1. Every corporation has officers who speak and act for it by
authority of law, and some one of them, either by an express
statutory provision or by the nature of their functions, is the
proper person on whom the process or notice, which is necessary to
bind it in a judicial proceeding, must be served.
2. Where the proceeding to confiscate a debt of the corporation
to an individual is, by reason of his absence beyond the
jurisdiction, necessarily
in rem, the service of the
process or notice on the corporation, which is requisite to a valid
seizure of the debt, should be made upon some one of the officers
of the corporation on whom a similar service would bind it in an
ordinary suit against it.
3. By the Code of Virginia, such service, in case of a town or a
city, may be made on the mayor, or, in his absence, on the
president of the council or board of trustees, or, if both be
absent, on an alderman or trustee.
4. Service on the Auditor of Alexandria, without an appearance
by the city or the creditor, did not give the court jurisdiction of
the debt which the city owed the creditor, and its decree
condemning the debt to confiscation and sale is void.
This was an action of covenant, brought in the circuit court
Page 95 U. S. 775
of the City of Alexandria, Va., by Orlando Fairfax, against the
City Council of Alexandria, to recover the principal of certain
bonds, amounting in the aggregate to $8,700, with the arrearages of
interest due thereon.
The following is a copy of one of the bonds:
"No. 35] ALEXANDRIA CORPORATION STOCK, $5,200"
"This is due from the Common Council of Alexandria unto Dr.
Orlando Fairfax, $5,200, bearing interest at the rate of six
percent per annum from the first day of July, 1858, payable
half-yearly, being stock issued in pursuance of an act of the
Common Council of Alexandria, passed on the twenty-third day of
July, 1845, the principal of which is redeemable on the first day
of January, in the year 1870, and is transferable only at the
office of the auditor of the corporation, in person or by
attorney."
"Witness the seal of the common council of Alexandria."
"{Alexandria Corporation}"
"W. D. MASSEY,
Mayor"
"J. H. MCVEIGH,"
"
President of Council"
"SAM. J. MCCORMICK,
Auditor"
The defense was that the stock whereof mention is made in the
bonds or certificates, and all the right, title, and interest of
Fairfax therein, had, with the accrued interest thereon, been
condemned to confiscation and sale, under an Act of Congress of
July, 1862, by a decree of the District Court of the United States
for the Eastern District of Virginia, May 4, 1864, and sold by the
marshal, who transferred the stock to the purchasers on the books
of the auditor of the city. The council recognized this transfer as
valid, and issued to the purchasers or their assigns certificates
of stock of like tenor and effect. They are still outstanding, and
the interest thereon has been paid to the holders of them.
Fairfax was a resident of Alexandria until the commencement of
the rebellion. He then went to Richmond, Va., where he has since
resided, taking with him the said bonds or certificates of
indebtedness, and he retained possession of them until he brought
this suit.
The present controversy turned on the jurisdiction of the
district court. Neither Fairfax nor the city council entered
Page 95 U. S. 776
an appearance to the proceedings which resulted in the decree.
The order of seizure which the district attorney of the United
States for the district within which the City of Alexandria is
situate directed to the marshal, with the return made by the latter
thereon, is set out in the opinion of this court, and is therefore,
omitted here. The Circuit Court of the City of Alexandria rendered
a judgment against Fairfax, which the Supreme Court of Appeals
reversed, and rendered one in his favor. The city council thereupon
sued out this writ of error.
MR. JUSTICE MILLER delivered the opinion of the Court.
Orlando Fairfax, a resident of the City of Alexandria, Va.,
previous to the outbreak of the late civil war, was the owner of
about $8,700 of the obligations of said city, which were in the
form of bonds, not negotiable on their face, bearing interest at
the rate of six percent per annum, payable semiannually, and having
several years to run, and transferable on the books of the
corporation. These obligations were called stock of the City of
Alexandria. At the beginning of the war, Fairfax left Alexandria,
and joined the Confederates at the City of Richmond, and did not
return until the war was over.
During his absence, proceedings were instituted to confiscate
this stock, and prosecuted to a decree and sale. The marshal made a
transfer of it to the purchaser, who received the interest
regularly until Fairfax commenced the present suit against the city
to recover the interest so paid, and establish his right to the
stock.
The Supreme Court of Appeals of Virginia rendered judgment in
his favor, and the city sued out this writ of error.
Page 95 U. S. 777
The single question which we shall consider is whether there was
such a seizure of this stock, or of Fairfax's interest in the debt
which the city owed him, as gave to the District Court of the
United States jurisdiction to confiscate and sell it under the act
of Congress on that subject.
All that was done in the way of seizure appears in the following
paper issued by the district attorney of the United States to the
marshal of the district, and the marshal's return, endorsed on
it:
"
OFFICE U.S. DISTRICT ATTORNEY FOR THE EASTERN DISTRICT OF
VIRGINIA"
"ALEXANDRIA, VA., Feb. 22, 1864"
"
To the Marshal of the United States for the Eastern
District of Virginia"
"In compliance with general instructions, issued by the Attorney
General, under the Act of July 17, 1862, entitled 'An Act to
suppress insurrection, to punish treason and rebellion, to seize
and confiscate the property of rebels, and for other
purposes.'"
"I have to direct that you seize all the right, title, and
interest of Dr. Orlando Fairfax, in and to eighty-seven shares of
the stock of the corporation of Alexandria, in the Eastern District
of Virginia, together with all the moneys due him, and becoming due
from the said corporation, for dividends upon said stock, together
with all the improvements, buildings, rights, privileges,
appurtenances, and other hereditaments to the same belonging, or in
any wise appertaining, and all right, title, interest, and estate
of Dr. Orlando Fairfax therein, as proceedings are to be instituted
to secure the confiscation of the same to the use of the United
States, under the above-entitled act."
"You will report the seizure to me when the same shall have been
made."
"L. H. CHANDLER,
U.S. District Attorney"
"[Endorsed as follows:] No. 88. Order of seizure. Dr. Orlando
Fairfax"
"UNITED STATES MARSHAL'S OFFICE"
"ALEXANDRIA, VA., Feb. 23, 1864"
"I certify that I have seized the within-described property, and
given notice to R. Johnson, Esq., Auditor of the Corporation of
Alexandria, as within directed."
"JOHN UNDERWOOD,
U.S. Marshal"
"Filed Feb. 24, 1864 "
Page 95 U. S. 778
In the present suit, it is among the facts agreed to by both
parties, and signed by their counsel as part of the record, that
these bonds or certificates of stock were carried by Fairfax to
Richmond, and remained in his personal possession during the war.
It is therefore clear that the marshal made no manual seizure of
them, and did not mean to say so by his return, unless he intended
to make a false return. It is a fair and reasonable inference from
the return and the agreed facts in this case, that what he actually
did to constitute a seizure, and what he understood to constitute
the seizure of this stock, was "notice to R. Johnson, auditor of
the corporation of Alexandria." The words "as within directed" turn
our attention to the order of the district attorney, under which
the marshal acted. It will be there seen that he was directed to
seize the interest of Fairfax in eighty-seven shares of the stock
of the corporation of Alexandria, with all the moneys due him and
becoming due on said stock, together with all improvements,
buildings, &c., to the same belonging. If any buildings were
seized as "part of the within-described property," in the language
of the marshal's return, nothing has ever been heard of it since.
The order was, in legal effect, to attach the interest of Fairfax
in this stock.
We are of opinion that
Miller v. United
States, 11 Wall. 268, and
Tyler v.
Defrees, 11 Wall. 331, establish the proposition
that a valid seizure or attachment of this stock, or his interest
in it, under the order of the district attorney, is a sufficient
seizure to give the court jurisdiction, provided the order and the
marshal's action under it are returned into court as the foundation
for proceedings under the libel. But no more can be claimed for
what was done as a seizure, or intended as a seizure, than if the
order had been a writ under the seal of the court.
We are compelled, then, to inquire whether the simple statement
of the marshal, that he had given notice to R. Johnson, auditor of
the city, was a sufficient seizure, in face of the conceded fact
that he had made no actual or manual seizure of anything, to give
jurisdiction. In determining what it was of which Johnson had
notice, it is perhaps fair to infer that the marshal read to him
the paper issued by the district attorney. He then had notice that
the United States government
Page 95 U. S. 779
was aware of the existence of the stock or bonds which Fairfax
owned -- in other words, that the city was indebted to Fairfax, and
that proceedings were in this manner initiated for the confiscation
of that indebtedness. There can be no doubt that the statute
authorized the confiscation of the credits of one who came within
its provisions. We have as little doubt that these stocks were
credits within its meaning. It is clear that there was a made of
reaching them under the act of Congress, notwithstanding the
evidences of Fairfax's right to them were in his pocket, and beyond
the reach of the process of the court. If the debt due him had been
by an individual, there would have been no difficulty in serving
such a process or notice on the debtor as would have subjected him
to the orders of the court in regard to it. If Johnson, as an
individual, had owed the debt to Fairfax, it is probable that the
notice served on him would have been sufficient.
But an incorporated city is not an individual, and service of
notice or process on one of its citizens is not service on it. It
has its officers, who speak and act for it by authority of law; and
some one of these officers, either by an express statutory
provision, or by the nature of their functions, is the proper
person on whom all notices and processes necessary to bind it by
judicial proceedings must be served.
It would seem to be reasonable that in proceedings
in
rem to confiscate property in the absence of its owner, where
the seizure of it is a
sine qua non to the jurisdiction of
the court and where, as in the present case, actual manucaption is
impossible, the evidence which supports a constructive seizure
should be scrutinized as closely, and be of a character as
satisfactory, as that which would subject the party holding the
fund or owing the debt which is the object of the proceedings to an
ordinary civil suit in the same court. If this be a correct view of
the subject, and we think it is quite as favorable to the validity
of the judgment of confiscation as can be maintained on sound
principle, it is necessary to inquire if service of process on the
auditor would authorize a judgment by default against the city in
an ordinary action. We are not informed by anything in this record
or in the brief of the nature of his functions. We have no reason
to believe that it is any part of his
Page 95 U. S. 780
duty to defend actions at law against the city or to employ
counsel for that purpose, or that he had any authority to do so.
The word used to describe his office does not imply that, as
treasurer, he had in his possession the money or other property of
the city. He was not even bound to make record of matters done by
or affecting the corporation, as the clerk or secretary of the
governing body would be. He was not, probably, a member of the
board of councilmen or aldermen, who governed the city and whose
duty it would have been to protect her in such a matter as
this.
But we are relieved from any difficulty on this subject by the
statute of Virginia which prescribes, as every law should do under
which corporations are organized, the mode of serving process or
notice on them. It points out the officers of the corporation on
whom such process or notice may be served, and is so liberal in
providing for service as to leave no excuse for departing from it
by a service on any one else.
"It shall be sufficient to serve any process against or notice
to a corporation on its mayor, rector, president, or other chief
officer, or, in his absence from the county or corporation in which
he resides or in which is the principal office of the corporation
against or to which the process or notice is, if it be a city or
town, on the president of the council or board of trustees, or in
his absence, on the recorder, or any alderman or trustee."
Code of Virginia of 1860, p. 707, c. 170, sec. 7.
It appears from these bonds or certificates of debt that there
was a mayor of the city. On him, if in the city, the law required
service to be made. There is no return that he was absent, nor is
any reason given why service was not made on him. There were, as it
appears, a council, and a president of that council, and he is
specially named in the statute as an officer on whom service may be
made. No reason is given why service was not made on him.
But it, against all sound principle, we could indulge in
presumptions in favor of this jurisdiction, and suppose that both
these officers were absent, notice should have been served on an
alderman or councilman, since it appears that there were such
officers.
We are not informed whether there was a recorder of that
Page 95 U. S. 781
city. If there was, he was not served. But, by a strange
inadvertence, almost the only officer not mentioned in the statute
as one on whom the service may be made is the one selected, while
all those are omitted whom the law specifically points out as the
proper ones, and for the failure to serve them no reason is
given.
In the absence of any appearance by Fairfax or by the city in a
case where the proceedings against the debtor and the owner of the
debt are wholly
ex parte and by default, and in the
absence of actual seizure of any tangible evidence of the debt, we
are of opinion that no jurisdiction of that debt was acquired by
the notice to the auditor, and on this alone it is supposed to
rest.
As in this point we concur with the Court of Appeals of
Virginia, its judgment is
Affirmed.
MR. CHIEF JUSTICE WAITE concurred in the judgment.
