1. Where the record before the court on a case from a state
court shows a declaration, pleas to it, issue on them, verdict on
those issues, and judgment on the verdict, without allusion to any
demurrer, the court will not refer to opinions in books of printed
reports of the state court to contradict the record and to show
that there was a demurrer to the declaration and that judgment
overruling the demurrer was given. [It was stated in this case by
counsel that the demurrer after judgment against it had been
withdrawn.]
2. Where a record brought regularly to this Court on a writ of
error and appeal bond which operate as a supersedeas shows a
judgment quite intelligible and possible, and where a return to a
certiorari issued, without prejudice, long after the transcript was
filed here and not long before the case was heard, showed that that
judgment had been set aside as improvidently entered and that one
with alterations of a very material character had been substituted
for it, this Court held "under the circumstances" that the first
judgment was the one which it was called on to reexamine.
3. An assignment of error in the highest court of a state to the
decision of an inferior state court that the latter had decided a
particular state statute "valid and constitutional," and a judgment
entry by the latter court that the statute was not "in any respect
repugnant to the Constitution of the United States," is not
specific enough to give jurisdiction to the Supreme Court of the
United Staten under section 709 of the Revised Statutes, there
being nothing else anywhere in the record to show to which
provision of the Constitution of the United States the statute was
alleged to be repugnant.
4. However, where the record showed that the case was one of the
assertion of a lien under a state statute for building a vessel at
a town on what the Court might perhaps judicially notice was an
estuary of the sea, and where the entry of judgment showed also
that the court had adjudged
"that the contract for building the vessel in question was not a
maritime contract, and that the remedy given by the
lien law of the state did not conflict with the
Constitution or laws of the United States,"
the Court held that the latter statement, in view of the whole
record, was sufficient to give this Court jurisdiction.
5. A maritime lien does not arise on a contract to furnish
materials for the purpose of building a ship, and in respect to
such contracts, it is competent for the states to create such liens
as their legislatures may deem just and expedient, not amounting to
a regulation of commerce, and to enact reasonable rules and
regulations prescribing the mode of their enforcement if not
inconsistent with the exclusive jurisdiction of the admiralty
courts.
6. The provision of the Seventh Amendment to the Constitution
which secures
Page 88 U. S. 533
to every party the right to trial by jury where the amount in
controversy exceeds $20 does not apply to trials in state
courts.
7. Matters not presented to nor decided by the court below are
not assignable for error here.
The Constitution ordains that:
"The judicial power [of the United States] shall extend to all
cases of admiralty and maritime jurisdiction."
And the Judiciary Act enacts:
"SECTION 9. That the district courts [of the United States]
shall have exclusive original cognizance of all civil causes of
admiralty and maritime jurisdiction . . . saving to suitors in all
cases the right of a common law remedy where the common law is
competent to give it."
These provisions of organic and federal statutory law being in
force, an act of the Legislature of New Jersey "for the collection
of demands against ships, steamboats, and other vessels," [
Footnote 1] approved March 20, 1857,
enacted that whenever a debt shall be contracted by the
master,
owner, agent, or
consignee of any ship or vessel
within the state on account of any work done or materials furnished
in this state for or towards the
building, repairing,
furnishing, or equipping such ship or vessel, such debt shall be
and continue a lien on the vessel for nine months, and that any
person having such claim over $20 may apply to the proper officer
for a warrant to enforce his lien; that the officer receiving the
warrant may seize the vessel and give the prescribed notice; that
any other person having such lien may make proper demand and proof
and be admitted as an attaching creditor; that the owner or any
party may at any time before sale apply for her discharge upon
giving bond to pay such claims as shall be established to have been
subsisting liens under the act; that upon such bond's being given,
the vessel shall be discharged, and the creditors may sue
Page 88 U. S. 534
upon the bond alleging their claims and averring them to be
subsisting liens; and that if no such bond is given, proceedings
may be taken as provided in the act for the sale of the vessel, or
such part of her tackle &c., as shall be sufficient to pay the
claims.
This statute of New Jersey being on its statute book, an article
of agreement was made November 3, 1866, between Henry Jeroleman of
the first part, and a certain Hasbrook, and several others of the
second, for
building a schooner of specified dimensions
for the consideration of $54 per ton, the builder to furnish all
labor and materials and deliver the vessel. The whole price, at the
said rate per ton, was to be about $21,000, and the payments were
to be made by Hasbrook and the others at stated times during the
progress of the work, as $2,500 when the keel was laid, $3,000 when
the frame was up, $3,500 when ceiled, and decks laid; $3500 when
outside planks were on and squared off; $3,500 when the poop deck
was on, $2,000 when ready for launching, and the balance when
delivered according to contract. And it was agreed that
as the
said several installments were paid, the schooner, so far as then
constructed, and the materials therein inserted, should be and
become the property of Hasbrook and the others.
The schooner was built at East Newark, New Jersey. Two persons,
one named Elliott and the other Ripley, furnished timber for the
vessel, and on the 19th of June, 1867, alleging that they had not
been paid for their timber, they caused her to be seized by the
sheriff under the already quoted statute of New Jersey, the vessel,
at the time of this seizure, being unfinished, on the stocks, and
neither named, enrolled, licensed, or provided with a crew or
master. Elliott had furnished his timber in November, 1866, and
Ripley his between January 15 and May 10, 1867.
On the 24th of June, 1867 -- and therefore after Elliott and
Ripley had furnished the timber to Jeroleman -- Jeroleman assigned
the contract giving him the right to build the vessel to one
Edwards, by whom the vessel was finished.
On the 2d of July, 1867, Edwards, the new owner, gave
Page 88 U. S. 535
bond to Elliott and Ripley, in the manner prescribed by the New
Jersey statute when a liberation of a vessel from seizure is
desired, and the vessel was discharged from the seizure.
Jeroleman had been paid more than the original contract price,
but
the time when any payments had been made to him did
not appear, nor any fact upon which an appropriation of payment
could be founded.
The vessel being discharged from the seizures, Elliott and
Ripley brought suit in the Supreme Court of New Jersey against
Edwards on the bond, the declaration alleging that the debt was
contracted in
building the vessel, and that the lien was
put upon her while she was yet on the stocks unfinished. The action
was debt, and the declaration was in the usual form.
As was stated by counsel in this Court and as is also stated in
reports of the case in the Supreme Court of New Jersey, [
Footnote 2] the defendants demurred to
the declaration and insisted that the statute of the state, by
attempting to create a lien on ships, under state law, assumed a
control of a subject in its nature maritime, and one, therefore,
over which under the already quoted clauses of the federal
Constitution and of the statutes of the United States, the federal
courts alone had cognizance, and therefore that the state statute
was void. The New Jersey Reports further state that the demurrer
was overruled, the court in its judgment overruling it admitting
that if the lien sought to be enforced, had been for materials used
in
repairing a vessel which had been finished, launched,
and enrolled, it could not have been enforced, and that so far as
the statute was designed to aid in the enforcement of a maritime
contract for which the admiralty might proceed
in rem, it
was void under the objection stated, but holding that the lien set
up having been for materials used in
building a vessel --
a matter done on land, entirely under state control, and payment
for which might be enforced by a common law remedy or by
Page 88 U. S. 536
any new remedy which the legislature might provide -- the
statute was
pro tanto valid.
The counsel in this Court stated that after this opinion, the
demurrer was withdrawn.
However,
in the transcript of the record sent here, nothing
whatever about any demurrer appeared. All that appeared was
that to the declaration abovementioned several special pleas were
filed, among them these:
"1.
Nil debet generally."
"2.
Nil debet as to Elliott."
"3.
Nil debet as to Ripley."
"4. Claim of Elliott not a subsisting lien."
"5. Claim of Ripley not a subsisting lien."
"6. That Jeroleman, who built the vessel, was not owner or
agent."
"7. That the debts were not contracted by any owner, agent, or
consignee."
And that on issues to these pleas the case was tried.
The facts of the case, as already given, were found by a special
verdict.
One question in the case obviously was the question, much
agitated in England and here -- namely whether in the case of an
executory contract to build a vessel to be paid for by installments
as the work progresses, the title remains in the builder until the
work is completed and delivered, or whether the title passes to the
person for whom the vessel is to be built; in other words, whether
in such a case the contract is one for work and materials or one
for sale.
A second question also obviously was (admitting that, as a
general principle, the contract is in such a case one leaving the
title in the builder until the work is completed and delivered)
what was the effect of the final clause of the particular contract
under consideration, the part on page
88 U. S. 534,
italicized, in changing this general rule? If it did change what
was assumed to be the general rule, then, if the payments were made
before the materials were furnished, the title was divested out of
Jeroleman, since he, then, though builder, could not be "owner" of
the vessel when the materials
Page 88 U. S. 537
were furnished, and, therefore, was not competent to charge it
with liens; and consequently the defendants were not liable on
their bond, which took the vessel's place.
The Supreme Court was of the opinion that the builder was, on
general principles, to be regarded as owner; that the final clause
divested his title, on the payments of the money; that the burden
lay upon the claimants of the vessel -- who were the obligors in
the bond -- to show the time of these payments or some fact upon
which an appropriation of payment could be founded, and as they had
not shown either, that therefore, in law, the builder (Jeroleman)
was to be regarded as the owner when the materials were delivered,
and accordingly that debts contracted by him did become liens.
Judgment accordingly went for the plaintiffs, and the case was
taken by the defendants from the Supreme Court of New Jersey to
what in that state is a still higher court, the Court of Errors and
Appeals.
The errors there assigned were:
"1. That the Supreme Court held the Act of March 20, 1857, valid
and constitutional."
"2. That the said court decided that Jeroleman, the builder of
said vessel, was the owner thereof and competent to charge it with
liens."
"3. That the said court adjudged that the respective claims of
the plaintiffs were subsisting liens, under the laws of the State
of New Jersey, on the vessel, at the time of exhibiting the
same."
On the 20th of August, 1872, the Court of Errors and Appeals
affirmed the judgment of the Supreme Court. The entry of
affirmance, or "rule to affirm," as in the transcript it was
called, as the same came here in the transcript, was dated August
20, 1872, and was thus:
"This case coming on to be heard in the Court of Errors and
Appeals, and the said court being of opinion:"
"That the Act of the legislature of the State of New Jersey
entitled: 'An act for the collection of demands against ships,
Page 88 U. S. 538
steamboats, and other vessels,' approved March 20, 1857, is not
in any respect repugnant to the Constitution or laws of the
United States, as contended for by the plaintiffs in error,
but is in every respect valid and constitutional, and,"
"That Henry Jeroleman, the builder of the said vessel, was the
owner thereof and competent to charge it with liens, and,"
"That the respective claims of the defendants in error were
subsisting liens under the laws of the State of New Jersey on the
said vessel, and"
"That the contract for building said vessel is not a maritime
contract, and the statutory remedy thereon, to-wit, the
aforementioned act, does not conflict with the Constitution or laws
of the United States, and,"
"That the said act does not violate the right of trial by jury,
nor conflict
with the Constitution of the State of New Jersey
in that behalf, and that there is no error in the proceedings
of the Supreme Court herein, and their judgment in the same,"
"It is thereupon, on this 20th day of August, A.D. 1872,
adjudged by the Court here that the said act of the Legislature of
the State of New Jersey is not in any respect repugnant to the
Constitution or laws of the United States, and that the judgment of
the Supreme Court be in all things affirmed."
A writ of error was immediately taken to this Court, and within
ten days an appeal bond with good, sufficient security given that
the plaintiff in error should prosecute his writ to effect and
answer all damages and costs if he failed to make his plea good.
Due service was also made within ten days of the writ in the mode
prescribed by the Judiciary Act in order to make the writ a
supersedeas. The transcript was filed here, December 6, 1872.
The case was brought here under the assumption that it came
within section seven hundred and nine of the Revised Statutes.
[
Footnote 3]
The record being in this Court with the entry of judgment or
"rule to affirm," as just given, a suggestion was made here by
counsel, May 25, 1874, that the above-quoted "rule to affirm" had
been vacated and set aside by the
Page 88 U. S. 539
Court of Errors and Appeals, and an amended "rule" substituted
therefor since the filing of said transcript, and a certiorari was
issued, without prejudice, on the 25th of May, 1874, to bring up
any rule entered by the Court of Errors and Appeals in the suit
subsequent to the entering of the "rule to affirm," by which the
said rule to affirm had been corrected or vacated, and to bring up
also any rule which has been substituted for the said rule to
affirm.
A return to the certiorari filed in this Court August 6, 1874,
showed that it appearing to that Court that the "rule to affirm"
had been erroneously entered by the attorney of the plaintiffs in
error, and did not correctly express the judgment of this Court as
set forth in the opinion of the court delivered in the cause, it
was ordered, on the 1st day of April, 1874, that the said rule to
affirm be annulled and stricken from the minutes, and that a rule
to affirm the said judgment of the Supreme Court be entered in
conformity with the decision of the court on the questions before
it.
The following new rule to affirm was accordingly entered
nunc pro tunc on the record and sent here as part of the
return to the certiorari:
"This cause coming on to be heard &c., and the court being
of opinion that Henry Jeroleman, the builder of the vessel in the
declaration of the plaintiffs below mentioned, was the owner of the
said vessel at the time when the materials were furnished by said
plaintiffs within the meaning of the Act of the Legislature of New
Jersey entitled, 'An act for the collection of demands against
ships, steamboats, and other vessels,' and as such owners were
competent to charge it with liens for such materials, and that the
respective claims of the defendants in error were subsisting liens
upon said vessel under the said act, and that the said act does not
conflict with the Constitution of the State of New Jersey by
violating the right of trial by jury. It is thereupon, on this 20th
day of August, 1872, ordered, adjudged, and determined by the court
here that the judgment of the Supreme Court be affirmed and that
the defendants in error do recover their costs in this Court to be
taxed."
The case came on for argument, November 24, 1874.
Page 88 U. S. 549
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Nothing appears in the record to warrant the conclusion that any
question reexaminable here was presented in the court of original
jurisdiction, whether the proposition is tested by the declaration,
the pleas filed by the defendant, the special verdict, or by the
judgment, as all alike tend to show that the questions presented,
examined, and decided were questions of local law. Every suggestion
of that kind therefore may be dismissed without further remark, as
they are utterly destitute of support.
Opposed to that statement is the suggestion in argument that the
presiding justice overruled the demurrer to the declaration, but it
is a sufficient answer to that suggestion to say that this Court
cannot go out of the record to reexamine any question under a writ
of error to a state court.
Suppose that is so, still it is contended that the defect is
supplied by what occurred in the Court of Errors and Appeals.
Tested %alone by the errors assigned in that court, it is quite
clear that the jurisdiction of this Court could not be sustained,
as the errors assigned in that court do not show with sufficient
definiteness that any question cognizable here under a writ of
error to a state court was presented to the state Court of Errors
for decision. Complaint, it is true, is made that the subordinate
court improperly decided that the lien law of the state is valid
and constitutional, but it is not alleged that the law is repugnant
to any particular provision of the Constitution of the United
States, nor that the court of original jurisdiction rendered any
decision upon that subject. [
Footnote 4]
Page 88 U. S. 550
Something more must be set forth in such a pleading, to raise a
federal question, than the mere allegation that the law is invalid
and unconstitutional, as such an assignment is satisfied if held to
refer to the Constitution of the state, in which event the question
raised is not one cognizable here under a writ of error to a state
court. [
Footnote 5]
If the case stopped there, it would be clear that the writ of
error must be dismissed for the want of jurisdiction, but it does
not stop there, as plainly appears by the judgment of affirmance
rendered in the Court of Errors, which shows that the state court
of last resort determined, among other things, the following
propositions:
(1) That the lien law of the state is not in any respect
repugnant to the Constitution of the United States, as contended by
the original defendants.
(2) That the contract for building the vessel in question is not
a maritime contract, and that the remedy given by the lien law of
the state does not conflict with the Constitution or laws of the
United States.
(3) That the said lien law does not violate the right of trial
by jury nor conflict with the Constitution of the state.
Like every other pleading, an assignment of error is subject to
a reasonable construction. Reasonably constructed it cannot be held
that the first proposition of the judgment of affirmance involves a
comparison of the state lien law with every separate provision of
the federal Constitution, and if not with everyone, it is
impossible to determine with which one, as there is nothing in the
judgment or any other part of the record pointing to any particular
part of the Constitution, except what is contained in the second
proposition of the judgment, which, in view of the whole record,
must be regarded as a more complete specification of what is meant
by the first proposition.
Viewed in the light of these suggestions it must be understood
from the two propositions that the state Court of Errors decided
that the contract in this case for the building
Page 88 U. S. 551
of the schooner was not a maritime contract, and that the law of
the state giving the remedy which was pursued by the plaintiffs
does not conflict with the federal Constitution or with federal
laws. Such an allegation in the judgment of the state court is
sufficient to give this Court jurisdiction under the writ of error
to reexamine that question. Well-founded doubt upon that subject
cannot be entertained, unless it be assumed, as contended by the
plaintiffs, that the copy of the judgment embodied in the
transcript is not correct.
Due entry of the writ of error to the state court was made here
the sixth of December, 1872, and on the first of April, 1874, the
Court of Errors decided that the judgment of affirmance, entered
there in the case under date of the twentieth of August, 1872, did
not correctly express the judgment of the court; and after hearing
argument the court ordered that it be wholly annulled, and that it
be stricken from the minutes, and that the judgment exhibited in
the supplemental record be entered
nunc pro tunc in lieu
thereof.
Alterations of a very material character are made in the
substituted judgment, as compared with the judgment originally
entered, and which remained unchallenged at the time the writ of
error was sued out and when the supersedeas bond was filed. Such
alterations, it is insisted by the defendants, could not properly
be made at that stage of the litigation, as the writ of error from
this Court to the Court of Errors brought up the judgment first
mentioned as a part of the transcript annexed to the return made,
to the writ of error, by the Court of Errors, to which it was
addressed.
Exceptions may arise to that proposition, as broadly stated, but
it is not necessary in this case to examine the question in so
general an aspect, as whatever may be the power of the Court of
Errors to change or amend such a judgment for the purposes of any
proceeding under it in the exercise of their own appellate
functions, we are, nevertheless, of the opinion that the judgment
brought here as part of the return
Page 88 U. S. 552
to the writ of error from this Court must, under the
circumstances, remain as the judgment which this Court is called
upon to reexamine and review. [
Footnote 6]
Enough has already been remarked to show that the judgment of
affirmance first rendered raises the question whether the contract
under which the vessel was built is a maritime contract, and
whether the law of the state which gives the remedy pursued by the
plaintiffs is in conflict with the federal Constitution. Beyond all
doubt, that question was presented to the state Court of Errors,
and was decided by that court adversely to the defense set up by
the defendants in the court of appellate jurisdiction. [
Footnote 7]
Materials were furnished by the plaintiffs to the persons who
contracted to build the schooner, during the progress of the work.
Payment for the materials being refused, they instituted the
described proceedings to enforce the lien given them by the state
law, in such a case, against the vessel for which the materials had
been contracted.
When the proceedings were commenced the schooner was only
partially constructed and was resting on her original stocks,
having never been launched into the water. She was without a name
and had never been registered or enrolled, nor had she ever been
licensed or surveyed, and she was without a master or crew, and the
record shows she had never had a commander.
Concede all that and still the defendants contend that the
plaintiffs, as the furnishers of the materials, had a maritime lien
for their respective claims which may be enforced in the admiralty,
and that the state law giving the remedy which the plaintiffs
pursued is in conflict with that clause of the federal Constitution
which provides that the judicial
Page 88 U. S. 553
power of the United States shall extend to all cases of
admiralty and maritime jurisdiction. They admit, in effect, that to
maintain that proposition it is necessary to show that a contract
to furnish materials for the construction of a ship is a maritime
contract, and they accordingly submit the affirmative of that
proposition and insist that all such contracts are maritime, if it
appears that the vessel to be constructed is designed for use upon
navigable waters.
Maritime contracts are such as relate to commerce and
navigation, and unless a contract to build a ship is to be regarded
as a maritime contract, it will hardly be contended that a contract
to furnish the materials to be used in accomplishing that object
can fall within that category, as the latter is more strictly a
contract made on land, and to be performed on land, than the
former, and is certainly one stage further removed from any
immediate and direct relation to commerce and navigation.
Building materials for such a purpose come very largely from the
forest and mines, but if it be admitted that a contract to build a
ship is a maritime contract it is difficult to affirm that a
contract to furnish the materials for the same is not of the same
character, although its breach and even its performance may involve
judicial inquiries into the business transactions of men, as well
in the forests and mines as in the manufactories and workshops of
the whole civilized world. Wherever the question, therefore,
involved in the present assignment of error, has been considered,
the decision has uniformly turned upon the solution of the inquiry
whether a contract for building a ship is or is not a maritime
contract. Unless the contract to build a ship is a maritime
contract, no one, it is presumed, would contend that the furnishers
of the materials for such a purpose can successfully support such a
claim; and if it be admitted that the builders of a ship may
enforce the payment of the contract price in the admiralty, it
would be difficult to maintain that the furnishers of the materials
for the purpose are not entitled to pursue their remedy to enforce
payment in the same jurisdiction.
Page 88 U. S. 554
Shipbuilding is an occupation requiring experience and skill,
and, as ordinarily conducted, is an employment on land, as much as
any other mechanical employment, and men engage in the business for
a livelihood just as they do in other mechanical pursuits and for
the same purpose. Shipwrights, unlike the seamen, have their homes
on the land, and not on the seas, and they are seldom shipowners,
and not more frequently interested in commerce and navigation than
other mechanics. Ships are bought and sold in the market just as
ship timber, engines, anchors, or chronometers are bought and sold,
even before they are fully constructed and before they are equipped
for navigation, and no reason is perceived why a contract to build
a ship, any more than a contract for the materials of which a ship
is composed, or for the instruments or appurtenances to manage or
propel the ship, should be regarded as maritime.
Attempt is made in vain to point out any distinction in
principle between a contract to build a ship and a contract for the
materials, as the latter are included in the former, and both fall
within the same category under the rules of the civil law. Every
one who had built, repaired, or fitted out a ship, whether at home
or abroad, or lent money to be employed in those services, had by
the civil law a privilege or right of payment, in preference to
other creditors, upon the ship itself, without any instrument of
hypothecation, or any express contract or agreement subjecting the
ship to any such claim, and that privilege still exists in all
those countries which have adopted the civil law as the basis of
their jurisprudence.
Authorities to support that proposition are unnecessary, as the
proposition is conceded by both parties in this controversy, but
that rule was never adopted in England, and the reverse of it is
the settled rule in our jurisprudence in respect to the question
under consideration. Conclusive support to that proposition is
found in the case of
The Jefferson, [
Footnote 8] in which the opinion of the court is
given by Mr. Justice
Page 88 U. S. 555
Catron. By the statement of the case it appears that it was a
libel filed by the assignees of the builders against a new steam
ferryboat for a balance due to the builders on account of work done
and materials furnished in constructing the hull of the ferry boat.
They claimed a lien for the unpaid balance of the price, and the
decree was in their favor in the circuit court, but the claimants
appealed to this Court. When the cause came up for argument the
first point made for the claimants was that a contract to build a
ship is not one within the jurisdiction of the admiralty courts,
even though it be intended to employ the vessel in ocean
navigation. Sufficient appears in the report of the case to show
that the libellants took direct issue upon that proposition, and
the court said, in disposing of it, that the only matter in
controversy is whether the district courts have jurisdiction in
admiralty to enforce liens for labor and materials furnished in
constructing vessels to be employed in the navigation of waters to
which the admiralty jurisdiction extends.
Neither shipbuilders nor furnishers of materials for
shipbuilding had any lien at that date under the state law, but the
court unanimously decided that the admiralty jurisdiction was
limited to contracts, claims, and services which were purely
maritime, and to such as had respect to rights and duties
appertaining to commerce and navigation. Applying that rule to the
case then under consideration the court say:
"So far from the contract being purely maritime and touching
rights and duties appertaining to navigation, it is a contract made
on land to be performed on land."
Convinced or not, every candid inquirer must admit that this
Court did decide in that case that neither a contract to build a
ship or to furnish materials for the purpose is a maritime
contract. Nor does that decision stand alone, as the same question
since that time has more than once come before the court and been
decided in the same way. Such was the view of the court in the case
of
Roach v. Chapman, [
Footnote 9] in
Page 88 U. S. 556
which the opinion of the Court was given by Mr. Justice
Grier.
Proceedings in that case had been instituted in the district
court against a steamer to enforce a lien for a part of the price
of the engine and boiler, which had been furnished to the builders
in another state, where the steamer was built. Process was served
and the claimants appeared and filed a plea to the jurisdiction of
the court, which was sustained by the circuit court, and the
libellants appealed to this Court. Able counsel appeared for
appellants, but this Court decided that a contract for building a
ship or for supplying engines, timber, or other materials for her
construction is clearly not a maritime contract, and the court
remarked that any former
dicta or decisions which seem to
favor a contrary doctrine were overruled. [
Footnote 10]
During the same session of the Court the same question was again
presented, and was again decided in the same way. [
Footnote 11]
Express reference is there made to the case of
The
Jefferson, and the remark of the Court is that the court there
decided that a contract to build a ship is not a maritime contract;
that in this country such contracts are purely local and are
governed by state laws, and should be enforced by the state
tribunals. Decisions to the same effect have been made in the
circuit courts, of which the following are examples:
Cunningham
v. Hall, [
Footnote 12]
The Orpheus. [
Footnote
13]
State legislatures have no authority to create a maritime lien,
nor can they confer any jurisdiction upon a state court to enforce
such a lien by a suit or proceeding
in rem, as practiced
in the admiralty courts. [
Footnote 14]
Other support to that proposition than the Act of Congress is
not needed, as the provision is to the effect that the district
courts shall have exclusive original cognizance of all civil causes
of admiralty and maritime jurisdiction, except
Page 88 U. S. 557
where the common law is competent to give to suitors a common
law remedy. Common law remedies are not applicable to enforce a
maritime lien by a proceeding
in rem, and consequently the
original jurisdiction to enforce such a lien by that mode of
proceeding is exclusive in the district courts. [
Footnote 15]
Taken together and properly construed those provisions warrant
the conclusion that such a party wishing to enforce such a lien may
proceed
in rem in the admiralty, or he may bring a suit
in personam in the same jurisdiction, or he may elect not
to go into admiralty at all and may resort to his common law remedy
in the state courts, or in the circuit court of the United States,
if he can make proper parties to give that court jurisdiction of
the case. But a maritime lien does not arise in a contract to build
a ship or in a contract to furnish materials for that purpose; and
in respect to such contracts it is competent for the states, under
the decisions of this Court, to create such liens as their
legislatures may deem just and expedient, not amounting to a
regulation of commerce, and to enact reasonable rules and
regulations prescribing the mode of their enforcement, if not
inconsistent with the exclusive jurisdiction of the admiralty
courts. [
Footnote 16]
Objection is also taken to the validity of the state law upon
the ground that it is in conflict with the provision of the federal
Constitution which secures to every party, where the value in
controversy exceeds twenty dollars, the right of trial by jury.
Two answers may be made to that objection, either of which is
decisive:
(1) That it does not apply to trials in the state courts.
[
Footnote 17]
(2) That no such error was assigned in
Page 88 U. S. 558
the Court of Errors, and that the question was not presented to,
nor was it decided by, the Court of Errors.
Jurisdiction is not shown unless it appears that someone of the
specified questions did arise in the state court and that the
question was decided adversely to the party assigning error in this
Court. [
Footnote 18]
Judgment affirmed with costs.
[
Footnote 1]
Nixon's Digest 576.
[
Footnote 2]
5 Vroom 96; 7
id. 449; 6
id. 265. The counsel
also exhibited a certified copy of the opinion of the court in the
cases from the proper repository.
[
Footnote 3]
See Appendix.
[
Footnote 4]
Messenger v. Mason, 10
id. 509;
Bridge Proprietors v. Hoboken
Co., 1 Wall. 16;
Furman v.
Nicholl, 8 Wall. 44;
Maxwell v.
Newbold, 18 How. 516.
[
Footnote 5]
Farney v.
Towle, 1 Black 351;
Hoyt
v. Shelden, 1 Black 521;
Railroad Co. v.
Rock, 4 Wall. 180.
[
Footnote 6]
Generes v.
Bonnemer, 7 Wall. 564;
Avendano
v. Gay, 8 Wall. 376;
Flanders v.
Tweed, 9 Wall. 431;
Hozey v.
Buchanan, 16 Pet. 215;
Albers v. Whitney,
1 Story 310;
Brush v. Robbins, 3 McLean 486;
Medford
v. Dorsey, 2 Washington's Circuit Court 433;
Kanouse v.
Martin, 15 How. 210;
Cheang-Kee v. United
States, 3 Wall. 326;
Noonan
v. Bradley, 12 Wall. 129.
[
Footnote 7]
Elliott v. Edwards, 6 Vroom 266;
Edwards v.
Elliott, 5
id. 96.
[
Footnote 8]
87 U. S. 20
How. 393.
[
Footnote 9]
63 U. S. 22 How.
129.
[
Footnote 10]
The
Jefferson, 20 How. 400.
[
Footnote 11]
Morewood v.
Enequist, 23 How. 494.
[
Footnote 12]
1 Clifford 45.
[
Footnote 13]
2
id. 35.
[
Footnote 14]
The
Belfast, 7 Wall. 644;
The Moses
Taylor, 4 Wall. 411;
Hine v.
Trevor, 4 Wall. 555.
[
Footnote 15]
Brookman v. Hamill, 43 N.Y. 554;
The
Josephine, 39
id. 19.
[
Footnote 16]
The
Belfast, 7 Wall. 645;
Sheppard v. Steele,
43 N.Y. 55;
Ferran v. Hosford, 54 Barbour 208.
[
Footnote 17]
Barron v.
Baltimore, 7 Pet. 247;
Twitchell v.
Commonwealth, 7 Wall. 326;
Livingston v.
Moore, 7 Pet. 551;
Fox v.
Ohio, 5 How. 434;
Smith v.
Maryland, 18 How. 76; Cooley on Constitutional
Limitations, 2d ed. 19.
[
Footnote 18]
Crowell v.
Randell, 10 Pet. 392;
Suydam
v. Williamson, 20 How. 440.
|88 U.S. appx|
APPENDIX
SECTION 709 of the Revised Statutes of the United States (in its
main provisions, the same as the twenty-fifth section of the
Judiciary Act of 1789 and the second section of the act of 1867,
much similar to it) being referred to in the body of this book more
than once, is here given below. The section, for convenience of
reference, is broken up by the reporter into paragraphs.
"SECTION 709. A final judgment or decree in any suit in the
highest court of a state in which a decision in the suit could be
had,"
"Where is drawn in question the validity of a treaty or statute
of or an authority exercised under the United States, and the
decision is against their validity,"
"OR where is drawn in question the validity of a statute of or
an authority exercised under any state on the ground of their being
repugnant to the Constitution, treaties, or laws of the United
States, and the decision is in favor of their validity,"
"OR where any title, right, privilege, or immunity is claimed
under the Constitution or any treaty or statute of or commission
held or authority exercised under the United States, and the
decision is against the title, right, privilege, or immunity
specially set up or claimed by either party under such
Constitution, treaty, statute, commission, or authority,"
"May be reexamined and reversed or affirmed in the Supreme Court
upon a writ of error. The writ shall have the same effect as if the
judgment or decree complained of had been rendered or passed in a
court of the United States, and the proceeding upon the reversal
shall be the same, except that the Supreme Court may, at their
discretion, proceed to a final decision of the case and award
execution or remand the same to the court from which it was so
removed."
