804
FEDERAL REPORTER.
sentatives in congress, by those exercising the functions of officers at such elections. It is immaterial that such officers are appointed by the state. When supervising elections for representatives in congress, they can be reached by the power of the United States, and punished for neglect of the duties they assume to discharge. These views are sustained by the elaborate judgments of the supreme court of the United States in Ex parte Siebold, 100 U. S. 375; Ex parte Clarke, Id. 399; and & parte Yarbrough,110 U. S. 651,4 Sup. Ct. Rep, 152,..,....-in which the power of congress, either by direct legislation, ,or by adopting the regulations established by the state" to secure the integrity and freedom of elections, at which representatives in congress are chosen, is placed upon grounds that cannot be shaken. Those cases cover the whole field of,argument. I am of opinion that the district court· of the United States has jurisdiction to proceed under these indictments. The application for the discharge of the prisoner must therefore be denied. It is so ordered.
UNITED
STATES .".
BUCKLEY
and others.
(Diatrict Oowrt, No D. Oalifornia. August 2, 1887.)
1.
SEAHEN-DESERTIOl';-COASTING VESSELS-CONSTRUOTIOl'; OF STATUTES.
The act of congress of June 9, 1874, provides" that none of the provisions of the act entitled' An act to authorize the appointment of shipping commissioners,' etc., approved June 17, 1872, shall apply to sail or steam vessels engaged in the' coastwise trade,' except the coastwise trade between the Atlantic and Pacific coasts, "etc. Held, that the effect of the act was to repeal, with the exceptions indicated, not only such provisions of the act of 1872 as applied distinctively to 'lJeaaela eo nomine, but also the other provisions relating to maste,rs and owners, and their duties, and to seamen and apprentices, and their discipline; and that se'ameri deserting from a coasting vessel plying between different California ports were not liable to information therefor.
2.
STATUTES-REPEAL-REVISION-SHIPPING COMMISSIONERS.
Under tlle act of congress of June 22, 1874, providing that the Revised Statutes should take effect as of December 1, 1873; and Rev. St. § 5601, declaring that acts passed since that date should, "so far as they vary from or conflict with any provision contained in said Revisiou, have effect as subsequent stat· utes, and as repealing- any portion of the Revision inconsistent therewith, so much of the act of June 7, 1872, entitled" An act to authorize the appointment of shipping commissioners," as' is la-enacted in title 53, Rev. St., is repea.led by the act of June 9.1874.
Information for Desertion from a Coasting Vessel. On demurrer. George W. Towle, special counsel on behalf of the United States. H. W.Hutton, for defendants. HOFFMAN, J. The information in this case charges the defendants with desertlon from the steam-ship Queen of the Pacific, a coasting vessel plying between this port and San Diego, a port in this state. The offense is made punishable by section 51 of the act of June 7,1872, and also by section 4596, Rev. St.
UNI'rED STA'rES V. BUCKLEY.
805
The information is demurre<;l to, on the ground that those provisions are repealed by the act of June 9, 1874,(18 St. 64.) That act provides "that none of the provisions of the act.eJ;ltitled 'An act to the appointment of shipping commissioners,' [giving the title of the act,] approved June 7, 1872, shall apply to sail or steam vessels engaged in the the Atlantic and 'coastwise trade,' except the coastwise trade provisiollS are somewhat obscure; Pacific coasts," etc. The but they need not here 'be considered, for it ia not disputed that the vessel from which the men are alleged to have deserted was engaged in the coastwise trade between ports of this state. n is contended on the part of the prosecution-JilirBt, that the provisions of title 53, Rev. St., are in force, unaffected by the act of, June 9, 1874; and, second, that that act only affects such ,provisions of the original act of June 7, 1872, (re-enacted in title 53, Rev. St. ,) as apply distinctly to vlJ88ew, and that the tither provisions relating to masters and owners, and their duties, to seamen and apprentices, and their discipline, etc., are unaffected by it. ,These contentions will be considered in their inverse order. . 1. Does the act of1874 repeal all the provisions of the act of 1872, or only those relating to vessels eo nomine? In determining this question, it is proper to advert for a moment to the previouslegislatioll on the sub· ject. One of the principal objects of the act of 1872, as indicated by its title, was to provide for the shipment of seamen before shipping commissioners, a class of officers created by the act. Section 12 provides that the masStates to any foreigu ter of every ship bound from a port in the port, or of any ship of the burden of 75 tons or upward, bound from a port on the Atlantic to II port of the Pacific, shall, before on such voyage, make an agreement, etc. The first proviso to this section allows the master to perform the dutics of shipping commissioner in respect to his own crew in any customs district, when no shipping exempts from commissioner has been appointed. The the requirements of the section masters of vessels, where the seamen are entitled to participate in the results or profits of the cruise or voyage, and masters of coastwise and lake-going vessels that touch at for:o eign ports.' Substantially th same provision is contained in the proviso to section 8. The actof 1873 further exempted from the operation of the twelfth section of the original act masters of vessels engaged in trade between the United States and British North American ports, or the West India islands, or the republic of Mexico. Such was the state of the law Wior to the passage of the act of June 9, 1874. Asto the effect of this legislation, some questions present themselves. Section 12 of the original a'ct contains minute specifications as to the ,contents of the agreement to be entered into, before the shipping commissioner, between the master and the crew. A 'form of agreement is prescribed, to be followed as near as may be, and containing eight separate particulars set forth in the section. The first prov,iso authorizeS.the master, in districtswhere there is no shipping commissioner, to him{Jelf
806
'I'EDERAL REPORTER.
perfurmthe duties of shipping. comrAissioner. The second proviso declares thliithe section shall pO,t,a!?'ply to masters of coastwise or \l'esselsth,at touch at The eighth section provides that '" nothjng iIi this act shall be sP.' 'construed as to prevent the owner, conor imlster of any ship, e,xceptauch as are described in section 12 of'thisact, so far as the said ships are concerned, 4uties of shippingctimmissioner under this act." The act of 1873; flirtherextended theeiemption from the operation of section 12 to thastersof vessels between the United States and the British North A,mericap possessions, the West India islands, and the ' ' , republic of':MexibO. ", " , ' , , to exempt the masters of tbe ex'Was ,it the effect ceptedvessels from the operationol aU the provisions of the twelfth sectionof the 'act of 1872,ormerely, as might be 'inferred from the first proviso, Itndthe language 'of se6tibri8, to allow therritoperform them. selves t:M of theshippingcorilmissioner? If the fil'st view be 'adopteH, lfind no in' the original act, or the amendments to it, which requires him to enter into any whatever in writing the Be,amen 'qil the' excepted vessels, eitheras to time of nature and of the .v?yage, rate of wages, capacitym which they are 'to serve, scale of provlslOns'to be served, etc.,stipulatiol;ls whicp would !leem to be as essential to the protection of sea- · men on the excepted, as on the foreign, voyages. If the other view be taken, the master is relieved from the necessity of going before the commissioner with his crew to acknowledge the execution of. the agreement, but he is nevertheless required to make it in writing, and containing all t,he particulars mentioned in section 12. I recur to the question presented in this case. We have seen that the provisions in the act 1872, and. the amendment of the act of 1873, relate exclusively to the provisions of section 12 of the original act. But the act of June 9, 1874, provides that none of the provisions of the act of 1872 shall 'apply to vessels engaged in the coastwise trade, etc. It is, as before stated, contended that the provisions abrogated are only those 'relating eo nomine to vessels. It is to be observed that the act does not say, "none of the provisions [of the act of 1872] relating to vessels shall apply to coastwise vessels," etc.; but it . uses the unrestricted and comprehensive expression,"none of the provisions of the act shall apply to fluch veE'sels.'" It could not have been intended merely to relieve the specified vessels and their masters from the operation of the twelfth seCtion of the'act of 1872, for they Were already excepted by the terms of the act, and by the provisions of the act of 1873. The act was intended to have a broader ahd more comprehensive appl,ication . . :1n support; of the interpretation oithe act of 1874, which restricts its application to those proVisions of the act of 1872 relating to vessels, the counsel Y6rthe prosecution had attempted to show that the provisions ofthe act are susceptible of classification, and may be resolved into provisions relating to the men and, their duties, to the master and owners, and to the vessels themselves. But this classification seems to me im·
UNITED STATES V; BUCKLEY.
807
practicable, or founded on accidental phraseology used, rather than on any intention to discriminate between the different subjects of the enactment. Section 14 provides that, if any master, mate, or other officer shall knowingly receive on board of anymerchallt ship any seaman who shall have been engaged or supplied contrary to the provisions of this act, the ship shall 'incur a penalty not exceeding $200. This provision relates to seamen and their shipment. It also relates to the master and officers, and denounces an offense committed, the penalty for which is imposed on the ship. It is impracticable to refer the provision exclusively to either of the classes into which the act is daimed to be divided. So, in section 15, it is provided that for certain violations the master shall incur a penalty, for which penalty the ship shall be held liable. So, in section 41 the master or Owners incur a penalty for not providing a medicine chest, etc.; and if the master neglects to serve out lime-juice or vinegar, etc., the penalty is imposed on him personally. Section 42 imposes a . penalty on the master for not keeping on board proper weights, measures, etc. So, oy section 45, a penalty is imposed on the master for not complying with the provisions of the law as to the effects of deceased seamen and apprentices, and the same penalty is imposed on the owners. The money, wages, and effects of any deceased seaman or apprentice are made recoverable in the same 'courts, and by the same modes of proceeding, by which seamen are enabled to recover wages; thus, it would seem, creating a lien upon the vessel. From the above citations, it is, I think, apparent that no such separation or classification. of the variQus provisions of the statute can be made as counsel suggests. Nor can any reason be conjectured why congress should have restricted the legislation of 1874 to the repeal of those sections alone which relate exclusively to vessels, if such sections can be found. If such was the intention of congress, it would have been far more natural to have designated by their numbers the sections, or parts of sections, intended to be abrogated. Neither can we suppose that congress meant to leave the greater part of the statute in force, but mutilated, and in some respects abortive; for offenses would'remain forbidden and denounced, while all means of exacting the penalty would be taken away. All· the acts on the subject are regulations .of commerce. If the statute had declared that none of the provisions of the act of 1872 should apply to commerce carried on in vessels trading between the ports mentioneq in the act, no doubt as to its construction could be entertained. The language employed is, "none of the provisions [of the act of 1872] shall be applied to vessels enga.ged in the coastwise business." I think the expressions are equivalent. The same conchision was reached by Fox, D. J., in U. S. v. Rain. In the case, Judge Fox holds that the effect. of the act of 1874 was to strike from the Revised Statutes, and from the act of 1872, every provision therein relating to coastwise vessels, including the provision concerning" crimes and offenses;" and that a seaman shipped for a coastwise voyage was not liable to indictment for desertion. 5 Fed. Rep. 192. In U. S. v. King, BRUCE, J., held that the effect of the act of 1874 was to sweep away all the penal pro-
,FEDERAL REPORTER.
visions of,tbe act of 1872, in sofar as they applied to vessels in the coastwise trade, with the exceptions named in the repealing act. 23 Fed. Rep. 141. See; also, Scott v. Bose, 2 Low. Dec. 382. not repeal the provisions 2. The objection that ,the ,act of 1874 (lfthe .Revised Statutes taken frOnl the act of 187,2 can be readily disposed of. Thatabt of congress of June 22, 1874, provided that the Revised$tatutes should take effect as of December 1, 1873; and by section 5601 it was declared that acts passed sinoethat date should have full effect as if passed after the enactment of the ,Revised Statutes, and, "so far aS8uch acts vary from or cOnflict ",ith any provision contained in said Revision, they are tohayeeffect as subsequeut statutes, and as, repealing any,portion ofthe Rl3visiol1 inconsistent therewith." U. S. v. Rain, The act,relit;ld on by the defense in this case was pasl'ed June 9, 1874: It therefore operated to repeal the provisions of the Revised Statutes taken from the act ·of 1872. It necessarily described the act repealed by its title as it then stood in the statutes; for the Revised Stt;.tutes, which its :provisions, hl!-d not been passed. The demurrer is sustained.
UNITED STATES"'. BONHAM. (District Oourt, D. South Oarolina. . August 1, 1887.)
INToXICATING :LIQUORS lI'ENSE.
To constiiute the without haiving paid the .special tax, the accused 'must have procured the liquor 1301d, with intent to retail it, or, having it on hand, formed the intent to ,retail it, and carried out that intent by one or more acts. It is not enough liquor on hand' fOr his own use he let others have it as a that, matter of kllldness or neighborly feeling, although he, took money from them for the a.ccommodation. 2. SAME-SALE BY AGENT-WIFE AND CONCUBINE.
BUSINJj:I\S OF RETAILI;Jlf,G-;'"-AcTS CONSTITUTING O'F7 " " , offense of carrying on the business of Q retail liquor dealer
The presumption that a wife who, on her' husband's premises, and in his presence,and with his knowledge, makes illegal.sales at retail of intoxicating liquors, does so as his agent, does not attach to such sales so made by a womanliving with a man as his concubine; and, to authorize the conviCtion of the man for such sales by the concubine. the jury must be satisfied, from the evidence, that she was acting as the agent of the. accused when she made the sales.
Indictment for Unlawful Retailing of Liquor. Mr. Youmans, Dist. Atty., for the United States. M. L. Rcmham, Jr., for defendant. ' SIMONTON, J., (charging thejtllry.) The defendant is indicted for carrying on the business of a retail liquor dealer without having paid the special tax. Thegovemment have introduced three witnesses who swear to purchases of distilled spirits .at the house of defendant on three dif,