Matthews v. Densmore, 109 U.S. 216
Case details
Bluebook Citation
Matthews v. Densmore, 109 U.S. 216
Full caption
MATTHEWS v. DENSMORE and Others.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
MATTHEWS v. DENSMORE and Others.
IN ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.
Argued October 18th, 1883.—Decided November 12th, 1883.
Courts—Officer—Trespass—Void and Voidable—Writ.
1. A writ issuing from a court of competent jurisdiction, with power to compel its enforcement, and in a case where the cause of action and the parties to it are before the court and within its jurisdiction, is not void by reason of mistakes in the preliminary acts which precede its issue.
2. if not avoided by proper proceedings, it is in all other courts a sufficient protection to the officer executing it.
3. The marshal for the Eastern District of Michigan seized the goods of the defendants in error, under a writ of attachment issued from the circuit court of that district, on a defective affidavit: Held, That in proceedings in the State courts of Michigan against the marshal, the process is sufficient to protect him if the property seized under it was liable to be attached in that suit.
This was a writ of error to the Supreme Court of the State of Michigan.
The plaintiff in error was marshal of the United States for the Eastern District of that State, and under a writ of attachment from the circuit court levied on a stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of the goods, and that the goods were not liable to the attachment under which the marshal acted.
To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment and should prove that the goods were subject to be seized under it.
When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling: of the court was decisive p. 217of the case. The defendant excepted and brought the case here on writ of error; the assigned error being “ the refusal to admit in evidence the writ of attachment and proceedings thereunder.”
Mr. Don M. Dickinson for the plaintiff in error.
Mr. 0. M. Barnes for the defendants. The only question for the court relates to construction of Michigan statutes. M. C. R. JR. Co. v. M. 8. JR. JR. Co., 19 How. 378. There is no conflict of jurisdiction. Buck v. CoTbath, 3 Wall.
334. The affidavit was fatally defective. Cross v. McMaken, 17 Mich. 511; Wells n. Parker, 26 Mich. 102; Matthews v. Densmore, 43 Mich. 461. The defect is jurisdictional, and may be questioned in collateral proceedings. Greenvault v. Farmers' & Mechanics’ Bank, 2 Doug. (Mich.) 498; WU,- son v. Arnold, 5 Mich. 98; Drew n. Deguindrie, 2 Doug. (Mich.) 93; Hale v. Chandler, 3 Mich. 531. The rule that a writ fair on its face protects the officer executing it does not apply when the officer is sued by a stranger to the writ. 1 Waterman on Trespass, § 467 ; 2 Hilliard on Torts, 135-6 and 7; Rosenbury v. Angel, 6 Mich. 508; Cook v. Hopper, 23 Mich. 511; High n. Wilson, 2 John. 45; Rinchey v. Stryker, 28 N. Y. 45. When the affidavit does not show the facts required by statute, the writ is absolutely void. Drake on Attachments, 3d ed., § 83 to 88.
Mb. Justice Miller delivered the opinion of the court. After reciting the facts above stated, he continued :
The whole case turned on the trial in the local State court, as it did on the writ of error in the Supreme Court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the ands of the marshal, and its sufficiency to protect him if t e property seized under it was liable to be attached in that suit.
*
s to observed that this does not present a case where e validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as im-
providently issued, or to discharge the levy and return the prop erty, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on an insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience.
The Supreme Court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument, that, being regular on its face, it should protect the officer: “ No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. L., § 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires.”
Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subject-matter of the suit in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate.
We do not think this is the law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States and of other courts of general jurisdiction.
It had been supposed by many sound lawyers, after the case of Freeman n. flaive, 24 How. 450, that no action could be sustained against a marshal of the United States, in any casein a State court, where he acted under a writ of the former court; but in Buck v. CoTbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it p. 219which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ.
In the present case the officer is sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the State court refused to permit him to make that proof.
The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a wilful trespasser.
It would seem that the mandatory process of a court of general jurisdiction, with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue.
It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and everything else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts.
The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has been often quoted since, and is conclusive in the federal courts in regard to the validity of their own processes when collaterally assailed, as in the present case.
The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and *in p. 220personam*, in answer to the question, On what does the jurisdiction of the court in that class of cases depend ? answers it thus:
“ It seems to us that, the seizure of the property, or that which in this case is the same in effect, the levy of the writ -of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in a proceeding purely in rem. Without this the court can proceed no further ; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities, but the writ being issued and levied, the affidavit has served its purpose, and though a revising court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon the defendant’s property.”
See Voorhees n. Jackson ex dem., The Bank of the United States, 10 Peters, 449 ; Grignon v. Astor, 2 How. 319.
If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside or correct it, and where the court, before it issues the writ, has jurisdiction of the parties to the suit ?
We think that when the writ is offered in a collateral suit against the officer who executed it, as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not void, though it might be avoided on a proper proceeding, and in the contest for the value of the goods seized with a stranger who claims them it p. 221is sufficient to raise the issue of the Lability of those goods to the exigency of the writ.
The judgment of the Supreme Court of Michiga/n is reversed, with directions for further proceedings in conformity to this opinion.
BOARD OF LIQUIDATION OF THE CITY DEBT OF NEW ORLEANS v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY and Another.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF LOUISIANA.
Argued October 18th and 19th, 1883.—Decided November 12th, 1883.
New Orleans—Statutes of Louisiana.
In the absence of fraud, a compromise made between the city authorities of New Orleans and a railroad company, respecting a disputed grant of a user of part of the city property, known as the Batture, for railroad purposes, was sustained, as authorized by the laws of Louisiana. Under the statutes of that State, the city authorities had the right to make the compromise at the time it was made, and it remained valid, notwithstanding the powers conferred upon the board of liquidation of the city debt of New Orleans, by the legislature.
The long record in this case presents no subject of general interest outside of the important special issues involved in the suit. The facts upon which the decision rests are fully set forth in the opinion of the court.
Mr. Richard T. Merrick and Mr. Henry C. Miller for the appellant; and
Mr. Thomas L. Ba/yne, for the appellees.
Mr. Chief Justice Waite delivered the opinion of the court.
This appeal presents the following case :
Prior to the year 1820 disputes had arisen between the city of New Orleans and certain proprietors of riparian estates, as to the ownership of the batture or alluvion in front of the city p. 222on the Mississippi River. In compromise of these disputes the proprietors surrendered to the city all their claims to property within certain boundaries.
In 1869 the legislature of Louisiana undertook, by act No. 26 of 1869, to grant to the New Orleans, Mobile & Chattanooga Railroad Company, now by change of name the New Orleans, Mobile & Texas Railroad Company, “the right to locate, construct, maintain, and use a passenger depot with offices and apartments suitable for its legitimate business, upon that part or portion of the levee or streets and grounds in the city of New Orleans bounded by Canal, Delta, and Poydras streets and a line parallel to and one hundred and fifty feet easterly from Delta street; and for the construction of a freight depot, and for other purposes of its legitimate business, to inclose and occupy the blocks of grounds, parts of streets, and portion of levee in said city bounded by Girod, Water, and Calliope streets and a line parallel to and two hundred and ninety feet easterly from Water street, provided said company shall not inclose or occupy that part or portion of the blocks of ground within said last limits which is the private property of individuals until said company has acquired the title thereto; and said company shall thereafter, if requested by said city, ex. tend the wharf in front thereof equal with the present wharf in front of the northerly corner of the outer block within said limits, recently sold by said city and now owned by said company.”
The validity of this act was disputed by the city, and suits were brought by the company in a State court to establish the grant. These suits resulted in judgments, which, as the company claimed, confirmed its title. The city denied that such was the effect of the judgments, and attempted to tear down and destroy the fences and other structures of the company. Thereupon the company, on the 8th of July, 1874, brought another suit to enjoin the city. This suit resulted in a decree by the Circuit Court of the United States for the District of Louisiana, on the 11th of June, 1878, allowing the injunction prayed for. From that decree the city, on the 30th of July, 1878, appealed to this court, and the appeal was docketed on the 16th of December following.
During the pendency of this suit in this court the legislature of Louisiana passed act No. 133 of 1880, creating a board of liquidation of the city debt “ for the purpose of liquidating, reducing, and consolidating the debt of the city of New Orleans.” By this act it was provided that the board thus created should “have exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans,” and authority to issue new bonds of the city, to be exchanged for old at the rate of fifty cents of new for one dollar old.
Section 5 of that act is as follows:
“ Sect. 5. That it shall be the duty of the city authorities, as soon as possible, after the organization of the board of liquidation of the city debt, to turn over and transfer to the said board all the property of the city of New Orleans, both real and personal, not dedicated to public use ; and the board of liquidation shall be, and is hereby, empowered and authorized to dispose of said property on such terms and conditions as may be deemed favorable ; the proceeds of such sale or sales to be deposited with the fiscal agents of the board at credit of ‘city debt fund.’ ”
No new bonds were ever issued by the board of liquidation under this authority, and the city never actually transferred to the board any of the batture property. Neither did the board ever assume control of such property. A reason given tor this by the president of the board, and suggested by the counsel for the appellant in his argument, is, that fears were entertained that if property not dedicated to public uses should be actually separated and set apart from that which was, judgment creditors of the city might levy their executions and subject such as was thus shown not to be required for public use to the payment of their judgments.
On the 23d of June, 1882, act No. 20, of 1882, was passed by the legislature of Louisiana, “ to incorporate the city of New deans, provide for the government and administration of the ^ffairs thereof, and to repeal all acts inconsistent and in connict with its provisions.”
Secs. 8, 28, and 78 of this act are as follows:
“ Sec. 8. The council shall also have power ... to authorize the use of streets for horse and steam railroads and to regulate the same ; to require and compel all lines of railway or tramway in any one street to run on and use one and the same track and turn-table ; to compel them to keep conductors on theii’ cars, and compel all such companies to keep in repair the street bridges and crossings through or over which their cars run ; to lay off and sell in lots or squares so much of the batture, from time to time, as may not be required for public purposes, but the right of accretion or to future batture shall never be sold.
“ Sec. 28. That all the rights, titles, and interest of the city of New Orleans, as now existing in and to all lands, tenements, hereditaments, bridges, ferries, streets, roads, wharves, markets, stalls, levees, and landing places, buildings and other property of whatever description, and wherever situated, and with all goods, chattels, moneys, effects, debts, dues, demands, bonds, obligations, judgments and judgment liens, actions and rights of actions, books, accounts, and vouchers, be and they are hereby vested in the city of New Orleans, as incorporated by this act.
“ Sec. 78. All laws in conflict, inconsistent, or contrary to the provisions of this act, be and the same are hereby repealed.”
By Act No. 58 of 1882, passed June 30th, 1882, entitled “ An Act to authorize the city of New Orleans to renew and extend payment of her outstanding bonds, other than premium bonds, to provide the rate of interest on the bonds as reduced or extended, and authorize the levy of a tax to pay the same,” the board of liquidation was “ authorized and empowered to extend the bonded indebtedness of said city, other than premium bonds, outstanding at the passage and promulgation of this act, for the period of forty years from January 1st, 1883, at a rate of interest not exceeding six per cent.”
On the 5th of July, 1882, Act No. 81 of 1882 was passed and approved, a copy of which is as follows:
“Act No. 81 of 1882, entitled an act to authorize the city of New Orleans in the sale or lease of franchise, or right of way f°r p. 225street railroads, or other privilege, to apply the price paid for the same in the performance of works of public improvements of a permanent character, such as paving streets, embellishing parks, etc.
“ Whereas, notice as required by article 48 of the Constitution has been given of the intention to apply for the passage of this act; therefore,
Sec. 1. Be it enacted by the General Assembly of the State of Louisiana, That hereafter, whenever the city of New Orleans, through the proper authorities, shall contract with private corporations or individuals for the sale or lease of public privileges or franchises, such as the rights of way for street railroads, or for other public undertakings within her. legal power and control, the price paid for the sale or lease of public privileges or franchises shall be applied by said city in the performance of works of public improvement of a permanent character, such as paving streets, embellishing parks, etc.
“ Sec. 2. Be it further enacted, That all laws or parts of laws, and especially so much of section 10 of act No. 31, acts of 1876, known as the premium-bond act, and by section 5 of act No. 133, acts of 1880, as may be in conflict herewith, be, and the same are hereby, repealed.”
Such being the legislative authority of the different departments of the city government, a resolution was passed by the city council on the 11th of October, 1882, accepting a proposition of the railroad company to compromise and settle all the matters in controversy in the suit pending in this court on appeal, by which the company was to pay the city $40,000, and the city was to dismiss its appeal and acquiesce in the decree of the circuit court. The negotiations which resulted in this
compromise began as early as August 1st, 1882, when the council appointed a committee to confer with the railroad company on the subject. The money stipulated for in the compromise was paid on the 11th of October, 1882, and on the same day an agreement of compromise, dismissing the appeal and acquiescing in the decree appealed from, was duly signed and executed by the mayor of the city under the authority of the council. On the next day the board of liquidation noti-
m. cix 15 p. 226fled the city authorities that it claimed the fund realized from this settlement. On the 13th of October a resolution of the board was adopted to the effect “ that the $40,000 now in the hands of the administrator of finance be enjoined and the attorney be directed to institute legal proceedings at once.” On the 17th of October the resolution of the 13th was so far modified as “ to authorize the attorney of the board to take such steps as, in his judgment, are requisite to set aside the agreement of compromise; ... to oppose the dismissal of the appeal, and to hold the fund decreed from said comprox mise so as to restore it if the compromise is annulled, or to claim it for the board if said compromise becomes a finality.”
On the 10th of October, 1882, the suit pending in this court was continued at the request of the parties, but at a later day in the term the railroad company appeared and presenting a stipulation for the dismissal of the appeal, signed by the city attorney of New Orleans pursuant to the terms of the compromise, asked to have the appropriate order entered upon that stipulation. Thereupon the board of liquidation came and resisted the entry of any such order, on the ground that during the pendency of the appeal authority over the subject-matter of the controversy had been transferred from the city council to the board, and that the compromise which had been effected was not binding. The board also asked leave to prosecute the appeal in the name of the city. It was conceded that the city council made the compromise which was claimed, and that the railroad company was entitled to a dismissal of the appeal if the council had authority to do what was done, and the compromise was fair. This court thought the dispute as to the authority of the council presented questions too important to be settled summarily on motions, and ordered the motions to be continued until the present term, when the appeal would be dismissed in accordance with the stipulation, unless the board should begin and prosecute without unnecessary delay, in some court of competent jurisdiction, an appropriate suit to set aside the compromise. This suit was brought for that purpose, and the Circuit Court for the Eastern District of Louisiana, on full consideration, entered a decree dismissing the bill. To reverse p. 227that decree this appeal was taken, and the single question to be decided is, whether, upon these facts, the board of liquidation is entitled to the relief it has prayed for.
There is no pretence of fraud, either on the part of the city
council or the railroad company. So far as appears, the nego-
tiations were carried on by both parties openly and without
any attempt at concealment. The board of liquidation does
not even allege that it was ignorant of what was being done.
The whole case, therefore, turns on the legislative authority
of the city council to bind the city by a compromise of the suit,
and about this we have no doubt. Under act No. 133 of 1882,
the city authorities were only required to turn over to the
board such property as was not dedicated to public use. It
was substantially conceded on the argument that if the rail-
road was removed the property between Poydras and Canal
streets would immediately be put to such use, and it is by no
means certain that this may not be true of some or all the
rest. All except that between Poydras and Canal streets has
been formed into squares, but the control of it was never
assumed by the board. The fact that fears were entertained
that if such control should be assumed the property would be
levied on and sold under executions against the city, is very
persuasive evidence to show that it was apparently property
dedicated to public use, though occupied to some extent by the
railroad company for its tracks and passenger and freight
stations.
But however this may be, we are entirely satisfied that under
the legislation of 1882 the city council had full authority to
bind the city by a compromise of the pending suit. Con-
fessedly no bonds were ever issued, or obligations incurred, by
the board of liquidation under act No. 133 of 1880; andon
the 23d of June, 1882, the city council was, in express terms,
authorized to lay off and sell, in lots or squares, so much of
e batture, from time to time, as might not be required for
public purposes. Then, on the 5th of July, only a few days the city was authorized, through its proper authorities, to contract with private corporations for the sale or lease of pubc privileges or franchises, such as rights of way for street
railroads, or for other public undertakings within her legal power and control, the price paid to be applied by the city “ in the performance of works of public improvement of a permanent character.” All this is entirely inconsistent with the provisions of sec. 5 of act No. 133 of 1880, at least so far as the control and disposition of batture property are concerned. The repealing sections of these acts, therefore, operated directly on the powers of the board over the subject-matter of this compromise, and left the city council free to act in the premises.
It must be borne in mind that all the legislation involved relates to the distribution of the powers of the city government among the different departments. As the question is presented to us no contract rights need protection. Whether the board of liquidation is a corporation that can sue in its own name or that can be sued is not at all important, for even if it be a corporation, it is in effect nothing more than one of the departments of the city government charged with the duty of controlling and directing matters relating to the bonded debt. Even though the effect of section 5 of the act of 1880 was to pledge the property of the city not dedicated to public use to secure the payment of the public debt, there was nothing to prevent the legislature from revoking the pledge until contract rights had in some way intervened. It is agreed that no new bonds were ever issued by the board under the authority or upon the faith of the act of 1880 before the new charter was granted, and act No. 81 of 1882 was passed before anything was done in the way of extending or renewing bonds under act No. 58 of the same year.
The result of the whole legislation is, therefore, that in 1880 the board of liquidation was created and given power to dispose of and sell the property of the city not dedicated to public uses, and out of the proceeds pay the public debt; but before any new rights had accrued under this power, the control and disposition of batture property not needed for public purposes was withdrawn from the board and given to the city council, and the proceeds of the sales and leases of public privileges and franchises were appropriated to the payment of the expenses of public improvements which p. 229were permanent in their character. Whether the money realized from this compromise is to be applied to the payment of the public debt or to make permanent improvements, we do not undertake to decide, but that the compromise itself was within the departmental authority of the city council, and not subject to the control of the board of liquidation, is to our minds clear.
It follows that the circuit court was right in refusing to set aside the compromise.
Decree affirmed.
KNOX COUNTY COURT v. UNITED STATES ex rel.
GEO. W. HARSHMAN.