150 Mass. 221 | Mass. | 1889
The only exceptions argued are the exception to the admission of the map in evidence, the exception to the refusal of the court to quash the indictment “because it is not alleged in said indictment, or in any count thereof, that said defendant carried said passengers as aforesaid for hire,” and the exception to the refusal of the court to rule “that there is no evidence that the Connecticut River between Springfield and Hadley is not within the maritime jurisdiction of the United States.” The other exceptions taken at the trial must be regarded as waived.
If this was a map of the towns and counties of the Commonwealth published by authority of the Legislature, pursuant to chapter 69 of the Resolves of the Year 1844, it was some evidence of the boundaries of the town of South Hadley. See Worcester v. Northborough, 140 Mass. 397.
The objection taken in argument is, that the map was allowed to prove itself, and that it was not shown to have been published by legislative authority. Whether this was a genuine map published by order of the Legislature, as it purported to be, was a preliminary fact, of which, if disputed, some evidence must have been exhibited to the court before the map could be admitted in evidence; but it does not appear that this fact was disputed, or that the objection to the admission of the map was taken on this ground. If such an objection had been taken, the government might, perhaps, have been able to furnish evidence that the map was what it purported to be. The only objection stated in the exceptions is that the map “was introduced in evidence, subject to the defendant’s objection,” and this must be considered, not as an objection that sufficient evidence had not been introduced to show that the map was what it purported to be, but as an objection that a map such as this purported to be was not
In The Daniel Ball, 10 Wall. 557, 563, it is said in the opinion : “ Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Aiid they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”
The Pub. Sts. c. 102, §§ 120-122, were first enacted in 1876. St. 1876, c. 100. Then, as well as now, the statutes of the United States regulating steam vessels were contained in Title LII. of the Revised Statutes of the United States.' Section 4400 of these statutes provides, that “all steam vessels navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this Title.” See also U. S. St. of Aug. 7,1882, 22 U. S. Sts. at Large, 346. This title contains careful provisions for the-inspection of steam vessels, and for regulating the number of passengers which they are permitted to carry. The statutes of Massachusetts were intended to regulate steamboats used for the conveyance of passengers which were not subject to regulation by Congress because they were not used in navigating waters of the United States. We think that the Superior Court might take judicial notice that the Connecticut River above the dam at Holyoke does not, either by itself or by uniting with other waters, constitute a public highway over which commerce may be carried on with other States or with foreign countries, although, if the court had entertained any doubt on the subject, it might have required evidence to be
The objection to the form of the indictment cannot prevail. The indictment follows the words of the statute. The word “ passengers ” is used in the statute and in the indictment in its ordinary sense, and has the same meaning in one as in the other. If, in order to constitute a passenger, a person must be carried for hire, upon which we express no opinion, there was evidence that at least on one occasion, which was described in the indictment, the defendant collected fares of the persons carried.
Exceptions overruled.
