CHICAGO AND GRAND TRUNK RAILWAY COMPANY v. WELLMAN.

143 United States, 339. 1892.

[THIS suit was prosecuted by defendant in error in the State courts of Michigan against plaintiff in error for damages resulting from the refusal of the latter to transport the former as a passenger for the rate of passenger fare fixed by statute of the State. In the trial court the case was submitted on an agreed statement of facts and the testimony of two witnesses as to the capital stock, debts, earnings, and expenses of the company. The defendant below asked an instruction that the statute was unconstitutional, which was refused, and judgment was rendered for plaintiff, which, on appeal, was affirmed by the Supreme Court of the State and the case was brought to this court on writ of error. In the first part of the opinion it is suggested that the facts in the record are not sufficient to enable the court to say as matter of law that the State statute would reduce the earnings of the company below a just compensation, and that the question was one for the jury. Certain facts set out as to the peculiar incidents of the bringing of suit and trial of the case are sufficiently referred to in the portion of the opinion set out below.] MR. JUSTICE BREWER delivered the opinion of the court.

The Supreme Court of Michigan in passing upon the present case felt constrained to make this observation:

"It being evident from the record that this was a friendly suit between the plaintiff and the defendant to test the constitutionality of this legislation, the Attorney-General, when it was brought into this court upon writ of error, very properly interposed and secured counsel to represent the public interest. In the stipulation of facts or in the taking of testimony in the court below neither the AttorneyGeneral nor any other person interested for or employed in behalf of the people of the State took any part. What difference there might have been in the record had the people been represented in the court below, however, under our view of the case, is not of material inquiry."

Counsel for plaintiff in error, referring to this, does not question or deny, but says: "The Attorney-General speaks of the case as evidently a friendly case, and Justice Morse, in his opinion, also so speaks of it. This may be conceded; but what of it? There is no ground for the claim that any fraud or trickery has been practised in presenting the testimony."

We think there is much in the suggestion. The theory upon which, apparently, this suit was brought is that parties have an

appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

These observations are pertinent here. On the very day the act went into force the application for a ticket is made, a suit commenced, and within two months a judgment obtained in the trial court; a judgment rendered not upon the presentation of all the facts from the lips of witnesses, and a full inquiry into them, but upon an agreed statement which precludes inquiry into many things which necessarily largely enter into the determination of the matter in controversy. A single suggestion in this direction: It is agreed that the defendant's operating expenses for 1888 were $2,404,516.54. Of what do these operating expenses consist? Are they made up partially of extravagant salaries-fifty to one hundred thousand dollars to the president, and in like proportion to subordinate officers? Surely, before the courts are called upon to adjudge an act of the legislature fixing the maximum passenger rates for railroad companies to be unconstitutional, on the ground that its enforcement would prevent the stockholders from receiving any dividends on their investments, or the bondholders any interest on their loans, they should be fully advised as to what is done with the receipts and earnings of the company; for if so advised, it might clearly appear that a prudent and honest management would, within the rates prescribed, secure to the bondholders their interest, and to the stockholders reasonable dividends. While the protection of vested rights of property is a supreme duty of the courts, it has not come to this, that the legislative power rests subservient to the discretion of any railroad corporation which may, by exorbitant and unreasonable salaries, or in some other improper way, transfer its earnings into what it is pleased to call "operating expenses."

We do not mean to insinuate aught against the actual management of the affairs of this company. The silence of the record gives us no information, and we have no knowledge outside thereof, and no suspicion of wrong. Our suggestion is only to indicate how easily courts may be misled into doing grievous wrong to the public,

and how careful they should be to not declare legislative acts uncon stitutional upon agreed and general statements, and without the fullest disclosure of all material facts.

Judgment affirmed.

SECTION III. EFFECT OF PARTIAL UNCONSTITUTIONALITY.

POLLOCK v. FARMERS' LOAN AND TRUST COMPANY.

(REHEARING.)

158 United States, 601. 1895.

[See page 223, supra.]

FIELD v. CLARK.

143 United States, 649. 1892.
[See page 95, supra.]

SECTION IV. - RESPONSIBILITY FOR OFFICIAL ACTS UNDER UNCONSTITUTIONAL STATUTE.

CAMPBELL v. SHERMAN.

35 Wisconsin, 103. 1874.

APPEAL from the Circuit Court for Eau Claire County.

Action for the unlawful seizure and conversion by the defendant, sheriff of Eau Claire County, through his deputy, and under color of his office, of a steamboat with its tackle and furniture, the property of the plaintiff. The complaint demands damages for the value of the property and for the loss caused plaintiff in his business by the seizure.

[The steamboat was seized by the sheriff under a writ issued from a State court in a proceeding in accordance with the laws of the State to enforce a lien on such boat for a sum due to one Heylmun under

contract for services as a pilot. After such seizure the steamboat was accidentally destroyed by fire. These facts being set up by answer as a defence, the plaintiff demurred thereto, and appealed from an order overruling his demurrer. The court, in its opinion, holds that the statute authorizing proceedings in the courts of the State to enforce a maritime lien such as that claimed in the action in which the sheriff made the seizure was unconstitutional, and then proceeds.] COLE, J.

This being the case, the further question arises, Did the warrant thus issued in a cause over which that court had no jurisdiction, afford any protection to the officer for acts done in its execution? The counsel for the defendant contends that it would protect the officer, and that, if fair and regular on its face, he had no right and it was not his duty to inquire whether the court which issued it had jurisdiction of the cause. Where the subject-matter of the suit is within the jurisdiction of the court, yet jurisdiction in the particular case is wanting, there is certainly reason and authority for holding that an officer who executes a process fair upon its face shall be protected. But a clear distinction exists between that case and a proceeding in which the process itself shows that the court has exceeded its jurisdiction. The rule is stated by Mr. Justice Smith in Bagnall v. Ableman, 4 Wis. 163, in the following language: "When the process is fair on its face, and issued by a court or magistrate of competent jurisdiction, it is a protection to the officer. But if it be not fair and regular upon its face, or its recitals or commands show a want or excess of jurisdiction in the court or magistrate issuing it, the officer is not protected in its execution." p. 179. The form of the warrant issued in the present case is not set forth in the answer. But it was undoubtedly such a process as the clerk was required to issue upon the filing of the complaint, and it would show upon its face that it was issued in a proceeding instituted under the provisions of ch. 184 [Laws of 1869]. It would command the officer to attach and seize the steamer "Ida Campbell," her tackle, apparel, and furniture, if found within his county, and safely keep the same to answer all such liens as should be established against it in favor of the plaintiff in the cause. It would properly contain recitals showing that a complaint had been filed with the clerk, and state the nature and amount of the demand for which a lien was claimed against the vessel. We must presume from the matters stated in the answer that such was the form of the warrant under which the officer acted; and furthermore, a process setting forth these facts would be required by the law under which the proceeding was taken. And it is very apparent that such a warrant would show upon its face the nature of the proceeding, and that the suit was instituted to enforce a maritime lien. In other words, it would show that the Circuit Court had no jurisdiction of the subject-matter of the action, and no power to hear and deter

mine it. And we understand the rule to be, that where the process does thus show a want of jurisdiction in the court of the subjectmatter of the action, it is void, and does not protect the officer. In this all the cases agree.

But it is said that this rule imposed upon the officer in the present case the duty of determining, in advance of any decision of the courts of this State, the validity of an act of the legislature. How can it be expected, it is asked, that a mere ministerial officer could decide such a question, and thus find out that his process was void for want of jurisdiction in the court which issued it? The maxim ignorantia juris non excusat, — ignorance of the law, which every man is presumed to know, does not afford excuse, -in its application to human affairs, frequently operates harshly; and yet it is manifest that if ignorance of the law were a ground of exemption, the administration of justice would be arrested, and society could not exist. For in every case ignorance of the law would be alleged. And consequently the answer must be given in this case, that the ignorance of the officer is of the law, and the rule is almost without an exception, that this does not excuse. It may devolve upon the officer a vast responsibility in some cases, to say that he must notice at his peril that an act of the legislature attempting to confer jurisdiction upon the courts is unconstitutional. But if the officer does not wish to assume all the hazard which such a rule of law imposes on him, he must require a bond of indemnity from the party for whom he is acting. It is further said that it was the duty of the officer to obey the mandate of the warrant and seize the identical steamboat which he did attach, and that he had no alternative but to obey. If the act which the writ commanded him to do was a trespass, he was not required to perform it. Nor would he be liable in that case to the plaintiff for refusing to execute a process void for want of jurisdiction.. We have examined the authorities cited on the brief of counsel for the defendant, but we find nothing in them inconsistent with the views above expressed.

The conclusion which we have reached is, that the answer does. not state a defence to the action, and that the demurrer to it should have been sustained.

STATE v. GODWIN.

123 North Carolina, 697. 1898.

[DEFENDANTS were justices of the peace whose duty by a certain statute of the State was to take action with reference to the public roads in their township. A subsequent statute purported to repeal the statute above referred to, so far as it applied to the county of