JOHNSON
v.
CHICAGO AND PACIFIC ELEVATOR COMPANY.
Supreme Court of United States.
Argued November 30, 1886. Decided December 13, 1886. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.*395 Mr. Henry W. Magee for plaintiffs in error.
Mr. Robert Rae for defendant in error submitted on his brief.
*396 MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.
It is assigned here for error (1) that the State Court had no jurisdiction to enforce a lien in rem on a vessel above 20 tons burthen, engaged in domestic commerce among the States, and duly enrolled and licensed in conformity with Title 50 of the Revised Statutes; (2) that the State statute is repugnant to the Constitution of the United States, because it purports to give *397 to a State Court admiralty jurisdiction to enforce a maritime lien in rem; (3) that judgment was given against Christy without notice to him or due process of law; (4) that Carter, a part owner of the tug, was denied a hearing.
Under the decisions of this court in The Plymouth, 3 Wall. 20, and in Ex parte Phnix Ins. Co., 118 U.S. 610, at the present term, it must be held that the cause of action in this case was not a maritime tort of which a District Court of the United States, as a court of admiralty, would have jurisdiction; and that the remedy belonged wholly to a court of common law; the substance and consummation of the wrong having taken place on land, and not on navigable water, and the cause of action not having been complete on such water. This being so, no reason exists why the remedy for the wrong should not be pursued in the State Court, according to the statutory method prescribed by the law of the State, even though that law gives a lien on the vessel. The cases in which State statutes have been held void by this court, to the extent in which they authorized suits in rem against vessels, because they gave to the State Courts admiralty jurisdiction, were only cases where the causes of action were cognizable in the admiralty. Necessarily, no other cases could be embraced. The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624.
In the present case, the suit is a suit in personam. The petition states that the plaintiff "complains of Jacob Johnson," "and makes him defendant herein;" and that the plaintiff has demanded the amount of his damage from the defendant, but the latter refuses to pay it. The petition prays that the tug may be attached and the defendant be summoned. The writ of attachment recites that the plaintiff has complained that Johnson is indebted to it in $394.38, for which it claims a lien on the tug. The writ commands the sheriff to attach the tug and to summon Johnson to appear before the court on a day named. Attachment was made of "all the right, title, and interest" of Johnson in and to the tug, and at the same time the writ was served on him by being read to him. The releasing bond executed by Johnson and Christy recites the *398 action as being one for damages alleged to be due to the plaintiff from Johnson. From the time of the issuing of the writ of restitution, on the same day the petition was filed, the tug disappears from the proceedings, the bond having taken her place. The judgment was one in personam against Johnson and Christy, as required by § 21 of the statute, in a case where the attached vessel has been discharged from custody. That section also provides that the proceedings subsequent to the judgment "shall be the same as now provided by law in personal actions in the Courts of record in this State."
So far, therefore, as this suit is concerned, the action, in the shape in which it comes before this court, is a suit in personam, with an attachment as security, the attachment being based on a lien given by the State statute, and a bond having been, by the act of the defendant, substituted for the thing attached.
In Taylor v. Carryl, 20 How. 583, this court upheld the validity of the seizure of a vessel under a process of foreign attachment issuing from a State Court of Pennsylvania, in pursuance of a statute of that State, as against a subsequent attempt to seize her under process in admiralty. In the course of the opinion of the court, delivered by Mr. Justice Campbell, it is said: "The process of foreign attachment has been for a long time in use in Pennsylvania, and its operation is well defined, by statute as well as judicial precedents... . The habit of courts of common law has been to deal with ships as personal property, subject in the main, like other personal property, to municipal authority, and liable to their remedial process of attachment and execution, and the titles to them, or contracts and torts relating to them, are cognizable in those courts."
The subsequent case of Leon v. Galceran, 11 Wall. 185, is very much like the one now before us. There, by a statute of Louisiana, a mariner had a lien or privilege on his vessel for his wages, and he brought a suit in personam therefor in a court of the State, and had the vessel sequestered. She was released on a bond given by her owner, and by Leon as surety, for the return of the vessel on final judgment. Judgment being rendered against the owner in personam, and the vessel *399 not being returned, the mariner sued the surety, on the bond, in the same court, and had judgment for the amount fixed by the original judgment. On a writ of error from this court, sued out by Leon, it was urged for him, that, under the authority of The Moses Taylor and The Hine v. Trevor, the State Court had no jurisdiction to enforce the lien by a seizure before judgment. On the other side, it was urged that the suit was a common law remedy, within the clause in § 9 of the Judiciary Act of September 24th, 1789, 1 Stat. 77, (now embodied in § 711, subdivision 3, of the Revised Statutes,) which, after granting to the District Courts of the United States "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," saves "to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." This court held, that the action in personam in the State Court was a proper one, because it was a common law remedy, which the common law was competent to give, although the State law gave a lien on the vessel in the case, similar to a lien under the maritime law, and it was made enforceable by a writ of sequestration in advance, to hold the vessel as a security to respond to a judgment, if recovered against her owner, as a defendant; that the suit was not a proceeding in rem, nor was the writ of sequestration; that the bond given on the release of the vessel became the substitute for her; that the common law is as competent as the admiralty to give a remedy in all cases where the suit is in personam against the owner of the property; and that these views were not inconsistent with any expressed in The Moses Taylor, in The Hine v. Trevor, or in The Belfast.
The case of Pennywit v. Eaton, 15 Wall. 382, is a similar one.
There being no lien on the tug, by the maritime law, for the injury on land inflicted in this case, the State could create such a lien therefor as it deemed expedient, and could enact reasonable rules for its enforcement, not amounting to a regulation of commerce. Liens under State statutes, enforceable by attachment, in suits in personam, are of every day occurrence, and may even extend to liens on vessels, when the proceedings *400 to enforce them do not amount to admiralty proceedings in rem, or otherwise conflict with the Constitution of the United States. There is no more valid objection to the attachment proceeding to enforce the lien in a suit in personam, by holding the vessel by mesne process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a common law remedy, which a court of common law is competent to give. This disposes of the objection that, the vessel being engaged in commerce among the States, and enrolled and licensed therefor, no lien on her could be enforced by attachment in the State Court. The proceeding to enforce the lien, in this case, was not such a regulation of commerce among the States as to be invalid, because an interference with the exclusive authority of Congress to regulate such commerce, any more than regulations by a State of the rates of wharfage for vessels, and of remedies to recover wharfage, not amounting to a duty of tonnage, are such an interference, because the vessels are engaged in inter-State commerce. Cannon v. New Orleans, 20 Wall. 577, 582; Packet Co. v. Catlettsburg, 105 U.S. 559; Transportation Co. v. Parkersburg, 107 U.S. 691.
Nor is the act of Illinois, so far as this case is concerned, obnoxious to the objection that it is a regulation of commerce which gives preference to the ports of Illinois over those of another State, within the inhibition of subdivision 6 of § 9 of Article 1 of the Constitution of the United States. As was said in Munn v. Illinois, 94 U.S. 113, 135, "this provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs." See, also, Morgan v. Louisiana, 118 U.S. 455, 467.
Whether proceedings under the Illinois statute, different from those had in this case, may or may not be obnoxious to some of the objections raised, is a question which must be left to be determined when it properly arises.
As to the objection made by Christy to the judgment against him, the Supreme Court of Illinois overruled it on the *401 ground that, as the bond was given with the statute existing, the statute formed part of the bond, and the surety virtually consented that judgment might go against him on the bond, under § 21, if the plaintiff should be entitled to judgment against Johnson, citing Whitehurst v. Coleen, 53 Ill. 247, and Hennies v. The People, 70 Ill. 100. This was a correct ruling. Beall v. New Mexico, 16 Wall. 535; Moore v. Huntington, 17 Wall. 417, 422.
As to the objection made by Carter, that he was denied a hearing, the Supreme Court of Illinois overruled it on the ground that, on the giving of the release bond, the tug was discharged from the lien unless ordered again into custody, and the subsequent judgment could only be against Johnson and Christy, in personam. This was a sound view.
Judgment affirmed.