2 Wyo. 170 | Wyo. | 1879
This is a suit of replevin, brought by the Federal government against the company, for merchandise, as property owned by the former, and to the immediate possession of which it was entitled. The defendant plead the general denial; also that it held possession under a carrier’s lien, when the merchandise was taken from it upon the writ of replevin. The facts were argued upon, submitting to the district court their legal effect, so that the issue was in form one of fact, in substance one of law. Its judgment was based upon this agreement: The parties stipulated that the case might be heard at chambers, and the judgment rendered as of the previous September term of 1878: and the judge who sat in the case below proceeded in form according to the stipulation. Whatever doubt might exist as to the power of parties to confer upon a district judge jurisdiction to try and decide an issue of fact in vacation, and render judgment of an expired term, is met by the fact that in this instance he was trying an issue of law — for which purpose, under the statute of December 15th, 1877, for facilitating the business of the district courts, the court was open and the September term unexpired, when the case was heard and decided; and the circumstance of rendering the decision as of a prior day during the term, is unimportant.
One Dwight J. McCann had a contract with the government, to whom the merchandise belonged, for the transportation of it from New York, or other point or points east of Omaha, to the White River Indian Agency in Colorado, where it was to be used in the Indian service; the defendant’s road from Omaha to Rawlins was a proper route of
In considering the questions presented by the ■ record, we will first assume that government property is exempt from the common carriers’ lien. The government can retain or waive the exemption at will. Had it transported the merchandise through an agent, the property would have remained under its control, the possession of the agent would have been its possession, the contract of carriage would have been directly between it and the carrier; and thus the exemption would have attached, and been retained. 'It transported the merchandise through a contractor ; the contract measured the relations of the parties, and subjected them to reciprocal obligations, precisely as it would have done, had both been private individuals; imposing upon him the duty to transport, it incidentally con
But the exemption does not exist. The exemption would incalculably cripple the public service, the liability would equally promote it; no consideration of justice or policy favors, every consideration of justice and policy forbids the exemption; the liability enlarges, the exemption narrows sovereign action; the liability, not the exemption, is a privilege, and therefore an attribute of sovereignty. The learned counsel for the defense in error, has submitted to us-no adjudication to the contrary, which we should follow as a guide, or respect as advisory; and we are convinced that such an adjudication does not exist. On the other hand, all the analogies of the commercial and maritime law, and the Federal decisions under that law, are directly the other way. In 9 Wheat., 409, St. Jago de Cuba, it was decided in 1824 that seamen and material men, who served
The case of the United States against Wilder, reported in 3 Sumner at page 308, is in point. The government shipped supplies for the public service by the schooner Jasper, from Boston to New York, under the terms of the common bill-of-lading, by which the goods were delivered on pay. ment of freight; the vessel went ashore on Block Island upon her passage; expense was, consequently incurred in saving the cargo, constituting a case of general average in favor of the owners and master of the Jasper, who struck an average of the expense among the freighters, the government included, and refused to deliver the clothing to the latter, on its refusal to provide for its share of the average; the latter conceded that the average was correct, and that it was liable for its proportion claimed of it, but denied that its property could be retained for payment, — that is, denied that the vessel had a lien against the government for contribution. The suit was brought, and the claim thus presented to the United States circuit court for decision; and the claim of lien was sustained, the judges concurring.
In rendering the decision Judge Story said : “ The present ease is not one arising under contract, but by operation of law, and, if I may so say, in invitum. It is a case of general average, where, as in a case of salvage, the right of the party arises from sacrifices made for the common benefit, or labor and services performed for the common safety. Under such circumstances the Creneral Maritime Lato enforces a contribution independent of any notion of contract, upon the ground of justice and equity, according to the maxim, qui sen-tet commodum sentiré debet et onus, and it gives a lien in rent for the contributionIf this is accurate reasoning, it equally applies here; the present case may in like manner be said to arise, not by contract, but by operation of law; the freight money to be an incident to the office of the
But with unfeigned respect for that judge, we dissent from his reasoning as unsound; not as frustrating the principle on'which he based the decision, but as weakening its application. The rights to general average, and to its accompanying lien exist at the Maritime Law; are abstract and dormant in the absence of a contract of shipment; by a contract of shipment become active and attach, and, in case of a loss, creating a general average, though the contract is utterly silent about them, they enure to the carrier, —and manifestly it can be only by contract. So the right to the freight money and to its accompanjdng lien exist at the Commercial Law; are abstract and dormant in the absence of a contract for carriage; by such contract are invoked and attach, though the contract is utterly silent respecting them; and are manifestly contract rights. But, whether the lien attaches under a principle of law, unaided by contract, or under a contract, into the substance and construction of which it enters, it is still a lien, binding the sovereign; and it none the less binds the sovereign, if imposed by contract. Thus the United States v. Wilder, furnishes a threefold sanction to the idea that the Federal government is subject to the carrier’s lien. The case responds to the voice of justice and sound policy; it accords with the analogy of the law, and it has the imprimatur of two judges; as to one of whom, Mr. Justice Davis, of the district court, it may be said, that it would be difficult to find a more reliable member of the American Judiciary; and as to the other of whom, Mr. Justice Story, it may be said, that for conception, for exposition, for admin-stration of the Commercial Law, of which Bailments are a part, he was the most ^accomplished jurist and judge in our language. This case was decided in 1838, and was relied upon as authority, and fully adopted by the supreme court
The counsel for the government claims that the district court could render a judgment for, but not against it; we have listened with attention and respect to his argument, advanced in favor of this proposition ; and candor requires us to admit that he has presented it as well as it could be presented; but candor also compels us to say that the proposition is throughout and throughout a fallacy. To what consequence does the proposition lead ? The United States may invoke the jurisdiction of the court; it may accept that which does, and discard that which does not accord with its supposed interests; it may dictate the exercise of the administration of the law; it is not hound by the rules of equal justice; it is a privileged suitor; the district court having rendered a judgment against it, this court must reverse; having rendered one for it, this court can only affirm; it can sit in appeal, must mechanically obey, cannot revise; nay, further, — having brought the suit, and effected a caption, its aim is accomplished; it needs no judgment, for but one judgment can be rendered in the case, and that in its favor; if having made the caption, it neglects to prosecute the writ; a motion to dismiss for want of prosecution will be unavailing; still further, the demand in the writ for judgment -is meaningless, the undertaking of the sureties without force, the writ is superfluous; and the suit is farcical, because it is intended to effectuate under the forms of law what can as well be accomplished by the violent hand under an irresponsible will. Does not the proposition result in a pure reduetio ad ábsurdum? The Federal government cannot at common law be drawn into court. This is a sovereign prerogative, intended 'to protect it not only from rapacious litigation, but from just judgments as well, because the latter could be employed to disturb its due
The Company, however, waiving those fees, judgment is rendered for it for 1588.16, and interest from November 20, 1877, as damages, and for the costs of the district court, and those of this court.
Judgment reversed.