The Flint River Steamboat Co. v. Foster

• Decision Date: 31 July 1848
• Docket Number: No. 23.,23.
• Citation: 5 Ga. 194
• Parties: The Flint River Steamboat Company, plaintiff in error. vs. Nelson P. Foster, defendant.
• Court: Georgia Supreme Court

5 Ga. 194

The Flint River Steamboat Company, plaintiff in error. vs. Nelson P. Foster, defendant.

No. 23.

Supreme Court of the State of Georgia

JULY TERM, 1848.

Summary process against the Flint River Steamboat Company, decided by Judge Warren, in Decatur Superior Court, June Term, 1848.

The facts are sufficiently incorporated in the opinion of the Court.

Sneed, Sullivan & Dudley, and Crawford, for plaintiff in error, submitted the following points and authorities:

1st. The Act giving the lien is in violation of the fifth article of the amendment of the Constitution of the United States, which declares that a man shall not be deprived of his property without due process of law. Amendments Constitution U. 8. Art. 5. 6 Mass. 309. 4 Dallas, 233. 4 Mass. 027. 1 Brock. 388. 3 John. 475. 15 John, 537. Story on Constitution, 661.

2d. The Act is in violation of seventh article of Amendments Constitution U. S. because it restricts the right of trial by jury. Amendments Constitution V. S. Art. 7. 4 Wheaton, 243. 4 Harris & McHenry, 465. 2 Murphy, 44, 45.

3d. The Act also violates the Constitution of the State of Georgia, which secures the right of trial by jury. Constitution State of Georgia, art. 4, sect. 5, Cobb, 729.

Platt & Spicer, and J. Law, for defendant, submitted:

The words "trial by jury, as heretofore used in this State, shall remain inviolate, " means trial by jury at Common Law.

In the Constitution of the United States, the Common Law is expressed in words.

In admiralty, trial by jury is not secured. 3 Story on Constitution, page 645.

The Act of Congress of 1789, ch. 20, cotemporaneous with the amendment of the federal Constitution, and intends to carry out the clause of the Constitution united under the amendment, does not extend the right of trial by jury to admiralty and maratime jurisdiction. 3 Story's Commentaries on the Constitution, 646. And therefore, in maratime jurisdiction, cannot be amended as of constitutional right.

In maratime questions the local law of a State as to liens, will be enforced in admiralty. 3 Peters' Digest, page 19, cose 24. 3 Peters' Digest, page 23, case 78.

The Statute creating the lien upon steamboats and other water craft, navigating certain rivers, is in the nature of a maratime statute, and will receive a far more liberal construction than statutes relating to Common Law rights and Common Law rern-edies. First, the Statute, see Pamphlet 1841, page 167. For its extension, see Pamphlet 1845, page 152.

The Statute, however, secures all the rights of trial by jury, known to the judiciary of 1799, or any or all the amendments thereto, and therefore is constitutional. Hmrick vs. Harris, 1 Binney, 416. Kiddy vs. Moore, 2 Murphy, 41. Wilson vs. Simonton, 2 Hawks, 482. Livingston vs. Mayor N. Y. 8 Wendall, 100. Craig vs. Maltbey, 1 Kelly, 546. Reid vs. Sullivan, 1 Kelly, 294.

Courts will not so construct the Constitution as to make it an incumbrance to commerce, but they will sustain all laws not clearly unconstitutional. 1 Peters' Digest, page 559, case 11.

By the Court.—Lumpkin, J. delivering the opinion.

Tie General Assembly of this State, on the 11th day of December. 1841, passed an Act "to give to all persons employed in steamboats and other water-craft on the Chattahoochee, Altamaha, and Ocmulgee rivers, a lien on said steamboats or water-craft, for his, her, or their wages, and for wood and provisions furnished, and to point out and facilitate the mode of the collection of the same. (Pamphlet Laws of 1841, p. 167.) Section 1 declares "that from, and immediately after the passage of said act, all persons employed either as captain, pilot, engineer, first or second mate, fireman, deck-hand, or in any other capacity whatever, on all steamboats and other water craft engaged in the navigation of the Chattahoochee, Altamaha, and Ocmulgee rivers, for any debt, dues, wages, or demands, that he, she, or they may and shall have against the owner or owners of said steamboat or other water craft, for personal services, done, rendered, or performed on board the same, and for wood and provisions, an exclusive lien on said steamboat or other water-craft, against the owner or owners thereof, superior in dignity to, and of higher claim than all other incumbrances, no matter of what nature or sort the same may be, provided he. she, or they shall demand and present the collection of the same, as hereinafter to be provided for, at any time within twelve months after the same shalt become due and payable."

Sec. 2. "And be it further enacted. That whenever any captain, pilot, engineer, first or second mate, fireman, deck-hand, orany other person employed on any steamboat, or other water-craft, navigating or running on the Chattahoochee river, shall have any claim or demand against the owner or owners of said steamboat or water-craft, for services rendered on board the same, shall be desirous of collecting the same upon the said debt becoming due, and refusal to pay the same upon demand made, be, she or they may, upon application to any Judge of the Superior Court, or Justice of the Inferior Court in any county in which said steamboat or water-craft may then lie, upon the same arriving at the landing, put, or place of destination, to which the same has been freighted, make affidavit before him of the amount due him, her or them, done and performed on board said steamboat or other water craft, and specify the name thereof; whereupon the said Judge or Justice of the Inferior Court, shall grant an order to the clerks of their respective Courts, as the case may be, requiring said clerk to enter up judgment upon said affidavit, in favor of the applicant for the amount sworn to be due; and it shall be the duty of said clerk to issue instanter an execution therefor, against the owner or owners of said steamboat or other water-craft, to be directed to the sheriff of said county, whose duty it shall be, forthwith, to levy said execution upon said steamboat or other water craft, and advertise and sell the same under the same rules and regulations as govern sheriff\'s sales in other cases: Provided, the said demand shall exceed the sum of thirty dollars. And when said sum shall be for thirty dollars or under, then, and in that case, the application shall be made to one of the Justices of the Peace in the district in which said steamboat or other water-craft may then be. as aforesaid, the same being at the landing, port, or place, to which the same was last freighted, and the said Justice of the Peace, upon filing of the said affidavit, shall issue execution thereon, instanter, for the amount sworn to be due against said steamboat or other water-craft, and the owner or owners thereof, and deliver the same to any lawful constable of the district aforesaid, whose duty it shall be, forthwith, to levy said execution on said steamboat or other water craft, and return the same to the sheriff of the county in which the same may be, whose duty it shall be to advertise and sell, as in other cases."

Sec. 3. "And be it further enacted. That whenever any owner or other persons, having control of any steamboat or other water-craft, against which any proceedings may be had under the fore-going provisions of this act, and may be desirous of contesting said claim or demand on the ground that the same, or some part thereof, is not due and owing, he, she, or they shall file his, her, or their affidavit, denying that the whole, or some part thereof, was due at the time the applicant files bis affidavit, as provided for in the second section of this act; but when only a part is denied on oath, the amount admitted to be due shall be paid, before the officer levying said execution; shall deliver up the property levied on or hereinafter specified, and that after filing of the affidavit as above required in this section, and giving bond and good security, residing in the county where such proceedings may be had, to the plaintiff in double the amount claimed, conditioned for the (payment of the) eventual condemnation, money and all costs incurred thereon; and whenever said affidavit and bond shall be filed as aforesaid, the levying officer shall deliver up the property levied on, and return the affidavit and bond to the next Court in said county to which said execution may have been returnable, upon which an issue shall be made up and formed, and the truth of the same shall be tried by a jury of said county respectivley, at the first term of said Court, unless good cause be shown for a continuance; but the same shall be continued only for one term by each party; and from the verdict rendered in such case, either party shall have the power or privilege to enter an appeal."

Sec. 4. "And be it further enacted, That all the provisions of this act shall apply to all steamboats and water-craft navigating the Altamaha and Ocmulgee rivers, and that all persons who furnish wood and provision to said steamboats or other water-craft, shall have the same remedies as herein before provided."Ib. p. 8, 167, 168, 169.

In 1845, the Legislature passed the following act to extend the provisions of the Act of 1841, and to include Flint river therein: " Be it enacted, &c. That all the provisions of the above recited Act be, and the same are hereby extended to all persons employed on steamboats and other water-craft on Flint river. And whereas it frequently happens that persons employed on said steamboats and other water-crafts on said Chattahoochee, Ocmulgee, Altamaha, and Flint rivers, are negroes and free persons of color, be it therefore further enacted, that whenever any negro, being a slave or free person of color, shall be employed as pilot, engineer, first or second mate, fireman, deck-hand, or in anyother capacity whatever, on all steamboats and other water-crafts engaged in the navigation of said rivers, to wit, the Chattahoochee, Altamaha, Ocmulgee, and Flint rivers, that then, and in all such casts, the owner, master, agent, attorney in...