[88 U.S. 532, 533] ERROR to the Court of Errors and Appeals of the State of New Jersey; the case being thus:
The Constitution ordains that--
And the Judiciary Act enacts:
These provisions of organic and Federal statutory law being in force, an act of the legislature of New Jersey, 'for the collection of demands against ships, steamboats, and other vessels,'1 approved March 20th, 1857, enacted that whenever a debt shall be contracted by the master, owner, agent, or consignee of any ship or vessel within the State, on account of any work done or materials furnished in this State for or towards the building, repairing, furnishing, or equipping such ship or vessel, such debt shall be and continue a lien on the vessel for nine months; and that any person having such claim over $20 may apply to the proper officer for a warrant to enforce his lien; that the officer receiving the warrant may seize the vessel and give the prescribed notice; that any other person having such lien may make proper demand and proof and be admitted as an attaching creditor; that the owner or any party may at any time before sale apply for her discharge upon giving bond to pay such claims as shall be established to have been subsisting liens under the act; that upon such bond being given the vessel shall be discharged, and the creditors may sue [88 U.S. 532, 534] upon the bond alleging their claims and averring them to be subsisting liens; and that if no such bond is given, proceedings may be taken as provided in the act for the sale of the vessel, or such part of her tackle , &c., as shall be sufficient to pay the claims.
This statute of New Jersey being on its statute-book, an article of agreement was made November 3d, 1866, between Henry Jeroleman of the first part, and a certain Hasbrook, and several others of the second, for building a schooner of specified dimensions, for the consideration of $54 per ton; the builder to furnish all labor and materials and deliver the vessel. The whole price, at the said rate per ton, was to be about $21,000, and the payments were to be made by Hasbrook and the others, at stated times during the progress of the work, as: $2500 when the keel was laid; $ 3000 when the frame was up; $3500 when ceiled, and decks laid; $3500 when outside planks were on and squared off; $3500 when the poop deck was on; $ 2000 when ready for launching, and the balance when delivered according to contract. And it was agreed that as the said several instalments were paid, the schooner, so far as then constructed, and the materials therein inserted, should be and become the property of Hasbrook and the others.
The schooner was built at East Newark, New Jersey. Two persons, one named Elliott, and the other Ripley, furnished timber for the vessel; and on the 19th of June, 1867, alleging that they had not been paid for their timber, they caused her to be seized by the sheriff under the already quoted statute of New Jersey; the vessel, at the time of this seizure, being unfinished, on the stocks, and neither named, enrolled, licensed, or provided with a crew or master. Elliott had furnished his timber in November, 1866, and Ripley his, between January 15th and May 10th, 1867
On the 24th of June, 1867-and, therefore, after Elliott and Ripley had furnished the timber to Jeroleman-Jeroleman assigned the contract giving him the right to build the vessel, to one Edwards, by whom the vessel was finished.
On the 2d of July, 1867, Edwards, the new owner, gave [88 U.S. 532, 535] bond to Elliott and Ripley, in the manner prescribed by the New Jersey statute when a liberation of a vessel from seizure is desired, and the vessel was discharged from the seizure.
Jeroleman had been paid more than the original contract price, but the time when any payments had been made to him did not appear; nor any fact upon which an appropriation of payment could be founded.
The vessel being discharged from the seizures, Elliott and Ripley brought suit in the Supreme Court of New Jersey against Edwards on the bond, the declaration alleging that the debt was contracted in building the vessel, and that the lien was put upon her while she was yet on the stocks unfinished. The action was debt, and the declaration was in the usual form.
As was stated by counsel in this court, and as is also stated in reports of the case in the Supreme Court of New Jersey,2 the defendants demurred to the declaration and insisted that the statute of the State, by attempting to create a lien on ships, under State law, assumed a control of a subject in its nature maritime, and one, therefore, over which under the already quoted clauses of the Federal Constitution and of the statutes of the United States, the Federal courts alone had cognizance; and, therefore, that the State statute was void. The New Jersey Reports further state that the demurrer was overruled; the court in its judgment overruling it, admitting that if the lien sought to be enforced, had been for materials used in repairing a vessel which had been finished, launched, and enrolled, it could not have been enforced, and that so far as the statute was designed to aid in the enforcement of a maritime contract for which the admiralty might proceed in rem-it was void under the objection stated; but holding that the lien set up having been for materials used in building a vessel-a matter done on land, entirely under State control, and payment for which might be enforced by a common-law remedy, or by [88 U.S. 532, 536] any new remedy which the legislature might provide-the statute was pro tanto valid.
The counsel in this court stated that after this opinion the demurrer was withdrawn.
However, in the transcript of the record sent here nothing whatever about any demurrer appeared. All that appeared was that to the declaration abovementioned several special pleas were filed, among them these:
And that on issues to these pleas the case was tried.
The facts of the case, as already given, were found by a special verdict.
One question in the case obviously was the question, much agitated in England and here, namely, whether in the case of an executory contract to build a vessel to be paid for by instalments as the work progresses, the title remains in the builder until the work is completed and delivered, or whether the title passes to the person for whom the vessel is to be built; in other words, whether in such a case the contract is one for work and materials or one for sale.
A second question also obviously was (admitting that, as a general principle, the contract is in such a case one leaving the title in the builder until the work is completed and delivered), what was the effect of the final clause of the particular contract under consideration, the part on page 534, italicized, in changing this general rule? If it did change what was assumed to be the general rule, then, if the payments were made before the materials were furnished, the title was divested out of Jeroleman, since he, then, though builder, could not be 'owner' of the vessel when the materials [88 U.S. 532, 537] were furnished, and, therefore, was not competent to charge it with liens; and consequently the defendants were not liable on their bond, which took the vessel's place.
The Supreme Court was of the opinion that the builder was, on general principles, to be regarded as owner; that the final clause divested his title, on the payments of the money; that the burden lay upon the claimants of the vessel-who were the obligors in the bond-to show the time of these payments, or some fact upon which an appropriation of payment could be founded, and as they had not shown either, that, therefore, in law, the builder (Jeroleman) was to be regarded as the owner when the materials were delivered, and accordingly that debts contracted by him did become liens.
Judgment accordingly went for the plaintiffs, and the case was taken by the defendants from the Supreme Court of New Jersey to what in that State is a still higher court, the Court of Errors and Appeals.
The errors there assigned were:
On the 20th of August, 1872, the Court of Errors and Appeals affirmed the judgment of the Supreme Court. The entry of affirmance, or 'rule to affirm,' as in the transcript it was called, as the same came here in the transcript, was dated August 20th, 1872, and was thus:
A writ of error was immediately taken to this court, and within ten days an appeal-bond with good, sufficient security given, that the plaintiff in error should prosecute his writ to effect and answer all damages and costs if he failed to make his plea good. Due service was also made, within ten days, of the writ in the mode prescribed by the Judiciary Act, in order to make the writ a supersedeas. The transcript was filed here, December 6th, 1872.
The case was brought here under the assumption that it came within section seven hundred and nine of the Revised Statutes. 3
The record being in this court with the entry of judgment or 'rule to affirm,' as just given, a suggestion was made here by counsel, May 25th, 1874, that the above-quoted 'rule to affirm' had been vacated and set aside by the [88 U.S. 532, 539] Court of Errors and Appeals, and an amended 'rule' substituted therefor since the filing of said transcript, and a certiorari was issued, without prejudice, on the 25th of May, 1874, to bring up any rule entered by the Court of Errors and Appeals in the suit subsequent to the entering of the 'rule to affirm,' by which the said rule to affirm had been corrected or vacated; and to bring up also any rule which has been substituted for the said rule to affirm.
A return to the certiorari filed in this court August 6th, 1874, showed that it appearing to that court that the 'rule to affirm' had been erroneously entered by the attorney of the plaintiffs in error, and did not correctly express the judgment of this court as set forth in the opinion of the court delivered in the cause, it was ordered, on the 1st day of April, 1874, that the said rule to affirm be annulled and stricken from the minutes; and that a rule to affirm the said judgment of the Supreme Court be entered in conformity with the decision of the court on the questions before it.
The following new rule to affirm was accordingly entered nunc pro tunc on the record, and sent here as part of the return to the certiorari:
The case came on for argument, November 24th, 1874. [88 U.S. 532, 540] Mr. D. McMahon, for the plaintiff in error:
The first question is, what case is before the court? We assert that the altered or new entry in the Court of Errors and Appeals forms no part of the case. Our appeal-bond was such that by force of a statute it operated as a supersedeas and a stay of proceedings. The record of the case was up here when the rule was altered, and the counsel of the other side had no right, nor had the court below power to alter the entry of judgment. 4 By the old practice of the King's Bench it was an offence to do what is said to have been done below. 5
We assume then that the altered or rather the substituted rule, brought up on the return to the certiorari, is to be dismissed from view.
Cleared from that, there is plain matter for review before this court.
The Supreme Court overruled the demurrer raising the exact question of constitutionality under the Constitution and laws of the United States. The very first assignment of errors on the part of the Supreme Court to the Court of Errors and Appeals, was that the Supreme Court held the act of March 20th, 1867, 'valid and constitutional.' 6 But the judgment of the Supreme Court was affirmed in the Court of Errors and Appeals. Independently of this, however-keeping with the utmost strictness to the transcript, and without adverting to what the authoritative reports of the Supreme Court of New Jersey show,-we still see in the 'rule to affirm,' of the Court of Errors and Appeals, a Federal question distinctly raised:
1. That court held that the State statute was not in any sense or in any respect repugnant to the Constitution or laws of the United States. [88 U.S. 532, 541] This position was certainly reviewable, under section 709 of the Revised Statutes.
2. It also held that the contract for building the vessel in question was not a maritime contract, and, therefore, that the statutory remedy given by New Jersey did not conflict with the Constitution and laws of the United States.
Here is a distinct reference to the provision of the Constitution, and to the ninth section of the Judiciary Act,7 confining admiralty jurisdiction to the Federal courts.
Now, we asserted and still assert that the contract for the building of the vessel was a maritime contract. If it was, then the act is clearly, under the case of The Josephine,8 unconstitutional.
Let us consider, at this place, this point. The first case to be adverted to is The Jefferson, decided A.D. 1857.9 The syllabus of the case, given by the reporter, is thus:
At the time the state of facts arose under which The Jefferson was decided, there was no lien law in existence in New Jersey, and the case could have been decided on that point, but the court, or Catron, J., in delivering its opinion, went further, and decided that the contract was not of a maritime character.
However, it is not worth while to comment much on that case, nor on Roach v. Chapman,10 decided A.D. 1859, where, in its light, the same law is declared by Grier, J., nor yet on Moorewood v. Enequist,11 deciding about the same time the same thing. The later and very leading case of Insurance Company v. Dunham,12 decided A.D. 1870, has greatly enlarged [88 U.S. 532, 542] the old ideas as to the extent of admiralty jurisdiction. It really subverts them. In that case, two volumes-long lost-of proceedings in the Colonial courts of admiralty, and but then recently found among the papers of a former registrar of the court and deposited in the library of the Boston Athenaeum, were exhibited. They made a revelation, absolutely new to these times, of our ancient exercise of admiralty jurisdiction. They proved that it was bound by none of those slavish and coarcted limits by which a reference to the case of The Jefferson will show that Catron, J., in the opinion of the court restricted it. The case which we speak of was elaborately and ably argued. The judgment was unanimous. The case decides:
1. That the admiralty and maritime jurisdiction of the United States is not limited by the statutes or judicial prohibitions of England.
2. That as to contracts, the true criterion, whether they are within the admiralty and maritime jurisdiction, is their nature and subject- matter, as whether they are maritime contracts having reference to maritime service, maritime transactions, or maritime casualties, without regard to the place where they were made.
And this new and enlarged doctrine must now be taken to be the settled law of this court.
Bradley, J., who delivered the opinion, refers to the views of Grier, J., and observes that the mind of that great judge underwent some change, in the progress of his judicial life, about the extent of admiralty jurisdiction, and that though he dissented, A.D. 1848, in the case of The Lexington, when it was decided, he afterwards appeared to receive the decision as setting forth a right view; and that when in a late case, The Jefferson (in which he had concurred), was pressed upon him as obliging him to narrow views of admiralty jurisdiction, he intimated that that case was to be confined to the precise question then before the court.
Examining the case now before us-the case of a three-masted schooner, to cost $54 a ton, and (as the contract price amounted to about $21,000) of a tonnage over four hundred [88 U.S. 532, 543] tons, built at East Newark, New Jersey, which the court can judicially notice is on the Newark Bay, an estuary or arm of the sea, in which she was to be launched-examining the case we say by the test presented by Insurance Company v. Dunham, the contract for building this vessel had direct 'reference to maritime service and maritime transactions;' and the furnishing of materials toward the construction of such a vessel was as much maritime as the furnishing materials to any vessel undergoing process of rebuilding or thorough repairing. If the materials furnished to this vessel had been furnished to a vessel that had been once launched, it will be admitted that the lien would be a maritime one; though the vessel were one which had been wrecked and required to be nearly rebuilt; nay, even though she were so far gone, that piece by piece, everything in her required to be new. Wherein does our case differ from either of such cases? Nay, wherein does it differ from any case where a vessel is hauled out of water and put upon the dry-dock and there repaired under a contract made on shore? In one case just as much as the other, the contract is a contract made on land, and to be performed on land.
If under the rule laid down in Insurance Company v. Dunham, the sources of admiralty jurisdiction are to be found in the continental countries of Europe, and in the decisions or practices of our admiralty courts under the Colonial rule and after the formation of our government, and are not to be taken exclusively from England, it will be found that contracts relating to the building of a new ship or furnishing materials for that purpose were well-recognized subjects of admiralty jurisdiction; and that our District Courts for many years entertained jurisdiction over such cases. Mr. Benedict, in the last edition of his Admiralty Practice,13 issued A.D. 1870, has fully shown this.
He examines and controverts the cases of The Jefferson and of Roach v. Chapman, and proves by many references that the maritime law as laid down by all the great civilians [88 U.S. 532, 544] and jurists, embraced contracts for building, repairing, supplying, and navigating ships. His argument and his learning exhaust the subject, and we refer to them only; they being much too extensive for us to quote.
3. The Court of Errors also held that the act does not violate the right of trial by jury, nor conflict with the constitution of the State.
The decision that the act does not violate the right of trial by jury is also reviewable in this court. The State law in effect takes away or obstructs the right of trial by jury, and so abridges one of 'the privileges or immunities of citizens of the United States.' It, in this case, also 'deprives him of his property without due process of law,' and it denies to a person residing in New Jersey 'the equal protection' of the laws of his State. These matters all fall within the fourteenth amendment.