The only comment made in the Arlington Case upon this language was, "that though not prepared to say now that the court can proceed against the officer in all respects' as if the state were a party, this may be taken as intimating in a general way the views of the court at that time."

But I especially dissent from the statement by the court of the question involved in Louisiana v. Jumel, 107 U. S. 711; [S. C. 2 SUP. CT. REP. 128.] Had the court there denied relief upon the ground that granting it would be "to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in treasury in the manner which the court might think just," I should not, in that case, have expressed any dissent from the action of my brethren. I am unwilling by silence to accede to the suggestion that the substantial relief asked in Louisiana v. Jumel could not have been granted without taking charge of the treasury of the state. There were in the hands of the treasurer of Louisiana money raised by taxation under certain constitutional and statutory provisions. It was money which, by contract with creditors of the state, was set apart and appropriated to the payment of the interest due on designated bonds of the state. The records of the state treasurer's office showed the exact amount obtained by taxation for that purpose. It was in the power of the officers of the state to have paid that money out in discharge of her contract obligations without the slightest confusion in the accounts of the state treasurer. The contrary was not claimed by those officers. But the treasurer and other officers declined to apply the money in their hands for the purpose to which it had been dedicated. They rested their refusal upon an ordinance passed by the state, which was conceded, on all hands, to be a palpable violation of the constitution of the United States, and therefore null and void. As a reason for not discharging a plain official duty, imposed by law, those officers referred to a void provision in the constitution of Louisiana, and it was held that there was no power in the courts of the Union to compel the performance of that duty. The court declined to give any relief against the state officers of Louisiana, partly upon the ground that the relief asked "will require the officers, against whom the process is issued, to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do." "They must," proceeded this court, "use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation, when the same power has declared that it shall not be done." Thus, the constitution of the United States, which is the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding, was, as I then thought and still think, subordinated to "the supreme political power" of the

state of Louisiana.

My brethren declare it to be impossible to compel a state to pay its debts by judicial process. As no decree was asked against the state on the bonds held by complainant, and since the state was not made a party to the record, it is difficult to perceive why it was deemed necessary to make that declaration. But if thereby it was meant that no state can be sued as a party to the record, and no judgment rendered against it as a party defendant, the proposition will not be disputed. I submit, however, that under our system of government the citizen may demand that the courts shall determine his claim to, or his alleged lien upon, property, by whatever individuals that property may be held, and that he cannot be denied an adjudication and enforcement of that claim merely because the individuals sued assert right of possession and title in the government they represent. The hardship and injustice of a different rule is well illustrated in the present case, especially as respects the property embraced by the deed of trust to Whittle. The bill alleges, and the demurrer admits, that that property was not covered by the statutory and executed mortgages upon which the state rests its claim. If these averments are true, the state of Georgia has no pretense of right, by its officers, to hold that property. But my brethren adjudge-if I do not misapprehend the opinion that the assertion by defendants of title in the state is sufficient to preclude judicial inquiry into the rightfulness of their possession or the validity of the state's title.

My brethren say that "on the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers sued." But may not the court inquire whether that hypothesis be sound? Must it be assumed to be sound because the officers of the state so declare? Besides, if the alleged trust was vested in the state as trustee,—if, as claimed by complainant, the state became the trustee of the property mortgaged for the benefit of the bondholders,-may not the court proceed to a decree as between the parties to the record? If the trustee cannot be made a party, and refuses to appear, the court ought not, for that reason, to permit the interests of others to be sacrificed. If the officers of the United States may be deprived of the possession of property held by them for the government, but the title to which is judicially ascertained, in an action against them only, not to be legally in the United States, I do not see why the courts may not, at the suit of the citizen, enforce their claims upon property as against officers of a state who may be judicially ascertained, in a suit against them, not to be in rightful possession for such state. Such relief would not conclude the rights of the state, but would leave to her the privilege of asserting her claim in any court of competent jurisdiction.

I am authorized by Mr. Justice FIELD to say that he concurs in this opinion.

603

(109 U. S. 578)

PROVIDENCE & NEW YORK STEAM-SHIP Co. v. HILL MANUF'G Co.1

In Error to the Supreme Judicial Court of the Commonwealth of Massachusetts.

*FIELD, J., dissenting. I am not able to agree with the court in its disposition of this case. As I construe the act of 1851 to limit the liability of ship-owners, the liability of the steam-ship company for the loss by fire of the goods of the plaintiff below, the Hill Manufacturing Company, rests upon the first section. In my judgment that section is not qualified nor in any respect affected by the rest of the act; nor is an action to recover for losses by fire, caused by the design or neglect of the owner of the vessels, controlled by proceedings taken by him to limit his liability for losses from other causes. The opinion of the court proceeds on the assumption that cases of loss and damage by fire are within the provisions of the third section of the act; it so states expressly. Yet this assumption necessarily involves the conclusion that a fire, caused by the design or neglect of the owner, may occur without his privity or knowledge; which appears to me to be nothing less than saying that contradictory and inconsistent terms may be appropriately applied to the same transaction. The object of the act was to change the rule of the common law as to the liability of the owners of vessels for losses and injuries to which they did not contribute, either designedly or by their neglect, but which were attributable entirely to the acts or omissions of their officers or employes. The common law placed a burdensome responsibility upon the owners for the acts or omissions of their agents or servants without their knowledge or assent; and to lighten this responsibility the statute in question was passed. It was not its purpose to limit the responsibility of the owners for the consequences of their own wrongful acts or omissions. The first section exempts them from all liability for loss or damage by fire of goods shipped on board their vessels, unless such fire is caused by their design or neglect. When the fire is thus caused the common-law rule of liability remains as before, and that extends to the whole value of the property, if entirely lost, or to the extent to which it may be damaged, if only partially destroyed. The concluding provision of the section is equivalent to a declaration that the exemption provided in the preceding part shall not exist when the fire originated from the wrongful acts or omissions of the owners. The third section prescribes a limited liability of the owners for losses from a great variety of acts. It does not exempt them from all liability, but restricts it in the cases mentioned to the value of their interest in the vessels and freight then pending. It is as follows:

"That the liability of the owner or owners of any ship or vessel for any embezzlement, loss, or destruction by the master, officers, mariners, passen.

1 See majority opinion, ante, 379.

gers, or any other person or persons, of any property, goods, or merchandise shipped or put on board such ship or vessel; or for any loss, damage, or injury by collision; or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners,-shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel, and her freight then pending."

The fourth section refers to the acts mentioned in the third, and declares that if any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods on the same voyage, and the whole value of the ship and freight shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner in proportion to their respective losses; and for that purpose the freighters and owners of the property and the owner of the ship, or any of them, may take proceedings in any court for the purpose of apportioning the sum for which he may be liable among the parties thereto; and the owner may transfer his interest in the ship and freight, for the benefit of the claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such for the persons entitled thereto, after which transfer all claims and proceedings against him shall cease.

It seems clear that the various cases of damages and losses enumerated in section 3 are not intended to embrace losses by fire. This section first speaks of the liability of the owner for embezzlement, loss, or destruction, by the master, officers, mariners, passengers, or other persons, of property shipped on board the vessel. It then speaks of his liability for any loss, damage, or injury by collision; and, lastly, for any loss by any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without his privity or knowledge. It is conceded that the language of the first and second parts of the section does not include losses by fire, and the language of the concluding clause does not necessarily include them. It may be applied to other cases; and as losses by fire are specifically embraced by the first section, it must receive such application as will give to each section full force. This is a settled rule of construction. Besides, it cannot be contended that an act done by the design of the owner could have been done without his privity or knowledge. It must necessarily have been done with both; and if the fire was caused by the neglect of the owner it must be presumed to have been caused with his knowledge. Where one is bound to do a thing, or to see that certain things are done, he is presumed to know the direct consequence of his carelessness and neglect in those respects. Especially is this so where his doing the thing, or seeing that it is done, is necessary to the safety of life or property. He cannot shield himself from responsibility by saying that he did not know what would be the consequence of his carelessness and neglect. The law presumes that he does know it and intends it. The act speaks of neglect by the owner, not by any subordinate officer or agent. It is therefore personal neglect which is

909.

009.

meant; and it would be unreasonable to hold that the owner was ignorant of that which necessarily followed from his own personal conduct. Not only would this be unreasonable, but there is an inconsistency in holding that the first section exempts the owner from all liability in cases of fire happening without his design or neglect, if by the third section a liability is fastened upon him to the extent of the value of the ship and freight in case of a fire occurring without his privity or knowledge. And yet, according to the position of the court, the owner is exempted by the first section from all liability if a fire occur without his knowledge and privity, and by the third section is subjected to liability to the extent of the value of the ship.

As stated by counsel of the plaintiff below, there can be no public policy in absolving common carriers by water from their full liability to others for property which has been intrusted to their care, and has been lost by their design or neglect. It certainly would require language, as he observes, so clear and plain that no subtlety of criticism can escape from the conclusion, before such a purpose can be ascribed to congress. It would be establishing a limitation of liability against public policy, common right, and the universal feeling of justice. It would make the law one to protect wrong-doers, and to punish the innocent who had been injured by them while thus protected. If, then, the first section is not affected by the other sections of the act, the liability of the owner of a vessel, in case of fire caused by his design or neglect, exists, as it always has existed, at the common law; and that liability may be enforced in any court, state or federal, having jurisdiction of the parties. The other provisions by which the owner may seek to relieve himself from liability by surrendering his vessel and the freight earned, have no application to such a case. It follows that the defense of a liability limited, as asserted by the district court, goes to the ground.

There is also another consideration which leads to the same conclusion. By section 9 of the judiciary act of 1789, re-enacted in section 563, cl. 8, of the Revised Statutes, a common-law remedy is expressly reserved to suitors in all cases where the admiralty has jurisdiction, provided the common law also gives a remedy; and that the common law gives a remedy in cases of losses by fire, where goods are intrusted to common carriers by water, there can be no doubt. Of such common-law remedy the state courts have exclusive jurisdiction when the parties are citizens of the same state, and concurrent jurisdiction with the federal courts when parties are citizens of different states. The state court, therefore, had jurisdiction of this It is a suit in personam, and even if a federal court might also take jurisdiction, that of the state court, having first attached, could not be subsequently defeated. Wallace v. McConnell, 13 Pet. 136; Taylor v. Carryl, 20 How. 583; Mallett v. Dexter, 1 Curt. 178. The federal court could not issue an injunction against the parties which would affect the jurisdiction of the state court. The act of congress

case.