216 U. S. 262, 54 L. ed. 472, 30 Sup. Ct. | bonds are held by the Assets RealizaRep. 330; Bacon v. Boston & M. R. Co. tion Company. Before the present 83 Vt. 421, 76 Atl. 128; People v. Al- bill for foreclosure was filed, the railbany & V. R. Co. 37 Barb. 216; People road company had applied to the Railv. Albany & V. R. Co. 19 How. Pr. 523; road Commission for leave to cease People v. New York C. & H. R. Co. 28 operations, had been refused, and the Hun, 543; State ex rel. Grinsfelder v. state, by the Railroad Commission, had Spokane Street R. Co. 19 Wash. 518, 41 obtained an injunction forbidding the L.R.A. 515, 67 Am. St. Rep. 738, 53 Pac. dismantling of the road, and requiring it 719; Southern P. Co. v. Railroad Com- to go on. It ceased operations, however, mission, 60 Or. 400, 119 Pac. 727; Sew- on December 7, 1917. On December 10, ard v. Denver & R. G. R. Co. 17 N. M. 1917, the bill to foreclose was filed. On 557, 46 L.R.A. (N.S.) 242, 131 Pac. 981; the same day the state filed a bill in San Antonio Street R. Co. v. State, the same court, ancillary to its other bill, Tex. Civ. App. —, 38 S. W. 54; Barton asking for a receiver to operate the road v. Barbour, 104 U. S. 135, 26 L. ed. 677; until further order, and a few days later State ex rel. Ellis v. Tampa Water- sought to have its bill consolidated with works Co. 57 Fla. 533, 22 L.R.A. (N.S.) | the foreclosure suit. This was denied 680, 48 So. 639; State ex rel. Ellis v. and the state's bill was dismissed. The Atlantic Coast Line R. Co. 53 Fla. 650, decree of foreclosure complained of was 13 L.R.A. (N.S.) 329, 44 So. 213, 12 entered on December 24, 1917, but on Ann. Cas. 359; Gainesville v. Gaines- January 22, 1918, in deference to the ville Gas & E. Power Co. 65 Fla. 404, state's contention that the road could be 46 L.R.A.(N.S.) 1119, 62 So. 919; State run at a profit, although the state had ex rel. Railroad Comrs. v. Louisville & not been admitted formally as a party, N. R. Co. 63 Fla. 274, 57 So. 673; Rail- H. S. Cummings was appointed a reroad Commission v. Saline River R. Co. ceiver, he being the most available man, 119 Ark. 239, P.U.R.1915F, 191, 177 S. and being able by his connections to give W. 896. the road a good deal of business in the way of carrying lumber. After nearly a year's trial the court was satisfied that the road could not go on, and thereupon ordered a sale, which was made on February 3, 1919. On March 27, 1919, the court admitted the state as a party, and informed counsel that if it turned out, as the receiver and state insisted, "that the road was operating so as to pay expenses of operation and the taxes, and had some reasonable show for business, the sale would not be confirmed." May 5, 1919, the court entered an order finding that the road was hopelessly insolvent and could not be operated so as to have any net income whatever, but postponing confirmation of the sale until May 12, before which time the proceedings for prohibition were begun. Mr. Justice Holmes delivered the opinion of the court: This is a proceeding by the relators, seeking a prohibition forbidding a state judge of a lower court to confirm a sale of a railroad "for the purpose of and with the privilege on the part of the purchaser of dismantling the same," as authorized by a foreclosure decree. The trustee of the mortgage under foreclo sure was made a party to the proceeding. and demurred upon the ground that the prohibition would deprive him of his property without due process of law, contrary to the 14th Amendment of the Constitution of the United States. The supreme court of Florida granted the prohibition (78 Fla. 321, 8 A.L.R. 232, P.U.R.1920A, 406, 82 So. 866), and thereupon this defendant sued out a writ of error and filed a petition for a writ of certiorari from this court. Action upon the latter was postponed to the hearing on the writ of error. Certiorari being the only remedy, the petition is granted, as the case is deemed a proper one to be reviewed. The road concerned is that of the Ocklawaha Valley Railroad Company. It succeeded by foreclosure of a [519] previous mortgage to a logging road, and gave the present mortgage to Hood, one of the plaintiffs in error, in trust for the bondholders. The On [520] The foreclosure decree of December 24, 1917, provided for a first offer of the road to be used as a common carrier, but if less than $200,000 was bid, there was to be a second offer, with the privilege of dismantling. If, however, the bid on the second offer did not exceed by $100,000 the bid under the first offer, if there was one, the bid under the first offer was to be accepted. The trustee for bondholders was authorized to use the indebtedness of the company in bidding, and to apply his bid, if accepte l, to the same. There was no bid on the first offer, and the Assets Realization Company bought the property under the second. The pro- | all such right as the mortgagor had to hibition is against confirming the sale, stop operations, whatever words were and against so much of the foreclosure used in the decree, and, whatever the decree as authorized the second offer, or words, would get no more. The prohidismantling the road. The ground of bition excluding from the decree the decision was that, in the absence of stat- words purporting to authorize dismanute, a railroad company has no right to tling the road did not cut down the fudivert its property to other uses without ture purchaser's rights, any more than the consent of the state, and that the did the presence of those words enlarge lower court had no jurisdiction to make them. Therefore the action of the the prohibited portion of the decree in a supreme court is not open to objection proceeding to which the state was not a under the Constitution of the United party until after the decree had been States, although it may be that it hardly made. would have been taken if the authority to dismantle had not sounded more absolute than it could be in fact, considering the nature of the proceeding. Without previous statute or contract, to compel the company to keep on at a loss would be an unconstitutional taking of its property. But the prohibition does not compel the company to keep on, it simply excludes a form of authority from the decree that gives the illusion of a power to turn the property to other uses that cannot be settled in that case. It is not questioned that the lower court had jurisdiction of the foreclosure, and it is not suggested that any statute forbids the decree that was made. The decision of the court proceeds upon a doctrine as to the duty of the railroad company, again a duty not based upon statute, and although stated in terms of jurisdiction, depends entirely upon a determination of what the rights of the company are. If the company had the right to stop its operations and dismantle its road, we do not understand that it is doubted that the decree might embody that right in its order of sale. If we are correct, the word "jurisdiction" must not prevent a further consideration of the case. Kenney v. Supreme Lodge, L. O. M. 252 U. S. 411, 414, 415, 64 L. ed. 638, 640, 641, 40 Sup. Ct. Rep. 371. Apart from statute or express contract people who have put their money into a railroad are not bound to go on [521] with it at a loss if there is no reasonable prospect of profitable operation in the future. Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183. No implied contract that they will do so can be elicited from the mere fact that they have accepted a charter from the state, and have been allowed to exercise the power of eminent domain. Suppose that [522] As the state voluntarily made itself a party to the foreclosure suit before the decree went into effect, as indeed the decree never has, it might seem that the state ought to be bound in a way that otherwise it would not be. But if, in a revisory proceeding, the higher state court says that the state should not be bound, and that the decree was wrong in this particular, that is a local question with which we have nothing to do. The result is that although the state court may have acted on questionable or erroneous postulates, there is nothing in its action that calls for a reversal of its judgment. Writ of error dismissed. the Gleneden. (See S. C. Reporter's ed. 522–534.) Evidence judicial notice. a railroad company should find that RE JAMES THOMSON MUIR, Master of its road was a failure, it could not make the state a party to a proceeding for leave to stop, and whether the state would proceed would be for the state to decide. The only remedy of the company would be to stop; and that it would have a right to do without the consent of the state if the facts were as supposed. Purchasers of the road by foreclosure would have the same right. 1. Whether a vessel privately owned was in the public service and under the control of the British government as an admiralty transport are matters not within the range of judicial notice. [For other cases, see Evidence, I. d, in Digest Sup. Ct. 1908.] Admiralty practice objections on behalf of foreign government. But the foreclosure was not a proceed ing in rem, and could confer no rights except those existing in the mortgagor. A purchaser at the sale would acquire was 2. The objection that a vessel libeled in the public service and under the eresk, control of the British government as an Athanasios, 228 Fed. 558; The Maipo, admiralty transport should be presented 252 Fed. 627; The Ardriatio (unreportthrough the usual official channels, and noted; N. Y. L. J. Oct. 19, 1918); The Clavby suggestion on behalf of the British EmC. C. A., 264 Fed. 276. bassy, presented by private counsel appearThere is not any question but that, ing as amici curiæ. on the facts shown by the suggestion of Prohibition - mandamus the British Embassy, the steamship jurisdiction below. Gleneden was immune from process, and the district court should have released her forthwith on that representation. - doubtful 3. Prohibition or mandamus will not issue to prevent a Federal district court from exercising further jurisdiction, and to compel it to undo what has been done, in a suit in admiralty against a British steamship privately owned, in which a mere sug gestion, unsupported by proof, was presented on behalf of the British Embassy by private counsel appearing as amici curiæ, that the vessel libeled was in the public service and under the control of the British government as an admiralty trans port, where the suit is still in the interlocutory stage, and the status of the vessel is at best doubtful and uncertain, both as matter of fact and in point of law. [For other cases, see Prohibition, II.; Man damus, II. c, in Digest Sup. Ct. 1908.] [No. 18, Original.] Argued January 7, 1919. Decided January 17, 1921. P ETITION for a Writ of Prohibition and/or for a Writ of Mandamus to the District Court of the United States for the Eastern District of New York to prevent such court from exercising further jurisdiction, and to compel it to vacate its order in an admiralty suit. Rule discharged and petition dis missed. The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287; The Roseric, 254 Fed. 154; The Broadmayne, L. R. [1916] Prob. 64, 85 L. J. Prob. N. S. 153, 114 L. T. N. S. 89, 33 Times L. R. 304, 60 Sol. Jo. 367; The Messicano, 32 Times L. R. 519; The Erissos (Lloyd's List, Oct. 24, 1917); The Crimdon, 35 Times L. R. 81; Re Indiana Transp. Co. 244 U. S. 456, 61 L. ed. 1253, 37 Sup. Ct. Rep. 717; Tucker v. Alexandroff, 183 U. s. 424, 446, 46 L. ed. 264, 273, 22 Sup. Ct. Rep. 195. The question of the immunity of a vessel from arrest can be properly raised on an agreement such as that made here, to give a bond in the event that the vessel is held not to be immune. The Roseric, 254 Fed. 154; The Crimdon, 35 Times L. R. 82; The Florence H. 248 Fed. 1012. There is no other remedy. Montgomery v. Anderson, 21 How. 386, 16 L. ed. 160; Cushing v. Laird, 107 U. S. 69, 27 L. ed. 391, 2 Sup. Ct. Rep. 196; McLish v. Roff, 141 U. S. 661, 35 The facts are stated in the opinion. L. ed. 893, 12 Sup. Ct. Rep. 118; Bender v. Pennsylvania Co. 148 U. S. 502, 37 Mr. John M. Woolsey argued the L. ed. 537, 13 Sup. Ct. Rep. 640; Hocause, and, with Messrs. J. Parker Kir-horst v. Hamburg American Packet Co. lin and D. M. Tibbetts, filed a brief for petitioner: The method of proving the status of the Gleneden as a British public ship by a suggestion filed in behalf of the British Embassy by counsel appearing as amici curiæ was in accordance with the well-established practice. 148 U. S. 262, 37 L. ed. 443, 13 Sup. Ct. Rep. 590; The Attualita, 152 C. C. A. 43, 238 Fed. 909; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; United States v. Congress Constr. Co. 222 U. S. 199, 56 L. ed. 163, 32 Sup. Ct. Rep. 44; United States v. Larkin, 208 U. S. 333, 52 L. ed. The Roseric, 254 Fed. 154; The 517, 28 Sup. Ct. Rep. 417; Fore River Note. On judicial notice, general-55 L. ed. 163, 31 Sup. Ct. Rep. 185; Male Ship Bldg. Co. v. Hagg, 219 U. S. 175, ly-see note to Olive v. State, 4 L.R.A. 33. As to when mandamus is the proper remedy, generally-see notes to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 160; M'Cluny v. Silliman, 4 L. ed. U. S. 263; Fleming v. Guthrie, 3 L.R.A. 54; Burnsville Turnp. Co. v. State, 3 L.R.A. 265; State ex rel. Charleston, C. & C. R. Co. v. Whitesides, 3 L.R.A. 777, and Ex parte Hurn, 13 L.R.A. 120. v. Atchison, T. & S. F. R. Co. 240 U. S. Workman v. New York, 179 U. S. 552, 97, 60 L. ed. 544, 36 Sup. Ct. Rep. 351; 570, 574, 45 L. ed. 314, 324, 325, 21 Sup. Ct. Rep. 212; The Luigi, 230 Fed. 493; The Crimdon, 35 Times L. R. 81. The relief prayed is appropriate, and there is ample precedent for it. Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 57; Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. Rep. 149; Re New York & P. R. S. S. Co. 155 U. S. 523, 531, 39 L. ed. 246, 249, 15 Sup. Ct. Rep. 183; Ex parte Easton, 95 U. S. 68, 77, 24 L. ed. 373, 376; United States v. Peters, 3 Dall. 121, 1 L. ed. 535; The Santissima Trinidad, 7 Wheat. 283, 5 L. ed. 454; Re Baiz, 135 U. S. 403, 34 L. ed. 222, 10 Sup. Ct. Rep. 854; Re Cooper, 138 Ú. S. 404, 34 L. ed. 993, 11 Sup. Ct. Rep. 289, 143 U. S. 472, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Re Indiana Transp. Co. 244 U. S. 456, 61 L. ed. 1253, 37 Sup. Ct. Rep. 717; Virginia v. Rives, 100 U. S. 313, 25 L. ed. 667, 3 Am. Crim. Rep. 524; Ex parte Harding, 219 U. S. 363, 373, 55 L. ed. 252, 255, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. Rep. 324; Re Metropolitan Trust Co. 218 U. S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. 18; Ex parte Metropolitan Water Co. 220 U. S. 539, 55 L. ed. 575, 31 Sup. Ct. Rep. 600. Messrs. Frederic R. Coudert and Howard Thayer Kingsbury, by special leave, argued the cause and filed a brief on behalf of the British Embassy: The suggestion of immunity by counsel for the British Embassy is a proper method of procedure, and is conclusive as to the official facts thus stated. Dillon v. Strathearn S. S. Co. 248 U. S. 182, 63 L. ed. 199, 39 Sup. Ct. Rep. 83; The Athanasios, 228 Fed. 558; The Maipo, 252 Fed. 627; The Adriatic, N. Y. L. J. Oct. 19, 1918; The Roseric, 254 Fed. 154; Canadian Car & Foundry Co. v. American Can Co. 253 Fed. 152: Dupont v. Pichon, 4 Dall. 321, 1 L. ed. 851; The Exchange v. M'Faddon, 7 Cranch, 121, 3 L. ed. 288; Mexico v. DeArangoiz, 5 Duer, 646; The Sapphire, 11 Wall. 164, 167, 20 L. ed. 127, 130; Tucker v. Alexandroff, 183 U. S 424, 46 L. ed. 264, 22 Sup. Ct. Rep. 195; Hall, International Law, § 44; The Pizzarro v. Matthias, 10 N. Y. Leg. Obs. 97, Fed. Cas. No. 11,199; The Parleament Belge, L. R. 5 Prob. Div. 197, 44 L. T. N. S. 273, 28 Week. Rep. 642, 4 Asp. Mar. L. Cas. 234; The Crimdon, 35 Times L. R. 81. This court has power to grant appropriate relief in this proceeding, and such relief is necessary to meet the sit uation. Re Indiana Transp. Co. 244 U. S. 456, 61 L. ed. 1253, 37 Sup. Ct. Rep. 717; United States v. Peters, 3 Dall. 121, 1 L. ed. 535; Re Metropolitan Trust Co. 218 U. S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. 18; Ex parte Metropolitan Water Co. 220 U. S. 539, 546, 55 L. ed. 575, 31 Sup. Ct. Rep. 600. Mr. Homer L. Loomis argued the cause, and, with Messrs. Joseph A. Barrett and J. Alvis Grace, filed a brief for respondent: This cause of action arose out of a collision on the high seas, and is, therefore, communis juris. The fact that it was between foreigners of different nationality would not have warranted the court's devesting itself of its jurisdiction. The Belgenland, 114 U. S. 355, 29 L. ed. 152, 5 Sup. Ct. Rep. 869; The Maggie Hammond, 9 Wall. 435, 19 L. ed. 772; The Attualita, 152 C. C. A. 43, 238 Fed. 909; Bernhard v. Greene, 3 Sawy. 235, Fed. Cas. No. 1,349; Mason v. The Blaireau, 2 Cranch, 239, 263, 2 L. ed. 266, 275. A ship causing damage is herself con- The Barnstable, 181 U. S. 464, 45 Petitioner cannot be heard to object to the fact that the district judge, on the suggestion, and on the facts before the admission of counsel arguing for him, has held that the Gleneden is not in the possession of the British government. If the suggestion were valid for to call the court's attention to the claim any purpose, it could be received only put forward, and to ask the court to exwhether such facts afforded a proper amine into the facts, and determine foundation for the claim advanced in the suggestion. South Carolina v. Wesley, 155 U. S. 542, 39 L. ed. 254, 15 Sup. Ct. Rep. 230: Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 249; The Exchange 287; Long v. The Tampico, 16 Fed. 491. v. M'Faddon, 7 Cranch, 116, 3 L. ed. wholly irregular, if not actually forbidThe course pursued below was indeed den. The Anne, 3 Wheat. 435, 446, 4 L. ed. 428, 431; The Florence H. 248 Fed. 1012. Mr. Justice Van Devanter delivered the opinion of the court: On July 28, 1917, the Gleneden, a British steamship privately owned, and official channels of the United States, and the Giuseppe Verdi, an Italian steamship by denying that the facts were as alleged. similarly owned, came into collision in A hearing on the suggestion was had, in the Gulf of Lyons, both being seriously which the libellant and counsel for the damaged. November 7, 1918, the British British Embassy participated,-the latter owner of the Gleneden commenced a suit only as amici curiæ,-and at which the in rem in admiralty against the Giuseppe owner of the Gleneden was represented Verdi in the district court for the dis- informally, without an appearance. In trict of New Jersey, to recover damages the course of the hearing counsel for the occasioned by the collision; and a few libellant called on the others to submit days later the Italian owner of the Giuseppe Verdi commenced a like suit against the Gleneden in the district court for the eastern district of New York. The libel in each suit attributed the collision entirely to negligence of servants and agents of the owner of the vessel libeled, it being alleged that she was in their charge at the time. When the suits were begun the vessels were within the waters of the United States, and each was within the particular district where libeled. proof in support of the allegations in the suggestion, particularly to produce the ship's articles and other instruments bearing on the suggested public status of the vessel, and to present the master for examination; but both the counsel for the British Embassy and the representative of the owner refused to do any of these things, and insisted that the court was bound, on the mere assertion of the claim of immunity, to quash the process and release the vessel. The libellant produced the libel in the suit against the The proceedings in the suit against the Giuseppe Verdi, depositions given in that Gleneden are of immediate concern. suit by the [529] master and other After process issued and the vessel was officers of the Gleneden, a certificate arrested, private counsel for the British from the customs officers in New Embassy in Washington, appearing as York, showing the report and entry amici curiæ, presented to the court a of the Gleneden on her arrival, and suggestion in writing to the effect that other evidence, all tending measurably the process under which the vessel was to show that the vessel was operatarrested should be quashed and jurisdic- ed by her owner under a charter partion over her declined, because, as was ty whereby the owner was to keep alleged, "the said vessel is an admiralty her properly manned, furnished, and transport in the service of the British equipped, was to assume any liability government by virtue of a requisition arising from negligent navigation, and from the Lords Commissioners of the was to bear all loss, injury, or damages [528] Admiralty, and is engaged in arising from dangers of the sea, includthe business of the British govern- ing collision. "On all the facts" thus put ment, and under its exclusive direc-before it, the court found that "the Glention and control, and is under orders from the British Admiralty to sail from the port of New York on or about November 25, 1918, to carry a cargo of wheat belonging and consigned to the British government;" because the court "should not exercise jurisdiction over a vessel in the service of a cobelligerent foreign government;" and because "the British courts have refused to exereise jurisdiction over vessels in government service, whether of the British government or of allied governments, in the present war, and that by comity the courts of the United States should in like manner decline to exercise jurisdiction over vessels in the service of the British government." An affidavit of the master of the vessel, affirming the truth of much that was alleged, accompanied the suggestion. The libellant, being cited to show cause why the suggestion should not be acceded to, responded by objecting that it was not presented through eden was owned by and was still in the beneficial possession of the Gleneden Steamship Company, Limited, a private British corporation, who, through its servants, was in the actual control of the steamer and of her navigation, but engaged in performing certain more or less public services for the British Crown under a contractual arrangement amounting to the usual or government form of time charter party." The court "decided accordingly that the Gleneden was not a public ship in the sense that she was either a government agency or entitled to immunity;" and the suggestion was overruled and an order was entered to the effect that the vessel would be released only on the giving of a bond by the owner, securing the claim in litigation, or a bond to the marshal, conditioned for the return of the vessel when that could be done consistently with the asserted needs of the British government. Afterwards, on November 29, 1918, the |
