John Den James Murray and John Kayser, Plaintiffs v. the Hoboken Land and Improvement Company John Den James Murray Et Al v. the Hoboken Land and Improvement Company John Den William Rathbone Et Al v. Rutsen Suckley Et Al

• Decision Date: 01 December 1855
• Parties: JOHN DEN, ex dem. JAMES B. MURRAY AND JOHN C. KAYSER, PLAINTIFFS, v. THE HOBOKEN LAND AND IMPROVEMENT COMPANY. JOHN DEN, ex dem. JAMES B. MURRAY ET AL. v. THE HOBOKEN LAND AND IMPROVEMENT COMPANY. JOHN DEN, ex dem. WILLIAM P. RATHBONE ET AL. v. RUTSEN SUCKLEY ET AL
• Court: U.S. Supreme Court

59 U.S. 272

18 How. 272

15 L.Ed. 372

JOHN DEN, ex dem. JAMES B. MURRAY AND JOHN C.

KAYSER, PLAINTIFFS,

v. THE HOBOKEN LAND AND IMPROVEMENT COMPANY.

JOHN DEN, ex dem. JAMES B. MURRAY ET AL.

v. THE HOBOKEN LAND AND IMPROVEMENT COMPANY.

JOHN DEN, ex dem. WILLIAM P. RATHBONE ET AL.

v. RUTSEN SUCKLEY ET AL.

December Term, 1855

THESE three cases came up from the circuit court of the United States for the district of New Jersey, upon a certificate of division in opinion between the judges thereof.

As the opinion of the court answers only the third question, it may be proper to say that the first two related to a mortgage executed by Henry Ogden, as the attorney in fact of Swartwout, to Henry D. Gilpin, solicitor of the treasury. It was necessary to the case of the plaintiffs to get rid of this mortgage in the first instance, and afterwards to avoid the sale under the distress warrant. If they failed in the last, the points raised in the first two questions became of no practical consequence, and, therefore, answers to them were not returned by this court.

The case is stated in the opinion of the court. The decision of one involved the two others, as they depended upon the same principles.

It was argued by Mr. Van Winkle and Mr. Wood, for the plaintiffs, and by Mr. Zabrinski, Mr. Gillett, Mr. Butler, and Mr. Bradley, for the defendants.

The points relating to the power of attorney and the mortgage need not be noticed.

The counsel for the plaintiffs contended that the acts of congress, authorizing these proceedings under a distress warrant, were unconstitutional and void, because,——

The proceeding to establish this claim was, in its nature, a judicial proceeding, and could only be carried out under the judicial power. Const. U. S. art. 3, §§ 1, 2; 4 Devereux, 1, 13.

By the judicial power in the constitution, was meant that portion of such power which was recognized and understood to be such at the time of the adoption of the constitution. Federalist, No. 80; 2 Brock. 447.

This summary proceeding was considered and enforced as a judgment at law. 3 Wheat. 212, 222.

The warrant to sell and imprison is an execution issued upon a judgment. 9 Pet. 8.

The secretary of the treasury cannot be constituted a court for the exercise of judicial power. Const. U. S. art. 3, § 1.

The power of review of law and fact, given by the act to a court, does not change these views.

The proceeding in question took place without any hearing by the debtor and without a trial by jury, and is, therefore, unconstitutional and void. Article 7 of Amendments of Constitution; 5 Johns. 37.

As process, it was unconstitutional, because it changed the onus, and required the debtor to disprove the debt.

This process deprives of liberty and property without due process of law, contrary to the 5th article of amendments to the constitution.

This meant, by process of law, as then understood, charge, defence, judgment before and by a legally constituted court. Co. Lit. 2 Inst. 47, Magna Charta, chs. 8 and 29; 2 Kent's Com. (5th Ed.) 13; Story on the Const. § 1783; Sullivan's Lectures, chs. 39 and 40; Taylor v. Porter, 4 Hill, 146; Fletcher v. Peck, 6 Cranch, 138; Bank of Col. v. Oakley, 4 Pet. Cond. R. 443; 4 Cranch, 439; Van Zandt v. Waddell, 2 Yerger, 260; Jones's Heirs v. Perry et al. 10 ibid. 59; Bank of the State v. Charles Cooper et al. 2 ibid. 599; Lane v. Dorman, 3 Scam. 238, 241; White v. White, 5 Barbour's S. C. R. 481-483; Holden v. James, 11 Mass. 404.

No implied or express consent can make valid what is unconstitutional.

The distress warrant was not supported by oath or affirmation. Amendments to Constitution, article 4.

If the proceeding is constitutional, still, the statute must be strictly pursued. 6 Pet. 470; 3 ibid. 8; 1 Scam. 323; 6 Wheat. 119.

But it does not appear that there were no goods or chattels upon which to levy; on the contrary, that the marshal levied upon some, but failed to sell them.

The counsel for the defendants contended:——

That these proceedings were not judicial acts. That they were the well-known proceeding by distress, established at common law, and regulated by statute in most of the States before the adoption of the federal constitution. 3 Black. Com. 3, 6.

Prior acts of congress regulated distress warrants. 3 States. at Large, 173, §§ 26, 14.

They have none of the characteristics of judicial proceedings. 1 Curt. Com. 99; 13 How. 40.

This court has laid down the distinction between the judicial power intended by the constitution, and this power conferred upon a particular officer. 8 Pet. 8; 6 ibid. 47; 13 How. 4, 52, note.

Mr. Justice CURTIS delivered the opinion of the court.

This case comes before us on a certificate of division of opinion of the judges of the circuit court of the United States for the district of New Jersey. It is an action of ejectment, in which both parties claim title under Samuel Swartwout—the plaintiffs, under the levy of an execution on the 10th day of April, 1839, and the defendants, under a sale made by the marshal of the United States for the district of New Jersey, on the 1st day of June, 1839—by virtue of what is denominated a distress warrant, issued by the solicitor of the treasury under the act of congress of May 15, 1820, entitled, 'An act providing for the better organization of the treasury department.' This act having provided, by its first section, that a lien for the amount due should exist on the lands of the debtor from the time of the levy and record thereof in the office of the district court of the United States for the proper district, and the date of that levy in this case being prior to the date of the judgment under which the plaintiffs' title was made, the question occurred in the circuit court, 'whether the said warrant of distress in the special verdict mentioned, and the proceedings thereon and anterior thereto, under which the defendants claim title, are sufficient, under the constitution of the United States and the law of the land, to pass and transfer the title and estate of the said Swartwout in and to the premises in question, as against the lessors of the plaintiff.' Upon this question, the judges being of opposite opinions, it was certified to this court, and has been argued by counsel.

No objection has been taken to the warrant on account of any defect or irregularity in the proceedings which preceded its issue. It is not denied that they were in conformity with the requirements of the act of congress. The special verdict finds that Swartwout was collector of the customs for the port of New York for eight years before the 29th of March, 1838: that, on the 10th of November, 1838, his account, as such collector, was audited by the first auditor, and certified by the first comptroller of the treasury; and for the balance thus found, amounting to the sum of $1,374,119 65/100, the warrant in question was issued by the solicitor of the treasury. Its validity is denied by the plaintiffs, upon the ground that so much of the act of congress as authorized it, is in conflict with the constitution of the United States.

In support of this position, the plaintiff relies on that part of the first section of the third article of the constitution which requires the judicial power of the United States to be vested in one supreme court and in such inferior courts as congress may, from time to time, ordain and establish; the judges whereof shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Also, on the second section of the same article, which declares that the judicial power shall extend to controversies to which the United States shall be a party.

It must be admitted that, if the auditing of this account, and the ascertainment of its balance, and the issuing of this process, was an exercise of the judicial power of the United States, the proceeding was void; for the officers who performed these acts could exercise no part of that judicial power. They neither constituted a court of the United States, nor were they, or either of them, so connected with any such court as to perform even any of the ministerial duties which arise out of judicial proceedings.

The question, whether these acts were an exercise of the judicial power of the United States, can best be considered under another inquiry, raised by the further objection of the plaintiff, that the effect of the proceedings authorized by the act in question is to deprive the party, against whom the warrant issues, of his liberty and property, 'without due process of law;' and, therefore, is in conflict with the fifth article of the amendments of the constitution.

Taking these two objections together, they raise the questions, whether, under the constitution of the United States, a collector of the customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty, or property in order to enforce payment of that balance, without the exercise of the judicial power of the United States, and yet by due process of law, within the meaning of those terms in the constitution; and if so, then, secondly, whether the warrant in question was such due process of law?

The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta. Lord Coke, in his commentary on those words, (2 Inst. 50,) says they mean due process of law. The constitutions which had been adopted by the several States before the formation of the federal constitution, following the language of the great charter more closely, generally contained the words, 'but by the judgment of his peers, or the law of the land.' The ordinance of congress of July 13, 1787, for the government of the territory of the United States northwest...