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United States Supreme Court

74 U.S. 482

United States  v.  Kirby

 Argued: December Term, 1868 --- Decided: April 15, 1869

THE defendants were indicted for knowingly and wilfully obstructing and retarding the passage of the mail and of a mail carrier, in the District Court for the District of Kentucky. The case was certified to the Circuit Court for that district.

The indictment was founded upon the ninth section of the act of Congress, of March 3, 1825, 'to reduce into one the several acts establishing and regulating the post office department,' which provides '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; and if any ferryman shall, by wilful negligence, or refusal to transport the mail across the ferry, delay the same, be shall forfeit and pay, for every ten minutes that the same shall be so delayed, a sum not exceeding ten dollars.' [1]

The indictment contained four counts, and charged the defendants with knowingly and wilfully obstructing the passage of the mail of the United States, in the district of Kentucky, on the first of February, 1867, contrary to the act of Congress; and with knowingly and wilfully obstructing and retarding at the same time in that district, the passage of one Farris, a carrier of the mail, while engaged in the performance of this duty; and with knowingly and wilfully retarding at the same time in that district, the passage of the steamboat General Buell, which was then carrying the mail of the United States from the city of Louisville, in Kentucky, to the city of Cincinnati, in Ohio.

To this indictment the defendants, among other things, pleaded specially to the effect, that at the September Term, 1866, of the Circuit Court of Gallation County, in the State of Kentucky, which was a court of competent jurisdiction, two indictments were found by the grand jury of the county against the said Farris for murder; that by order of the court bench warrants were issued upon these indictments, and placed in the hands of Kirby, one of the defendants, who was then sheriff of the county, commanding him to arrest the said Farris and bring him before the court to answer the indictments; that in obedience to these warrants he arrested Farris, and was accompanied by the other defendants as a posse, who were lawfully summoned to assist him in effecting the arrest; that they entered the steamboat Buell to make the arrest, and only used such force as was necessary to accomplish this end; and that they acted without any intent or purpose to obstruct or retard the mail, or the passage of the steamer. To this plea the district attorney of the United States demurred, and upon the argument of the demurrer two questions arose:

First. Whether the arrest of the mail-carrier upon the bench warrants from the Circuit Court of Kentucky was, under the circumstances, an obstruction of the mail within the meaning of the act of Congress.

Second. Whether the arrest was obstructing or retarding the passage of a carrier of the mail within the meaning of that act.

Upon these questions the judges were opposed in opinion, and the questions were sent to this court upon a certificate of division.

Mr. Ashton, Assistant Attorney-General, for the United States:

There are authorities which perhaps favor the position of the government, that the arrest of the carrier of the mail under the warrant, was an obstruction of the mail and of the carrier thereof, within the intent and meaning of the act of Congress. United States v. Barney, [2] decided by Winchester, J., in Maryland district, in 1810, is in that direction. The Indictment was under an act in the same words as the act of 1825. The detention was by an innkeeper, under a lien for the keeping of the horses employed in carrying the mail; and the court held that the defendant was not justified. The court says:

'The statute is a general prohibitory act. It has introduced no exceptions. The law does not allow any justification of a wilful and voluntary act of obstruction to the passage of the mail,' etc.

So in United States v. Harvey, [3] where the indictment (which was under the act of 1825) was against a constable for arresting the mail-carrier under a warrant in an action of trespass, Taney, C.J., held that the mere serving of the warrant would not render the party liable; yet 'if by serving the warrant he detained the carrier, he would then be liable.'

Contrary, however, to these decisions, is the ruling of Mr. Justice Washington in United States v. Hart. [4] In that case it was held that the act of Congress was not to be construed so as to prevent the arrest of the driver of a carriage in which the mail is carried, when he is driving through a crowded city at an improper rate.

No opposing counsel.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:


^1  4 Stat. at Large, 104.

^2  3 Hall's American Law Journal, 128.

^3  8 Law Reporter, 77.

^4  1 Peters's Circuit Court, 390.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).