United States v. Nicholls

| Pa. | Sep 15, 1805

Lead Opinion

Yeates, J.

I cannot bring myself to believe, notwithstanding the generality of words used in the 5th section of the act of congress of 3d March 1797, “the debts due to the United States, “shall be first satisfied,” that the provision therein contained was ever intended to extend to cases where an individual state was a creditor, and as such was clearly entitled under its municipal laws to a lien on the estate real or personal, of the insolvent debtor. No section or clause in any part of the act respects in the most distant manner the several states in their political and corporate capacities, as competitors with the United States ; but on the contrary, every regulation and provision in the act is confined to the settlement of accounts, between the United States and individual citizens.

It has been truly said, that the constitution of the United States, considered as federal, is to be construed strictly in all cases, when the antecedent rights of a state may be drawn in question, Tuck. Bla. Append. 151 ; and it is a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication, nor in any manner whatever, but by their own voluntary consent, or by submission to a conqueror. Ib. 143. It would certainly require strong, clear, marked expressions, to satisfy a reasonable mind, that the constituted authorities of the union contemplated by any public law, the devesting of any pre-existing right or interest in a state; or that the representatives of any state would have agreed thereto, even supposing the legitimate powers of congress in such particular, to be perfectly ascertained and settled.

The members of this court were unanimously of opinion, in Smith v. Nicholson, December term 1803, that the provision of the general lien, created by the act of assembly of 18th February 1785, on the settlement of an account by the comptroller general, continued in full force, and was not repealed either by the express words of any subsequent law, or by necessary implication. When the powers of the Supreme Executive Council became vested in the governor, the necessity of the governor’s de- *-] *cision in the settlement was wholly superseded, unless 59 J the comptroller general should disapprove of the settlement made by the register general.

The legislature of this commonwealth had the unquestionable right to make such a law in 1785, to secure the fiscal interest of the state. This power was not delegated to the United States amongst the other enumerated powers, nor prohibited to the state by the constitution of 1787. But congress was author-ised by act 1. s. 8 of that instrument, “to make all laws which “ should be necessary and proper for carrying into execution the “powers delegated to them, and all other powers vested in the “government of the United States, or in any department or of“ficer thereof.” Hence it results that congress have the concurrent right of passing laws to protect the interest of the union, as to debts due to the government of the United States arising from the public revenue ; but in so doing, they cannot detract from the uncontroulable power of individual states to raise their own revenue, nor'infringe on, or derogate from the sovereignty of any independent state. Federalist Letters, Nos. 32, 33. The consequences of a contrary doctrine are too obvious to be insisted upon.

The regulations and provisions in the bankrupt act of congress of 4th April 1800, stongly fortify in my mind the construction I have made of the act of 3d March 1797. The 31st section declares that in the distribution of the bankrupt’s effects, there shall be paid to every of the creditors a portion rate according to the amount of their respective debts. Creditors having judgments (on which executions have not been executed) statutes, recognizances, specialties or attachments áre placed on one common footing; “ they shall be entitled to no more than a rateable “part of their debts, with the other creditors of the bankrupt.” The Ó2Ó section saves the right of preference to prior satisfaction of debts due to the United States, or to any of them. And the 63d section provides, that nothing “contained in this act “ shall be taken, or construed to invalidate or impair any lien “ existing at the date of this act, upon the lands or chattels of “any person who may have become a bankrupt.” The rights of the general government to priority of payment, and the rights of individual states, are contemplated as subsisting at the same time, and as perfectly compatible with each other. This only can be effected by giving preference to each existing lien, according to its due priority in point of time. I know of no other mode whereby the several conflicting claims can with justice be protected and secured.

This, if my construction be correct, narrows the question before us to a simple point, viz. To what periods, do th'e liens *relate in the present case ? If the lien of the United „ , States on the property of William Nicholls, can be traced L 2 0 no further back in this instance than the date of his mortgage to Henry Miller on the 9th June 1798, then the settlement on the 31st December 1797 of Nicholls’s account by the comptroller and register general, being previous thereto, must necessarily give this commonwealth a preference ’ but, if this lien refers to March 1797, then the United States would be entitled to priority.

Considering this point as a question merely between the United States and the commonwealth of Pennsylvania, I am of opinion for the reasons I have mentioned, that as to the contending parties, the lien did not attach earlier than the execution of the mortgage, and consequently, that the motion of the attorney general to take the money arising on the sheriff’s sales, to the extent of the debts due from the defendant to the commonwealth, out of court, be granted.

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Concurrence Opinion

Smith, J.

I fully concur. The reasoning from the 62d section of the bankrupt act did not at first carry the same weight in my mind as it now does.

Brackenridge, J.

I wished to have seen the opinion of Judge Washington in the case of the United States v. Fisher and others, and also that delivered as the opinion of the majority of the judges of the Supreme Court, and to have compared both opinions with the constitution and the act of congress. I have had no such opportunity, and therefore have made out no regular opinion.

Referred to in 4 Yeates 316.

My mind has been led to the origin of the question before us. The constitution of the United States restrains the powers of the general government.' Is this power to malee such a law, or the exercise of it, given by the constitution ? Is it necessary and proper to carry into execution the other delegated powers ? I think not. Let the United States take care to appoint proper officers with due securities. I agree that the constitutionality of a law is not to be lightly condemned.

But admitting the constitutionality of the present act, has the public will been clearly and sufficiently expressed ? Does the act extend to all persons indebted to the United States, or only to revenue officers ? The claim of priority in payment of debts is a prerogative odious to all. It is strange how it found its way into a republican government! I lean against the construction of a priority in the United States ; and I think the act only extends to revenue officers, and was never intended to dissolve a lien existing in a sovereign independent state. The word per-*5>6t1 *son *n common parlance does not mean a body politic, a state in its collective capacity.

I never believed that there was any humiliation in a state by being subjected to suits by citizens of another state, or by citizens or subjects of any foreign state, in the courts of the United States; because I always deemed them on a level. The difficulty in my mind was, how the judgment against a state could be enforced. An amendment has taken place in this particular in the constitution of the United States.

If even the power was constitutionally delegated to congress to make a law, giving to the United States a preference in payment of debts over individüal states, I cannot conceive that this right has been exercised by the expressions of the act of 3d March 1797; and upon the whole, I think the attorney general is intitled to take the money out of court.

Motion granted.