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Rep. 16; Duhne v. New Jersey, 251 U., cause the thing was not in possession of S. 311, 313, 64 L. ed. 280, 281, 40 Sup. the district court. Subsequently, in Ex Ct. Rep. 154.

parte Madrazzo, 7 Pet. 627, 632, 8 L. ed. Nor is the admiralty and maritime 808, 810, an application was made to jurisdiction exempt from the operation this court to entertain a suit in admiralof the rule. It is true the Amendment ty against the state of Georgia, and it speaks only of suits in law or equity; was held that, as there was no property but this is because, as was pointed out in the custody of the court of admiraity in Hans v. Louisiana, 134 U. S. 1, 10- or brought within its jurisdiction and in 17, 33 L. ed. 842, 845–848, 10 Sup. Ct. the possession of any private person, Rep. 504, the Amendment was the out-| [499] the case was not one for the exer- :: come of a purpose to set aside the effect cise of the admiralty jurisdiction; and of the decision of this court in Chisholm that, being a mere personal suit against v. Georgia, 2 Dall. 419, 1 L. ed. 440, a state, to recover proceeds in its which happened to be a suit at law, possession, it could not be entertained, brought against the state by a citizen of since “no private person has a right another state, the decision turning upon to commence an original suit in this the construction of that clause of $ 2 of court against a state.” Atkins v. Fibre art. 3 of the Constitution, establishing Disintegrating Co. 18 Wall. 272, 300, the judicial power in cases in law and 21 L. ed. 841, 843, et seq.; and Re equity between a state [198] and citi- Louisville Underwriters, 134 U. S. 438, zens of another state; from which it 33 L. ed. 991,

ed. 991, 10 Sup. Ct. Rep. naturally came to pass that the language 587, are aside from the point, since of the Amendment was particularly they relate merely to a question of phrased so as to reverse the construction statutory construction: whether the adopted in that case. In Hans v. Louisi- provision of § 11 of the Judiciary Act ana, supra (p. 15), the court demon- of September 24, 1789 (1 Stat. at L. 79, strated the impropriety of construing chap. 20; re-enacted in $ 739 of the Rethe Amendment so as to leave it open for vised Statutės, and in § 1 of Act of citizens to sue their own state in the March 3, 1875, chap. 137, 18 Stat. at L. Federal courts; and it seems to us equal- | 470, Comp. Stat. § 1033), to the effect ly clear that it cannot with propriety that no civil suit should be brought be construed to leave open a suit against against a person by original process in a state in the admiralty jurisdiction by any district other than that of which he individuals, whether its own citizens or was an inhabitant, or in which he should not..

be found, applied to suits in personam Among the authorities to which we in admiralty, so as to prevent the court are referred is Mr. Justice Story, who, from acquiring jurisdiction over a corin his Commentaries on the Constitution poration through attachment of its (1st ed. § 1683; 5th ed. § 1689), stated goods or property in a district other that it had been doubted whether the than that of its residence (in the former Amendment extended to cases of admi- case), or by service of process upon its ralty and maritime jurisdiction where appointed agent (in the latter). the proceeding was in rem, and not in Much reliance is placed upon Workpersonam; and whose doubt was sup- man v. New York, 179 U. S. 552, 45 L. ported by a declaration proceeding from ed. 314, 21 Sup. Ct. Rep. 212. But that Mr. Justice Washington at the circuit. dealt with a question of the substantive United States v. Bright (1809) Brightly, law of admiralty, not the power to exerN. P. 19, 25, note, Fed. Cas. No. 14,647; cise jurisdiction over the person of de. 3 Am. L. J. 197, 225. But the doubt fendant; and, in the opinion, the court

based upon considerations that was careful to distinguish between the were set aside in the reasoning adopted immunity from jurisdiction attributable by this court in Hans v. Louisiana. In to a sovereign upon grounds of policy, Sundry African Slaves v. Madrazo, 1 and immunity from liability in a parPet. 110, 124, 7 L. ed. 73, 79, the ques- ticular case. Thus (p. 566): "The contion whether the 11th Amendment ex- tention is, although the corporation had tended to proceedings in admiralty was general capacity to stand in judgment, alluded to, but found unnecessary to be and was therefore subject to the process decided, because, if it did not, the case of a court of admiralty, nevertheless the was one for the original jurisdiction of admiralty court would afford no redress this court, and not of the district court against the city for the tort complained in which it was brought; and it was of, because under the local law," held, further, that the decree could not etc. “But the maritime law affords be sustained as a proceeding in rem, be- I no justification for this contention, and

was

no example is found in such law, where to perform its contracts, but extends to one who is subject to suit and amenable such as will require it to make pecuniary to process is allowed to escape liability satisfaction for any liability. Smith v. [500] for the commission of a maritime Reeves, 178 U. S. 436, 439, 44 L. ed. tort, upon the theory relied upon." 1140, 1142, 20 Sup. Ct. Rep. 919.

We repeat, the immunity of a state As has been shown, the proceedings from suit in personam in the admiralty, against which prohibition is here asked brought by a private person without its have no element of a proceeding in rem, consent, is clear.

and are in the nature of an action in As to what is to be deemed a suit personam against Mr. Walsh, not indiagainst a state, the early suggestion vidually, but in his capacity as superinthat the inhibition might be confined to tendent of public works of the state of those in which the state was a party to New York. The office is established and the record (Osborn v. Bank of United its duties prescribed by the Constitution States, 9 Wheat. 738, 846, 850, 857, 6 of the state; art. 5, § 3. He is "charged L. ed. 204, 229, 231, 232) has long since with the execution of all laws relating been abandoned, and it is now estab- to the repair and navigation of the calished that the question is to be deter-nals, and also of those relating to the mined not by the mere names of the construction and improvement of the titular parties, but by the essential na canals,” with exceptions not material. ture and effect of the proceeding, as it By chapter 264 of the Laws of 1919, efappears from the entire record. Louis- fective May 3, the superintendent is iana v. Jumel, 107 U. S. 711, 719, 720, authorized to provide such facilities as, 723, 727, 728, 27 L. ed. 448, 450, 454, 2 in his judgment, may be necessary for Sup. Ct. Rep. 128; Hagood v. Southern, the towing of boats on the canals of the 117 U. S. 52, 67, 29 L. ed. 895, 810, 6 state, the towing service to be furnished Sup. Ct. Rep. 608 et seq.; Re Ayers, 123 under such rules and regulations as he U. S. 443, 487-492, 31 L., ed. 216, 223– shall adopt; and for that service he is 225, 8 Sup. Ct. Rep. 164; Pennoyer v. authorized to impose and collect such McConnaughy, 140 U. S. 1, 10, 35 L. ed. fees as, in his judgment, may seem fair 363, 365, 11 Sup. Ct. Rep. 699 et seq.; and reasonable; the moneys so collected Smith v. Reeves, 178 U. S. 436, 438–440, to be deposited by him in the state 44 L. ed. 1140, 1142, 1143, 20 Sup. Ct. treasury. For the carrying into effect Rep. 919; Murray v. Wilson Distilling of this act the sum of $200,000 was apCo. 213 U. S. 151, 168–170, 53 L. ed. 742, propriated. Under these provisions of 750, 751, 29 Sup. Ct. Rep. 458; Lankford law Mr. Walsh, as superintendent of v. Platte Iron Works Co. 235 U. S. 461, public works, chartered the tugs Henry 469, 59 L. ed. 316, 318, 35 Sup. Ct. Rep. Koerber, Jr., and Charlotte, in the name 173.

and behalf of the people of the state of Thus examined, the decided cases New York, for periods beginning May have fallen into two principal classes, I 15 and ending at latest December 15, mentioned in Pennoyer v. McConnaughy, 1919; and it was under these charters 140 U. S. 1, 10, 35 L. ed. 363, 365, il that they were being operated when the Sup. Ct. Rep. 699: “The first class is disasters occurred upon which the libels where the suit is brought against the of- are founded and the petitions under ficers of the state, as representing the Rule 59 are based. The decrees sought state's action and liability, thus making would affect Mr. Walsh in his official it, though not a party to the record, the capacity, and not otherwise. They real party against which the judgment might be satisfied out of any property of will so operate as to compel it to specif- the state of New York in his hands as ically perform its contracts [citing superintendent of public works, or made cases]. The other class is where a suit a basis for charges upon the treasury of is brought against defendants who, the state, under $ 46 (502) of the Canal claiming to act as officers of the state, Law (Consol. Laws 1909, p. 269), which and under the color of an unconstitu- provides that the commissioners of the tional statute, commit acts of wrong and canal fund may allow claims for moneys injury to the rights and property of the paid by the superintendent of public plaintiff, acquired under a contract with works or other person or officer emthe state. Such suit

is not, ployed in the care, management, super. within the meaning of the 11th Amend- intendence, and repair of the canals, ment, an action against the state.” The for a judgment recovered against them first class, in just reason, is not confined or any of them in any action instituted to cases where the suit will operate so for an act done pursuant to the prorias to compel [501] the state specifically sions of the Canal Law. In either case

ers.

their effect, whether complete or not, , Walsh as superintendent of public would expend itself upon the people of works of the state of New York, is so the state of New York in their public clear, and the fact that the proceedings and corporate capacity. Section 47 of are in essence suits against the state the Canal Law provides for an action without its consent is so evident, that before the court of claims for certain instead of permitting them to run their kinds of damages arising from the use slow course to final decree, with inevitaor management of the canals; but in ble futile result, the writ of prohibition terms it is provided that this "shall not should be issued as prayed.

Ex parte extend to claims arising from damages Simons, 247 U. S. 231, 239, 62 L. ed. resulting from the navigation of the 1094, 1096, 38 Sup. Ct. Rep. 497; Ex canals." There is no suggestion that the parte Peterson, 253 U. S. 300, 305, 64 superintendent was or is acting under L. ed. 919, 921, 40 Sup. Ct. Rep. 543. color of an unconstitutional law, or Rule absolute for a writ of prohibiotherwise than in the due course of his tion. duty under the Constitution and laws of the state of New York. In the fullest sense, therefore, the proceedings are shown by the entire record to be in their EX PARTE: IN THE MATTER OF THE

STATE OF NEW YORK et al., Owners nature and effect suits brought by indi

of the Steam Tug Queen City, Petition. viduals against the state of New York, and therefore-since no consent has been given-beyond the jurisdiction of (See S. C. Reporter's ed. 503-511.) the courts of the United States.

Admiralty evidence '- state ownerThere is no substance in the conten

ship of vessel suggestion of attor. tion that this result enables the state of

ney general. New York to impose its local law upon i. The verified suggestion presented by the admiralty jurisdiction, to the detri- the attorney general of the state in his offiment of the characteristic symmetry and cial capacity as representative of the state uniformity of the rules of maritime law and the people thereof, that a vessel libeled insisted upon in Workman v. New York, in admiralty is the property of the state, 179 U. S. 552, 557–560, 45 L. ed. 314, in its public governmental service, amounts

in its possession and control, and employed 319, 320, 21 Sup. Ct. Rep. 212; Southern to an official certificate concerning a public P. Co. v. Jensen, 244 U. S. 205, 215, 61 matter presumably within his official knowl. L. ed. 1086, 1098, L.R.A.1918C, 451, 37 edge, and ought to be accepted as sufficient Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, evidence of the fact,--at least, in the ab14 N. C. C. A. 596; Union Fish Co. v. sence of special challenge. Erickson, 248 U. S. 308, 313, 63 L. ed. (For other cases: see, Admiralty, III. i, 1, in

Digest Sup. Ct. 1908. ) 261, 263, 39 Sup. Ct. Rep. 112; Knicker

Admiralty jurisdiction vessel bocker Ice Co. v. Stewart, 253 U. S. 149,

owned by state. 160, 64 L. ed. 831, 839, 11 A.L.R. 1145, 2. A vessel, the property of a state, in 40 Sup. Ct. Rep. 438. The symmetry its possession and control, and employed in and harmony maintained in those cases its public governmental service, is exempt consists in the uniform operation and from seizure by admiralty process in rem. effect of the characteristic principles

[For other cases, see Admiralty, I. e, 1, in

Digest Sup. Ct. 1908. ] and rules of the maritime law [303] as a body of substantive law, operative

[ No. 26, Original.] alike upon all who are subject to the

Decided June jurisdiction of the admiralty, and bind- Argued December 14, 1920.

1, 1921. ing upon other courts as well. Chelentis v. Luckenbach S. S. Co. 247 , 382, 384, 62 L. ed. 1171, 1175, 1176, 38 ON PETITION for a Writ of ProhibiSup. Ct. Rep. 501. It is not inconsistent to prevent the District Court of the in principle to accord to the states, United States for the Western District which enjoy the prerogatives of sover- of New York from seizing by admiralty eignty to the extent of being exempt | process in rem a vessel alleged to be from litigation at the suit of individuals state property. Rule for Writ of Proin all other judicial tribunals, a like ex- hibition made absolute. emption in the courts of admiralty and

The facts are stated in the opinion. maritime jurisdiction.

The want of authority in the District Note.-On admiralty jurisdiction, genCourt to entertain these proceedings in erally-see notes to Glass v. The Betsy, personam under Rule 59 (now 56), 1 L. ed. U. S. 489, and United States v. brought by the claimants against Mr.) Berans, 4 L, ed. U. S. 404. 65 L. ed.

1063

as

Mr. Edward G. Griffin argued the Workman v. New York, 179 U. S. 552, cause, and, with Mr. Charles D. Newton, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The Attorney General of New York, filed a Lake Monroe (Re United States) 250 brief for petitioners.

U. S. 246, 63 L. ed. 962, 39 Sup. Ct. Rep. For contentions of counsel, see their 460; Knickerbocker Ice Co. v. Stewart, brief as reported in Re New York, ante, 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1057.

1145, 40 Sup. Ct. Rep. 438; Southern P.

Co. v. Jensen, 244 U. S. 205, 61 L. ed. Mr. Irving W. Cole argued the cause, 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. and, with Mr. Thomas P. Haley, filed a 525, Ann. Cas. 1917E, 900, 14 V. C. C. A. brief for respondent:

596; Union Fish Co. v. Erickson, 248 This application does not involve a U. S. 308, 63 L. ed. 261, 39 Sup. Ct. Rep. question of jurisdiction, and, even if it 112; Clarke v. New Jersey Steam Nav. does, the case is not one for interference Co. (1 Story, 531, Fed. Cas. No. 2,859; by prohibition or mandamus.

The John G. Stevens, 170 U. S. 113, 42 The Moses Taylor, 4 Wall. 411, 18 L. L. ed. 969, 18 Sup. Ct. Rep. 544; The ed. 397; The Hine v. Trevor, 4 Wall. 555, Siren, 7 Wall. 152, 19 L. ed. 129;

The 18 L. ed. 451; American S. B. Co. v. Lottawanna (Rodd v. Heartt) 21 Wall. Chase, 16 Walí. 522, 529, 21 L. ed. 369, 558, 22 L. ed. 654; Ex parte Easton, 95 371; The Jefferson, 215 U. S. 130, 54 U. S. 68, 24 L. ed. 373; The Jerusalem, L. ed. 125, 30 Sup. Ct. Rep. 54, 17 Ann. 2 Gall. 191, Fed. Cas. No. 7,293; De Cas. 907; The Ira M. Hedges, 218 U. S. Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 264, 54 L. ed. 1039, 31 Sup. Ct. Rep. 17, 3,776; Clarke v. New Jersey Steam Nav. 20 Ann. Cas. 1235; Illinois C. R. Co. v. co. 1 Story, 531, Fed. Cas. No. 2,859; Adams, 180 U. S. 28, 45 L. ed. 410, 21 Waring v. Clarke, 5 How. 441, 473, 12 Sup. Ct. Rep. 251; Ex parte Gordon, 104 L. ed. 226, 241. U. S. 515, 26 L. ed. 814; Workman v. New York, 179 U. S. 552, 45 L. ed. 314,

Mr. Justice Pitney delivered the opin21 Sup. Ct. Rep. 212; The Lake Monroe ion of the court: (Re United States) 250 U. S. 246, 63 L. ed. 962, 39 Sup. Ct. Rep. 460; Re Rice, Gahan and another,

In October, 1920, Martin J. Mc

administra155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct.

tors of Evelyn McGahan, deceased, Rep. 149; Re New York & P. R. S. S.

filed a Co. 155 Ú. S. 523, 39 L. ed. 246, 15 Sup. district court of the United States

libel in admiralty in the Ct. Rep. 183; Re Cooper, 143 U. S. 472, for the western district of New York, 36 L. ed. 232, 12 Sup. Ct. Rep. 457; Ex against the steam tug Queen City, her parte Detroit River Ferry Co. 104 U. S. tackle, apparel, and furniture, to recov519, 26 L. ed. 815; Commissioner of Patents v. Whiteley, 4 Wall. 522, 18 Lu tained through the death of deceased by

er damages alieged to have been sus. ed. 335; South Carolina v. Wesley, 155

drowning, due to the negligent operaU. S. 542, 39 L. ed. 254, 15 Sup. Ct. Rep. tion of the Queen City upon the Erie 230; Ex parte Pennsylvania, 109 U. S. 174, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; general of the state of New York ap

The attorney

canal, in said district. Ex parte Hagar, 104 U. $. 520, 26 L. ed. peared specially for the purpose of ques816; Re Engles, 146 U. S. 357, 36 L. ed. tioning the jurisdiction of the court, 1003, 13 Sup. Ct. Rep. 281; Re Morrison, and filed a verified suggestion of the 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. want of such jurisdiction over the Queen Rep. 246; Re Huguley Mfg. Co. 184 U.

City, for the reason that at all times S. 297, 46 L. ed. 549, 22 Sup; Ct. Rep: mentioned in the libel and at present she 455; Alexander v. Crollott, 199 U. S. 589, 50 L. ed. 317, 26 Sup. Ct. Rep. 161; of New York, in its possession and con

was the absolute property of the state Consolidated Rubber Tire Co. v. Fergu- trol, and employed in the public service son, 106 C. C. A. 330, 183 Fed. 756; Re of the state for governmental uses and Fassett, 142 U. S. 479, 35 L. ed. 1087, 12 Sup. Ct. Rep. 295; Smith v. Whitney, purposes, and, at the times mentioned in 116 U. S. 167, 29 L. ed. 601, 6 Sup. ct: the libel, was authorized by law to be Rep. 570; Ex parte Easton, 95 U. S employed only for the public and gov68, 24 L. ed. 373; Scully v. Bird, 209 ernmental uses and purposes of the state U. S. 481, 52 L. ed. 893, 28 Sup. Ct. of New York, such purposes being the Rep. 597.

repair and maintenance of the imThe objections here presented by the proved Erie canal, a public work owned state, founded on its sovereign attri- and operated by the state, and parbutes, cannot, on the merits or otherwise, ticularly the towing of dredges, the prevail.

carrying of material and workmen,

Of course,

the towing of barges and vessels con-, its ownership and character came not taining material, and the setting, re- through official channels, but from priplacing, and removing of buoys and vate counsel appearing as amici curiæ, safety devices. He prayed that the who, on being challenged to submit proof vessel be declared immune from process in support of the allegations in the sugand free from seizure and attachment, gestion, refused to do so. and [509] that the libel and all pro- there were other and more fundamental ceedings thereunder be dismissed for differences, but it is the one mentioned want of jurisdiction.

that especially concerns us upon the The district court overruled the sug- question of practice. gestion and awarded process in rem, Accepting, as we do, the facts stated under which the Queen City was arrest in the suggestion of the attorney gened. Thereupon the attorney general, in eral, the record-aside from whether a behalf of the state, filed in this suit in admiralty brought by private court, under leave granted, a peti- parties through process in rem against tion for a writ of prohibition to re-property owned by a state is not in efquire the district court to desist from fect a suit against the state, barred by further exercise of jurisdiction, and for the general principle applied in Ex parte a mandamus to require the entry of an New York, No. 25, Original-presents order declaring the Queen City to be im- the question whether the proceeding can mune from arrest. An order to show be based upon the seizure of property cause was issued, to which the district owned by a state, and used and emjudge made return, embodying by refer-ployed solely for its governmental uses ence the admiralty proceedings; and the and purposes. matter was argued together with No. 25, By the law of nations, a vessel of Original, Ex parte New York, just de- war owned by a friendly power and emvided [256 U. S. 490, ante, 1057, 41 Sup. ployed in its service will not be subCt. Rep. 588).

jected to admiralty process; and this To the suggestion that the Queen City upon general grounds of comity and polis the property of the state of New icy. The Exchange v. M'Faddon, 7 York, in its possession and control, and Cranch, 116, 144-147, 3 L. ed. 287, 296, employed in its public governmental 297. In a case before Judge Francis service, it is objected at the outset that Hopkinson in the admiralty court of the record and proceedings in the suit Pennsylvania in 1781, on a plea to the in admiralty do not disclose the identity jurisdiction, it was adjudged that of the owner of the vessel, or that she marines enlisting on board a ship of war was employed in the governmental serv- or vessel belonging to a sovereign inice of the state. We deem it clear, how- dependent state could not libel the ship ever, that the verified suggestion pre- for their wages. Moitez v. The South sented by the attorney general of that Carolina, Bee, 422, Fed. Cas. No. 9697. state, in his official capacity as repre-i The question whether, by international sentative of the state and the people law, the rule of the Exchange is to be thereof, amounts to an official certificate applied to other kinds of public vessels concerning a public matter presumably owned or controlled by friendly powers within his official knowledge, and that (see The Parlement Belge (1880] L. R. it ought to be accepted as sufficient evi- 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 dence of the fact; at least, in the ab-Week. Rep. 642, 4 Asp. Mar. L. Cas. sence of special challenge. The sugges- 234), was stirred in Re Muir, supra, but tion was overruled and denied, with found unnecessary to be decided. It costs, and process thereupon ordered to does not now press for solution; for, issue against the vessel, without any in- aside from the obligations of internatimation that there was doubt about the tional [511] law, though upon princifacts stated in the suggestion, or oppor- ples somewhat akin, it is uniformly held tunity given to verify them further. It in this country that even in the case of would be an unwarranted aspersion up- municipal corporations, which are not on the honor of a great state to treat endowed with prerogatives of sovereignfacts thus solemnly certified by its chief ty to the same extent as the states by law officer, and accepted as true when which they are created, yet, because they passed upon by the district court, as exercise the powers of government for now requiring (510) verification. Re local purposes, their property and reveMuir, decided January 17, 1921 [254 U. nue necessary for the exercise of those S. 522, ant 383, 41 Sup. Ct. Rep. 185], powers are to be considered as part of differs widely, for there the suggestion the machinery of government, exempt that the vessel was exempt because of I from seizure and sale under process

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