Campbell v. Sherman

35 Wis. 103 | Wis. | 1874

Cole, J.

The able and ingenious counsel for the defendant did not seriously contend that ch. 184, Laws of 1869, so far as it attempted to authorize a proceeding in rem against a vessel for the enforcement of a maritime contract, could be sustained as a valid enactment. The decisions of the supreme court of the United States are too clear and emphatic upon that question to allow any discussion, unless their binding authority is denied — a position' not assumed in the argument. See The Moses Taylor, 4 Wallace, 411; Hine v. Trevor, id., 555; The Belfast, 7 id., 624; The Bagle, 8 id., 15. Also see decisions in the state courts in the following cases: In re Steamboat Josephine, 39 N. Y., 19; Brookman v. Hamill, 43 id., 554; Vose v. Cockroft, 44 id., 415; The Steamboat General Buell v. Long, 18 Ohio St., 521; Thorsen v. The Schooner J. B. Martin, 26 Wis., 488. In view of these various adjudications, it is idle to argue in favor of the proposition that the state legislature has authority to create maritime liens, or the -power to confer upon a state court jurisdiction to enforce such a lien by a proceeding in rem against the vessel according to the practice in admiralty. That a proceeding against a .vessel to enforce a contract for pilot's wages is a subject®! admiralty jurisdiction, and partakes of all the incidents of a suit in admiralty, is equally well settled. It therefore results from these propositions of law, that the circuit court which issued the warrant commanding the sheriff to seize and safely keep the steamer Ida Campbell to answer any lien which should be established against the boat in favor of the plaintiff in that action for pilot’s wages, had no jurisdiction of the cause, and its process was void. It gives no strength to the position of defendant’s counsel, nor does it aid the discussion, to say that the circuit court is a court of general jurisdiction, when it is conceded that it had no jurisdiction over a proceeding exclusively vested in the courts of the United States. Eor as to the subject matter of such a suit, it had no jurisdiction whatever, and the act of the legislature clothed the court with no power (to try and determine it. The party might, of course, have brought his action in the circuit court to enforce a common law remedy; but when he resorted to it to enforce a maritime lien by a proceeding in rem, the court had no jurisdiction of the cause.

This being the case, the further question arises, Did the warrant thus issued in a cause over which that court had no jurisdiction, afford any protection to the officer for acts done in its execution ? The counsel for the defendaht contends that it would protect the officer, and that, if fair and regular on its face, he had no right and it was not his duty to inquire whether the court which issued it had jurisdiction of the cause. Where the subject matter of the suit is within the jurisdiction of the court, yet jurisdiction in the particular case is wanting, there is certainly reason and authority for holding that an officer who executes a process fair upon its face, shall be protected. But a clear distinction exists between that case and a proceeding in which the process itself shows that the court has exceeded its jurisdiction. The rule is stated by Mr. Justice Smith in Bagnall v. Ableman, 4 Wis., 163, in the following language: “ When ¡ the process is fair on its face, and issued by a court or magistrate of competent jurisdiction, it is a protection to the officer. But if it be not fair and regular upon its face, or its recitals or commands show a want or excess of jurisdiction in the court or • magistrate issuing it, the officer is not protected in its execu-' tion.” p. 179. The form of the warrant issued in the presentí-caséis not set forth in the answer. But it was undoubtedly such a process as the clerk was required to issue upon the filing of the complaint, and it would show upon its face that it was issued in a proceeding instituted under the provisions of ch. 184. It would command the officer to attach and seize the steamer Ida Campbell, her tackle, apparel and furniture, if found within his county, and safely keep-the same to answer all such liens as should be established against it in favor of the plaintiff in the cause. It would properly contain recitals showing that a complaint had been filed with the clerk, and state the nature and amount of the demand for which a lien was claimed against the vessel. We must presume from the matters stated in the answer, that such was the form of the warrant under which the officer acted; and furthermore a process setting forth these facts would be required by the law under which the proceeding was taken. And it is very apparent that such a war-; rant would show upon its face the nature of the proceeding, and.\ that the suit was instituted to enforce a maritime lien. In other' words, it would show that the circuit court had no jurisdiction of the subject matter of the action, and no power to hear and determine it. And we understand the rule to be, that where the process does thus show a want of jurisdiction in the court ¡ I of the subject matter of the action, it is void, and does not pro- ! tect the officer. In this all the cases agree.

But it is said that this rule imposed upon the officer in the present case the duty of determining, in advance of any decision of the courts of this state, the validity of an act of the legislature. How can it be expected, it is asked, that a mere ministerial officer could decide such a question, and thus find out that his process was void for want of jurisdiction in the court which issued it? The maxim ignoraniia juris non excusat ignorance of the law, which every man is presumed to know, does not afford excuse * — ■ in its application to human affairs} frequently operates harshly; and yet it is manifest that if ignorance of the law were a ground of exemption, the administration of justice would be arrested, and society could not exist. For in every case ignorance of the law would be alleged. And consequently the answer must be given in this case, that the . ignorance of the officer is of the law, and the rule is almost without an exception, that this does not excuse. It may devolve upon the officer a vast responsibility in some cases, to say that he must notice at his peril that an act of the legislature attempting to confer jurisdiction upon the courts is unconstitutional. But if the officer does not wish to assume all the hazard which such a rule of law imposes on him, he must require a bond of indemnity from the party for whom he is acting. It is further said that it was the duty of the officer to obey the mandate of the warrant and seize the identical steamboat which he did attach, and that he had no alternative but to obey. If the act which the writ commanded him to do was a trespass, he was not required to perform it, Nor would he be liable in that case to the plaintiff for refusing to execute a process void for want of jurisdiction.

We have examined the authorities cited on the brief of counsel for the defendant, but we find nothing in them inconsistent with the views above expressed.

The conclusion which we have reached is, that the answer does not state a defense to the action, and that the demurrer to it should have been sustained.

By the Court.-The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.