United States v. Smith

| La. | Apr 15, 1852

By the court:

Eustis, C. J.

This appeal was taken by the district attorney of the United States in behalf of the plaintiffs, from a decree of the Court of the First District of New Orleans, dissolving an injunction which had been issued at their instance. The reason given by the district judge for dissolving the injunction was, that Mr. Semmes, who made the affidavit on which the injunction was granted, as agent of the Government of the United States, and by whose agency the suit in which the injunction issued was instituted, had no right to appear to make the affidavit as agent for the Government of the United States, and that all his acts done in that character were null and void.

The district attorney of the United States has appeared in this court, and, aided by counsel, has asked the reversal of this decree and the maintenance of the injunction. The argument at law has not been confined to the point decided by the district judge, as to the want of authority on the part of Mr. Semmes, but has been extended to the subjects presented by the record.

It appears that on the second Monday of April 1822, John Kelty Smith appeared in the Circuit Court of the District of Columbia, and confessed judgment in favor of the United States for the sum of five hundred thousand dollars and costs. On the entry of the judgment, on the fourth of May following, it was provided that the same should be released, on the payment of the sum of $280,560 61, with interest from the 21st of September, 1821, and costs of suit.

The petition charges the indebtedness under this judgment, and that a suit was instituted, simultaneously with the present suit, against said John Kelty Smith, for the recovery of the amount. The petition alleges, that the amount of the judgment was the balance due the United States on account of monies deposited with the said John Kelty Smith, as navy agent of the United States at New Orleans, and not accounted for by him; that, since the date of the judgment, the said Smith has done no business and held no property in his own name, but that his business has been done and his property held in the name of others; that, ■for the last fifteen years, the said Smith has been, and continues to be, engaged in the business of banking and brokerage, in the city of New Orleans. The substance of the charges of the petition, divested of. all unnecessary prolixity is, that this business is done under cover of the name of the son of said Smith, John Chandler Smith, who does not reside in New Orleans, but in the city of Baltimore, in whose name all the property stands, and the business is exclusively conducted; that John Kelty Smith transacts, himself, all the business, in the name of the son, under a power of attorney from him, which is a mere fraud for the purpose of concealing the real party in interest; that a large capital, really belonging to John Kelty Smith, is thus secretly employed for the purpose of screening the same from his creditors, the plaintiffs ; that this capital consists of monej' deposited in banks, bills, notes, stocks, and is kept in a form immediately convertible, and that the said John Kelly Smith has no other property, and that this is quite sufficient to pay the plaintiffs’ debt; that John Chandler Smith, by being a party to these frauds and simulations, with the design and intent to defraud the plaintiffs, has become personally liable to them, in the amount of the effects thus standing in his name.

The plaintiffs then represent, that there is just reason to believe that the parties defendant will dispose of the effects thus held, for the purpose of defrauding the plaintiffs, and they ask for process of sequestration and injunction, for the purpose of preventing any disposal of them during the pendency of this suit. The petition concludes with a prayer for judgment, according to its allegations, and for general relief. Injunctions were issued, prohibiting the officers of the several corporate banks of this city in which the parties did business, from disposing of, or transferring, during the pendency of this suit, any of their capital stock, or any money, bills, notes or securities, deposited with them in the name of John Chandler Smith. The process granted on the petition of the plaintiffs, amounted, in fact, to a general sequestration of the whole capital and effects employed by John Chandler Smith, in his business as a banker and broker in the city of New Orleans.

The petition is signed by Mr. Semmes and another gentleman of the bar, as attorneys for the plaintiffs ; the affidavit annexed to the petition, is made by Mr. Semmes, who attests that he is the duly appointed agent and attorney of the United States of America in this behalf.

The question was put to the counsel who argued this case for the plaintiffs, whether, conceding every thing which is alleged in the petition to be true, and the affidavit to be direct and sufficient as attesting its allegations, (which is far from being our impression) a proper case is made out for the issuing of the writs of injunction as prayed for. No precedent, no authority has been adduced in support of these proceedings, nor has even an attempt been made at the bar, within the knowledge or recollection of any of us, to institute them; nor is there any statute under which they are even indirectly sustained. Proceedings against an absconding debtor, for a general sequestration of his effects, at the instance and under the affidavit ef three of his creditors, are authorized by statute. We have, also, a remedy against the property of absentees under a foreign attachment process. But where the debtor is present and subject to the process of the court, there is no warrant in the law, that we ever heard of, for taking from his possession and control his property in limine litis, at the instance of a plaintiff who sues him for the recovery of a debt, and for the purpose of subjecting the property to the satisfaction of the judgment which the creditor seoks to obtain. Supposing, therefore, that this property belongs, in fact, to John Kelty Smith, and is in his possession, where is the power given to the creditor, under any process of the court, to disturb him in his peaceable possession of it, and to arrest, at once, without notice and without a hearing, the business by which his livelihood is obtained ? The plaintiffs, had they a judgment, might have the remedy of judgment creditors against the property of their debtor; but they have no judgment, in a legal sense, against John Kelty Smith, and they have, accordingly, instituted their suit to obtain one. The judgment they sue upon is a judgment rendered by a court, under the system of the common law, in the District of Columbia. Under that system, after the lapse of a year and a day, if no execution be taken out, the courts conclude primó facie that the judgment is satisfied and extinct, and no execution can after-wards issue on it, unless the judgment be revived by process of sdrt facias under the statute ; or the plaintiff may have his action of debt on the dormant judgment, which was the only mode of revival known to the common law. 3d Blackstone’s Com. 422. Indeed, this question, by being stated, answers itself. What would be thought of a plaintiff who should begin his suit on a promissory note against his debtor, by a general sequestration of the debtor’s property ? Such a proceeding is repugnant to all our ideas of the rights and remedies of litigants under our laws.

Another point made by the defence, which has been very tully argued at bar, and upon which the district judge decided is, whether there was any sufficient authority to institute and prosecute this suit in the name and in the behalf of the United States.

Had the suit continued to be prosecuted under the original authority only by which it was commenced, and had the court come to the conclusion that the authority was not sufficient, the suit might have been dismissed without comment for want of a party plaintiff, and the United States could not be considered as having been in court. But the district attorney of the United States has taken this appeal in the name of the United States. The United States is before the court, therefore, as the party appellant.

It appears that the suit was instituted by Mr. Semites, as the agent of the government, under the authority contained in a letter from Mr. A. H. Mechlin, of Washington City. Mr. Mechlin derives his authority from the Solicitor of the Treasury who states, in his letter to Mr. Mechlin, that he, Mechlin, having proposed to collect the judgment against Smith, and the proposition having been referred to the Secretary of the Treasury, that officer directed the solicitor to employ him as special agent, to collect the judgment, on the terms mentioned in a letter from the solicitor to the secretary; he, therefore, in the furtherance of this object, authorizes Mechlin to appoint, on behalf of the United States, an agent to collect the judgment, and to institute all proceedings necessary thereto,, in the name of the United States, &c. Thus the solicitor appoints Mechlin to collect this debt, with authority to appoint a sub-agent, and Mechlin appoints Semmes.

The present suit was instituted in the Court of the First District of New Orleans, on the 11th of December, 1851. A motion was made to dissolve the injunction on the 15th, and was decided on the 23d of that month in favor of the defendants. An application was made for a, new trial, which was argued on the 17th of January following. The application failed, and the judgment dissolving the injunction was signed on that day. Up to the date of the 17th of January, the proceedings were conducted solely under the authority of Mr. Semmes, and without the intervention of the district attorney. On that day he entered an appearance and is of record one of the counsel on the argument for a new trial; and on his motion the appeal was taken to this court.

The district judge thought the authority ofMr. Semmes insufficient to enable him to institute the proceedings in behalf of the United States. This is not the first time that the officers of the government of the United States have brought the United States into the courts of this State, for the purpose of making use of legal process in the collection of debts due the United States. The United States v. Bank United States. 11 R. R. 418. They claim the right to the most stringent process against property, without giving the security which the law exacts from ordinary litigants. ' It would seem to be but just that, in cases of this kind, the interests of the United States should be entrusted to a responsible public officer; and we think we are doing no more than our duty in commenting on the proceedings before us, as they are attempted to be sustained by the law officer of the United States.

Our impression is that, as a general rule, the Government of the United States, in its proceedings in its own courts and of the courts of the State to which in civil actions it may resort, can only act through its offices and officers established by law. The delegation of power to institute suits, by an executive officer, to an individual having no official character or responsibility; the sub-delegation of-the same power, without any warrant of law for either, seems to be in conflict with the theory of our institutions, as we have understood them. We have not found any authority in the laws of the United States for the appointment of a private person to institute suits in the name of the United States, to bring them into State courts at his discretion, and thereby subject their great interests to ultimate adjudication. 1 Statutes at large 92 § 35. 3d lb. 592. 4th lb. 414. In each district of the United States there is a district attorney, whose duty, as established by law, is to prosecute all civil actions in which the United States shall be concerned. The Solicitor of the Treasury is to direct and superintend the suits of the United States. Instead of the action of the government through its constituted organs, instead of the direction of the solicitor to the district attorney, we have his appointment of a private individual, who again appoints a substitute, to do that which the law assigns as a duty to its responsible officers, under the sanction of their oath.

But the district attorney appeared, in this case, under instructions from the Treasury Department. We do not think his appearance has, as to the matters before us, any retroactive effect. After his appearance the United States may be bound by his acts, but we cannot consider it as giving any validity to the judicial proceedings upon which a decree had passed previous to his appearance.

His appearance, and avouching in the. name of the United States what has been done in this suit, imposes on us the necessity of noticing the subject, lest it should be supposed there is a I'ecognition, on the part of this court, of the doctrine maintained at bar in behalf of the government. We do not assent to it. We decide nothing on this point, because there is no necessity for it, and we do not wish to embarrass the asserted prerogative of the Executive of the United States when the determination of a suit does not require it.

We live under established institutions, and under a government of laws. We consider the law officers of the United States as magistrates, standing, in the performance of their duties, between the government and the citizen. It is as much their duty to respect and save the rights of the citizen, in their official functions, as it is to collect the dues of the government. The law recognizes no other action on the part of its ministers, and the citizen has a right to appeal to, and have the benefit of their judgment and of their conscience, in all cases in which the power of the government is brought to bear upon him.

There may be cases not foreseen or provided for by law, and we do not undertake to assert the contrary, in which the President of the United States, under his constitutional power to take care that the laws of the United States be faithfully executed, may direct the institution of suits, by appointing persons for that purpose other than the public functionaries, but the present case presents no single feature of emergency or necessity, nor is it in that respect distinguishabe from an ordinary suit against a debtor inhabiting the same city with the responsible law officer of the government.

It is considered by the court, that a creditor, before judgment, is without right to obtain an injunction on the case and for the purposes stated in the petition ; and that, therefore, the judgment of the district court, dissolving the injunctions, be affirmed.