Flint River Steam Boat Company, vs. Roberts, Allen & Co., 2 Fla. 102

Douglas, Chief Justice: This case came up by writ of error from a judgment rendered by a Judge of the Circuit Court at Chambers at Apalachicola, in Franklin County, on the fifth day of June, A. D. 1847, under the peculiar provisions of the second

section of

an act of the General Assembly of this State, “approved January4th, 1847,” Thompson’s Digest, 414, which provides that “whenever any captain, pilot, engineer, first or second mate, fireman, deck hand, merchant, builder, material man, or any other person employed in, or for materials, goods, or supplies furnished any steamboat, lighter or other water craft navigating or running on the Apalachicola river, and bay of Apalachicola, shall have any claim for services rendered on board the same, or for provision stores, or work and labor done, shall bo desirous of collecting the same, upon the said debt becoming duo and refusal to pay the same upon demand made, he, she, or they, may upon application to any judge of the Circuit Court in any county in which said steamboat, lighter or other water craft, may then lie, upon the same arriving at the landing, port, or place of destination to which the same has been freighted, make afiidavit before the said Judge, of the amount due him, her, or them, for any labor, services or supplies by him, her, or them, done and performed, or provisions or stores furnished said steamboat, or other water craft, and specify the name thereof.

Whereupon the said Judge shall grant an order to the Clerk of the Circuit Court of the County where the proceedings shall have been commenced requiring said Clerk to enter up judgment upon said affidavit, in favor of said applicant for the amount sworn to be duo; and it shall be the duty óf said Clerk to issue instantcr an execution therefor against the owner or owners of said steamboat, lighter, or other water craft, to be directed to the Sheriff of the County, whose duty it shall be forthwith to levy said execution upon the 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 exceeds the sum of fifty dollars.” (If said sum shall be for fifty dollars or less, then, and in that case the application shall be made to a Justice of the Peace, &c. Ibid.) An affidavit was made before said Judge by one Luther D. Roberts, agent claiming for Roberts, Allen & Co., the sum of six hundred and fifty-seven 60-100 dollars, for iron work and material furnished said Flint River Steamboat Company, to and for the use of said steamboat.

Whereupon the said Judge entered the following order: “ At Chambers, June 5th, 1847, upon reading the foregoing petition and affidavit annexed, it is ordered that the Clerk of the Circuit Court of Franklin County, do enter up judgment in favor of Roberts, Allen & Co., in the sum of six hundred and fifty-seven 60-000 dollars, ($657 60-000,) amount sworn to against ‘ The Flint River Steamboat Company,’ owners of steamboat Magnolia.

In witness whereof I have hereto set my hand this day and year above written.” This order officially signed by said Judge, was on the same day presented by the plaintiff to the Clerk of the Circuit Court of Franklin County for the entry of judgment as therein prescribed, and in pursuance thereof the said Clerk entered up judgment as follows, viz : “ It is therefore considered by the Court that the plaintiffs recover against the said defendants the sum of six hundred and fifty-seven dollars and sixty cents, together with their costs by them in this behalf expended.” And upon the same day an execution issued on this judgment which was levied on the said steamboat Magnolia.

The steamboat was replevied until the first Monday in December, 1847, that being the first regular sale day after the said steamboat was replevied as aforesaid.

The plaintiff has assigned five several errors but we will only consider the third, which we deem decisive of the case, and which is as follows, to wit: “ There was no summons issued and served, nor was there any appearance by defendant, by self, or by attorney, nor was there any evidence to show that defendant had any notice of the institution of this suit, nor was there any declaration filed, or any assessment of damages by a jury.” The defendants in error contend that the statute above quoted' does not expressly require cither a summons, appearance by, or notice to the defendant, declaration or a jury trial.

This is true but the defendant must have notice either actual or constructive, or no* valid judgment can be entered against him. Hollingsworth vs. Barbour, et al., 4 Peters, 470. Jones vs. Smith, 3 N. Hamp., 108. Hart vs. Huokins, 6 Mass. 399. Arnold vs. Tourtelot, 13 Pick., 172. Heathorn vs. Hulin, 3 J. J. Marshal, 432. Morris vs. Parker, 3 Littell, 268. Stayel vs. Westcott, 3 Day 349. Statutes authorizing proceedings in derogation of the common law for the recovery of debts, generally provide specially, that notice of the institution thereof be given to the defendant.

It has* been said that our attachment law requires no notice. It is true that it requires no notice before a seizure of the property, but it expressly requires that notice of the institution of the suit shall be ‘•personally served upon the defendant, or shall he. published for three months in some newspaper of the district, and if there be no newspaper, then a written advertisement in some public place.

This, notice by advertisement or writing is what the books call constructive notice, and our attachment law further provides that “ the Court upon satisfactory proof of the service of such notice, and upon the finding of ajury-ol inquest may award judgment. It also requires a declaration and other pleadings.” Thompson’s Digest, 359, No. 1. Duval’s Comp., 388, Sec. 14.

It also provides that no attachment shall issue until the party applying therefor, his agent, or attorney, shall enter into bond with at least two good and sufficient securities? payable to the defendants, in at least double the debt or sum demanded, conditioned to pay all costs and damages the defendant may sustain in consequence of improperly suing out said attachment.— Thompson’s Digest, 388, No. 4. Duval, 391, Sec. 10. Thus strictly guarded are the rights of defendants under our attachment law.

The act upon which this proceeding is founded contains no such safeguards for the defendants, and does not therefore commend itself to favorable consideration. In this case it is not pretended that there was any actual notice, or indeed any other notice, but the advertisement of the sale of the steamboat by the Sheriff. It was suggested (though apparently not relied on,) that the defendant had notice by this advertisement, but this was after judgment, and be•sides is not notice to the defendant to appear and defend his rights, but is only notice to purchasers.

Constructive notice can only exist in cases coming fairly within the provisions of the statutes authorizing Courts to make orders of publication, and providing that the publication when made, shall authorize the Courts to enter a judgment or decree. Hollingsworth vs. Barbour, et al., 4 Peters Rep., 460. Chief Justice Marshal in the case of Meade vs.

Deputy Marsh., &c., 1 Brock. 388, held that “ it is a principle of natural justice which Courts are never at liberty to dispense with unless under the mandate of positive law that ‘ no man shall bo condemned unheard, or without an opportunity of being heard.’ ” The statute under which this proceeding was commenced contains no such mandate.

Although it does not expressly require, it does not prohibit the giving of notice, and if it is so framed that notice cannot consistently with its requirements be given, it may well deserve consideration whether it is not null and void, as being against the plain and obvious principles of common right. In Falconer vs.

Montgomery and others, 4 Dall. 233, the Court said: “ The plainest dictates of natural justice must prescribe to every tribunal the law, that ‘no man shall be condemned unheard.’ It is not merely an abstract rule, or positive right, but it is the result of long experience, and of a wise attention to the feelings and disposition of human nature.” And in the case of the Commonwealth vs. the inhabitants of Cambridge, 4 Mass., 627, it was held to be “ an essential principle of natural justice that every man have an opportunity to bo heard in a Court of law upon every question involving his rights or interests before he is affected by any judicial decisión of the question.— In the caso of the Commissioners of Highways vs.

Clow and others, 15 John. 537 to 539, the judgment of the Court of Common Pleas was reversed because the decision of the Commissioners had been reversed on an “ ex parle" hearing without notice to them, although by the statute under which the proceedings took place no notice was by its terms required to be given. And in Corlies vs. Corlies, 8 Vermont 387 to 389, the same principle is maintained. Hart vs.

Huckins, 6 Mass. 400, was an action of entry suo dis-seisin, the process was served by a constable, who was only authorized by statute to serve process in personal actions ; judgment was rendered by a Justice of the Peace which was carried up to the Common Pleas where it was affirmed, but the Supreme Court reversed it, on the ground that it being a real action, the constable had no uu-thority to serve the process, and consequently the tenant had no legal notice, and ought not to have been called, and that the judgment rendered on his supposed default was erroneous, and in reversing the judgment the Court said: “no Court is authorized to render a judgment or decree against any one, or his estate, until after due notice by service of process to appear and defend.” And Hollingworth vs.

Barbour, et al., above cited, 4 Peters 472. Denning vs. Corwin, 11 Wendell’s Rep. 651 and Campbell and others vs. Brown, 6 Howard’s Reps. 111, were reversed because the defendant had no notice, either actual or constructive. With these authorities before us so directly in point and so conclusive, we should be (we think) fully justified in reversing this judgment, were there no other objection interposed than the want of notice. But on account of the extraordinary character of this statute, wo have deemed it to be our duty to notice its provisions 'further.

It is to be observed that the judgment is required to be entered upon the affidavit of the claimant alone; the execution to issue forthwith directed (if the judgment is in the Circuit Court,) to the sheriff, ii in a Justicss Court, to a constable, and in cither case, it is made the duty of the officer forthwith to levy said execution upon tho Steam Boat, or other water craft.

No discretion is left with the officer; he must levy on and advertise and sell the steam boat or other water craft (unless the defendant should perchance happen to hear of the proceedings, and put in a defence under the onerous conditions imposed by the fourth

section of the act) notwithstanding there might be an abundance of other property of the defendants within his reach (or even on board such steam boat or other water craft) to satisfy the execution.

We see therefore that a steam boat of great value, might be seized by virtue of an execution for a debt of five dollars (or even a less sum) by a constable, or for any sum over fifty dollars by a Sheriff and detained until the next salo day, and then unless replevied must absolutely he sold, notwithstanding the whole cargo of such steam boat might bo the property of the defendants, and consist as it naturally would of articles capable of being separated, so that the officer would have no difficulty in levying on property in proportion to the amount of the debt claimed.

Such a state of things would we think be against common reason, common right and the principles of common justice. And in the case of Ham vs. McClaws, I Bay’s Reps. 93, it was hold that “statutes passed against common right, and common reason arc null and void, so far as they are calculated to operate against these principles. “If consequences, or those manifestly against common reason arise collaterally out of a statute, it is void pro tanto.” 1 Harper, 101, cited in 3 United States Digest, 482, No. 4. But the more serious objection to this statute is, its interference with the right of trial by jury.

Under this statute a judgment may be entered up for any sum upon an open account and even without an exhibition of the account or any other voucher, upon the affidavit (as we have seen) of the plaintiff himself, without, too, even the verdict of a jury. The right of trial by jury, says Judge Story, is justly dear to the American people.

It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. 3 Story’s Comm., 638, 639, Sec. 1760. “In Magna Gharta it is more than once insisted on, as the principal bulwark of our liberties, but especially in chap. 29, by which it is provided: That no freeman shall be hurt in either his person or property (“ nisi per legale judicium parium suorum vel per legem terree”') unless by lawful judgment of his peers or equals, or by the law of the land.

A privilege” says Blackstone, “ couched in almost the same words with that of the Emperor Conrad two hundred years before. And it was ever esteemed in all countries a privilege of the highest and most beneficial nature.” 3 Black. Comm. 271. Chap. 23.

Chapter 29 of Magna Gharta is in force in this State by virtue of the act of Nov. 6th, 1829, adopting the common law and statute laws of England, &c., Thompson’s Digest 21, Sec. 2. Duval’s Comp. 357—and

article 17 of the

schedule and ordinance of the Constitution of this State continuing this latter act amongst others in force. The Constitution, Thompson’s Digest page 2, Sec. 6, declares that “ the right of trial by jury shall forever remain inviolate.” The act of the General Assembly under consideration has been passed since the Constitution went into operation, and the question arises therefore whether it is not in violation of the provisions of that instrument.

At the time when the Constitution was adopted and when it first became operative it is very certain that the plaintiff below could not have recovered this judgment without “ a trial by jury,” and the act under which it was rendered wholly dispenses with a jury and expressly authorises the Judge or Justice of the Peace (as we have seen) to render the judgment not only without a jury, but upon the affidavit of the plaintiff alone and without notice to the defendant.

The'Constitution says “the right of trial by jury shall forever remain inviolate,” that is (as is very evident) the right shall (in all cases in which it was enjoyed when the Constitution became binding and obligatory) continue unchanged. It shall “remain inviolate.” This term does not merely imply that the right of jury trial shall not be abolished or wholly denied, but that it shall not be impaired. The word inviolate is defined by approved Lexicographers to-rnean unhurt, uninjured, unpolluted, unbroken.

Inviolate says Webster is derived from the latin word “ inviolatus” which is defined by Ainsworth to mean, not corrupted, immaculate, unhurt, “ untouched.” From the plain and obvious meaning of these words therefore, we conclude that the General Assembly has no power to impair, abridge, or in any degree restrict the right of trial by jury as it existed when the Constitution went into operation. It will not we think be for a moment contended that the right of trial by jury is not by this act greatly impaired, abridged and restricted.

Although it is not totally denied to the defendant, yet under this act he can only have a jury trial when after judgment he may happen to obtain information of the pendency of the proceedings before the sale takes place, and then only upon condition that he swears that he does not owe the whole or some part thereof, and even then only as to the part which he swears he does not owe.

Another condition is interposed by the act to the enjoyment of this Constitutional right with which it might in many cases be difficult, if not utterly impossible for the defendant to comply, viz: he must give bond with 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 thereon, an amount let it be recollected sustained only by the affidavit of the plaintiff on which the judgment is in the first instance entered and execution issued and levied.

Now it is very manifest that if the General Assembly may in the first instance dispense with “the right of trial by jury” altogether, and in the second interpose these two novel not to say dangerous- and oppressive conditions, it may interpose others indefinitely. If the right in question may be denied in one kind of cases, or only allowed upon onerous conditions, it may in all cases. If it may in civil cases it may in criminal cases and even where the life of the accused may depend upon the issue.

Therefore the wisdom of that clause of the Constitution which prohibits “the right of trial by jury” from being injured or even “touched” is very apparent. This act allows judgment to be entered up for any amount (no matter how much or how complicated the accounts on which the claim may be based) without any other proof than the affidavit of the claimant himself, and in this case it was actually so entered (or rather upon the affidavit of an agent)_without pleadings, without notice, without appearance by the defendant and without a jury.

The Court feel the importance of the sacred trust confided to them, of preserving the Constitution of the State unimpaired, and at the same time the delicate duty it imposes of declaring null and void any act of the General Assembly .believed to be subversive of any of its provisions.

When however it is remembered with what jealous and scrupulous regard “the right of trial by jury” has ever been cherished and preserved by our Anglo Saxon ancestors, and by the Fathers of the revolution of 1776, a regard transmitted to us their descendants not only with unabated attachment, but if possible with increased Interest and regard — a Magna Charta shielding every one in the enjoyment of life liberty and property: When these things are borne in mind and a Legislative act in its terms abridges this hallowed right, or its provisions are subversive of the principles of natural justice and against common reason and common right, the duty of the Court, though unpleasant and even painful, is too obvious to be doubted or denied.

Such an one is the act entitled “an act giving a lien to steam boat men and others navigating the Bay and River of Apalachicola,” approved January 4th, 1847, and we are compelled to consider it to be against the letter and spirit of the Constitution of this State, unsuited to answer reasonably, rightly or justly the purposes for which it was enacted, and that it is consequently null and void. The judgment must therefore be and the same is hereby reversed, and the cause remanded to the Court below with directions to dismiss this suit. Per Curiam.