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EX PARTE MATTER STATE NEW YORK ET AL.

June 1, 1921

EX PARTE IN THE MATTER OF THE STATE OF NEW YORK ET AL., PETITIONERS


ON PETITION FOR WRIT OF PROHIBITION AND/OR WRIT OF MANDAMUS

McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: Pitney

[ 256 U.S. Page 494]

 MR. JUSTICE PITNEY delivered the opinion of the court.

Three separate libels in rem were filed in the United States District Court for the Western District of New

[ 256 U.S. Page 495]

     York: two against the Steam Tug Charlotte, her engines, boilers, machinery, etc., by one Dolloff and one Wagner respectively, both residents and presumably citizens of the State of New York, to severally recover for damages alleged to have been caused to certain canal boats owned by them while navigated upon the Erie Canal in tow of the Charlotte ; the other against the Steam Tug Henry Koerber, Jr., her boilers, engines, tackle, etc., by Murray Transportation Company, a corporation of the State of New York, bailee of a certain coal barge, to recover damages alleged to have been received by the barge while navigated upon the Erie Canal in tow of the Koerber. In each case the tug was claimed by Frank F. Fix and Charles Fix, partners in business under the name of Fix Brothers, of Buffalo, New York, and released from arrest on the filing of satisfactory stipulations. Claimants filed answers to the several libels, and at the same time filed petitions under Admiralty Rule 59 (new Rule 56), setting up in each case that at the time of the respective disasters and damage complained of the tugs were under charter by claimants to Edward S. Walsh, Superintendent of Public Works of the State of New York, who had entered into such charter parties under authority reposed in him by an act of the Legislature of the State of New York, being c. 264 of the Laws of 1919, and had the tugs under his operation, control, and management; that if decrees should be ordered in the respective causes against the tugs the claimants, because of their ownership of the vessels, would be called upon for payment, and thus would be mulcted in damages for the disasters, to which they were total strangers; and that by reason of these facts Edward S. Walsh, Superintendent of Public Works of the State of New York, ought to be proceeded against in the same suits for such damages in accordance with the rule. The District Court, pursuant to the prayer of these petitions, caused monitions to be issued in all

[ 256 U.S. Page 496]

     three cases against Edward S. Walsh, Superintendent of Public Works, citing him to appear and answer, and, in case he could not be found, that "the goods and chattels of the State of New York used and controlled by him" should be attached. The monitions were served upon Walsh within the jurisdiction of the court.

The Attorney General of the State appeared in all three cases specially in behalf of the State and the People thereof, and of Walsh, and filed a suggestion that the court was without jurisdiction to proceed against Walsh as Superintendent of Public Works for the reason that, as appeared upon the face of the proceedings, they were suits against the State of New York in which the State had not consented to be sued. The District Court denied motions to dismiss the monitions (The Henry Koerber, Jr., 268 Fed. Rep. 561), whereupon the Attorney General, on behalf of the State and the People thereof, and of Walsh as Superintendent and individually, under leave granted, filed in this court a petition for writs of prohibition and mandamus. An order to show cause was issued, to which the District Judge made a return, and upon this and the proceedings in the District Court the matter has been argued.

The record shows that the charters had expired according to their terms, and the tugs were in possession of the claimants, neither the State nor Walsh having any claim upon or interest in them. At no time has any res belonging to the State or to Walsh, or in which they claim any interest, been attached or brought under the jurisdiction of the District Court. Nor is any relief asked against Mr. Walsh individually; the proceedings against him being strictly in his capacity as a public officer.

The power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction is specifically conferred upon this court by § 234, Judicial Code (Act of March 3, 1911, c. 231, 36

[ 256 U.S. Page 497]

     Stat. 1087, 1156). And the fact that the objection to the jurisdiction of the court below might be raised by an appeal from the final decree is not in all cases a valid objection to the issuance of a prohibition at the outset, where a court of admiralty assumes to take cognizance of ...


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