Opinion
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Appeal from the District Court of the Seventh Judicial District, County of Solano.
This was an action to recover damages for the malperformance of a contract to transport Mrs. Warner and infant child from San Francisco, via San Juan del Sur, to the city of New York.
The complaint alleges a contract on the part of the agents of defendant to convey plaintiff Anne Warner, and her infant child, from San Francisco, in California, via San Juan, in Nicaragua, to New York, in consideration of certain money paid by plaintiff. That, pursuant to the terms of the contract, plaintiff Anne embarked on board of defendant at San Francisco; but that defendant, instead of proceeding to San Juan, did, on account of some private quarrel of defendant's owners with the authorities of Nicaragua, proceed to the port of Panama, in New Grenada, where, by false representation, plaintiff was induced to disembark and proceed to Aspinwall for the purpose of taking passage on a steamer which the agents of defendant falsely represented to have been at that place for the purpose of transporting the defendant's passengers to New York; that plaintiff was detained some two weeks in New Grenada by the acts of the defendant's agents, and put to great trouble and inconvenience, and suffering, by sickness, caused by the unwholesome climate.
Defendant demurred to the complaint for the reasons:
1. That the complaint did not state a cause of action.
2. That there was a misjoinder of parties plaintiff, the wife being improperly joined in the action.
3. That the Court had no jurisdiction of the subject-matter or of the defendant.
The demurrer was sustained in the Court below, and the defendant had judgment. Plaintiffs appealed.
COUNSEL:
1. The wife was improperly joined as a party plaintiff.
" In general, the wife cannot join in an action upon a contract made during the marriage, as for her work and labor, goods sold, or money lent by her during that time; for the husband is entitled to her earnings, and they shall not survive to her, but go to the personal representatives of the husband, and she could have no property in the money lent, or the goods sold." (1 Chitty's Pl. 29; Thorne v. Dillingham , 1 Denio, 254.)
Tothis rule there are exceptions; but this case does not fall within the exceptions.
But in all cases where the wife is a proper party the complaint must distinctly state the particular cause for making her a party, for it will not be presumed that any such cause exists. (See cases cited in Thorne v. Dillingham, supra .)
In this case, the consideration for the alleged promise moved from the husband, and the damages for any breach of the promise go to him.
2. No cause of action is stated in the complaint against the defendant, the steamship Uncle Sam.
As before stated, the contract declared on is a contract on the part of the owners, etc., of the Uncle Sam, to transport the plaintiff, Anne, from San Francisco to New York, via Nicaragua.
The action is brought under the statute providing for actions against steamers, vessels and boats. (Prac. Act., Ch. 6, Sec. 317.)
The clear and obvious meaning of this statute is that a vessel shall be liable for the breach of a contract by the owners or agents quoad such vessel. In other words, a contract of the agent or owner, for a service to be performed by the vessel, is deemed to be the contract of the vessel, and for a failure of the vessel to perform a service which her owners have undertaken she shall perform, the vessel is made liable in specie.
The vessel, in effect, is hypothecated for the performance of her engagements, and a lien is given for any damages resulting from a failure of performance, enforceable by action against the vessel in rem .
It is not necessary to consider whether an action could be maintained against this steamer for a failure to perform a voyage to San Juan, which her owners had undertaken she should perform, for the reason that the complaint makes no such case.
Both the contract set forth, and the breaches alleged, relate to the entire passage from San Francisco to New York, and damages are claimed for a violation of the entire agreement.
To narrow the case down to an action against the Uncle Sam, for a failure to perform the voyage to which she was pledged, would be to strike out the greater portion of the complaint.
For the above reasons the judgment should be affirmed.
3. But the case presents another question of more than ordinary importance, i. e., whether a State Court can entertain jurisdiction in rem against aforeign vessel navigating the high seas.
It is not denied by the counsel for the appellants that to maintain this jurisdiction is to decide that the State Courts may be vested with " original cognizance of civil causes of admiralty and maritime jurisdiction," and as a consequence, that the ninth section of the Judiciary Act of 1789 is unconstitutional and void.
From the time of the passage of that Act until the decision of the case of Taylor v. The Steamer Columbia, by our Supreme Court (5 Cal. 268), a period of sixty-five years, the exclusive jurisdiction of the Courts of the United States in admiralty and maritime causes was never disputed by any State Court. In that case, for the first time, admiralty jurisdiction in the State Courts is broadly asserted and positively maintained.
In the opinion of the Court, by Mr. Justice Heydenfeldt, reference is made to the opinion in the case of Gordon v. Johnson (4 Cal. 368), delivered by the same learned Judge, as containing the reasons, at length, upon which the decision is based, and as establishing what is termed a " point of departure," which brought the Court to the conclusion to assert a concurrent jurisdiction withthe Federal Courts.
This case, if it is to be regarded as of binding authority by this Court, unquestionably does determine that State Courts may be vested with admiralty jurisdiction. But we insist that this decision ought not to be adhered to.
We admit that a solemn decision upon an important question of law by the highest Court of the State should not be lightly disturbed, and not at all, except for the clearest reasons.
The Court, in Johnson v. Gordon, determines that the twelfth section of the Judiciary Act of 1789, authorizing the removal of certain causes from the State Courts to the Courts of the United States, and also the twenty-fifth section, authorizing an appeal or writ of error from the highest State Courts to the Supreme Court of the United States, are unconstitutional and void. The principle there maintained was, that in all cases in which jurisdiction is vested by the Constitution in the Courts of the United States, the State Courts have an equal and concurrent jurisdiction. It is proper to observe, however, that what is said in the opinion in that case upon the right to a writ of error under the twenty-fifth section of the Judiciary Act was mere obiter dicta .
There was no case before the Court calling for a decision upon that question.
On the 9th of April, 1855, an Act was passed by nearly a unanimous vote of both branches of the Legislature, for the purpose of enforcing compliance with those sections of the Judiciary Act which the Supreme Court had declared unconstitutional, and declaring it a misdemeanor for any Judge or clerk to act in contravention of them, and subjecting the offender to impeachment. (Stat. of 1855, 80.)
Any weight which might be attached to the case, therefore, as a legal decision, is entirely removed by this Act of the Legislature, and it ought not to be regarded as of any authority whatever, unless it is supported by a weight of reasoning the most persuasive and unanswerable.
If, then, we are permitted to go behind that case, and appeal to the authority of previously adjudged cases, it would seem that this question had been settled by a weight of great names, reasoning, and legal decisions, that can rarely be found concurring upon any question that had ever been open for controversy.
The question as to the constitutionality of the twenty-fifth section of the Judiciary Actcame before the Supreme Court of the United States in 1816, in the case of Martin v. Hunter's Lessees (1 Wheat. 304).
The Court of Appeals of the State of Virginia refused to obey a mandate of the Supreme Court of the United States. The judgment of the Court of Appeals rendered on the mandate was as follows:
" The Court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this Court under a sound construction of the Constitution of the United States.
" That so much of the twenty-fifth section of the Act of Congress to establish the Judicial Courts of the United States as extends the appellate jurisdiction of the Supreme Court to this Court is not in pursuance of the Constitution of the United States.
" That the writ of error in this cause was improvidently allowed under that act.
" That the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that obedience to its mandate be declined by the Court."
This judgment was carried by writ of error to the Supreme Court of the United States, where the constitutionality of the act in question was fully consideredand maintained without a dissenting voice.
From the time Martin v. Hunter's Lessees was decided till 1821, the question remained undisturbed, when it was again brought forward in the Supreme Court of the United States, in the case of Cohen v. State of Virginia, though in a less objectionable form than in the former case. The whole doctrine was reexamined on a motion to dismiss the writ of error, Chief Justice Marshall delivering the opinion of the Court, and the right of the Supreme Court to review the decision of a State Court was again affirmed by a unanimous judgment. (Cohen v. Virginia, 6 Wheat. 264.)
It would seem that these two decisions of the highest Court in the nation, made after full argument, ought to have put the question forever at rest. And so it has been considered for thirty-five years, when the question is again mooted, and these solemn decisions overturned in the case of Johnson v. Gordon .
I do not deem it necessary to cite the numerous cases in the Supreme Court of the United States, decided subsequent to the two decisions referred to, since it is not denied that these decisions have been uniformly followed, and that a large portionof the cases constantly before that Court are brought from the State Courts, and form an important branch of its actual jurisdiction.
A case recently decided in Ohio was referred to by the appellant's counsel, in which the same doctrines are maintained as in Johnson v. Gordon .
But when it is borne in mind that that State, for several years past, has been arrayed in hostility to the Federal government; that this hostility has exhibited itself in the legislative, the judicial, and the executive departments of that State; that actual resistance to Federal authority on the part of the people is of common occurrence, and is sanctioned and encouraged by legislative enactment, and justified by judicial decision, it will readily be understood that the decision referred to is a part of a general system of resistance to the Constitution and laws of the United States which has already led to the verge of civil war.
But if this Court is not prepared to overrule the case of Johnson v. Gordon, still we maintain that it does not follow that the decision in the case of Taylor v. The Columbia can be supported. The two cases are not at all parallel, and are not supported bythe same line of argument.
The former case was the revival of an old political controversy, not in regard to the jurisdiction of the State Courts, but in relation to the independence of the State Courts.
The case of Cohen v. Virginia was argued on the part of the State of Virginia by Mr. Barbour and Mr. Smith, than whom no more eminent names were known at the bar, and both disciples of what was termed the extreme State Rights school. It will not be pretended that they yielded to Congress or to the Federal Judiciary the right to exercise any powers which offered the least room for contest; and while much is said in their arguments in regard to concurrent jurisdiction, yet the whole contest was, to shake off the appellate authority of the Supreme Court of the United States over the State Courts, by which the State Courts were rendered inferior, and, as was urged, were consequently humiliated.
The ninth section of the Judiciary Act declares, that " the District Courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction." Saving to suitors in all cases the right ofa common-law remedy wh ere the common law is competent togive it.
The question is, whether this section of the Judiciary Act is constitutional?
The acquiescence in the constitutionality of this section of the Judiciary Act has been even more uniform and universal than that under the twelfth and twenty-fifth sections, and for the reason that there is less room for questioning it.
In the case of Martin v. Hunter's Lessees, the Court of Appeals in Virginia did not deny that the jurisdiction of the Courts of the United States was or might be made by Congress, exclusive of the State Courts. It simply denied the constitutionality of the particular mode in which jurisdiction was exercised in that case--namely, by writ of error to a State Court, which was deemed degrading to the State Court.
The argument was, and it was admitted by Judge Story not to be without force, " that the Constitution was imperative upon Congress to vest all the judicial power of the United States in the shape of original jurisdiction in the Supreme and inferior Courts created under its own authority; " and in the case of Cohen v. Virginia, one of the counsel for the State, while he did not concede in terms the proposition as broad as above stated, yet enumerated cases of admiralty and maritime jurisdiction as necessarily within the exclusive cognizance of the Federal Courts.
And Mr. Justice Johnson, in Martin v. Hunter's Lessees (1 Wheat. 372), says that: " The real question is whether the State tribunals can constitutionally exercise jurisdiction in any of the cases to which the judicial power of the United States extends."
" With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the States could resume it, if the United States should abolish the Courts vested with that jurisdiction."
These views are entitled to the more weight as emanating from a judge whose political opinions, like those of the counsel in Cohen v. Virginia, were known to be of the strict State Rights school.
In 2 Story's Commentaries on the Constitution, it is said (Sec. 1672) that " the admiralty jurisdiction naturally connects itself on the one hand with our diplomatic relations, and the duties to foreign nations and their subjects, and on the other hand, with the great interest of navigation and commerce, foreign and domestic; there is, then, a peculiar wisdom in giving to the national governmenta jurisdiction of this sort which cannot be yielded, except for the general good, and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home."
This exclusive jurisdiction is affirmed by the Courts of the United States in the following cases: Slocum v. Mayberry, 2 Wheat. 9; Gelston v. Hoyt, 3 Wheat. 246; The Barque Chusan, 2 Story, 455; Waring v. Clark, 5 How. 461. And a recent case in the District Court of Missouri, reported in the January number of the American Law Register, which will be presently more fully referred to.
There was no claim on the part of the appellant's counsel to uphold jurisdiction in the case at bar under the exception in the statute which gave to the suitor a common-law remedy when the common law is competent to give it. The learned counsel, in his argument, as in his opinion in Taylor v. The Columbia, manifested no inclination to shrink from the responsibility of directly assailing the validity of the Judiciary Act, and asserting a broad admiralty jurisdiction.
It is proper, however, to consider what that common-law remedy is which is saved, not given, and whether it embraces this case?
At the time of the adoption of the Constitution, and the passage of the Judiciary Act, the admiralty jurisdiction was not clearly defined, and there was much conflict of opinion concerning its extent. There was a class of cases in which the admiralty in England sometimes claimed and exercised jurisdiction in personam, in which an action of trespass, case, or assumpsit, was maintainable at common law. And the Common Law Courts frequently interfered by writ of prohibition, to restrain the Courts of Admiralty from taking cognizance of such cases.
This controversy has been revived in this country, and perhaps can not yet be regarded as entirely settled, although it has been determined that Courts of Admiralty are not confined to the narrow limits to which they were restricted in England by the jealousy of the Common Law Courts. (De Lovio v. Boit, 2 Gall. 470.)
Congress, in framing the Judiciary Act, while it did not attempt to define the extent or limits of admiralty jurisdiction--leaving that question for the decision of the Courts under the general principles of maritime law--was careful to leave in the CommonLaw Courts all the jurisdiction that they had theretofore exercised.
To this no reasonable objection could be foreseen, since from the organization and construction of the Common Law Courts as Common Law Courts, it was not possible for them to extend their jurisdiction to cases which had been theretofore within the acknowledged exclusive jurisdiction of Courts of Admiralty in England. Hence, the Common Law Courts, by the exception in the ninth section of the Judiciary Act, retain the same common-law jurisdiction over the class of cases above referred to, which they possessed at the time the Constitution was adopted. (1 Kent Com. 377, note.)
But the causes of admiralty and maritime jurisdiction which had theretofore never been entertained by the Courts of Common Law, but had been taken cognizance of exclusively by the Courts of Admiralty, were committed exclusively to the Federal Courts; and the constitutionality of this exclusive jurisdiction was not questioned even by Mr. Justice Johnson, in an opinion in which he exhibits no little jealousy of the jurisdiction of Courts of Admiralty. He says, " I think it high time to check this silent and stealing progress of the admiraltyin acquiring jurisdiction to which it has no pretensions." (Ramsey v. Allegre, 12 Wheat. 611.)
It must be borne in mind that the question in this case is not, however, whether the Courts of Admiralty have grasped at too much jurisdiction, but whether a Court of Common Law can assume new jurisdiction heretofore only entertained in the admiralty.
On this point of a common-law remedy, we are saved much labor by the very elaborate examination of the question in the case of Ashbrook v. The Golden Gate, by the Judge of the U.S. District Court for the District of Missouri, above cited. (Jan. T., Am. L. Reg. 148.)
In the case at bar, the steamer Uncle Sam is confessedly a vessel navigating the high seas, and owned out of this State, and hence, a foreign vessel.
She is proceeded against in rem, not by common law action, but under a statute which purports to give this special remedy, unknown to the common law. Any judgment that may be recovered is intended to operate directly on the vessel. She must be sold to satisfy it.
The appellant's counsel was quite right in conceding that it was, to all intents and purposes, an admiralty proceeding. So the case of Averill v. The Steamer Hartford, decides (2 Cal. 308), and so the case of Taylor v. The Columbia reiterates. He contends that all this follows the first " departure," in Johnson v. Gordon .
The " departure" declared the twelfth and twenty-fifth sections of the Judiciary Act unconstitutional. The second departure, Averill v. The Steamer Hartford, supra, vested the State Courts with admiralty jurisdiction pro tanto; and the third " departure" declares the ninth section of the Judiciary Act also unconstitutional, and vests the State Courts with full admiralty jurisdiction, not pro tanto but in toto .
What is to be the effect of holding to this jurisdiction? However important the questions involved in Hunter v. Martin's Lessees, and Cohen v. Virginia, it has fortunately happened that very little practical evil has resulted, or is likely to result, from them. But on this question of conflict concerning admiralty jurisdiction, the mischievous consequences are immediate and inevitable.
In attempting to seize vessels under State and Federal process, collisions must frequently occur between marshals, sheriffs and constables. Where is the conflictto end? Neither Court could claim a victory in such a contest, where the inevitable consequences must be to degrade both.
It is not too late to retire from a controversy which we submit was most needlessly commenced, and return to the " point of departure."
Whatever doubts were once supposed to exist as to the wisdom of entrusting to the Supreme Court of the United States the interpretation of the Constitution and the construction of laws passed under it, the experience of sixty-seven years has served to dispel them. The wisdom, learning, integrity, independence, and firmness which has so eminently characterized that bench, have won for the Court the confidence of the whole nation.
In times of the highest political excitement, the people look to it as the only hope of safety, and private opinion is ever ready to yield to its judicial determinations.
The continuance of its usefulness must mainly depend upon the respect with which its decisions are received by the State Courts.
Jo. G. Baldwin, for Appellant.
No brief on file.
Janes, Lake & Boyd, for Respondent.
Jo. G. Baldwin, in reply to Respondent's argument.
I differ from the learned counsel upon two points: 1. The construction of the act. 2. The matter of exclusive jurisdiction ofthe Federal Courts, and, therefore, of the constitutionality of the State law.
The counsel think it clear that the vessel, under this law, can only be answerable for the part of the contract to be performed by the vessel, for this is the plain English of the proposition. But this, we submit, can not be; for that would be to say the vessel, in such a case as this, could not be made responsible at all, since a contract is an entire thing, not divisible or capable of being divided. There can be no enforcement of a portion of a contract. The vessel must be bound for the whole contract, or none. It is true that the vessel was not to complete the whole transportation of the passengers. But the agents undertook to transport them by means of this vessel and others; the vessels were the mere vehicles by which the contract was to be performed; and each of these vessels is responsible for this duty. This answers as well the necessities of the case as the language of the law: " All vessels shall be liable for non-performance or mal-performance of any contract for the transportation of persons or property made by their respective owners, masters, agents, or consignees."
These words certainlydo not limit the responsibility of a vessel doing the entire work of transportation when it is considered that the greater portion of contracts of this sort was made by steamers plying between San Francisco and the Central American ports, no one vessel performing more than a part of the service of transportation to the Atlantic ports. This construction may readily be presumed to have been within the view of the Legislature. Nor is there anything unreasonable in this; especially when the vessel sought to be made liable belongs to the same company that made the contract. The company is unquestionably responsible for the violation of the contract; and I know of no rule which forbids a plaintiff, if the Legislature chooses so to direct, from serving process on the servant or agent of a company, or attaching its property, to answer for a violation of its contracts, any more than by proceeding against it to judgment, by publication.
I shall as briefly as possible proceed to argue the question of jurisdiction. It is admitted that this very question has been heretofore decided by the Supreme Court.
That decision is assailed. Since that decision, many cases have been brought in the State Courts, and rights vested under them; and so the evils of disturbing rights which the doctrine of stare dicisis deprecates are involved in the reversal. Besides, the jurisdiction of the State Courts over these matters is, particularly at this time, very important; the delay and expenses of the Federal Courts, especially when great monopolies are concerned, able to carry cases to the Supreme Court of the United States, make litigation in those forums almost a denial of justice. It seems to me, therefore, that this Court would at least wait for an authoritative decision of the Supreme Court of the United States before it declared the act of the State Legislature unconstitutional, and reversed its own decision upon so important a matter to its citizens, even were there a clearer exposition of the soundness of the counsel's propositions than appears.
In the first place it may be remarked that the contract of transportation made by the company might be enforced at the common law, for all we can see, like any other contract of a common carrier. We do not see, nor is it contended to the contrary, that the company might not have been sued ex directo in the Courts of Californiafor a violation of its contract to convey freight or passengers, the contract being made in this State. The general power exists in the State Legislatures--authority to prescribe the remedy for contracts; nor is it easy, within certain obvious restrictions, to impose limits on this power. It is not perceived why a contractor shall be by name made defendant, if he is authorized to come in to defend, and has notice to defend--the law fixing what that notice shall be. If the action of replevin were an action by the owner or deplisa against the thing deferced, with notice to the deficar, or his bailee, it is not seen why this would not be as good a suit at law as any other. True, there must be parties, but those parties may be made indirectly as well as directly, in one form or another--at one time as well as another. The mere title of the suit is nothing; the real controversy is a suit between persons waiving their claims to property or money; nor is the fact that the Legislature adopts the forms of Courts of admiralty important. It may mold the proceedings to suit itself after any old system of practice, or make a new one. Attachments are held to be proceedings in rem, to salesof estates of decedents and for forfeitures, etc. And these partake in some degree of the admiralty system. Nor does the fact that a lien is given on the property, invalidate the law or the proceedings. The Legislature may make a suit a lien if it chooses, as it does in some State cases, just as well as a judgment. If, therefore, the State has jurisdiction, legislative and judicial, over contracts and remedies, and these relate to a contract to be performed on the water or elsewhere, as well as here, or partly performed here and partly elsewhere; and if they may mold these remedies to suit themselves, it follows that a law authorizing a vessel to be sued on notice to the owner or his bailee, will be within the competency of the Legislature. The right of a State to create a lien on vessels has not, we believe, been denied; the right has been often exercised; the question has been whether the United States Courts would enforce the lien beyond the State jurisdiction.
We understand the learned counsel to contend that the claim is within the admiralty jurisdiction of the United States, therefore, that jurisdiction is exclusive. This we deny; the second article of the Constitution providesthat the judicial power shall extend to all cases of admiralty and maritime jurisdiction; also, between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects.
And yet, in every one of these cases, without exception, the jurisdiction of the United States Courts has been held not to exclude that of the State Courts, with the single exception of the admiralty and maritime jurisdiction, if that be an exception. How is this? How does it happen that the same words, applied to one class of cases, do not apply to another? It will not do to say that the United States permits the State to entertain jurisdiction in these other cases, for, if the Constitution excludes it, Congress could not permit it. Indeed, the Act of 1789, authorizing the removal of cases from the State Courts, implies the jurisdiction of the State Courts, with a mere right to have a trial in the Federal Court; for, if the State Court had no jurisdiction, its proceedings would be void, but, so far as they go, they are held valid. We say, therefore, that if the Act of Congress be, as it ought to be, construed by the counsel, it is unconstitutional in this: that it gives an exclusive jurisdiction to the Federal Courts, of that which is equally within the cognizance of the State Courts. But is it to be construed so? When the act in the ninth section speaks of the exclusive original jurisdiction of the District Courts, does the word " exclusive" refer to other Courts of the United States, or does it refer to the State Courts? Is it not a mere term of definition of the powers of the different Courts of the United States? But, if we are wrong as to this, then we say this case is within the saving clause of the Act of 1789.
That Act saves from the " exclusive operation of the Act," in all cases, the right of a common-law remedy, when the common law is competent to give it. The origin of and the necessity for this proviso, are well explained in the case of Cashmen v. De Woolf, in 2 Sand. 388. The Court say: " The Constitution authorizes Congress to create inferior Courts, and confer on them admiralty jurisdiction. Until Congress exercised the authority, there was no interference with the State Courts, and wherethe United States District Courts were created, and their cognizance defined, their jurisdiction became exclusive only so far as it was made exclusive by the Act of Congress. In all other cases where the Courts of Common Law provided an adequate remedy before, it seems to be plain that the Judiciary Act at most gave only a concurrent remedy to the admiralty.
Now, it is perfectly clear that the common law in this case did provide an adequate remedy before suit might have been brought upon the contract of transportation.
Therefore, the jurisdiction over the subject was not taken away from the State Courts. They had it before; they have it now. This is all we want. As to the mode in which the State Courts shall exercise their jurisdiction, as we argued before, this is wholly unimportant. We are discussing a question of jurisdiction, not a question of practice.
The Constitution and the Acts of Congress deal with things, not forms. The object, evidently, was to give to the Courts of the United States only such exclusive jurisdiction, of admiralty or maritime matters, as was denied by the English to the Common Law Courts. When the Common Law Courts had jurisdiction before, they were to retain it. They had jurisdiction before of just such cases as this. The case in 2 Sandford was an equity case, a case of salvage, too, not a case having a common-law remedy at all, but it fell within the principle just announced. The word " remedy" is not to be taken, as Judge Lake supposes, in its technical sense, as contradistinguished from right. It means merely a legal cause of action, for it would be absurd to suppose that Congress intended to make jurisdiction dependent upon a mere process of practice; if so, Louisiana could never have obtained the benefit of it at all, as she had no common-law remedies. The sense of the thing is simply this: when, at common law, an action laid there, admiralty questions were concurrent in the United States and the Common Law Courts; when it did not lie, the jurisdiction (as in prize cases), was exclusive in the Admiralty Courts, then the Admiralty or United States Courts had exclusive jurisdiction.
The Court is invited particularly to examine the case in Sandford, and the argument of D. Lord, in illustration of this view of the subject. (See, also, 16 Johns. 328; 18 Johns. 291; 6 How. 389; 15 Irvin, 173; 1 Baldwin C. C. 544; Gilpin, 191; 10 Wheat. 428; 2 Gall. 307; 2 Story, 455; Ware, 91.)
If this principle be established, it follows conclusively that this State has a right to its jurisdiction over this subject; that this being so, it could have exercised it by proceeding in rem or personam, in admiralty form, or civil law form, or any other form it chose; it was a common-law right, and the mere process of working out that right is wholly unimportant, so far as the question of jurisdiction is concerned.
I have seen no case which maintains the exclusive jurisdiction of the United States Courts. Those cited by the respondent do not, according to my reading of them.
The contest among the Federal Judges seems to have been not as to the exclusive jurisdiction of the United States Courts in admiralty cases, but as to the fact of that jurisdiction in particular cases. Story and Wayne, taking extreme Federal ground, and Baldwin, Daniel, Woodbury, and others, opposing, this contest seems to be still going on. (See 17 and 18 Howard, or refer the Court to the able and learned opinion of Judge Woodbury, in 6 Howard.) The feeling has been general in the State Courts, and with the ablest membersof the Supreme bench of the United States, that the Federal Courts have stretched the jurisdiction in admiralty to the point of usurpation; and we do not think this Court will be disposed to carry it further than they have gone. 2 Wheat., 3 H., 2 Story, 5 How., it is submitted, do not establish the doctrine of exclusive jurisdiction.
The decision of the District Judge of Mississippi is no authority, and is opposed by the case in 2 Sand. The reasoning is too narrow and technical.
It is submitted that, as an original question, the doctrine of Gordon v. Johnson is correct, that to " extend jurisdiction" to the Federal Courts is not to exclude a pre-existing jurisdiction; that, therefore, the latter jurisdiction is concurrent with the former; that it is a rule of concurrent jurisdiction; that the forums of each are equal in power, and this is the rule of sovereignty. Hence, the Courts of the United States could not take jurisdiction away from the State Courts. In a particular class of cases it has been held that the doctrine is not sound, but it has not been so held by the Supreme Court of the United States in this class of cases. Even if this Court holds itself bound by thedecisions of the Supreme Court, so far as they have gone, it does not follow that it will go any further. If they follow the Supreme Court, it is because of the authority--not of conviction, if this Court agrees with us in this respect.
But we think, independently of this view, that the law of the State Legislature is constitutional, because, mainly, the right to sue was a common-law right, and the Act a mere change of remedy, which it was always competent for the Legislature to make. To hold otherwise would be to hold that every change, or any change of remedy, ousted jurisdiction.
JUDGES: Burnett, J. Terry, C. J. Field, J., dissenting.
OPINION
BURNETT; TERRY, Judge
Burnett, J., on petition for a rehearing:
The learned counsel for the defendant, in his petition for a rehearing, has suggested some difficulties, which it is proper to notice. It is insisted, that the whole course of reasoning of my former opinion tends to the conclusion that the original jurisdiction of the District Courts of the United States, in civil admiralty cases, is exclusive.
It may be true, and, for the sake of the argument only, we will concede the fact, that, under the Constitution of the United States, and the Judiciary Act of 1789, an appeal from this Court to the Supreme Court of the United States, will only involve the question of jurisdiction, and not the merits of the decision under the Admiralty Code. But this in no way impairs the reasons given, or the grounds upon which the opinion was based.
When the Constitution extended the judicial power of the United States " to all cases of admiralty and maritime jurisdiction," it made the Maritime Code the law of the nation. As such, it is not in the power of a State to change it. If changed, it must be done by the National Legislature. The provision, that the judicial power shall extend to all such cases, is fully satisfied when the appellate power is extended to them. (Kent, 318, 320.)
In the case of Wiscart v. Dauchey (3 Dallas, 321), it was held that only appellate jurisdiction is given to the Supreme Court in those cases where the jurisdiction depends upon the nature of the subject-matter; and " even this appellate jurisdiction is likewise qualified; inasmuch as it is given, with such exceptions and under such regulations as Congress shall make." " Here, then," continues the Chief Justice, " is the ground and the only ground on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we can not exercise an appellate jurisdiction; and, if the rule is provided, we can not depart from it." This view was confirmed by the subsequent cases of Clark v. Bazadoni (1 Cranch, 77), The United States v. More (3 Cranch, 159), and Durousseau v. The United States (6 Cranch, 307).
The failure of Congress to provide for an appeal from the State tribunals, in civil admiralty cases, cannot affect the question as to their concurrent original jurisdiction, under the Constitution of the United States. If this concurrent original jurisdiction exists, then the right of appeal depends upon the pleasure of Congress.
As to another point, involving a question of practice, it is proper to give the reasons which induced me to concur in deciding the point against the defendant.
I concur with my brother Field, that " the contract was the substantive cause of action, and the injuries received were alleged by way of special damage." But I do not concur with him in the conclusion he draws.
It is true, that the husband and wife were nominally joined as plaintiffs; but the cause of action, as distinctly set forth in the complaint, was a contract only between Warner and the owners of defendant. The name of Mrs. Warner was, therefore, mere surplusage, and not a defect of parties under the fortieth section of the Code, and might have been stricken out on motion, if desired. (1 Ch. Plead. 14, note 10; Code, Sec. 69.) Had final judgment been rendered for plaintiffs, it would have been a good bar to a subsequent suit by Warner alone, upon the same cause of action. All the parties to be affected by the decision were before the Court. Where A. and B. sue upon a joint cause of action, they must prove the joint cause, as alleged. When one plaintiff only sues, and alleges a joint cause of action, the defendant may demur, for the reason that one of the parties interested in the subject of the suit is not before the Court, and may not be bound by the decision. There are the best reasons why a defendant may demur for a defect of parties, plaintiff or defendant. This right to demur was given, to enable the defendant to have all the parties before the Court, as provided in section seventeenth of the Code.
DISSENT:
FIELD
Field, J. The objections raised by the demurrer go to the parties plaintiff, and to the jurisdiction of the Court.
As to the first objection, I can not concur with my associates. The action is confessedly based upon the provision of the statute which renders steamers liable for the non-performance of any contract for the transportation of persons or property, made by their owners, masters, agents, or consignees. The contract is the substantive cause of action, and the injuries received are alleged by way of special damage. The wife was, therefore, improperly joined as a party plaintiff, and the demurrer for the misjoinder is, in my judgment, well taken.
By the second objection, the constitutionality of the Act of the Legislature is drawn in question. It is contended that the Act confers upon the State Courts a jurisdiction in conflict with the admiralty and maritime jurisdiction of the Federal Courts, and that the latter is exclusive. On this point, I concur in the views of the Chief Justice; and until the question of exclusive jurisdiction in the Federal Courts is directly passed upon by the Supreme Court of the United States, and the jurisdiction to the exclusion of all cognizance by the State Courts is affirmed, I think we should hesitate to declare the Act of the Legislature unconstitutional, and reverse the former deliberate judgment of this Court.