Графични страници
PDF файл
ePub

to sustain it, that, although the court directed the jury to find a verdict, and how to find it, it would not be a material error to the prejudice of the party cast in the suit, for which this court would be required to reverse the judgment on that account. Lea v. Hernandez, 10 Tex. 137. So, in a case like the present, the acts of negligence on the part of the plaintiff or defendant, might be of a character so extreme, and so indisputably established by uncontroverted evidence, direct and not conflicting, that, if the court departed from the prescribed rule, in telling the jury that such acts amounted to negligence, it might be that this court could determine that such a charge had not been prejudicial to the rights of the party complaining of it, which would certainly be necessary to sustain such a charge.

Chief Justice Cooley, in a very able and searching review of the cases upon the subject of contributive negligence, says that "negligence consists in a want of that reasonable care which would be exercised by a person of ordinary prudence, under all existing circumstances, in view of the probable danger of injury.

As a general rule, it can not be doubted that the question of negligence is a question of fact, and not of law." And while admitting that there are plain cases in which it has been held that the judge may rightfully instruct the jury, as matter of law, that the action can not be maintained, he says, "the case, however, must be a very clear one which would justify the court in taking upon itself this responsibility.

But while there is any uncertainty, it remains a matter of fact for the consideration of the jury." The judge, in taking this responsibility, must assume to be the judge of the proper standard of ordinary prudence, which would likely be different with different judges; and each judge would make his standard of prudence the law of the case, and thereby the law would change with a change of judges, who might be called upon to administer it.

It is only necessary to examine the numerous reported cases to see the different opinions of different judges upon the subject. In Massachusetts, for instance, it is held, as matter of law, that the attempt to get on a moving train is prima facie contributive negligence. Harvey v. E. R. Co., 116 Mass. 269. In Pennsylvania, in a similar case, where the court below charged the jury that, "if the train was distinctly running on the track when the plaintiff attempted to enter, he was guilty of negligence, and can not recover," it was held to be error, and the supreme court said," it was for the jury to say whether the danger of boarding the train, when in motion, was so apparent as to make it the duty of the passenger to desist from the attempt." Johnson v. The W. C. & P. R. R. Co., 70 Penn St. 357.

The same diversity of opinion may be found to prevail upon nearly every fact relating to the subject of negligence, in the different courts of the different states of the Union. It must be considered also, that no two cases ever came into court with exactly the same combination of circumstances, and that every new case must present some shade of difference from every other in its facts. Must we now, in the inception of our adjudications upon this subject, start out in the search through the thousands of reported cases, to find the opinions of judges as to the common and ordinary standard of prudence in reference to every act, and every combination of acts relating to negligence? or shall we follow the plain command of our own statute, by submitting to the decision of the jury, as the sole judges thereof, the fact of negligence, as well as all other facts, in every case? This question is easily answered.

By our general laws relating to railroads, eertain duties are imposed upon companies running passenger

and freight trains upon their roads, such as posting up signs where common roads cross the track, badges worn by certain officers, giving notice of time of running cars, receiving and transporting passengers and freight, when presented a reasonable time previous to starting from the stations, ringing a bell or blowing a whistle in passing roads and streets, providing brakes and careful brakemen, stopping at the stations five minutes; the breach of which duties, so prescribed, may be declared, as matter of law, to be wrongful or negligent when the acts constituting the breach of duty may affect any one injuriously. Railroad companies may also make reasonable regulations of their own, for the management and running of their trains, or they may follow general customs in such management and running, which, when established, known to, and acted on by the public, may impose upon the companies duties in reference to others, a breach of which, to their injury, might render such companies liable to damages. The facts involved in such regulations and customs, upon which duties would arise, and not being matters known to the court, would have to be proved as other facts, where a breach of such duties might become the subjectmatter of a suit for damages.

It is presumed that, in this case, the company had some regulations, or was governed uniformly by some custom in the mode of receiving passengers, and in stopping and in starting their trains in reference to that purpose. Whether it was regulated by the length of time during which the train stopped, or by ringing a bell, or by blowing a whistle, or by a vocal announcement, is not shown in the evidence. The object of ringing the bell, as spoken of by the witnesses, was not explained. Nor was it shown, whether or not it was customary for ordinarily prudent men to attempt to get upon the train while it was moving, nor under what state of circumstances it would be an act of impru dence to attempt it. With such evidence before the jury, they might have been properly able to decide the facts of negligence, both of the company and of the plaintiff, as it was certainly their province to have done in this case.

Believing the charge to have been materially erroneous, the judgment is reversed, and the cause remanded.

TONNAGE-DUTY-WHARFAGE-DUES.

NORTHWESTERN UNION PACKET CO. v. CITY OF ST. LOUIS.

United States District Court, Eastern District of Missouri, January, 1877.

Before HON. JOHN F. DILLON, Circuit Judge, and HON. SAMUEL TREAT, District Judge.

1. WHEN TAX ON TONNAGE LAWFUL.-A city can not levy a tax in the nature of a tonnage-duty upon vessels or com. merce, nor can it do so by way of discrimination. But a city, under legislative authority, or a riparian owner, can lawfully charge reasonable compensation for the use of expensive and artificial conveniences which a vessel may use at its option; there being ample space elsewhere for it to land within the harbor where no artificial or expensive improvements have been made.

2. CONSTITUTIONAL LAW-ST. LOUIS ORDINANCE.-The ordinance of the City of St. Louis prescribing certain wharf. age-dues at the improved wharves constructed by it, graduated according to the size of the vessel, to be ascertained by its tonnage, is not in conflict with the provisions of the federal constitution in respect to inter-state commerce, and the prohibition that "no state shall, without the con. sent of Congress, lay any duty of tonnage."

3. TAXES PAID UNDER PROTEST.-Taxes or dues paid under protest may be recovered back if the taxes or assessments were illegal, and the payment thereof involuntary,

མ་

Dillon, J.: "I have some doubt whether the payment of the taxes, under a mere written protest, delivered from time to time without any process being issued by the city, and where the mode of enforcing the wharfage-dues, as prescribed by the ordinance, is by action against the owner or person in charge of the boat, in which it is provided that, if convicted, the judgment shall be a fine in a sua double the amount of wharfage due the city, payment of which fine and costs shall operate as a discharge in full of the demand, is such an involuntary or compulsory payment of the taxes, as will give the party so paying the right to recover back the amount, even if the ordinance, under which the tax was demanded, is illegal."

This action against the city of St. Louis, is to recover back wharfage-dues collected by the city in 1870, 1871, and up to March, 1872, from the plaintiff's boats. The payments were made under "written protest, without waiving the right of the owners of the boats to recover the same from the city by an action at law."

D. D. Duncan and James H. Davidson, for the plaintiff; E. T. Farish, for the city.

TREAT, J.:

This case involves the right of the plaintiff to recover back money paid under protest. Within adjudicated cases, the right of action exists if the taxes or assessments were illegal, and the payment thereof was involuntary.

The main proposition, therefore, requires a determination of the question as to wharfage-tax proper,what it is and where it ends. Under the decisions of the United States Supreme Court as to tonnage duties, regard being had to dicta concerning wharfage-tax, the rules of law may be thus stated: 1st. The general power of a state to tax property must, in its exercise, impose the tax, not on the tonnage of the vessel, but on the money value of the vessel. 2d. It is beyond the power of a state or municipality, to tax a vessel foreign or domestic, for the privilege of landing or anchoring in any port, whether the tax is upon the tonnage of the vessel or otherwise. 3d. It is in the power of a municipality under legislative authority, to exact reasonable wharfage for the privilege of landing at an improved wharf, care being had to prevent the municipality from imposing tonnage or other prohibited rates or taxes, under the pretence of collecting wharfage-dues.

It is very difficult, in the light of adjudicated cases, to draw the precise line, in general terms, between the various classes. The foregoing rules must suffice for a guide.

It appears from the facts agreed, that the city claims to be proprietor of most of the river front. a part of which has been improved, graded and paved by the city, at large cost. Under the supposed authority vested in it by charter, and under ordinances pursuant thereto, it has made many regulations of a police nature, not only as to the parts of the harbor where vessels, rafts, etc., may land, but also as to the safety of the inhabitants dependent upon the character of the cargowhether explosive, dangerous, etc. It is admitted that, under said regulations, the plaintiff used the improved part of said landing, or the so-called wharf, thus artificially made and designated for specific purposes. The rates of wharfage charged were not in all cases a specific sum for a specified time, but a rate dependent on the tonnage of the vessel.

If the city had a right to charge wharfage, then the sole question is, whether it is prohibited from making its rates dependent on the tonnage of the vessel, eo nomine, instead of its length, denoting the space it would occupy, or whether the city should fix its rate of wharfage arbitrarily, upon every craft landing, irrespective of tonnage, size, &c. It would be a narrow view of the question to admit that wharfage is collect

sum

able, and to hold, at the same time, that the amount of wharfage-dues is not collectable because that amount, though reasonable, is, instead of a certain upon every craft, adjusted to the size of the craft to be ascertained by its tonnage. It may be conceded that no municipality can forbid the entry, anchoring, or landing of a vessel engaged in foreign or inter-state commerce, unless it pays a tonnage-duty for said privilege. It must also be held that, when there is ample space for landing within a harbor, outside of the improved part thereof, or wharves, if a vessel is desirous of receiving the benefit of said improvements, for the purpose of the extra facilities thereby furnished for mooring safely and conveniently, and loading and unloading cargoes, and also for the accommodation of passengers, said vessel, thus availing itself of the extra facilities, to secure which the municipality has made large expenditures, should pay therefor a reasonable compensation. The case might be very different if a city, claiming the entire river front, forbade anchoring or landing within its limits without payment of tonnage-duty. It could not stop the right to navigate and trade from port to port; but it could lawfully designate, within its police powers, at what part of the port the landing should be made. This might be as important for sanitary, as other useful purposes. To hold otherwise, would be to decide that the population of every town and city is deprived of the right of self-protection, and is absolutely at the mercy of every vessel which arbitrarily chooses to bring infectious diseases and consequent death with it.

There is a rational limit in all questions of this kind. No city, under pretence of wharfage-dues, is permitted, in order to replenish its treasury, to levy a tax in the nature of a tonnage-duty, upon vessels of commerce; nor can it do so by way of discrimination. Each city under legislative authority, or riparian owner, can lawfully charge a reasonable compensation for the use of expensive and artificial conveniences, which a vessel may use or not, at its option; there being ample space elswhere for it to land within the harbor, where no artificial or expensive improvements have been made. In such instances, there is no impediment to commerce, no tonnage or other exactions restrictive upon navigation, but merely facilities furnished, which, if used, ought to be paid for. The vessel is not bound to use such facilities; but if it does, why should it not contribute to the costs and maintenance thereof?

Although the St. Louis ordinance prescribes wharfage-dues at the improved wharves, by it constructedgraduated according to the size of the vessel, to be ascertained by its tonnage-such wharfage-dues are not tonnage-duties, within the inhibitions of the constitu

tion.

DILLON, Circuit Judge:

1. I concur in the conclusion, and mainly in the reasoning of the foregoing opinion. I have some doubt whether the payment of the taxes, under a mere written protest, delivered from time to time, without any process being issued by the city, and where the mode of enforcing the wharfage-dues, as prescribed by ordinance, is by an action against the owner or person in charge of the boat, in which it is provided that, if convicted, the judgment shall be a fine in a sum double the amount of wharfage due the city, payment of which fine, and the costs, shall operate as a discharge in full of the demand (City Harbor Ordinance, Sec. 36), is such an involuntary or compulsory payment of the taxes as will give the party so paying the right to recover back the amount, even if the ordinance, under which the tax was demanded, is illegal. But, as the counsel for the city does not press this point in the argument submitted, I pass it without decision-the more

readily, because the parties evidently desire a determination of the validity of the ordinance, and because the conclusion reached on this subject renders it unnecessary to decide, whether the payments were compulsory in such a sense as to ground the right to recover them back, if the tax was not legally demandable or enforceable by the city.

2. Part of the river bank in front of the city of St. Louis has been graded, rip-rapped, and macadamized or paved, at "an enormous expense to the city," for the purpose of affording facilities for the landing, loading and unloading of steamboats at the city. Boats landing within the harbor of the city, but away from the paved or improved wharf, are not required to pay wharfage. Ordinance, Sec. 35. But boats landing at the paved and improved wharf are required to pay wharfage-dues or tax. Section 28, of the ordinance, prescribes the time that "shall be allowed to boats to discharge and take in cargo at the paved wharf, according to their respective tonnage "-i. e., the more tonnage a vessel has, the longer the time allowed to occupy the wharf. Section 30, of the ordinance, which is attacked by the plaintiff as in conflict with the Constitution of the United States, is in these words: "There shall be collected from each and every boat, of whatever kind, except such as are hereinafter excepted, for each and every time the same shall come within the harbor of this city, and land at any wharf or landing, or be made fast thereto, or to any boat thereto fastened, or shall receive or discharge any freight or passengers in this city, five cents for each ton of said boat's burden, by custom-house measurement, as wharfage-dues; provided, that any boat making regular daily, semiweekly, tri-weekly or weekly trips, may pay wharfagedues at a different or special rate, as may be provided by this chapter."

The charter of the city authorizes it "to charge and collect wharfage and tonnage-dues," and section 30 of this ordinance is not claimed to be invalid, unless it is in conflict with the provisions of the federal constitution in respect to inter-state commerce, and the prohibition that "no state shall, without the consent of Congress, lay any duty of tonnage." It may be admitted, that the right to the free navigation of the Mississippi river is, under the provisions of the constitution relating to commerce, and the prohibition upon the states, to levy duties upon vessels as the vehicles of commercial intercourse (Steamship Co. v. Port-Wardens, 6 Wall. 34, 35), inconsistent with the right of a state to absolutely prohibit steamboats from landing at a city or port, without paying for the privilege. The ordinance of the city (Sec. 2) defines the harbor of St. Louis to extend "from the mouth of the Missouri river to the southern boundary of the city." The city has not undertaken to demand of the plaintiff' wharfage for all boats landing at any point within its corporate limits. But a city is under no legal obligation to provide, at its own expense, an improved wharf, and to allow all vessels to use the same without compensation. It may be that a city can not, even under authority from the state, compel vessels to land at its improved wharf, and levy a toll or tax therefor. No such thing has been here attempted. The case before us shows that the city has improved a wharf for the convenience of commerce. It demanded compensation from such boats as saw fit to avail themselves of the improved wharf. The plaintiff's boats voluntarily used this wharf. It is expressly admitted in the stipulated facts, "that the several sums demanded and collected by the city, are a reasonable compensation, provided the city was entitled to collect any dues from steamboats under the ordinance and laws " in that behalf. Congress has not seen proper to legislate on this subject, and the many provisions of the ordinance of the city of St. Louis

"establishing and regulating the harbor department " of the city, show the necessity for regulations in respect to the landing of boats and vessels of all kinds, and the desirableness of appropriate facilities therefor. Unless, therefore, the ordinance of the city provides for a tax, or duty on tonnage, it would seem to be free from any constitutional objection.

This requires of boats landing, or making fast to the wharf or landing, or receiving or discharging freights or passengers in the city, to pay five cents for each ton of the boat's burden, as wharfage-dues. Other sections of the ordinance show that the city does not demand wharfage-dues for landing away from the improved wharf; and it is expressly agreed in this case, that "the boats of the plaintiff only landed at the improved wharf, where accommodations existed therefor." Under the facts of this case, the words of section 30, requiring wharfage-dues from any boat which "shall receive or discharge any freight or passengers in the city," have no application, and it is not necessary to construe them in connection with other parts of the ordinance, nor to affirm their validity.

As the plaintiff voluntarily used the improved wharf for his boats, and as it is admitted that the compensation therefor prescribed in the ordinance is reasonable, I am of opinion that the ordinance is not invalid merely because it fixes and graduates the amount by reference to the tonnage, or capacity of the boat. A previous section makes the time which the paved wharf may be used by the boats depend upon their tonnage, which is obviously a reasonable provision, and by section 30 the amount of compensation is graduated in the same way. If it appeared that the city was attempting, under the cover of a wharf-tax, to levy duties on the tonnage of vessels, or to exact payment for the mere privilege of landing within the city, its pretentions could not be supported.

Upon the case before us my judgment is, that the city is not liable to pay back the money for which this action is brought.

JUDGMENT FOR DEFENDANT.

N. W. UNION PACKET CO. V. CITY OF LOUISIANA. By its charter, the city of Louisiana has power to erect public wharves and fix the rates of wharfage thereat. The rates of wharfage for steamboats and boats in tow are fixed by section 3 of an ordinance of said city of Louisiana, in relation to the wharf, etc., entitled: “An Ordinance in relation to the Wharf; regulating the dutles of City Marshal, ex-officio Wharf-Master, and prescribing and fixing the rates of Wharfage," approved February 19, 1867, as follows: "Sec. 3. There shall be charged and collected from each and every steamboat, water-craft, raft or float, landing at or touching the landing, and delivering or receiving any freight or passengers within the corporate limits of the city, the following sums as wharfage, to-wit: First-All steamboats landing and delivering, or receiving freight or passengers, shall be charged and pay, as wharfage, three dollars for each and every landing, whether ascending or descending."

The action is to recover back wharfage-tax paid in 1870; 1871 and 1872, under written protest. The plaintiff's boats used the improved wharf made by the city. If the tax is legal, it is admitted that the amount is reasonable.

Duncan & Davidson, for plaintiff; Dyer & Emmons, for the defendant.

TREAT, J:

The ordinance of the city of Louisiana covers the entire corporate limits of that city; and if the plaintiff had paid the so-called wharfage for landing when there was no artificial or improved wharf, there might be ground of complaint. But the fact is, that the plain

[blocks in formation]

1. SENTENCE WITHOUT A HEARING.-A sentence of a court, pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.

2. JURISDICTION IN REM― NOTIFICATION ESSENTIAL.— The jurisdiction acquired by the seizure of property in a proceeding in rem for its condemnation for alleged forfeiture is not to pass upon the question of forfeiture, absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges for which the forfeiture is claimed. To that end, some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential.

3. JUDGMENT AFTER APPEARANCE STRICKEN OUT, INOPERATIVE.-In proceedings before the district court in a confiscation case, monition and notice were issued and published; but the appearance of the owner, for which they called, when made, was stricken out, his right to appear being denied by the court: Held, that the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him.

4. WHEN JUDGMENTS IN REM MAY BE COLLATERALLY ASSAILED.-The doctrine that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, can not be collaterally assailed, is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.

5. JURISDICTION DEFINED.-Jurisdiction is the right to hear and determine, not to determine without hearing; and

where no appearance was allowed, there could be no hearing or opportunity of being heard, and, therefore, no exercise of jurisdiction.

IN ERROR to the Corporation Court of the City of Alexandria, State of Virginia.

Mr. Justice FIELD delivered the opinion of the court: This was an action of ejectment, to recover certain real property in the city of Alexandria, in the state of Virginia. It was brought in the corporation court of that city, and a writ of error from the court of appeals of the state to review the judgment obtained having been refused, the case was brought here directly by a writ of error from this court. Authority for this mode of procedure will be found stated in the case of Gregory v. McVeigh, 23 Wall. 294.

The plaintiff, in the corporation court, proved title in himself to the premises in controversy, and consequent right to their immediate possession, unless his lifeestate in them had been divested by a sale under a decree of condemnation rendered in March, 1864, by the District Court of the United States for the Eastern District of Virginia, upon proceedings for their confiscation. The defendant relied upon the deed to his grantor, executed by the marshal of the district upon such sale. The proceedings mentioned were instituted under the act of Congress of July 17, 1862, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes."

In July, 1863, the premises in controversy were seized by the marshal of the district, by order of the District Attorney, acting under instructions from the AttorneyGeneral. In August following, a libel of information against the property was filed in the name of the United States, setting forth that the plaintiff in this case was the owner of the property in question; that he had, since the passage of the above act, held an office of honor and trust under the government of the so-called Confederate States, and in various ways had given aid and comfort to the rebellion; that the property had been seized in pursuance of the act in compliance with instructions from the Attorney-General, and, by reason of the premises, was forfeited to the United States and should be condemned. It closed with a prayer that process of monition might issue against the owner or owners of the property and all persons interested or claiming an interest therein, warning them at some early day "to appear and answer" the libel; and as the owner of the property was a non-resident and absent, that an order of publication, in the usual form, be also made. Upon this libel the district judge ordered process of monition to issue as prayed, and designated a day and place for the trial of the cause, and that notice of the same, with the substance of the libel, should be given by publication in a newspaper of the city, and by posting at the door of the court-house. The process of monition and notice were accordingly issued and published. Both described the land and mentioned its seizure, and named the day and place fixed for the trial. The monition stated that, at the trial, all persons interested in the land, or claiming an interest, might "appear and make their allegations in that behalf." The notice warned all persons to appear at the trial "to show cause why condemnation should not be decreed, and to intervene for their interest."

The owner of the property, in response to the monition and notice, appeared by counsel and filed a claim to the property and an answer to the libel. Subsequently, on the 10th of March, 1864, the District Attorney moved that the claim and answer and the appearance of the respondent by counsel be stricken from the files, on the ground that it appeared, from his answer, that he was, at the time of filing the same, a resident

66

within the city of Richmond, within the Confederate lines, and a rebel." On the same day the motion was granted, and the claim and answer ordered to be stricken from the files. The appearance of the respondent was by his answer. The court immediately entered its sentence and decree, condemning the property as forfeited to the United States, reciting that the usual proclamation having been made, the default of all persons had been duly entered. The decree ordered the issue of a venditioni exponas for the sale of the property, returnable on the 16th day of the following April. At the sale, under this writ, the grantor of the defendant became the purchaser.

The question for determination is, whether the decree of condemnation thus rendered, without allowing the owner of the property to appear in response to the monition, interpose his claim for the property, and answer the libel, was of any validity. In other words, the question is, whether the property of the plaintiff could be forfeited by the sentence of the court in a judicial proceeding to which he was not allowed to appear and make answer to the charges against him, upon the allegation of which the forfeiture was demanded.

There were several libels of information filed against the property of the plaintiff at the same time with the one here mentioned. They were identical in their allegations, except as to the property seized; and the same motion to strike from the files the appearance, claim, and answer of the respondent, was made in each case, and on the same day, and similar orders were entered and like decrees of condemnation. One of these was brought here, and is reported in the 11th of Wallace. In delivering the unanimous opinion of this court, upon reversing the decree in the case, and referring to the order striking out the claim and answer, Mr. Justice Swayne said: "The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We can not hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice." 11 Wall .267.

The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend; for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court, pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.

That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the court has no jurisdiction, in any case, to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter. But notice is not only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, appear and you shall be heard, and when he has appeared, saying, your appearance shall not be recognized and you shall not be heard.

In the present case the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.

The law is, and always has been, that, whenever notice or citation is required, the party cited has the right to appear and be heard, and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. The period within which the appearance must be made, and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised within the period thus prescribed, the default of the party prosecuted, or possible claimants of the property, may of course be entered, and the allegations of the libel be taken as true for the purpose of the proceeding. But the denial of the right to appear and be heard at all, is a different matter altogether.

The position of the defendant's counsel is that, as the proceeding for the confiscation of the property was one in rem, the court, by seizure of the property, acquired jurisdiction to determine its liability to forfeiture, and consequently had a right to decide all questions subsequently arising in the progress of the cause; and its decree, however erroneous, can not, therefore, be collaterally assailed. In supposed support of this position, opinions of this court in several cases are cited, where similar language is used respecting the power of a court to pass upon questions arising after jurisdiction has attached. But the preliminary proposition of the counsel is not correct. The jurisdiction acquired by the court by seizure of the res, was not to condemn the property without further proceedings. The physical seizure did not of itself establish the allegations of the libel, and could not, therefore, authorize the immediate forfeiture of the property seized. A sentence rendered simply from the fact of seizure, would not be a judicial determination of the question of forfeiture, but a mere arbitrary edict of the judicial officer. The seizure in a suit in rem only brings the property seized within the custody of the court, and informs the owner of that fact. The theory of the law is, that all property is in the possession of its owner in person or by agent, and that its seizure will, therefore, operate to impart notice to him. Where notice is thus given, the owner has the right to appear and be heard respecting the charges for which the forfeiture is claimed. That right must be recognized and its exercise allowed, before the court can proceed beyond the seizure to judgment. The jurisdiction acquired by the seizure, is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested, to appear and be heard upon the charges. To this end, some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. Such notification is usually given by monition, public proclamation, or publication in some other form. The manner of the notification is immaterial, but the notification itself is indispensable.

These views find corroboration in the opinion of Mr. Justice Story, in the case of Bradstreet v. Neptune Insurance Co., 3 Sumner, 600. In that case, the action was upon a policy of insurance upon a vessel, the declaration alleging its loss by seizure of the Mexican government. The defendants admitted its seizure, but averred that it was made, and that the vessel was con

« ПредишнаНапред »