that the questions are such as may be re-examined here under the twenty-fifth section of the Judiciary Act.
Theory of the respondents is, that the respective libels were libels in rem to enforce a maritime lien in favor of the shippers of the cotton, under contracts of affreightment for the transportation of goods and merchandise from one port p. 635to another upon navigable waters, and that the State courts have no jurisdiction to employ such a process to enforce such a lien in any case; that the jurisdiction to enforce a maritime lien by a proceeding in rem is exclusively vested in the Federal courts by the Constitution of the United States and the laws of Congress. But the libellants controvert that proposition, and insist that the State courts have concurrent jurisdiction in these cases under that clause in the ninth section of the Judiciary Act, which saves “to suitors in all cases the right of a common law remedy where the common law is competent to give it.”*
2. They also contend, if their first proposition is not sustained, that inasmuch as the three cases were heard together, under an agreement that they should be tried upon the same issues, and that the libel filed by W. C. Boon & Company, as stated in the bill of exceptions, was selected as the case to be tried in the court where the suits were commenced, the rights of the parties in the other two cases must abide the decision of this court in that case.
Assuming that to be so, then they contend that the State court had jurisdiction in the first case, because the contract of affreightment was for the transportation of goods and merchandise between ports and places in the same State. Impliedly, the argument admits that the rule is otherwise where the contract is for the transportation of goods and merchandise between ports and places in different States; but the proposition is, that where the contract is between citizens of the same State, for the transportation of goods and merchandise from one port to another in the same State, the case is not one within the jurisdiction of the admiralty courts of the United States, unless it becomes necessary, in the course of the voyage, to carry the goods or merchandise into or through some other State or foreign dominion.
Obviously the questions presented are questions of very great importance, as affecting the construction of the Federal Constitution, and the rights and remedies of the citizens
* 1 Stat, at Large, 77.
engaged in an important and lucrative branch of commerce and navigation.
Judicial power to hear and determine controversies in admiralty, like other judicial power, was conferred upon the government of the United States by the Federal Constitution, and, by the express terms of the instrument, it extends to all cases of admiralty and maritime jurisdiction; which, doubtless, must be held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the States at the time the Constitution was adopted.*
Admiralty jurisdiction, as exercised in the Federal courts, is not restricted to the subjects cognizable in the English courts of admiralty at the date of the Revolution, nor is it as extensive as that exercised by the continental courts, organized under, and governed by, the principles of the civil law.f
Best guides as to thie extent of the admiralty jurisdiction of the Federal courts, are the Constitution of the United States, the laws of Congress, and the decisions of this court.
Two of the contracts of affreightment in these cases, were for the transportation of cotton between ports and places in different States; but as the contract alleged in the libel filed in the first case, was for the transportation of cotton from one port to another, in the same State, it becomes necessary to determine, irrespective of the questions presented in the other cases, whether such a contract is cognizable in the admiralty courts of the United States, because, if not, the libellants, in any view of the case, must prevail, as there would be, in that state of the case, no jurisdiction in this court to re-examine the decision of the State court in that case.
Much controversy has existed as to the true extent of the admiralty and maritime jurisdiction of the Federal courts, but great aid will be derived in the solution of this question by an examination of the decisions of this court at different periods since the judicial system of the United States was organized.
Principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures.
(1.) Contracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty.*
(2.) Torts or injuries committed on navigable waters, of a civil nature, are also cognizable in the admiralty courts.
Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality. Mistakes need not be made if these rules are observed; but contracts to be performed on waters not navigable, are not maritime any more than those made to be performed on land. Nor are torts cognizable in the admiralty unless committed on waters within the admiralty and maritime jurisdiction, as defined by law.f
Such jurisdiction, whether of torts or of contracts, was, and still is, restricted in the parent country to tide-waters, as they have no large fresh-water lakes or fresh-water rivers which are navigable. Waters where the tide did not ebb and flow, were regarded in that country as not within the admiralty and maritime jurisdiction; and such was the decision of this court in the case of The Jefferson,| and the rule established in that case was followed for more than a quarter of a century.
Attempt was subsequently made to restrict the jurisdiction of the admiralty courts in torts to cases arising on the high seas, but this court held that it extended to all waters within the ebb and flow of the tide, though infra corpus comitatus, and as far up the rivers emptying into the sea or bays and arms of the sea, as the tide ebbed and flowed. And that rule, ever after it was promulgated, prevailed, and was universally applied by the District Courts in cases of collision.§
Application of that rule was made by the Federal courts
* 1 Conklin’s Admiralty, 19. f The Commerce, 1 Black, 579; 2 Story on the Constitution (3d ed.), H 1666-1669. V
t 10 Wheaton, 428. § Waring et al. V. Clarke, 5 Howard, 549. p. 638in collision cases arising upon the Hudson, the Penobscot, the Kennebec, the Merrimac, the Alabama, and many other rivers navigable only between ports and places in one State.
Exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, was conferred upon the District Courts by the ninth section of the Judiciary Act, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas.
Remedies for marine torts, it is conceded, may be sought in the admiralty courts under that provision, although committed within the body of a county, but it is denied that redress can be obtained in the admiralty for the breach of a contract of affreightment in a case where the port of shipment and the port of destination are in the same State.
Repeated attempts were made at an early day to induce the court to hold that seizures on water were not cases of admiralty cognizance, and that contracts of affreightment were exclusively cognizable in the courts of common law; but this court refused to adopt either proposition, and held that the entire admiralty power of the Constitution was lodged in the Federal courts, and that Congress intended by the ninth section of the Judiciary Act to invest the District Courts with that power as courts of original jurisdiction; that the phrase, “exclusive original cognizance,” was used for that purpose, and was intended to be exclusive of the State courts as well as the other Federal courts.*
When the case of The Lexington was decided, it was still supposed that the admiralty jurisdiction was limited to waters affected by the ebb and flow of the tide, but the case is a decisive authority to show that the jurisdiction of the admiralty, in matters of contract, was understood to be coextensive with the jurisdiction in cases of.marine torts.
*
The Lexington, 6 Howard, 390; The Vengeance, 3 Dallas, 297; The Betsey, 4 Cranch, 443; The Samuel, 1 Wheaton, 9; The Octavia, lb. 20.
Subject-matter of the suit in the case of Waring et al. v. Clarke, was that of a collision, and the subject-matter in the case of The Lexington was a loss of specie in transitu, under a contract of affreightment. Viewed in any light, those two cases settle the question that where the voyage and transportation are over tide-waters, the jurisdiction of the admiralty is the same in matters in maritime contracts as in marine torts.
Such was the state of the law upon the subject, as decided by this court, when the case of The Genesee Chief* was brought here for re-examination; and in that case this court held that the jurisdiction in admiralty depended, not upon the ebb and flow of the tide, but upon the navigable character of the water; that if the water was navigable, it was deemed to be public, and if public, that it was regarded as within the legitimate scope of the admiralty jurisdiction conferred by the Constitution.
Prior to that decision, the Western lakes and navigable rivers of the United States, above tide-waters, were not supposed to be waters within the admiralty and maritime jurisdiction of the Federal courts. Strange as that proposition may now appear to one familiar with the provision contained in the ninth section of the Judiciary Act, it is nevertheless true that the rule restricting admiralty jurisdiction to tide-waters had prevailed from the organization of the judicial system to that date, but the effect of that decision was to dispel that error and place the admiralty jurisdiction upon its true constitutional and legal basis, as defined in the Constitution of the United States and the laws of Congress.
Subsequent decision of this court, in the case of The Magnolia, was, that the admiralty jurisdiction of the Federal courts extends to cases of collision upon navigable waters, although the place of the collision may be within the body of a county and above the ebb and flow of the tide; and this court also held in that case that the District Courts exercise jurisdiction over fresh-water rivers, “ navigable from the
* 12 Howard, 457- p. 640sea,” by virtue of the ninth section of the Judiciary Act, and not as conferred by the act of the 26th of February, 1845, which is applicable only to the “lakes, and navigable waters connecting said lakes.”*
Direct proposition of the respondents in the case of The Commerce^ was, that the case before the court, which was a collision on the Hudson River, was not a case cognizable in the admiralty, because it did not appear that either of the vessels was engaged in foreign commerce, or in commerce among the several States; but the court held that judicial power in all cases of admiralty and maritime jurisdiction was conferred by the Constitution, and that in cases of tort the question of jurisdiction was wholly unaffected by the considerations suggested in that proposition; and we reaffirm the rule there laid down, that locality is the true test of admiralty cognizance in all cases of marine torts; that if it appears, as in cases of collision, depredations upon property, illegal dispossession of ships, or seizures for the violation of the revenue laws, that the wrongful act was committed on navigable waters, within the admiralty and maritime jurisdiction of the United States, then the case is one properly cognizable in the admiralty.^
Navigable rivers, which empty into the sea, or into the bays and gulfs which form a part of the sea, are but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself.
Difficulties attend every attempt to define the exact limits of admiralty jurisdiction, but it cannot be made to depend upon the power of Congress to regulate commerce, as conferred in the Constitution. They are entirely distinct things, having no necessary connection with one another, and are conferred, in the Constitution, by separate and distinct grants. §
Congress may regulate commerce with foreign nations p. 641and among the several States, but the judicial power, which, among other things, extends to all cases of admiralty and maritime jurisdiction, was conferred upon the Federal government by the Constitution, and Congress cannot enlarge it, not even to suit the wants of commerce, nor for the more convenient execution of its commercial regulations.*
*
The Magnolia, 20 Howard, 296 ; 5 Stat, at Large, 516. f 1 Black, 578. | 2 Story on the Constitution, | 1669. $ The Genesee Chief, 12 Howard, 452.
Remarks, it is conceded, are found in the opinion of the court in the case of Allen et al. v. Newberry,] inconsistent with these views; but they were not necessary to that •decision, as the contract in that case was for the transportation of goods on one of the Western lakes, where the jurisdiction in admiralty is restricted, by an act of Congress, to steamboats and other vessels .... employed in the business of commerce and navigation, between ports and places in different States and Territories.^
No such restrictions are contained in the ninth section of the Judiciary Act, and consequently those remarks, as applied to a case falling within that provision, must be regarded as incorrect.
Such a rule, if applied to the commerce and navigation of the Atlantic coast, would produce incalculable mischief, as the vessels in many cases, even. in voyages from one port in a State to another port in the same State, are obliged, in the course of the voyage, to go outside of any particular State, and it would not be difficult to give examples where more than half the voyage is necessarily upon the high seas. Unless the admiralty has jurisdiction, in such a case, to enforce the maritime lien, in case of a collision or jettison, it is difficult to see to what forum the injured party .can resort for redress. Piracy, it is said, is justiciable everywhere, but it cannot be admitted that maritime torts are justiciable nowhere.
Unable to deny that the admiralty has jurisdiction over marine torts, though the voyage is between ports and places in the same Statd, the advocates of the more restricted p. 642jurisdiction over maritime contracts set up a distinction, and contend that the admiralty jurisdiction over such contracts is limited by the power granted to Congress to regulate commerce. Reference may be made to the case of Maguire n . Card,* as one where that distinction was adopted; but the decisive answer to that case, and the one preceding it in the same volume, will be found in the later cases already referred to, and in the case of The Mary Washington,^ where the opinion was given by the present Chief Justice. All three of the cases, therefore, as well the case of W. C. Boon & Company as the other two, are cases within the admiralty and maritime jurisdiction of the Federal courts.
*
The St. Lawrence, 1 Black, 526. f 21 Howard, 245. t The Hine v. Trevor, 4 Wallace, 555. vol . vii . 41
II. Suppose that to be so, then, it is contended by the libellants, in the second place, that all three of the original actions were well brought in the State court as a court of concurrent jurisdiction with the District Courts of the United States in admiralty, and that the particular remedy, given by the statute of the State, and adopted in these cases, is within the true, intent and meaning of the saving clause in the ninth section of the Judiciary Act.
Wherever a maritime lien arises the injured party may pursue his remedy, whether for a breach of a maritime contract or for a marine tort, by a suit in rem, or by a suit in personam, at his election. Attention will be called to three classes of cases only as examples to illustrate that proposition; but many more might be given to the same effect.
Shippers have a lien by the maritime law upon the vessel employed in the transportation of their goods and merchandise from.one port to another, as a security for the fulfilment of the contract of the carrier, that he will safely keep, duly transport, and rightly deliver the goods and merchandise shipped on board, as stipulated in the bill of lading or other contract of shipment.^
Owners of vessels damaged by collision, occasioned without fault on their part, and wholly through the fault of those
* 21 Howard, 249. f 14 American Law Register; 692. J The Bird of Paradise, 5 Wallace, 545; The Eddy, lb. 481; Bags o Linseed, 1 Black, 112; Maude & Pollock on Shipping, 254.
in charge of the colliding vessel, also have a maritime lien on the vessel in fault as a security for such damages as may he awarded to them in the admiralty for the injury thereby caused to their vessel, and they may proceed in rem to enforce their claim for the damages, or they may waive the lien and bring their suit in personam against the master or owners of the vessel.*
Material-men, also, who furnish materials or supplies for a vessel in a foreign port, or in a port other than a port of the State where the vessel belongs, have a maritime lien on the vessel as a security for the payment of the price of all such materials and supplies. They have such a lien because, upon the principles .of the maritime law, such materials and supplies are presumed to be furnished on the credit of the vessel, and consequently they are entitled to proceed in rem in the admiralty court to enforce the lien, but’they are not compelled to do so, as they may waive the lien and bring their suit in personam against the master or owners, as they are also liable as well as the vessel.f
None of these principles are controverted, but the libellants contend that the State courts have concurrent jurisdiction to aflbrd the parties the same remedies in all such cases. No warrant for that proposition, however, is found in the ninth section of the Judiciary Act, nor in any other part of that fundamental regulation of our judicial system. On the contrary, the exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction is, by the very terms of that section, conferred upon the District Courts of the United States, “ saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.” Nothing is said about a concurrent jurisdiction in a State court or in any other court, and it is quite clear that in all cases where the parties are citizens of different States, the injured party may pursue the common law remedy «here p. 644described and saved, in the Circuit Court of the district as well as in the State courts.
*
Sturgis v. Boyer et al., 24 Howard, 117; Chamberlain v. Ward, 21 Id. 553. ’ t The St. Lawrence, 1 Black, 529; Manro v. Almeida, 10 Wheaton, 473: The Reindeer, 2 Wallace, 384; The General Smith, 4 Wheaton, 438.
Original cognizance is exclusive in the District Courts, except that the suitor may, if he sees fit, elect to pursue a common law remedy in the State courts or in the Circuit Court, as before explained, in all cases where such a remedy is applicable. Common law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts.*
State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a State court to enforce such a lien by a suit or proceeding in rem, as practised in the admiralty courts. Observe the language of the saving clause under consideration. It is to suitors, and not to the State courts, nor to the Circuit Courts of the United States. Examined carefully it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the State courts or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his case.
Undoubtedly most common law remedies in cases of contract and tort, as given in common law courts, and suits in personam in the admiralty courts, bear a strong resemblance to each other, and it is not, perhaps, inaccurate to regard the two jurisdictions in that behalf as concurrent, but there is no 'form of action at common law which, when compared with the proceeding in rem in the admiralty, can be regarded as a concurrent remedy.
*
The Moses Taylor, 4 Wallace, 411.
Consignees or shippers may proceed in the admiralty in rem against the vessel tQ enforce their maritime lien, or they may waive that lien and still proceed in the admiralty in personam against the owners of the vessel to recover damages for the non-fulfilment of the contract, or they may elect to bring a common action against the owners to recover damages, as in other cases for the breach of a contract to be executed on land.
Proceedings in a suit at common law on a contract of affreightment are precisely the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. When properly brought, the suit is against the owners of the vessel, and in States where there are attachment laws the plaintiff may attach any property not exempted from execution, belonging to the defendants.
Liability of the owners of the vessel under the contract being the foundation of the suit, nothing can finally be held under the attachment except the interest of the owners in the vessel, because the vessel is held under the attachment as the property of the defendants, and not as the offending thing, as in the case of a proceeding in rem to enforce a maritime lien. Attachment in such suits may be of the property of non-residents or of defendants absent from the State, as in suits on contracts not maritime, and the same rules apply in respect to the service of process and notice to the defendants.
Applying these rules to the cases before the court, it is obvious that the jurisdiction exercised by the State court was of the precise character which is exclusive in the District Courts of the United States sitting in admiralty. Authority does not exist in the State courts to hear and determine a suit in rem in admiralty to enforce a maritime lien.
Such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the States, uilder the ecisions of this court, to create such liens as their legislatures may deem just and expedient, not amounting to a p. 646regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement.*
Contracts for shipbuilding are held not to be maritime contracts, and, of course, they fall within the same category, but in all cases where a maritime lien arises, the original jurisdiction to enforce the same by a proceeding in rem is exclusive in the District Courts of the United States, as provided in the ninth section of the Judiciary Act.f
Respective decrees reve rsed , and the several causes remanded, with instructions to
Dis miss th e res pe cti ve lib el s .