N. M. LAWRENCE v. R. T. HODGES, Sheriff, et als.
IN THE SUPREME COURT [OF NORTH CAROLINA]
FEBRUARY TERM, 1885
92 N.C. 672
MERRIMON, J.
Civil Aсtion, Beaufort Superior Court, Fall Term, 1884. Graves, Judge.
Entertaining these views, I cannot give my approval to the rules of practice laid down in the opinion, fruitful as I fear they will be of embarrassments in their enforcement.
Ships—Registration—Mortgage.
- The power conferred upon Congress by the Constitution to regulate commerce with foreign nations and between the States, is paramount and exclusive, and includes the power to regulate navigation by all manner of vessels upon navigable waters flowing from one State into another, or from a State into the sea, and extends to giving to Congress the power to prescribe the methods of sale and transfer of such vessels.
- Enrolment or registration, under the act of Congress, and not the kind of service in which they are engaged, gives to vessels their national character, and renders them subject to the laws of the United States.
- Where a vessel which was duly enrolled under the act of Congress, but which was entirely used in North Carolina waters, was mortgaged, which mortgage was recorded in the custom house in accordance with the act of Congress, but was not registered as required by the North Carolina registration acts; It was held, that such recording was valid.
- It is not necessary that a vessel used entirely on the waters of this State should bе enrolled as required by the act of Congress, although it may be done, if the owner desires, and if done, the vessel becomes a national vessel.
- Such mortgage proven before a clerk of the Superior Court, as he is ex officio a notary public, is a compliance with the act of Congress.
(DeCourcy v. Barr, Busb. Eq., 181, cited and approved; Wiswall v. Potts, 5 Jones’ Eq., 184, overruled in part).
CIVIL ACTION, heard before Graves, Judge, at Fall Term, 1884, of BEAUFORT SUPERIOR COURT.
This is an action of claim and delivery, brought on the 31st day of January, 1884, in the Superior Court of the county of
One B. S. Haskins owned this steamer, and on the 12th day of November, 1880, executed a mortgage of the same to N. S. Fulford to secure a debt of $1,500. The execution of this mortgage was acknowledged before the clerk of the Superior Court of Beaufort county, on the 12th day of November, 1880, and thereafter recorded in the custom house at New Berne, and on the 29th day of January, 1884, the mortgagee assigned his mortgage to the plaintiff.
On the 16th day of Jаnuary, 1882, the said B. S. Haskins executed and delivered to the plaintiff a second mortgage of the steamer mentioned, and acknowledged the execution of the same before the clerk of the Superior Court of said county, and it was likewise recorded in the custom house at New Berne.
The Merchants’ and Farmers’ Transportation Company was a corporation organized under the laws of this State, and on the 6th day of July, 1884, the said B. S. Haskins undеrtook, by bill of sale, to convey said steamer to the last named company. The execution of this bill of sale was acknowledged by the maker thereof before J. D. Myers, a notary public, on the same day it was executed and recorded.
At the time the last mentioned bill of sale was executed, the mortgages above named had not been discharged, and the debts secured by them have not been paid. These mortgages were nоt registered in Beaufort county, nor in any county, except as above stated.
The company named, at the time of the execution of the bill of sale mentioned, got possession of the stеamer, and remained in possession of her until some time in the month of January, 1884, and on the 18th of that month it passed a resolution declaring that it surrendered the steamer, as far as it could, to the mortgagees.
The defendant R. T. Hodges was the sheriff of the county of Beaufort, and on the 12th day of January, 1884, he had in his hands sundry executions against the said company, and by virtue of them, levied upon and took possession of the steamer. At that time it was in the actual possession of the company. The said sheriff, by virtue of said executions and levies, held possession of the steamer until the 1st day of February, 1884.
On the last named day, the sheriff of Pitt county, by virtue of an order of the Clerk made in this action, seized said steamer and held the same three days, and then delivered her to the plaintiff.
After the sheriff of Pitt county so seized the steamer, the defendant Hodges, as sheriff, had in his hands sundry other executions against said cоmpany, and on the said 1st day of February, 1884, “levied” them on the steamer, but did not take her from the possession of the said sheriff of Pitt. Before the defendant Hodges, sheriff, levied the executions in his hands upon the steamer, the attorney of the plaintiff notified him of the mortgages named and the sum of money due, secured by them.
The said transportation company was made a party defendant to the action, as was, also, William B. Rodman, Jr., as receiver of that company, he having been appointed such receiver in some appropriate proceeding, and they filed an answer, contesting the validity of the mortgages as against them, upon the ground that the vessel was engaged solely in the internal commerce of this State, and was not subject to the laws of the United States; and,
The Court gave judgment as follows:
“That plaintiff is not entitled to the possession of the steamboat mentioned in the proceedings, and it appearing that said boat has by рroceedings in this cause been put in the possession of the plaintiff, it is ordered that plaintiff deliver the said boat to William B. Rodman, Jr., the receiver appointed by this Court to receive the same, or, on his failure to do so, that he pay to said receiver seven thousand dollars, the penalty of the bond given by him in this action, to be discharged upon the payment in default thereof, of the value of said boat and other articles of tackle therein mentioned.
“Provided, however, if plaintiff shall pay to said receiver the amount of the judgment against Merchants’ and Farmers’ Transportation Company, levied by the sheriff of said county on said boat, and the interest and costs thereon, and the costs of this action, then the judgment for the restoration of said boat and for the penalty of said bond shall be discharged.”
The plaintiff excepted and appealed to this Court, as did also the receiver.
Mr. George H. Brown, Jr., for the plaintiff.
Messrs. W. B. Rodman & Son and C. F. Warren, for the defendant.
MERRIMON, J. (after stating the facts as above). The record in this case, in different aspects of it, presents several interesting questions that were ably argued by the counsel on both sides. We deem it necessary to decide but two of them, and these are:
In our judgment, both these questions must be answered in the affirmative.
The Constitution of the United States, in prescribing and defining the powers of Congress in
It is well settled, that the power thus conferred, in the respects specified, is paramount and exclusive. Necessarily incident to that power, is that to regulate navigation, and this includes ships, steamboats, sail and all manner of vessels however propelled, that go upon navigable waters that flow from one State into another, and out of a State into the sea, coastwise, and upon the sea, to and from foreign countries. The power to regulate such commerce, implies necessarily the incidental power to regulate the essential instrumentalities incident to it.
Such power, within its just scope and purpose, is very thorough in its effectiveness. It is fundamental, and its object is to develope, promote, and protect the commerce of a great people, for the common good. In accomplishing this end, it is not confined, as to vessels that go upon navigable waters, at home or abroad, simply to prescribing methods and rules of navigation, and transportation, but it extends to giving them distinctive national character, wherever and in whatever service they may lawfully be, invested with rights, privileges and obligations, extending to the owners and all persons having an interest in them—to prescribing the methods of sale and transfer of them, or any property interest in them, and to jurisdiction over them for all purposes, germane to such commerce.
It would be a supererogatory service to undertake here to shоw why this is, and ought be so, because it is so settled by a vast
Congress has exercised the power mentioned in many ways and respects. In respect to vessels of a prescribed tonnage engaged in domestic commerce, it has passed laws providing for their enrolment in the Custom House of the collеction district in which their respective owners reside, and such enrolment renders them vessels of the United States, and confers upon them national character, rights, privileges and obligations as domestic vessels.
It is the enrolment of a vessel that may engage in commerce, and not the character of the particular service it may do, that gives it distinctive national character, and renders it subject to the laws of the United States, аnd brings it within the jurisdiction of that authority. Such enrolment and a licenses confer the right to go from port to port, to engage in trade, and carry passengers and freight between the several States; such national character goes with and is part of the vessel, wherever it may lawfully go, no matter in what service. Gibbons v. Ogden, supra.
Congress has no power to regulate or interfere with the purely internal commerce of a State, and a vessel engaged sоlely and exclusively in such commerce, is subject to its laws and control, if the owner chooses to so use it without enrolment under the laws of the United States. But if the owner shall enroll his vessel, as he may do at any time, certainly in the absence of any State statute regulating vessels engaged in such internal commerce, it at once ceases to be a vessel of the State and devoted
Now, the vessel in question was duly enrolled at the custom house in New Berne, its home port. By such enrolment, she certainly became a vessel of the United States, and subject to the laws of that government. If before that time, she had been a vessel of this State, engaged exclusively in its internal commerce, and was subject to its laws, by such enrolment it put on the national character, and ceased to be in character and legal contemplation, a vessel of the State, employed exclusively in its internal commerce; it became a vessel of the United States engaged exclusively, according to the facts as they appear, in the internal commerce of this State, with the right to take employment in interstate commerce at the will оf her owner. This is not an impossible, but an entirely practicable thing to be done. A vessel solely employed in the internal commerce of a State may be, but it is not necessarily, a vessel of that State. A vessel enrolled in New York, having proper authority, might come into the navigable waters of this State, and engage for years exclusively in its internal commerce, but it would not thereby become a vessel of this State, in contemplation оf law, because its character
It is provided by
It is plainly the purpose of this statute to regulate the methods of conveyanсe and transfer of vessels, and property interests in them, of the United States. The power of Congress to pass such laws, and the effect of them, has been much questioned. The validity of the statute just cited, and its effect as a registration law, have been repeatedly drawn in question, but it has been upheld as consistent with the constitution by many decisions, both State and Federal. The Supreme Court of the United States has repeatedly held that it is valid, аnd its validity may be treated as settled by the highest judicial authority.
It has likewise been held that recording a mortgage under this statute, supercedes State registration laws as to the place of registration, and gives it priority over a subsequent purchaser, or a subsequent attachment or like lien. White‘s Bank v. Smith, 7 Wall., 646; Aldrich v. Aetna Ins. Co., 8 Wall., 491; Shaw v. McCandless, 36 Miss., 296; Fontaine v. Beers, 19 Ala., 722; Mitchell v. Steelman, 8 Cal., 363; Perkins v. Emerson, 59 Me., 319; 1 Parson‘s Shipping and Admiralty, 60, 63; Desty‘s Shipping and Admiralty, § 65.
The defendant‘s counsel relied partly on the case of Wiswall v. Potts, 5 Jones’ Eq., 184. In that case it was held, that a steamboat used exclusively for the purposes of the internal com-
In that case the steamboat had been enrolled. The mortgage оf her, however, had not been recorded in the custom house, but had been registered as required by the laws of this State, and the court held such registration sufficient. If this mortgage had been recorded in the custom house, or if a subsequent purchaser, without notice, had interposed his right to the vessel, a different question would have been presented.
We feel called upon, however, to say in this connection, that we cannot concur in the reasoning of the late Chief Justice Pearson in parts of the opinion in that case. For example, he says: “It is the fact that a boat trades to two or more of the States, or to a foreign country, which makes it a vessel of the United States, and the act of registration in the custom house is an incident necessary to give it the privileges conferred thereby.” This is certainly an inadvertence. The registration or enrolment of the vessel is nеcessary to give the privileges so conferred, but it is necessary also to give the vessel national character. The statute of the United States, (
The inadvertence or misapprehension seems to have grown out of the supposition that a vessel еngaged exclusively in the internal commerce of a State is necessarily a part of it and subject to the laws of the State. This, as we have seen, is so, only so long as the owner of such vessel chooses not to enroll it under the laws of the United States. This he may do when he will, certainly, in the absence of any law of the State regulating its internal commerce and vessels engaged exclusively in it.
We think this objection is not well-founded, because the Clerk of the Superior Court was, by virtue of his office, a notary public, and the taking of the acknowledgment must be referred to the exercise of his notarial authority.
The Code, § 3306, provides that “the Clerks of the Superior Courts may act as notaries public in their several counties, by virtue of their offices as clerks, and may certify their notarial acts under the seals of their respective courts.” This is a public statute of which everybody is presumed to have knowledge, and оf which the courts of the United States, as well as the courts of this State, take judicial notice, and whenever it appears that the Clerk has done an official act that the law requires to be done by the exercise of notarial power, it is treated as done in the exercise of such authority. And so, in this case, as soon as it appeared to the Court that the Clerk had taken the acknowledgment of the mortgages of the vessеl, to be recorded in the custom house, the Court at once recognized the exercise of notarial authority, because the Clerk had such authority, and he did an act that required its exercise. The nature of the act done, sufficiently indicated by what authority it was done, and all persons are presumed to have knowledge of it. It was said on the argu-
The case of DeCourcy v. Barr, Busb. Eq., 181, relied upon by the defendant‘s counsel, does not apply here. In that casе the notary public in New York, had no authority to take the acknowledgment of deeds executed by residents of this State; he was only authorized by the statute to take such acknowledgments of non-residents. In this case, the Clerk had authority and exercised it in the way the statute allowed him to do. Carpenter v. Dexter, 8 Wall., 513; Shultz v. Moore, 1 McL., 520.
It is unnecessary to inquire whether the Clerk could, as Clerk, have taken the acknowledgment, because he had notarial authority, and, as we have seen, it must be taken that he еxercised it.
Upon the “case agreed” and submitted to the Court, the plaintiff is entitled to have the vessel in question as mortgagee.
There is error. The judgment of the Superior Court must be reversed and judgment entered here for the plaintiff.
Error. Judgment accordingly.
DEFENDANT‘S APPEAL.
MERRIMON, J. This is the appeal of the defendant, Receiver in the above action.
The receiver appealed upon the ground that the Court directed that the judgment for the restoration of the vessel and the penalty, should be discharged when and if the plaintiff should pay
This is an action at law, and no equitable relief is demanded, nor do the pleadings present a case in which it might be granted. It may turn out that the vessel is worth more money than the mortgagee‘s debts, but the receiver, if he is entitled to any surplus, can protect himself in another action.
The decision of this court in the plaintiff‘s appeal in this case is conclusive against the appellant. His appeal was unnecessary and improvidently taken, and must be dismissed.
It is so ordered.