United States v. The Ohio

27 F. Cas. 219, 29 Leg. Int. 252, 9 Phila. 448, 1872 U.S. Dist. LEXIS 49

• Court: District Court, E.D. Pennsylvania
• Decided: August 9, 1872
• Status: Published

Opinion

CADWALADER, District Judge.

The word “trading” may have meanings which vary with its different applications. In laws concerning navigation, every vessel carrying a cargo or passengers may in general be considered as trading. Boats of the kind in question, though, in the language of the repealed proviso of the internal revenue act of 1866, “used exclusively for carrying coal, oil, minerals or agricultural products to market,” would be considered as trading, within the meaning of the aet of 1793, if it were otherwise applicable. See [Gibbons v. Ogden] 9 Wheat [22 U. S.] 215-219. I think that the act of 1793. if the thirty-seventh section had been omitted, would have been applicable to everything afloat, navigable by motive power of its own, and transporting a cargo, whether the motive power were that of oars, that of sails, or that of steam, whether the ^vessel were of a kind which was known at the date of the act or not, and whether she had a deck or was open. If a more limited meaning were attributed to the phrase ship or vessel, purposes of the act might be frustrated. The thirty-seventh section shows, that an express exception was considered necessary, in order to prevent the act from being applicable to boats of more than five tons, moved only by oars. If the section had been omitted, there would be no more reason to exclude steamers from the application of the act of 1793, than to exclude vessels propelled, in the primitive manner, by oars, of whose use the frequency has been diminished by the innovation of steam tugs. See [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 219, 220.

Here, two alternative, and very different interpretations of the thirty-seventh section, must be considered. The section, according to one interpretation, excludes from the operation of every part of the act, all boats or lighters whatsoever, which are not masted; and, of boats and lighters which are masted and not decked, excludes only such as are employed in the harbor of any town or city. According to the other interpretation, the qualification of being employed in the harbor of a town or city, extends to all the subjects of the section; so that the exception from the operation of the act includes no boat or lighter not masted, unless it is employed in such a harbor. According to the former interpretation, the boats in question, as they have no mast, could not be subjects of tbe act of 1793, for any purpose. According to tbe latter interpretation, tbe question of tbe applicability of tbe act, cannot thus be summarily disposed of. In deciding between tbe two interpretations of the thirty-seventh section, it must be remembered, that punctuation of a statute forms no part of it, and is not recognizable as controlling its interpretation. 4 Durn. & E. [4 Term R.] 65, 06; L. R. 3 C. P. 519, 521, 522; 9 Gray, 3S5. And see [Ewing v. Burnet] 11 Pet. [30 U. S.] 54. But it is necessary to find, if possible, a meaning and purpose for every word of the section.

If the first of the interpretations be adopted, every word will have its fair and full effect. “Nothing in the act” will then “be construed to extend to any boat or lighter not being masted—or, if masted, and not decked, employed in the harbor of any town or city.” But, according to the second interpretation, the word “and” has no effect, which is not repugnant or embarrassing. Therefore, if the question were new, I would have no difficulty in deciding that the thirty-seventh section of the act of 1793, excluded the boats in question from the application of the act of 1793, if it would otherwise have been applicable to tjiem. But the second interpretation of the section, appears to have been so generally adopted, though I do not see for what sufficient reason, that I am constrained to doubt the correctness of my opinion upon the point. Therefore, as I am also of opinion that, although the second interpretation were the correct one, the conclusion would nevertheless be the same, I will, in what follows, consider the question of the applicability of the act of 1793 to these boats upon the assumption, which seems to have been so general, that the thirty-seventh section does not apply to them, but applies to such boats only as are employed in the harbor of a town or city. I think the act inapplicable to the boats in question, because they are without oars, or masts, or steam, or motive power of any kind which can be called their own. For this reason, they are not included in the ordinary general description, of ships or vessels, which is the only designation contained in the act.

A vessel of private ownership represents an organization which is -part of the social system of the country to which she belongs. In this representative character, she has legal attributes, and legal rights, and may incur legal responsibilities, however and by whomsoever she may be navigated. [The China v. Walsh] 7 Wall. [74 U. S.] 53. And see [The James Gray v. The John Fraser] 21 How. [62 U. S.] 191, 192. The sole purpose of this organization is her navigation, and its incidents. That which cannot be made navigable through any internal command of a propelling force, cannot, in a strict sense, be, nautically speaking, a vessel, though she may be called such for the convenience of identifying her with what was once navigable, and may, in some cases, become so again. This remark applies variously under different circumstances. It may apply to a vessel when she is laid up in a port, at home or abroad, or when she is an absolute wreck, whether stranded or afloat; and may have a qualified applicability to a vessel’s own boat when it is towed astern. The case of a sailing vessel which is lashed to the side of a steam-tug, is also temporarily an example. The supreme court have said, that “whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel which, for the time being, has neither her master nor crew on board, from <me point to another, over waters where such accessory motive ' power is necessarily, or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage, through the fault of those in charge of the vessels, must, under such circumstances, look to the tug, her master or owners, for any injuries that vessels or cargo may receive by such means.” [Sturgis v. Boyer] 24 How. [65 U. S.] 122. When the towage is by a hawser, the vessel towed is not liable except so far only as her movements are at her own command, and she is in fault, or negligent in respect of them. [The James Gray v. The John Fraser] 21 How. [62 U. S.] 193, 194.

The reason is much stronger, and its application more simple, in the case of the boats in question. They are absolutely, at all times, without motive power at their command. Though ordinarily called boats, they have been also more properly designated as floating trunks or boxes. They are not subject to admiralty and maritime jurisdiction. Judge Nelson was inclined to this opinion. He thought that they were not ships or vessels, when upon public navigable waters, because they had no power ás respects navigation upon such waters. The Ann Arbor [Case No. 408], A. D. 1858. The intimation was extrajudicial, the decision upon the merits being against the libellant. There had, however, been a previous decision of Judge Grier against the admiralty jurisdiction. He said that such boats were not ships or vessels in the maritime sense of the term; and added, that they do not take out a coasting license. Jones v. The Coal Barges [Id. 7,458], A. D. 1855. This dictum is in point upon the present question. But it will be necessary to consider the question upon original grounds, because the case before Judge Grier was that of one of the canal boats on the Monongahela, which are described in the report somewhat differently from the description of the-boats in question here; and also because laws concerning navigation may apply incidentally 'to what are not subjects of admiralty and maritime jurisdiction.

Certainly, however, such a boat as is here in question is not a vessel in any sense in which the word is ordinarily used in laws concerning navigation. In the act of 1851, limiting the liability of ship owners, the general phrase, “ship or vessel,” must be understood as applicable only to a vessel responsibly navigated. Therefore, if the concluding provision, that the act shall not apply to the owner of any canal boat, barge or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation, had been omitted, the former general phrase, if applicable to canal boats, would not have included any others than such as have sails, oars, or steam power of their own. To make the word vessel, or boat, in an act of legislation of any kind, applicable to the boats in question, superadded words of special description have been considered necessary. Thus, in the repealed proviso of the internal revenue act of 1866, they were described as boats not propelled by steam or sail, which are floated or towed by tug-boats or horses. In the first section of the act of the same year against smuggling, it was thought necessary to provide expressly that for the purposes of that act the term vessel should be held to include every description of watercraft, raft, vehicle and contrivance used, or capable of being used, as a means or auxiliary of transportation, on or by water. This amplified form of description would not have been adopted, if the word “vessel,” unexplained, had been deemed of coextensive import. If the description, thus amplified, includes the boats in question for the purposes of that act, they are so included by force of the phrase “means or auxiliary of transportation on or by water.”

Vessels to which the act of 1793 applies, and which, on compliance with its requirements, are entitled to the privileges and exemptions conferred by it, must be owned and commanded by citizens of the United States. Before any boats like those in question were known, an act of congress of March 12, 1812 (2 Stat. G94), allowed steamboats employed only in rivers or bays of the United States, owned wholly or in part by resident aliens, to be enrolled and licensed as if they belonged to citizens of the United States, according to. and subject to. all the conditions, limitations and provisions contained in the act of 1793. The tugs which tow the boats in question may thus be owned by resident foreigners. The enactment of 1812 was not mentioned in the argument of this case. But my attention was drawn to the act by an observation of counsel, that a great many of the boats in question are owned, or in the charge of resident aliens. If such a fact has been wholly disregarded for the greater part of half a century, the most rational explanation is, that the exemption of the steam tug, which alone has the motive power, has been regarded as including that of the tow which has no independent navigability. The suggestion that the character and amount of the fees and charges for transporting coal, or any thing else, from the interior of the country to a domestic market by towage, may vary as the Irishman, German or Englishman owning the tow or having charge of it, has, or has not, become a naturalized citizen, seems absurd.

If the foregoing views are correct, the words of the act of 1793 do not apply to canal boats having no motive power of their own, but, according to the second interpretation of the thirty-seventh section, apply to canal boats of a certain tonnage, which, though without masts or steam-power, have oars. That the latter boats, -when in rivers and bays, have the command of their own movements, with consequent responsibilities, might be a sufficient reason, that they should be re-quirable to be licensed, or enrolled and licensed. But that they should incur the incidental burdens of coastwise maritime navigation was nevertheless very incongruous to the nature of inland navigation. This may explain the purpose, or one of the purposes, of the act of July 20, 1840. It may have been a reconciling purpose to remove this incongruity, and yet fulfil the exigency of the act of 1793, by relieving canal boats with oars of all maritime burdens without dispensing with the requirement of a license or enrolment and license. Another purpose of the act of 1840 may have been to meet provisionally in like manner, any future decision of the case of canal boats like those now in question, which had then been a disputed case. If this twofold purpose existed it would have been attained by defining in the act, the subjects of it as “canal boats without masts or steam-power,” and exempting them from the peculiarly maritime burdens of hospital dues, fees and charges of registering, enrolling or licensing, and subjection to libels for wages. The boats thus exempted, whether provided with oars or not, were according to this interpretation, such boats only as were then, “by law, required to be registered, licensed, or enrolled and licensed.”

The opinions of counsel which have been mentioned in the course of the argument, and the accompanying letters from the officers of canal companies, were filed in 1S40, in the treasury department, where they now remain. There can be little doubt, if any, that these papers were before the eyes of the framer of the act of 1840. It is, therefore, extremely probable that he had in view the two-fold purpose which has been suggested. But, unless the words of the aet sustain the consequently suggested interpretation, it cannot be adopted. The intention of a law maker is to be legally deduced, not from what may thus have been his probable purpose, but from the meaning of the words which he has used. Here I doubt greatly whether the meaning of the words authorize the suggested interpretation of the act of 1846. In the contexts of this act, wherever the phrase canal boats without masts or steam power occurs, it is never used otherwise than in connection with persons employed to navigate them. It is true that the former expression is once used with a disjunctive relation to the owners. But it is also twice used without any possibility of such an alternative relation. The words, “nor shall the persons employed to navigate such boats receive any benefit or advantage from the marine hospital fund,” and the provision against libelling any such boat for the wages of any person or persons employed on board or in navigating her, are thus applicable to such canal boats only as have oars. Therefore, I incline to the opinion that the application of the words of the act is limited to such as have oars. The provision against libeling for wages would otherwise be insensible, as well as the provisions concerning persons navigating the boats. The only doubt is, whether the act applied likewise to the boats in question. This doubt is, to say the least very great.

The point is quite immaterial, if I am right in thinking as I do. that there is no intention apparent in the act of 1846, to determine to what boats the act of 1793, applied. It was, however, in the argument, assumed that the act of 1846 indicates a belief on the part of congress, that all canal boats without masts or steam power, including the boats in question, were, by law, required to be registered or licensed, or enrolled and licensed; in other words, a belief that the act of 1793 applied to all such boats. Though I think the assumption erroneous, it will not be amiss to consider whether, if the words of the act of 1846 imported such a legislative belief, they would affect the decision. If such were the meaning of the words they would, as we have seen, misconstrue the act of 1793. Words of legislation importing an erroneous construction of a pre-existing statute have not the effect of a law establishing the construction as valid for the future, unless they also import a declaratory or other enactment This rule, however well established, is very seldom applied, because there is no invariable form of a declaratory statute, and the legislature may at present enact how a prior one shall be construed in future. We have also constant experience that successive statutes on the same subject may be read in connection with one another and harmonized, as if they together constituted one and the same law. These explanations and qualifications of the rule do not abrogate it. My predecessor, Judge Hopkinson, stated the rule too broadly perhaps, when he denied that a legislature had a right to impose upon a court their construction of their statutes previously passed. He said that it was for the court to construe the law; but added that it was the right and duty of a judge to look into all the statutes made upon the same subject to discover what was the intention of any of their provisions, thus to ascertain the true meaning and construction by his own judgment, and not by any subsequent legislative declaration of intention or construction. 8 Pet. [33 U. S.] Append. 734. The rule, and a proper qualification of it, were stated with precision by Chief Justice Marshall. He said that a mistaken opinion of the legislature concerning the law, does not make the law, but that if the mistake is manifested in words competent to make the law in future, there is no principle whicn can deny them this effect, and that a law, not in form declaratory, though inoperative on the past, may act in future, by expressing the sense of the legislature on the existing law as plainly as a declaratory act. [Postmaster-General v. Early] 12 Wheat. [23 U. S.] 148, 149. In an English case, Le Blanc, J., said, that a court if clear in their construction of a statute, would be bound to give it effect, though they should be of opinion that an erroneous construction had been put upon it by subsequent statutes. 16 East, 326. In that case, the framers of a statute had. in reciting a prior statute, misconstrued it. Lord Ellen-borough said that he might be under a compulsion, through subsequent statutes, to put a perverse and unnatural interpretation on the original statute, but that he would endeavor as far as he could, without violating the fair rules of construction, to maintain the integrity of the original text, unvitiated by subsequent construction, if he might so say. Id. 319, 320. After stating and explaining the misconstruction, which consisted in misreciting the effect of the original statute, he asked whether the framers of the misconstruing statute had imposed upon the court, by any enactment, the necessity of adopting that which he must assume to be their error if the words of the prior act were intelligible in themselves. In his opinion the recital in the subsequent act could not overrule the plain intelligible sense of the prior one. Id. 324, 325. Where a perpetual statute, English or colonial, was, through legislative inadvertence, continued in force by the words of a subsequent statute, until the end of the legislative session, or for two years, the perpetual statute was not abrogated, but continued in force after either period limited. Hobart, 215; T. Raym. 397. An act of the legislature of Pennsylvania subjected all real estate within one of the corporate municipalities of a county to a lien for assessments, to which all real estate in the county had. by a former act, been made subject The supreme court of the state said that the passing of the subsequent act, at most, only proved that the legislature were not then aware that the assessments had been made liens by the previous act; and added that it could not be sustained for a moment, that the legislature’s mistake or misapprehension of the law in this respect would make it different from what it really was. 5 Rawle, 317. A series of English statutes prohibiting and restricting commerce, &e., with enemies were forensically reviewed in 1794. 6 Durn. & E. [6 Term R.] 38-44, 47-50. Many of these enactments indicated that- the parliament received the prohibitions necessary in order to make such trading and intercourse illegal. Most of the legislative provisions on the subject were otherwise unnecessary. But they were wholly disregarded in this respect by decisions of the king’s bench, (6 Durn. & E. [8 Term R.] 23, 35; S Durn. & E. [8 Term R.] 548, 561), and had previously been so disregarded by the court of admiralty (1 C. Rob. Adm. 196, 220).

If the law of 1846 had contained words of equivalent effect with a recital thát the boats in question were included in the law of 1793, the only enactment in the law of 1846 would be the concession of an exemption from certain supposed' liabilities. Such a legislative concession would not constitute an enactment including the boats in that description, or otherwise enlarging the effect of the act of 1793. The authorities which have been cited therefore, show that the decision of this case cannot be affected by the act of 1846. It is not necessary to consider the tonnage measurement act of 1864, because the fifth section excludes the application of the act to any vessel not required by the law to be registered, or enrolled or licensed.

As to every question in this case, the act of 1870 has excluded wholly the application of the internal revenue laws of 1862, 1864, 1865, and 1S66. If they had continued in force, the only question which would have required attention, has, in principle, been disposed of in considering the act of 1846. This question would have arisen upon the words “in lieu of enrolment fees or tonnage tax,” in the proviso contained in that part of the ninth section of the revenue act of 1866, which was thereby substituted for the 103d section of the revenue act of 1864. If these words indicated a legislative belief that the boats in question were subject to the payment of enrolment fees or tonnage tax, they were words not of enactment, but recital, and misrecited the existing law. But the repeal of the proviso deprives the question of any importance which might otherwise have been attributable to it. The only act of congress, which has not been sufficiently considered, is a provision of the twenty-eighth section of the act of 1866, against smuggling. The provision is, that all vessels, which were subject to enrolment or license, should thereafter be liable to the payment of the fees for services of customs officers, incident thereto. This provision, considered as an isolated enactment, would be of no significance in the case. If, as to those canal boats which are included in the description of vessels, in the act of 1793, the provision repealed the exemption from certain maritime charges, of which such canal boats had been relieved by the act of 1846, the process of legislation to deprive them of the exemption, was indirect, and the exposition of the purpose to do so was obscure. But, if such was the legislative intention, it could not extend beyond the subjects of the former exemption; and, if I have rightly interpreted the act of 1846, which conceded the exemption, the act applied only to such canal boats, without masts or steam power, as have oars.

The point of inquiry is, however, different. The question is upon the effect of the 1st section of the act against smuggling on this provision of the twenty-eighth section. The first section, which has already been quoted, extends, for the purposes of the act, the meaning of the word vessel, so as to make it, for such purposes, include every description of watercraft and means or auxiliary of transportation on or by water. The title of the act is “An act further to prevent smuggling and for other purposes.” The provision of the twenty-eighth section applies to all vessels subject to enrolment or license; and the argument for the United States, if I rightly understand it, is, that the provision must be read as if its words were: “All vessels, including every description of watercraft and contrivance used or capable of being used as a means or auxiliary of transportation on or by water, which are subject to the enrolment or license, shall hereafter be liable to the payment of the fees established by law for services of customs officers incident thereto.” If this were the actual phraseology of the twenty-eighth section, it would have no effect beyond subjecting to payment of the fees, all such watercraft, &c., as were already subject to en-rolment or license. ’ Whether it would ba wise or unwise to abrogate thus far the exemption conceded in 1S46, the purpose to do so would be intelligible. But the phrase, “purposes of this act,” in the act of 1866, would be extravagantly extended beyond its fair import, if made to enlarge inferentially the purposes of other statutes whose provisions may be supposed incidentally in question.

To effectuate the legitimate purposes of the act against smuggling, boats, trunks or boxes, like those in question, may in certain cases, be forfeitable, as appendages of' the tug which tows them, for her violations of penal enactments. Whether, in other cases, they may, when themselves peccant receptacles of smuggled property, or when otherwise used unlawfully, be forfeitable independently of such tug, is an inquiry foreign to the question whether they are, when towed by her, subject to distinct enrolment or licensing under the act of 1793. The purpose of the first section of the act of 1866, was merely to prevent its own provisions in subsequent sections, from being liable to evasion through any mis-descnption, or doubtful description of watercraft. It was no purpose of the act to duplicate requirements of the act of 1793, by requiring enrolment or license of the tows which are without motive power, and of whose tug a license was already required. As these tows, though innavigable, float when detached from their tug, legislation requiring them to be named, and enrolled, or licensed, might be useful to prevent smuggling, or facilitate its detection. But the inference of such a motive of legislation, from words of enactment imposing charges which are properly incidental to such navigation only, as whether coast-wise or foreign, is peculiarly maritime, would seem irrational.

Libel dismissed.