Bullock v. Florida ex rel. R.R. Comm'n, 254 U.S. 513 (1921)
Case details
Citation
254 U.S. 513
Full caption
BULLOCK, JUDGE OF THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, ET AL. v. STATE OF FLORIDA UPON THE RELATION OF THE RAILROAD COMMISSION OF THE STATE OF FLORIDA ET AL.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Jan. 17, 1921
Majority
Bullock (Judge)
BULLOCK, JUDGE OF THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, ET AL. v. STATE OF FLORIDA UPON THE RELATION OF THE RAILROAD COMMISSION OF THE STATE OF FLORIDA ET AL.
CERTIORARI TO THE SUPREME COURT OF THE STATE OF FLORIDA.
No. 262. Argued December 6, 7, 1920.—Decided January 17, 1921.
1. The judgment of the state Supreme Court was reviewable in this case by certiorari and not by writ of error. P. 518. 2. Where a judgment of a state Supreme Court prohibiting proceedings in a lower court was essentially based on the denial of a substantive right claimed by a party, this court is not precluded from reviewing, on a constitutional ground, by the fact that the judgment was in terms based on a denial of the prohibited court’s jurisdiction. P. 520.
Argument for Petitioners. 254 U. S.
3. Apart from statute or express contract, those who invest in a railroad, though built under a charter and the eminent domain power received from the State, are not bound to go on operating at a loss if there is no reasonable prospect of future profit; and their right to stop does not depend upon the consent of the State. P. 520.
4. Where a state Supreme Court prohibited a lower court, in foreclosing a railroad, from authorizing and confirming a sale with liberty to the purchaser to dismantle the railroad, basing its decision upon the ground that the State was not a party and that the dismantling could not be so authorized without the State’s consent, held, that the prohibition could not affect the constitutional rights of the mortgagor, since the right to dismantle, as against the State, could not be conferred by a foreclosure decree in the State’s absence, and would pass to the purchaser, if it existed, whether the decree so provided or not. P. 521.
5. Whether a State is bound by a foreclosure proceeding to which it voluntarily makes itself a party before final decree, is a local question, the decision of which this court will not review in a case from a state court. P. 522.
82 So. Rep. 866, affirmed.
The case is stated in the opinion.
Mr. George C. Bedell for petitioners:
The judgment and writ of prohibition under review deprive the mortgagee Hood of his property without due process of law, and deny to him the equal protection of the law, contrary to the Fourteenth Amendment. Brooks-Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396, 399.
See also Munn v. Illinois, 94 U. S. 113, 116; Mississippi Railroad Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 595; Norfolk & Western Ry. Co. v. West Virginia, 236 U. S. 605, 609, 614.
The court’s finding that the railroad cannot be operated except at a loss is conclusive and has not been questioned by the Supreme Court of Florida.
513. Argument for Petitioners.
Before such conclusion was reached, however, the State was not only given an opportunity to test that matter through the operation of the road for more than a year by a receiver of its own choice, but was given every opportunity to prove the contrary. It was formally made a party to this cause on March 27, 1919, but had been actively engaged in the litigation for more than a year prior thereto.
In the opinion rendered upon the demurrer to the suggestion in the prohibition case, something is said to the effect that the State was not made a party to the suit until after the decree of foreclosure had been entered and the sale of the property made, but when the court came to settle the judgment to be rendered in the case, its ruling was not based upon any matter of procedure, but squarely upon the authority of the Circuit Court, which was prohibited “from exercising any further jurisdiction in said cause relating to the junking of said property” and “from undertaking by decree, order or otherwise to authorize the dismantling of said railroad, or the taking up and selling of the rails therefrom.” And this view has expression by the same court in the subsequent case of Anderson v. Dent, 85 So. Rep. 151.
Under state statutes and constitution, the trustee’s rights are limited to the rights of a lienor, that is, to the proceeds of the mortgaged property, and do not extend to the corpus, and enforcement of the lien can only be sought by foreclosure in the Circuit Court. Denial to a trustee of the right to subject the proceeds of the property to his Hen is a deprivation of the very substance of his right. New York Trust Co. v. Portsmouth & Exeter St. Ry. Co., 192 Fed. Rep. 728; Jack v. Williams, 113 Fed. Rep. 823, affd. 145 Fed. Rep. 281; Central Bank & Trust Corp. v. Cleveland, 252 Fed. Rep. 530; Iowa v. Old Colony Trust Co., 215 Fed. Rep. 307; Brooks-Scanlon Co. v. Railroad Commission of Louisiana, supra.
Argument for Respondents. 254 U. S.
The Supreme Court of Florida has indicated no other means whereby a mortgagee can have relief than by foreclosure suit and the statutes make it clear that he must get his relief from the proceeds of the foreclosure sale or not at all. To deny him the right in the foreclosure case to have the property sold for the purpose of dismantling is to deny him the only redress that will permit him to subject all that is of any value to the lien of his mortgage. The statutes stand to-day precisely as they stood when the trust deed was made. Butz v. Muscatine, 8 Wall. 575. The holding of the Supreme Court of Florida affects the essential qualities of the plaintiff’s lien. The J. E. Rumbell, 148 U. S. 1; Green v. Biddle, 8 Wheat. 76, 84; Bronson v. Kinzie, 1 How. 311; Gantly’s Lessee v. Ewing, 3 How. 707; Barnitz v. Beverly, 163 U. S. 118; Bradley v. Lightcap, 195 U. S. 1.
The practical effect of the ruling of the court is to take from the plaintiff’s security all that there is of any value in it that the property may be held for public use, and this is depriving plaintiff of his property without due process of law. Brooks-Scanlon Co. v. Railroad Commission of Louisiana, supra; Ochoa v. Hernandez, 230 U. S. 139, 161.
The effect of the judgment and writ of prohibition was to restrict the plaintiff’s right to the sale of the property with this limitation upon its use: that it shall not be dismembered when its use means continuing loss. Under the decisions of this court that is confiscation. Smyth v. Ames, 169 U. S. 466; Northern Pacific Ry. Co. v. North Dakota, supra; Norfolk de Western Ry. Co. v. West Virginia, supra.
Mr. Dozier A. De Vane for respondents:
The authority of the State sustained by the Supreme Court of Florida neither deprives the trustee of his property without due process of law nor subjects private prop-
513. Argument for Respondents.
erty.to public uses without compensation. The decision merely holds that an inferior court is without jurisdiction to order dismantling of a carrier’s property to satisfy a creditor’s lien taken upon property then charged with a public duty, where the State is not a party to such suit. If the mortgage lien contracted for is ineffectual to secure the indebtedness, the mortgagee can not justly complain, since the Hen was taken under the law governing the subject-matter of the Hen, Barton v. Barbour, 104 U. S. 126; and “ there is no statute in this State giving such authority to the courts or to other tribunals.” 82 So. Rep. 866.
This presents no-question reviewable by this court.
The State has maintained throughout this proceeding that the trustee has no right to have determined in a foreclosure suit the question of dismantling of a carrier’s property and that this was especially true where .the State was not a party to the proceedings. The rights of the purchaser at the foreclosure proceedings are not involved in this case and can not be considered. Neither is the right of the owners of the property to discontinue operation and dismantle.
“Upon principle it would seem plain that railroad property once devoted and essential to public use, must remain pledged to that use so as to carry to full completion the purpose of its creation; and that this public right ... is superior to the property rights of corporations, stockholders and bond-holders.” And, “a corporation . . . has no right as against the State to abandon the enterprise.” Gates v. Boston & New York R. R. Co., 53 Connecticut, 333. t
See also Thomas v. Railroad Co., 101 U. S. 71; Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24.
This duty of a carrier is most frequently defined in the following language: “Such corporations may not by any p. 518act of their own, without the consent of the State, disable themselves from performing the functions the undertaking of which was the consideration for the public grant.” Thomas v. Railroad Co., supra; King v. Severn & Wye R. R. Co., 2 Barn. & Aid. 646; and many other cases.
Persons in private business may abandon it at their whim or pleasure. Not so with a railroad. It is a public highway. It is created by the State for the public use. It exercises the State’s great power of eminent domain for the public good. Barton v. Barbour, 104 U. S. 135; Ellis v. Tampa Water Works Co., 57 Florida, 533; Ellis v. Atlantic Coast Line R. R., 53 Florida, 650; Gainesville v. Gainesville Gas & Electric Power Co., 65 Florida, 404.
Mr . Just ice Holmes delivered the opinion of the court.
This is a proceeding by the relators seeking a prohibition forbidding a State judge of a lower Court to confirm a sale of a railroad “for the purpose of and with the privilege on the part of the purchaser of dismantling the same” as authorized by a foreclosure decree. The trustee of the mortgage under foreclosure was made a party to the proceeding and demurred upon the ground that the prohibition would deprive him of his property without due process of law contrary to the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of Florida granted the prohibition, 82 So. Rep. 866, and thereupon this defendant sued out a writ of error and filed a petition for a writ of certiorari from this Court. Action upon the latter was postponed to the hearing on the writ of error. Certiorari being the only remedy the petition is granted, as the case is deemed a proper one to be reviewed.
The road concerned is that of the Ocklawaha Valley Railroad Company. It succeeded by foreclosure of a p. 519previous mortgage to a logging road, and gave the present mortgage to Hood, one of the plaintiffs in error, in trust for the bondholders. The bonds are held by the Assets Realization Company. Before the present bill for foreclosure was filed the Railroad Company had applied to the Railroad Commission for leave to cease operations, had been refused, and the State, by the Railroad Commission, had obtained an injunction forbidding the dismantling of the road and requiring it to go on. It ceased operations however on December 7, 1917. On December 10, 1917, the bill to foreclose was filed. On the same day the State filed a bill in the same Court, ancillary to its other bill, asking for a receiver to operate the road until further order, and a few days later sought to have its bill consolidated with the foreclosure suit. This was denied and the State’s bill was dismissed. The decree of foreclosure complained of was entered on December 24, 1917, but on January 22, 1918, in deference to the State’s contention that the road could be run at a profit, although the State had not been admitted formally as a party, H. S. Cummings was appointed a receiver, he being the most available man and being able by his connections to give the road a good deal of business in the way of carrying lumber. After nearly a year’s trial the Court was satisfied that the road could not go on and thereupon ordered a sale which was made on February 3, 1919. On March 27, 1919, the Court admitted the State as a party and informed counsel that if it turned out, as the receiver and State insisted, “that the road was operating so as to pay expenses of operation and the taxes and had some reasonable show for business the sale would not be confirmed.” On May 5, 1919, the Court entered an order finding that the road was hopelessly insolvent and could not be operated so as to have any net income whatever but postponing confirmation of the sale until May 12, before which time the proceedings for prohibition were begun.
The foreclosure decree of December 24, 1917, provided for a first offer of the road to be used as a common carrier, but if less than $200,000 was bid, there was to be a second offer with the privilege of dismantling. If, however, the bid on the second offer did not exceed by $100,000 the bid under the first offer, if there was one, the bid under the first offer was to be accepted. The trustee for bond-holders was authorized to use the indebtedness of the company in bidding and to apply his bid, if accepted, to the same. There was no bid on the first offer and the Assets Realization Company bought the property under the second. The prohibition is against confirming the sale and against so much of the foreclosure decree as authorized the second offer or dismantling the road. The ground of decision was that in the absence of statute a railroad company has no right to divert its property to other uses without the consent of the State and th^t the lower Court had no jurisdiction to make the prohibited portion of the decree in a proceeding to which the State was not a party until after the decree had been made.
It is not questioned that the lower Court had jurisdiction of the foreclosure and it is not suggested that any statute forbids the decree that was made. The decision of the Court proceeds upon a doctrine as to the duty of the railroad company, again a duty not based upon statute, and although stated in terms of jurisdiction, depends entirely upon a determination of what the rights of the company are. If the company had the right to stop its operations and dismantle its road we do not understand that it is doubted that the decree might embody that right in its order of sale. If we are correct, the word jurisdiction must not prevent a further consideration of the case. Kenney v. Supreme Lodge of the World, Loyal Order of Moose, 252 U. S. 411, 414, 415.
Apart from statute or express contract people who have put their money into a railroad are not bound to go on p. 521with it at a loss if there is no reasonable prospect of profitable operation in the future. Brooks-Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396. No implied contract that they will do so can be elicited from the mere fact that they have accepted a charter from the State and have been allowed to exercise the power of eminent domain. Suppose that a railroad company should find that its road was a failure, it could not make the State a party to a proceeding for leave to stop, and whether the State would proceed would be for the State to decide. The only remedy of the company would be to stop, and that it would have a right to do without the consent of the State if the facts were as supposed. Purchasers of the road by foreclosure would have the same right.
But the foreclosure was not a proceeding in rem and could confer no rights except those existing in the mortgagor. A purchaser at the sale would acquire all such right as the mortgagor had to stop operations, whatever words were used in the decree, and, whatever the words, would get no more. The prohibition excluding from the decree the words purporting to authorize dismantling the road did not cut down the future purchaser’s rights, any more than did the presence of those words enlarge them. Therefore the action of the Supreme Court is not open to objection under the Constitution of the United States, although it may be that it hardly would have been taken if the authority to dismantle had not sounded more absolute than it could be in fact, considering the nature of the proceeding. Without previous statute or contract to compel the company to keep on at a loss would be an unconstitutional taking of its property. But the prohibition does not compel the company to keep on, it simply excludes a form of authority from the decree that gives the illusion of a power to turn the property to other uses that cannot be settled in that case.
Syllabus. 254 U. S.
As the State voluntarily made itself a party to the foreclosure suit before the decree went into effect, as indeed the decree never has, it might seem that the State ought to be bound in a way that otherwise it would not be. But if in a revisory proceeding the higher State Court says that the State should not be bound and that the decree was wrong in this particular, that is a local question with which we have nothing to do. The result is that although the State Court may have acted on questionable or erroneous postulates there is nothing in its action that calls for a reversal of its judgment.
Writ of Error dismissed. Writ of Certiorari granted. Judgment affirmed.
EX PARTE IN THE MATTER OF MUIR, MASTER OF THE GLENEDEN.
PETITION FOR A WRIT OF PROHIBITION AND/OR FOR A WRIT OF MANDAMUS.
No. 18, Original. Argued January 7, 1919.—Decided January 17, 1921.
1. Over a privately-owned ship, arrested in the District, and a libel for damages due to a collision alleged to have resulted from negligence of the owner’s agents, the District Court has prima fade jurisdiction; and a mere allegation that the ship is an admiralty transport in the service of a foreign government is not enough to establish her immunity. P. 532.
2. A foreign government is entitled to appear in the District Court and propound its claim to a vessel in a libel suit upon the ground that the status of the vessel is public and places it beyond the jurisdiction; or its accredited representative may appear in its behalf; or, its claim, if recognized by our executive department, may be presented to the court by a suggestion made by or under authority of the
522. Argument for Petitioner.
Attorney General; but the public status of the ship, when in doubt, can not be determined upon a mere suggestion of private counsel appearing as amici curias in behalf of the embassy of the foreign government. P. 532. 3. This court, in its discretion, may decline to issue the writs of prohibition and mandamus to prevent exercise of jurisdiction by the District Court in an admiralty proceeding, where the jurisdiction is merely in doubt and the state of the case is such that the question may well be reconsidered by the District Court and on appeal. P. 534. Rule discharged and petition dismissed.
The case is stated in the opinion.
Mr. John M. Woolsey, with whom Mr. J. Parker Kirlin and Mr. D. M. Tibbetts were on the brief, for petitioner:
The Gleneden as a British Admiralty transport in the service of the British Government was and is immune from arrest under process of the courts of the United States and should have been released by the United States District Court for the Eastern District of New York on the suggestion filed by counsel for the British Embassy as amid curice.
The method of proving the status of the Gleneden as a British public ship by a suggestion filed in behalf of the British Embassy by counsel appearing as amid curice was in accordance with the well established practice. The Roseric, 254 Fed. Rep. 154; The Athanasios, 228 Fed. Rep. 558; The Maipo, 252 Fed. Rep. 627; The Adriatic, 253 Fed. Rep. 489.
On the facts shown by the suggestion the ship was immune and the District Court should have released her forthwith on that representation. The Exchange, 7 Cranch, 116; The Roseric, supra; The Broadmayne [1916], Prob. 64; The Messicano, 32 T. L. R. 519; The Erissos (Lloyd’s List, Oct. 24, 1917); The Crimdon, 35 T. L. R. 81.
It follows that the District Court exercised an unwar-
Argument of amici curiae for the British Embassy. 254 U. S.
ranted assumption of power in retaining the Gleneden under process of arrest in order to force the giving of security. For, as the vessel was immune from process, there was no way in which the court could legally force an appearance by the owner of the vessel.
In our jurisprudence jurisdiction can only be obtained by personal service; of process or by attachment or arrest of property. Ex parte Indiana Transportation Co., 244 U. S. 456. A ship must be either a public ship or a private ship. Tucker v. Alexandroff, 183 U. S. 424, 446. If she was a public ship, which is conclusively proved by the suggestion, she was and is immune from process.
It has been held both here and in England that the question of the immunity of a vessel from arrest can be properly raised on an agreement such as that made here to give a bond in the event that the vessel is held not to be immune. The Florence H, 248 Fed. Rep. 1012, 1014; The Roserie, supra; The Crimdon, supra.
The jurisdiction of this court to grant the relief asked is undoubted. There is not any other remedy. An appeal would not have been possible either to this court or to the Circuit Court of Appeals because the order requiring the giving of a bond was not a final order as against any party to the case.
Considerations of public policy and comity between the Government of the United States and the Government of Great Britain and the necessity for a speedy determination of the important questions here involved require the granting the relief prayed.
Mr. Homer L. Loomis, with whom Mr. Joseph A. Barrett and Mr. J. Alvis Grace were on the brief, for respondent.
Mr. Frederic R. Coudert and Mr. Howard Thayer Kingsbury, as amici curioe, in behalf of the British Embassy:
522. Argument of amici curiae for the British Embassy.
As an Admiralty transport, in the public service of the British Government, the Gleneden is immune from judicial process. The Exchange, 7 Cranch, 116; Moore’s Int. Law Dig., vol. 2, p. 576; Moitez v. The South Carolina, Bee, 422, 17 Fed. Cas. No. 9,697; Briggs v. Light-Boats, 11 Allen, 157; The Fidelity, 9 Ben. 333; affd. 16 Blatchf. 569; The John McCraken, 145 Fed. Rep. 705; The Thomas A. Scott, 10 L. T. R. (N. S.) 726; The Tartar, Moore’s Int. Law Dig., vol. 2, p. 577; The Constitution, L. R. 4 P. D. 39; The Parlement Beige, L. R. 5 P. D. 197, reversing L. R. 4 P. D. 129; The Maipo, 252 Fed. Rep. 627; Young v. >8. S. Scotia [1903], A. C. 501; The Broadmayne [1916], Prob. 64; The Messicano, 32 T. L. R. 519; The Erissos, (Lloyd’s List, Oct. 24, 1917); The Crimdon, 35 T. L. R. 81; The Roseric, 254 Fed. Rep. 154. The case of The Attualita, 238 Fed. Rep. 909, was distinguished in The Roseric, supra, on the ground that it was decided before this country became a co-belligerent.
This court has very recently held that the change in international relations caused by this nation becoming a co-belligerent instead of a neutral alters the relation of the court to cases having an international aspect. See Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9.
The Luigi, 230 Fed. Rep. 493, was also decided while this country was neutral and no official representations were made therein until after the vessel had been released upon a bond voluntarily given by her private owners.
There is another class of distinguishable cases, in which property belonging to a government has nevertheless been subjected to a Hen for salvage or general average when such Hen could be enforced without disturbing the possession and control of government representatives. See The Siren, 7 Wall. 152; The Davis, 10 Wall. 15; Long v. The Tampico, 16 Fed. Rep. 491; United States v. Wilder, 3 Sumner, 308; The Johnson Lighterage Co. No. 2^, 231 Fed. Rep. 365.
Argument of amici curiae for the British Embassy. 254 U. S.
The test applied in these cases is whether the private lien can be asserted without interfering with the actual employment of the property in the public service. The Fidelity, supra.
Other cases, however, lay down the broader principle that property belonging to a sovereign Government is absolutely immune from local jurisdiction, irrespective of its immediate physical possession. Hassard v. United States of Mexico, 29 Mise. 511; 46 App. Div. 623; 173 N. Y. 645; Vavasseur v. Krupp, L. R. 9 Ch. D. 351; and see Moore’s Int. Law Digest, vol. 2, pp. 591-593.
It may be noted that this rule does not apply where the sovereign consents to be sued (United States v. Morgan, 99 Fed. Rep. 570), or to an uncondemned prize brought into a neutral port in violation of neutrality (The Appam, 243 U. S. 124).
Counsel also distinguished: The Charkieh, L. R. 8 Q. B. 197; L. R. 4 Adm. & Eccl. 59; Oyster Police Steamers of Maryland, 31 Fed. Rep. 763; Workman v. New York City, 179 U. S. 552; The Florence H, 248 Fed. Rep. 1012; The Prins Frederik, 2 Dod. 451 (see The Parlement Beige, L. R. 5 P. D. 213; De Haber v. Queen of Portugal, 17 Q. B. 171); The Swallow, Swab. 30; The Inflexible, Swab. 32.
The criteria of immunity are government control and dedication to the public service. When government control intervenes, neither ownership nor technical possession fixes liability to process, mesne or final, upon the vessel or her owners. See The Utopia [1893], A. C. 492, 499.
In this case the Privy Council referred to The Parlement Beige, supra, as an accepted authority, and in The Castlegate [1893], A. C. 38, 52, the House of Lords also cited it with approval.
The public importance of the question is not affected by the armistice.
The suggestion of immunity by counsel for the British Embassy is a proper method of procedure, and is p. 527conclusive as to the official facts thus stated. Dillon v. Strathearn 8. 8. Co., 248 U. S. 182.
This court has power to grant appropriate relief in this proceeding and such relief is necessary to meet the situation.
Mr . Justi ce Van Devanter delivered the opinion of the court.
On July 28, 1917, the Gleneden, a British steamship privately owned, and the Giuseppe Verdi, an Italian steamship similarly owned, came into collision in the Gulf of Lyons, both being seriously damaged. November 7, 1918, the British owner of the Gleneden commenced a suit in rem in admiralty against the Giuseppe Verdi in the District Court for the District of New Jersey to recover damages occasioned by the collision; and a few days later the Italian owner of the Giuseppe Verdi commenced a like suit against the Gleneden in the District Court for the Eastern District of New York. The libel in each suit attributed the collision entirely to negligence of servants and agents of the owner of the vessel libeled, it being alleged that she was in their charge at the time. When the suits were begun the vessels were within the waters of the United States and each was within the particular district where libeled.
The proceedings in the suit against the Gleneden are of immediate concern. After process issued and the vessel was arrested, private counsel for the British Embassy in Washington, appearing as amid curice, presented to the court a suggestion in writing to the effect that the process under which the vessel was arrested should be quashed and jurisdiction over her declined, because, as was alleged, “the said steamship is an Admiralty transport in the service of the British Government by virtue of a requisition from the Lords Commissioners of the p. 528Admiralty, and is engaged in the business of the British Government, and under its exclusive direction and control and is under orders from the British Admiralty to sail from the Port of New York on or about November 25, 1918, to carry a cargo of wheat belonging and consigned to the British Government”; because the court “should not exercise jurisdiction over a vessel in the service of a co-belligerent foreign government,” and because “the British courts have refused to exercise jurisdiction over vessels in government service, whether of the British Government or of allied governments, in the present war, and that by comity the courts of the United States should in like manner decline to exercise jurisdiction over vessels in the service of the British Government.” An affidavit of the master of the vessel affirming the truth of much that was alleged accompanied the suggestion. The libelant, being cited to show cause why the suggestion should not be acceded to, responded by objecting that it was not presented through official channels of the United States and by denying that the facts were as alleged. A hearing on the suggestion was had in which the libelant and counsel for the British Embassy participated,—the latter only as amici curice,—and at which the owner of the Gleneden was represented informally, without an appearance. In the course of the hearing counsel for the libelant called on the others to submit proof in support of the allegations in the suggestion, particularly to produce the ship’s articles and other instruments bearing on the suggested public status of the vessel, and to present the master for examination; but both the counsel for the British Embassy and the representative of the owner refused to do any of these things and insisted that the court was bound on the mere assertion of the claim of immunity to quash the process and release the vessel. The libelant produced the libel in the suit against the Giuseppe Verdi, depositions given in that suit by the p. 529master an4 other officers of the Gleneden, a certificate from the customs officers in New York showing the report and entry of the Gleneden on her arrival, and other evidence, all tending measurably to show that the vessel was operated by her owner under a charter party whereby the owner was to keep her properly manned, furnished and equipped, was to assume any liability arising from negligent navigation, and was to bear all loss, injury or damages arising from dangers of the sea, including collision. "On all the facts” thus put before it, the court found that “the Gleneden was owned by and was still in the beneficial possession of the Gleneden Steamship Co., Ltd., a private British corporation who, through its servants, was in the actual control of the steamer and of her navigation, but engaged in performing certain more or less public services for the British Crown under a contractual arrangement amounting to the usual or government form of time charter party.” The court “decided accordingly that the Gleneden was not a public ship in the sense that she was either a government agency or entitled to immunity”; and the suggestion was overruled and an order was entered to the effect that the vessel would be released only on the giving of a bond by the owner securing the claim in litigation or a bond to the marshal conditioned for the return of the vessel when that could be done consistently with the asserted needs of the British Government
Afterwards, on November 29, 1918, the master, appearing specially for the interest of the owner and for the purpose of objecting to the arrest and detention of the vessel, interposed a special claim to the effect that the Gleneden Steamship Company, Limited, was the true and sole owner of the vessel and he as master was her true and lawful bailee; and also interposed therewith a peremptory exception to the jurisdiction of the court on the grounds taken in the suggestion on behalf of the British Embassy. This claim and exception concluded p. 530with a prayer that the process be quashed and the vessel released. The exception was not set down for hearing and remains undisposed of. There was no appearance by either the owner or the master save as just stated; nor was there any appearance by the British Government or by any representative of that government other than through the suggestion which counsel for the Embassy in Washington presented as amid curias.
After filing the special claim and exception, the master applied to the Circuit Court of Appeals for the Second Circuit for writs of prohibition and mandamus preventing the District Court from exercising further jurisdiction and commanding it to undo what had been done; but the application was denied for reasons which need not be noticed now. 255 Fed. Rep. 24.
A few days later an arrangement was effected whereby an acceptable surety company undertook to enter into and file a stipulation for value in the usual form and in a sum to be named by the libelant, not exceeding $450,000, unless on an intended application to this court for a writ of prohibition the vessel should be held immune from the process under which she was arrested and detained. Following that arrangement, on December 10, 1918, the District Court entered the following order:
“On the annexed agreement for security, and consent of the proctors for the libellant herein, and the record herein, it is
“Ordered that in order to prevent further delay and expense, the steamship Gleneden be and she hereby is allowed to proceed on her voyage and leave the physical custody of the Marshal of the Eastern District of New York, provided, however, that this order does not and shall not be deemed to constitute any withdrawal or quashing of the writ of arrest; and it is
“Further orde red that all proceedings herein be stayed and special claimant’s or libellant’s time to file any other p. 531or further papers herein be extended to and including the 23rd day of December, 1918, and in case application is made for a writ of prohibition to the Supreme Court on or before December 23rd, 1918, all proceedings herein be stayed and the time of the special claimant or of the libellant to file any other or further papers herein be extended until ten (10) days after the entry and service of an order or decree on the final decision of the United States Supreme Court on the said writ of prohibition.”
The master thereupon asked leave of this court to file a petition for a writ of prohibition preventing the District Court from proceeding with the suit and from interfering with the Gleneden in any manner, and for a writ of mandamus directing that court to vacate the order made when the suggestion on behalf of the British Embassy was overruled and to enter an order releasing the vessel without requiring security,—the grounds advanced in the petition being essentially a repetition of those embodied in the suggestion of counsel for the British Embassy. The requested leave was given, a rule to show cause was issued, a return was made by the District Judge, and counsel have been heard. Whether on the case thus made either of the writs should be granted is the matter to be decided.
The principal question sought to be presented—whether the Gleneden is such a public vessel of the British Government as to be exempt from arrest in a civil suit in rem in admiralty in a court of the United States—is one of obvious delicacy and importance. No decision by this court up to this time can be said to answer it. The nearest approach is in the case of The Exchange, 1 Cranch, 116, where an armed ship of war, owned, manned and controlled by a foreign government at peace with the United States, was held to be so exempt. To apply the principle or doctrine of that decision to the Gleneden would be p. 532taking a long step, and the present posture of this litigation is such that we find no occasion to consider whether there is proper warrant for taking it.
It is conceded that the Gleneden is not an armed ship of war, and that she is not owned by a foreign government but by a private corporation. In a sense she may be temporarily in the service and under the control of the British Government, but the nature and extent of that service and control are left in uncertainty by the proofs, although the facts evidently are susceptible of being definitely shown.
Prima fade the District Court had jurisdiction of the suit and the vessel, The Belgenland, 114 U. S. 355, 368-369, and to call that jurisdiction in question was to assume the burden of showing what was in the way of its existence or exertion. Merely to allege that the vessel was in the public service and under the control of the British Government as an admiralty transport was not enough. These were matters which were not within the range of judicial notice and needed to be established in an appropriate way. They were not specially within the knowledge of the libelant, nor did it have any superior means of showing the real facts. Thus from every point of view it was incumbent on those who called the jurisdiction in question to produce whatever proof was needed to sustain their challenge.
As of right the British Government was entitled to appear in the suit, to propound its claim to the vessel and to raise the jurisdictional question. The Sapphire, 11 Wall. 164, 167; The Santisdma Trinidad, 7 Wheat. 283, 353; Colombia v. Cauca Co., 190 U. S. 524. Or, with its sanction, its accredited and recognized representative might have appeared and have taken the same steps in its interest. The Anne, 3 Wheat. 435, 445-446. And, if there was objection to appearing as a suitor in a foreign court, it was open to that government to make the p. 533asserted public status and immunity of the vessel the subject of diplomatic representations to the end that, if that claim was recognized by the Executive Department of this government, it might be set forth and supported in an appropriate suggestion to the court by the Attorney General, or some law officer acting under his direction. The Cassius, 2 Dall. 365; The Exchange, 7 Cranch, 116; s. c. 16 Fed. Cas. No. 8,786; The Pizarro, 19 Fed. Cas. No. 11,199; The Constitution, L. R. 4 P. D. 39; The Parlement Beige, L. R. 4 P. D. 129; s. c. L. R. 5 P. D. 197.
But none of these courses was followed. The suggestion on behalf of the British Embassy was presented by private counsel appearing as amid curice, and not through the usual official channels. This was a marked departure from what theretofore had been recognized as the correct practice (see cases last cited); and in our opinion the libelant’s objection to it was well taken. The reasons underlying that practice are as applicable and cogent now as in the beginning, and are sufficiently indicated by observing that it makes for better international relations, conforms to diplomatic usage in other matters, accords to the Executive Department the respect rightly due to it, and tends to promote harmony of action and uniformity of decision. See United States v. Lee, 106 U. S. 196, 209. Of course, the suggestion as made could not be given the consideration and weight claimed for it.
From all that has been said it is apparent that the status of the Gleneden, judged in the light of what was done and shown in the District Court, is at best doubtful and uncertain, both as matter of fact and in point of law. The jurisdiction of that court is correspondingly in doubt, for it turns on the status of the vessel. The suit is still in the interlocutory stage. The court may take up again the question of its jurisdiction. If it does, the inquiry may proceed on other lines and the facts may be brought out more fully than before. In addition, the question p. 534may be reexamined in regular course on an appeal from the final decree.
The power of this court, under § 234 of the Judicial Code, to issue writs of prohibition to the District Courts, when proceeding as courts of admiralty, to prevent an unlawful assumption or exercise of jurisdiction, is not debatable. But this power, like others, is to be exerted in accordance with principles which are well settled. In some instances, as where the absence of jurisdiction is plain, the writ goes as a matter of right. Ex parte Phenix Insurance Co., 118 U. S. 610, 626; Ex parte Indiana Transportation Co., 244 U. S. 456. In others, as where the existence or absence of jurisdiction is in doubt, the granting or refusal of the writ is discretionary. In re Cooper, 143 U. S. 472, 485; In re New York & Porto Rico S. S. Co., 155 U. S. 523, 531; In re Alix, 166 U. S. 136. And see Ex parte Gordon, 104 U. S. 515, 518-519; The Charkieh, L. R. 8 Q. B. 197.
Here the most that can be said against the District Court’s jurisdiction is that it is in doubt; and in other respects the situation is such that we deem it a proper exercise of discretion to refuse the writ. Nothing need be added to show that the request for a writ of mandamus is on no better footing. In re Morrison, 147 U. S. 14, 26; Ex parte Oklahoma, 220 U. S. 191, 209; Ex parte Roe, 234 U. S. 70.
Rule discharged and petition dismissed.