Ex Parte State of New York, No. 2, 256 U.S. 503 (1921)

U.S. Supreme Court

Ex Parte State of New York, No. 2, 256 U.S. 503 (1921) Ex Parte State of New York, No. 2

No. 2, Original

Argued December 14, 1920

Decided June 1, 1921

256 U.S. 503

ON PETITION FOR WRIT OF PROHIBITION

AND/OR WRIT OF MANDAMUS

Syllabus

1. The facts that a vessel, libeled in the district court, is the property of a state, in its possession and control and employed in its public governmental service, may be established, prima facie, at least, by

Page 256 U. S. 504

a suggestion verified and filed by the attorney general of the state, in his official capacity, in connection with his special appearance and objection to the jurisdiction. P. 256 U. S. 509. Ex parte Muir, 254 U. S. 522, distinguished.

2. Under the admiralty law, a vessel owned and possessed by a state and employed exclusively for its governmental purposes, is exempt from seizure in a suit to recover damage for a death caused by her negligent operation. P. 256 U. S. 510.

Rule absolute for writ of prohibition.

Prohibition to restrain proceedings in admiralty in the district court. The case is stated in the opinion, post, 256 U. S. 508.

Page 256 U. S. 508

MR. JUSTICE PITNEY delivered the opinion of the Court.

In October, 1920, March J. McGahan and another, as administrators of Evelyn McGahan, deceased, filed a libel in admiralty in the district court of the United States for the Western District of New York against the steam tug Queen City, her tackle, apparel, and furniture, to recover damages alleged to have been sustained through the death of deceased by drowning, due to the negligent operation of the Queen City upon the Erie Canal in said district. The Attorney General of the State of New York appeared specially for the purpose of questioning the jurisdiction of the court, and filed a verified suggestion of the want of such jurisdiction over the Queen City for the reason that, at all times mentioned in the libel and at present, she was the absolute property of the State of New York, in its possession and control, and employed in the public service of the state for governmental uses and purposes, and, at the times mentioned in the libel, was authorized by law to be employed only for the public and governmental uses and purposes of the State of New York, such purposes being the repair and maintenance of the improved Erie Canal, a public work owned and operated by the state, and particularly the towing of dredges, the carrying of material and workmen, the towing of barges and vessels containing material, and the setting, replacing, and removing of buoys and safety devices. He prayed that the vessel be declared immune from process and free from seizure and attachment, and

Page 256 U. S. 509

that the libel and all proceedings thereunder be dismissed for want of jurisdiction.

The district court overruled the suggestion and awarded process in rem, under which the Queen City was arrested. Thereupon the Attorney General, in behalf of the state, filed in this Court, under leave granted, a petition for a writ of prohibition to require the district court to desist from further exercise of jurisdiction and for a mandamus to require the entry of an order declaring the Queen City to be immune from arrest. An order to show cause was issued, to which the district judge made return, embodying by reference the admiralty proceedings, and the matter was argued together with No. 25, original, Ex parte New York, No. 1, ante, 256 U. S. 490.

To the suggestion that the Queen City is the property of the State of New York, in its possession and control and employed in its public governmental service, it is objected at the outset that the record and proceedings in the suit in admiralty do not disclose the identity of the owner of the vessel or that she was employed in the governmental service of the state. We deem it clear, however, that the verified suggestion presented by the Attorney General of that state, in his official capacity as representative of the state and the people thereof, amounts to an official certificate concerning a public matter presumably within his official knowledge, and that it ought to be accepted as sufficient evidence of the fact, at least in the absence of special challenge. The suggestion was overruled and denied, with costs, and process thereupon ordered to issue against the vessel, without any intimation that there was doubt about the facts stated in the suggestion, or opportunity given to verify them further. It would be an unwarranted aspersion upon the honor of a great state to treat facts thus solemnly certified by its chief law officer, and accepted as true when passed upon by the district court, as now requiring

Page 256 U. S. 510

verification. Ex parte Muir, 254 U. S. 522, differs widely, for there the suggestion that the vessel was exempt because of its ownership and character came not through official channels, but from private counsel appearing as amici curiae, who, on being challenged to submit proof in support of the allegations in the suggestion, refused to do so. Of course, there were other and more fundamental differences, but it is the one mentioned that especially concerns us upon the question of practice.

Accepting, as we do, the facts stated in the suggestion of the Attorney General, the record, aside from whether a suit in admiralty brought by private parties through process in rem against property owned by a state is not in effect a suit against the state, barred by the general principle applied in Ex parte New York, Np. 1, No. 25, Original, presents the question whether the proceeding can be based upon the seizure of property owned by a state and used and employed solely for its governmental uses and purposes.

By the law of nations, a vessel of war owned by a friendly power and employed in its service will not be subjected to admiralty process, and this upon general grounds of comity and policy. Schooner Exchange v. M'Faddon, 7 Cranch 116, 11 U. S. 144-147. In a case before Judge Francis Hopkinson in the Admiralty Court of Pennsylvania in 1781, on a plea to the jurisdiction, it was adjudged that marines enlisting on board a ship of war or vessel belonging to a sovereign independent state could not libel the ship for their wages. Moitez v. The South Carolina, Bee, 422, Fed.Cas. No. 9,697. The question whether by international law the rule of The Exchange is to be applied to other kinds of public vessels owned or controlled by friendly powers (see The Parlement Belge, [1880] L.R. 5 Prob.Div.197), was stirred in In re Muir, supra, but found unnecessary to be decided. It does not now press for solution, for, aside from the obligations of international law,

Page 256 U. S. 511

though upon principles somewhat akin, it is uniformly held in this country that even in the case of municipal corporations, which are not endowed with prerogatives of sovereignty to the same extent as the states by which they are created, yet because they exercise the powers of government for local purposes, their property and revenue necessary for the exercise of those powers are to be considered as part of the machinery of government exempt from seizure and sale under process against the city. As Mr. Chief Justice Waite said, speaking for this Court in Klein v. New Orleans, 99 U. S. 149, 99 U. S. 150: "To permit a creditor to seize and sell them to collect his debt would be to permit him in some degree to destroy the government itself."

The rule was applied in the admiralty by the same learned Chief Justice, sitting on appeal at the circuit, in The Fidelity, 16 Blatch. 569, Fed.Cas. No. 4,758, upon a well considered opinion. To the same effect, The Seneca, (1876) Fed.Cas. No. 12,668; Long v. The Tampico, (1883, D.C.) 16 F. 491, 494; The Protector, (1884, C.C.) 20 F. 207; The F. C. Latrobe, (1886, D.C.) 28 F. 377, 378; The John McCraken, 145 F. 705, 706.

The principle so uniformly held to exempt the property of municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem applies with even greater force to exempt public property of a state used and employed for public and governmental purposes.

Upon the facts shown, the Queen City is exempt, and the prohibition should be issued.

Rule absolute for a writ of prohibition.