Johnson v. Chicago & Pacific Elevator Co.

after stating the case, delivered the opinion of the court.

It is assigned here for error (1) that the State Court had no jurisdiction tó enforce a hen m rein on a vessel above 20 tons burthen, engaged in domestic commerce among the States, and duly enrolled and licensed in conformity with Title 50 of the Kevised Statutes ; (2) that the State statute is repugnant to the Constitution of 4he United States, because it purports to give *397 to a State Court admiralty jurisdiction to enforce a maritime lien m rem ; (3) that'judgment was given against Christy without notice to him or due process of law; (4) that Carter, a part owner of the tug, was denied a hearing.

Under the decisions of this court in The Plymouth, 3 Wall. 20, and in Ex parte Phœnix Ins. Co., 118 U. S. 610, at the present term, it must be held that the cause of" action in this case was not a maritiine tort of which a District Court of the United States, as a court of admiralty, would have.jurisdiction;' and that the remedy belonged wholly to a court of common law; the substance and consummation of the wrong1 having ta1 on place on land, and not on navigable water, and the cause of action not having been complete on such water. This being so, no reason exists why the remedy for the wrong should not be pursued in the State Court, according to- the statutory method prescribed by the law Of the State, even though that law gives a lien on the vessel. The cases in which State statutes have been held void by this court, to the extent in which they authorized suits m rem against vessels, because they gave to the State Courts admiralty, jurisdiction, were only cases where the causes of action .were cognizable in the admiralty. Necessarily, no other" cases could be embraced. The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, 4 Wall. 565 ; The Belfast, 7 Wall. 624.

In the present case, the suit is a suit m personam.' The petition states that the plaintiff “complains of Jacob Johnson,” “ and makes him', defendant herein; ” and that the plaintiff has demanded the amount .of his damage" from the defendant,. but the latter refuses to pay it. The petition prays, that the tug may be' attached and the defendant be summoned. ■ The writ qf attachment recites that the plaintiff has complained that Johnson is indebted to it in $394.38, for which -it claims a lien on the tug. The writ commands the sheriff to attach the tug and to summon Johnson to appear before the court on a day named. Attachment was made of “ all the right, title, and interest” of Johnson in and to the tug, and at the same time the writ was served on him by being read to him. The releasing bond executed by Johnson and Christy recites the *398 action as being one for damages alleged to be due to the plaintiff from Johnson. From the time of the issuing of the writ of restitution, on the same day the petition was filed, the tug dis- ■ appears from the proceedings, the bond having taken her place. The judgment was one in personam against Johnson and Christy, as required by § 21' of the statute, in a case where the ' attached vessel has .been discharged from custody. That section also provides that the proceedings subsequent to the judgment “ shall be the same as now provided by law in personal actions in the Courts of record in this State.”

So far, therefore, as this suit is concerned, the action, in the shape in which it comes before this court, is a suit in personam, with an attachment as security, the attachment being based’ on a hen given by the State statute, and a bond having been, by the act of the defendant, substituted for the thing attached.

In Taylor v. Carryl, 20 How. 583, this court upheld the validity of the seizure of a vessel under a process of foreign attachment issuing from a State Court of Pennsylvania, in pursuance of a statute of that State, as against a subsequent attempt to seize her under process in admiralty. In the course of the opinion of the court, delivered by Mr. Justice Campbell, it .is said: “The procéss of foreign attachment has. been for a long time in use iff Pennsylvania, and its operation is well defined, by statute as well as judicial precedents. . . . The habit of courts of common law has been to deal with ships as personal property, subject in the main, like other personal property, to municipal authority, and liable to their remedial process of attachment and execution, and the titles to .them, or contracts and torts relating to them, are cognizable in those courts.”

the subsequent case of Leon v. Galceran, 11 Wall. 185, is very much like the one now before us. There, by a statute of Louisiana, a mariner had a lien or privilege on his vessel for his wages, and he brought a suit in personam therefor in a court* of the State, and had the vessel sequestered. She was released on a bond given by her owner, and by Leon as surety,. for the return of the vessel on final judgment. Judgment being rendered against the owner in personam, and the vessel *399 not being returned, tbe mariner sued tbe surety, on tbe bond, in the same court, and bad judgment for tbe amount fixed by tbe original judgment: On a writ'of error from this court, sued out by Leon, it was urged for him, that, under tbe authority of The Moses Taylor and The Hine v. Trevor, tbe State Court bad no jurisdiction to enforce tbe ben by a seizure before judg: ment. On. the other side, it was urged that tbe suit was a , common law remedy, within tbe clause in § 9 of the Judiciary Act of September 24th, 1789,1 Stat. 77, (now embodied in § 711, subdivision 3, of the Revised Statutes,) which, after granting to tbe District Courts of the United States “ exclusive original cognizance of all civil causes of admiralty and maritime juris, diction,” saves “ to suitors, in all cases, tbe right of a common law remedy, where tbe common law is competent to give it.” This court held, that tbe action i/n personam in the State Court was a proper one, because it was a common law remedy, which tbe common law was competent to. give, although the State'law gave a ben- on the vessel in tbe case, similar to a lijen-under tbe maritime law, and it was made enforceable by-a writ of sequestration in advance, to bold tbe vessel as á security to respond to a judgment, if recovered against her owner, as a defendant; that the, suit was not a' proceeding in rem, nor-was tbe writ of sequestration; .that tbe bond given on tbe release of tbe vessel, became tbe substitute for her; 'that tbe common law is as competent as tbe admiralty to give a remedy in ab cases where tbe suit is m personam against tbe owner of tbe property;, and that these views were not inconsistent with any expressed in The Moses Taylor, in The Hine v. Trevor, or in The Belfast.

Tbe case of Pennywit v. Eaton, 15 Wall. 382, is a similar, one.

There being no ben on the tug, by tbe maritime law, for tbe injury on land inflicted in this case, the State could create ■such a ben therefor as it deemed expedient, and could enact reasonable rules for its enforcement, not amounting to a regulation of commerce. Liens under State statutes, enforceable by attachment, in suits in personam, are of every day occurrence, and may even extend - to bens on vessels, when the'pro-- *400 ceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise conflict with the Constitution of the United States. There is no more valid objection to the attachment proceeding to enforce the hen in a suit in per-sonam, by holding the vessel by mesne process to be subjected to execution on the personal judgment when recovered, than -there is in subjecting her to seizure on the execution. Both are incidents of a common law remedy, which a court of common law is competent to give. This disposes of the objection that, the vessel being engaged in commerce among the States, and enrolled and licensed therefor, no hen on her could be enforced by attachment in the State Court. The proceeding to enforce the hen, in this case, was not such a regulation of commerce among the States as to be invahd, because an interference with the exclusive authority of Congress to regulate such commerce, any more than regulations by a State of .the rates of wharfage for vessels, and of remedies to recover wharfage, not amounting to a duty of tonnage, are such an interference, because the vessels are engaged in inter-State commerce. Cannon v. New Orleans, 20 Wall. 577, 582; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691.

Nor is the act of Illinois, so far as this case is concerned, obnoxious to the objection that it is a regulation of commerce which gives preference to the ports of Illinois over those of another State, within the inhibition of subdivision 6 of § 9'of Article 1 of the Constitution of the United States. As was said in Munn v. Illinois, 94 U. S. 113, 135, “ this provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs.” See, also, Morgan v. Louisiana, 118 U. S. 455, 467.

Whether proceedings under the Illinois statute, different from those had in this case, may or may not be obnoxious to some of the objections raised, is a question which must be left to be determined when it properly arises.

As to the objection made by Christy to' the judgment ■against him, the Supreme Court of Illinois overruled it on the ■ *401 ground that, as the bond' was given with ,the statute existing, the statute' formed part of the bond, and the surety virtually consented that judgment might go; against him on the bond, under § 21, if the plaintiff should be entitled to, judgment against.Johnson, citing Whitehurst v. Coleen, 53 Ill, 247, and Hennies v. The People, 70 Ill. 100. This was a correct ruling1. Beall v. New Mexico, 16 Wall. 535; Moore v. Huntington, 11 Wall. 417, 422.

As to the objection made by Carter, that he was denied a hearing, the Supreme Court of Illinois overruled it bn the ground that, on the giving of the release bond, the tug was discharged from the hen unless ordered again into custody, and’ the subsequent judgment could only be against .Johnson and'Christy, in personam. This was a sound view.

Judgment affirmed.