Bullard, J.,
delivered the opinion of the court.
The statement of facts in this case, shows that the plaintiff, a creditor of the defendants, who are non-residents, procured from the court of the first district, an attachment which was levied on the steam boats Long Branch and Watchman, belonging to the defendants, which are now, and have been for some time past, employed in transporting the mail between Mobile and New-Orleans, under a contract with the Post Master General, by which it was agreed that the mail should be conveyed in steam boats. The mail bags were put on board the Watchman for transportation, shortly after the seizure, and were on board when the rule to show cause why the boats should not be released, was argued. The judge a quo, ordered the release without security, and the plaintiff appealed.
It is conceded, that by the law of this state, the steam boats in question are liable to be seized, but it is contended by the appellees, that the state law conflicts with acts of Congress, providing for the establishment of post offices and post routes, and for the regular transmission of the mail, and must yield to the paramount authority of an act of Congress.
The Post Master General is authorised by law, to cause a mail to be transmitted by water, from the city of Mobile to the city of New-Orleans. Vol. 3, Laws of U. S. p. 1984 (Story’s edition.)
He is further authorised to have the mail conveyed in any steam boat, or other vessel, used as a packet in any of the waters of the United States, provided he does not pay more than three cents on each letter, and not more than one half cent-for each newspaper. Ibid. 1987.
The clause11 of the act of congress, relating to the obstruction of the passage of the mail, is of a penal character, and in its application to individuals charged with a violation of it, must be strictly-construed ; and certainly not with less strictness when it is sought under its provisions, 'to protect from the pursuit of creditors, the vessels usually employed in the transportation of the mail, in derogation of a right, recognised by the laws of the state.
But the provision of law, particularly relied on by the appellees, is contained in the 9th section of the article above recited, which is in the following words. “ That if any person shall knowingly and wilfully obstruct, or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage, carrying the same, he shall upon conviction for every such offence, pay a fine not exceeding one hundred dollars.”
These are believed to be the only existing enactments of Congress on the subject. The question therefore is, whether the seizure made by the sheriff, was a violation of this statute and tortious. If so, the party can gain no advantage by it, and the court below was correct, in ordering the release. The arguments of counsel, as well as the statement of facts, present the question in a broader light, to wit: Whether the court is to infer from this act of Congress, upon fair principles of construction, that Congress intended to exempt from seizure, under process issued from state courts, any vehicle or vessel, usually employed in the transportation of the mail, in pursuance of contracts with the post office department, at a time when -the mail is not on board, and the vehicle, or vessel, is not “ on its passage carrying the same.”
That Congress has authority under the constitution to use all proper and necessary means to secure the regular transmission of the mail, admits of no doubt. But we are to inquire not what the authority of Congress is, but how far have they chosen to exercise it. The above recited act is of a penal character, and in its application to individuals, charged with a violation of it, must be strictly construed; and certainly not with less strictness, when it is sought under its provisions to protect from the pursuit of creditors, the vessels usually employed in the transportation of the mails, in derogation of a right recognised by the laws of the state, in according to the general rules of construction, it would seem necessary, in order to convict under this section, and aver and prove, substantially, in the words of the act, thai the traverser, knowingly and wilfully obstructed or retarded the passage of the mail, of the drivers, or of th _• carrier, or of any [180]*180horse or carriage carrying the same. Could the sheriff, who ° J ° made this seizure on the plaintiff, as accessary, be convicted under this statute? Might he not justify himself by showing }j¡s procesSj and that the boat at the time was lying in port , ¶ 0 and the mail not on board. It is not enough that in conse0 quence of the seizure, the contractor was put to inconveni*n complying with his contract, and that there ensued a delay in the departure of the mail; the seizure itself must be a wilful obstruction.
It is not enough that in consoquenco of the sei«uro, tha mail tractfthand that delay tathfdemaifthe seizure toüjuimUobstruc-
It has been decided, under a similar statute, bjr the Federal Courts, that there may be cases in which the mail siage, actually in motion, with the mail on board, might be stopped without incurring the penalty. In the case of the United States vs. Hart, tried in the Circuit Court, before Judges Washington and Peters, the defendant, a police officer of the city of Philadelphia, was indicted for wilfully obstructing the passage of the mail stage through the streets of the city. The officer defended himself on the ground that the driver was at the time driving at such a rate as to endanger the lives of the citizens, contrary to an ordinance of the city. The court ruled, that if the ordinance conflicted with the act of Congress,it must yield; but that the driver was committing a breach of the peace, independently of the ordinance, and the officer was justified. They went on to say, that if the driver of a mail stage should commit a felony in the street, and then throw himself into his box, or if a felon should place himself in the stage, an officer would be justified in stopping the stage to arrest them, although the consequence might be to retard the passage of the mail. I Peters 390. Sergeant on Con. Law, 327.
The case of the United States vs. Barney, in the District Court, for the district of Maryland, has been relied on. In that case it appears that the defendant was an innkeeper on the road at the Susquehanna river. He attempted to justify the obstruction, by showing that he had a lien on the stage horses for food furnished them, for some time before their arrest and detention. It does not appear that he had any process, but had refused to let the driver have the horses, [181]*181until the bill for feeding them was paid. Judge Winchester, before whom the trial was had, says th it two questions were in cldc i
“First. Whether the right of an innkeeper to detain a horse for his food, extends to horses owned by individuals, and employed in the transportation of the mail? and
“Second. Whether such right extends to horses belonging to the United States, and employed in the same service?”
On the first question, he decided that the innkeeper had no lien, because it was evident that some other security was looked to and relied on. But he seems to make the case turn on the question of lien or no lien.
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Bullard, J.,
delivered the opinion of the court.
The statement of facts in this case, shows that the plaintiff, a creditor of the defendants, who are non-residents, procured from the court of the first district, an attachment which was levied on the steam boats Long Branch and Watchman, belonging to the defendants, which are now, and have been for some time past, employed in transporting the mail between Mobile and New-Orleans, under a contract with the Post Master General, by which it was agreed that the mail should be conveyed in steam boats. The mail bags were put on board the Watchman for transportation, shortly after the seizure, and were on board when the rule to show cause why the boats should not be released, was argued. The judge a quo, ordered the release without security, and the plaintiff appealed.
It is conceded, that by the law of this state, the steam boats in question are liable to be seized, but it is contended by the appellees, that the state law conflicts with acts of Congress, providing for the establishment of post offices and post routes, and for the regular transmission of the mail, and must yield to the paramount authority of an act of Congress.
The Post Master General is authorised by law, to cause a mail to be transmitted by water, from the city of Mobile to the city of New-Orleans. Vol. 3, Laws of U. S. p. 1984 (Story’s edition.)
He is further authorised to have the mail conveyed in any steam boat, or other vessel, used as a packet in any of the waters of the United States, provided he does not pay more than three cents on each letter, and not more than one half cent-for each newspaper. Ibid. 1987.
The clause11 of the act of congress, relating to the obstruction of the passage of the mail, is of a penal character, and in its application to individuals charged with a violation of it, must be strictly-construed ; and certainly not with less strictness when it is sought under its provisions, 'to protect from the pursuit of creditors, the vessels usually employed in the transportation of the mail, in derogation of a right, recognised by the laws of the state.
But the provision of law, particularly relied on by the appellees, is contained in the 9th section of the article above recited, which is in the following words. “ That if any person shall knowingly and wilfully obstruct, or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage, carrying the same, he shall upon conviction for every such offence, pay a fine not exceeding one hundred dollars.”
These are believed to be the only existing enactments of Congress on the subject. The question therefore is, whether the seizure made by the sheriff, was a violation of this statute and tortious. If so, the party can gain no advantage by it, and the court below was correct, in ordering the release. The arguments of counsel, as well as the statement of facts, present the question in a broader light, to wit: Whether the court is to infer from this act of Congress, upon fair principles of construction, that Congress intended to exempt from seizure, under process issued from state courts, any vehicle or vessel, usually employed in the transportation of the mail, in pursuance of contracts with the post office department, at a time when -the mail is not on board, and the vehicle, or vessel, is not “ on its passage carrying the same.”
That Congress has authority under the constitution to use all proper and necessary means to secure the regular transmission of the mail, admits of no doubt. But we are to inquire not what the authority of Congress is, but how far have they chosen to exercise it. The above recited act is of a penal character, and in its application to individuals, charged with a violation of it, must be strictly construed; and certainly not with less strictness, when it is sought under its provisions to protect from the pursuit of creditors, the vessels usually employed in the transportation of the mails, in derogation of a right recognised by the laws of the state, in according to the general rules of construction, it would seem necessary, in order to convict under this section, and aver and prove, substantially, in the words of the act, thai the traverser, knowingly and wilfully obstructed or retarded the passage of the mail, of the drivers, or of th _• carrier, or of any [180]*180horse or carriage carrying the same. Could the sheriff, who ° J ° made this seizure on the plaintiff, as accessary, be convicted under this statute? Might he not justify himself by showing }j¡s procesSj and that the boat at the time was lying in port , ¶ 0 and the mail not on board. It is not enough that in conse0 quence of the seizure, the contractor was put to inconveni*n complying with his contract, and that there ensued a delay in the departure of the mail; the seizure itself must be a wilful obstruction.
It is not enough that in consoquenco of the sei«uro, tha mail tractfthand that delay tathfdemaifthe seizure toüjuimUobstruc-
It has been decided, under a similar statute, bjr the Federal Courts, that there may be cases in which the mail siage, actually in motion, with the mail on board, might be stopped without incurring the penalty. In the case of the United States vs. Hart, tried in the Circuit Court, before Judges Washington and Peters, the defendant, a police officer of the city of Philadelphia, was indicted for wilfully obstructing the passage of the mail stage through the streets of the city. The officer defended himself on the ground that the driver was at the time driving at such a rate as to endanger the lives of the citizens, contrary to an ordinance of the city. The court ruled, that if the ordinance conflicted with the act of Congress,it must yield; but that the driver was committing a breach of the peace, independently of the ordinance, and the officer was justified. They went on to say, that if the driver of a mail stage should commit a felony in the street, and then throw himself into his box, or if a felon should place himself in the stage, an officer would be justified in stopping the stage to arrest them, although the consequence might be to retard the passage of the mail. I Peters 390. Sergeant on Con. Law, 327.
The case of the United States vs. Barney, in the District Court, for the district of Maryland, has been relied on. In that case it appears that the defendant was an innkeeper on the road at the Susquehanna river. He attempted to justify the obstruction, by showing that he had a lien on the stage horses for food furnished them, for some time before their arrest and detention. It does not appear that he had any process, but had refused to let the driver have the horses, [181]*181until the bill for feeding them was paid. Judge Winchester, before whom the trial was had, says th it two questions were in cldc i
“First. Whether the right of an innkeeper to detain a horse for his food, extends to horses owned by individuals, and employed in the transportation of the mail? and
“Second. Whether such right extends to horses belonging to the United States, and employed in the same service?”
On the first question, he decided that the innkeeper had no lien, because it was evident that some other security was looked to and relied on. But he seems to make the case turn on the question of lien or no lien. Among other arguments to show that there was no lien, the judge says: “a carrier of the mail is bound not to delay its delivery, under severe penalties, and it can scarcely be supposed that he would expose himself to the penalty of such delay, by leaving his horses subject to the arrest of every innkeeper on the road for their food.”
The second question raised in that case, has nothing to do with this, as it is not pretended, that the boats are the property of the United States. But the judge goes on arguendo to state cases not excepted by the statute, he says “a stolen horse found in the mail stage, the owner cannot seize him.” Perhaps not, because it would not be a peaceable taking, if the driver should oppose him, but if he should find his horse which had been stolen, in the stable of the contractor, at one of the termini of the mail route, the peaceable taking of the horse would not, in our opinion, be a violation of the act of Congress. “The driver’s being in debt,” says the judge, “or even committing an offence, can only be arrested in such way as does not obstruct the passage of the mail.” In this last case supposed, the judge carries the doctrine much further than judge Washington did in the case above recited. It is not easy to perceive, how a mail carrier arrived at the end of his route, and after delivering his mail, could be protected from arrest for debt, under the provisions of this act of Congress. Hall’s Law Journal, vol 3,p. 127.
[182]*182Congress has provided against the wilful and tortious obstruction of the transmission of the mail, but contractors warrant against ordinary delays in its departure and arrival arising from their own fault or want of means, by subjecting themselves to penalties or forfeitures. It would appear to us not a good defence to a suit on the contractor’s bond, who was bound to convey the mail by steam boats generally, that a particular steam boat usually employed by him for that purpose, had been seized in port by the sheriff, while the mail was not on board, at the suit of his creditors, although a delay in despatching the mail may have been the consequence.
The court is, therefore, constrained to say, that in their opinion, the act of Congress does not extend to this case, that the seizure was not torteous, and ought to be reinstated.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, that the cause be remanded to be proceeded in according to law, and that the appellees pay the costs of the appeal.