284 F. 890 | S.D.N.Y. | 1922
(after stating the facts as above). It is conceded, and indeed could not be disputed, after Grogan v. Walker and Anchor Line v. Aldridge, decided May 15, 1922, 258 U. S. —, 42 Sup. Ct. 423, 66 L. Ed. —, that, had the liquors here in question been a part of the ships’ cargo, the bills would not lie. It makes no difference that they were not to be broached while carried within territory of the United States; the carriage would be transportation none the less. But because they are part of the ships’ stores, in the sense that that term is generally understood, the plaintiffs argue that they do not fall within the same rule. This argument rests upon two alternative premises: First, that “transportation” involves a place where, and a person to whom, the goods are to be delivered ;• and, second, that a ship’s stores have by long custom been treated as a part of the “furniture” (Brough v. Whitmore, 4 Term R. 206), or “appurtenances” (The Dundee, 1 Hagg. Adm. 109), of the ship which do not without particular mention become subject to the municipal law of the ports into which she enters, any more than the ship herself.
Even if “transportation” were defined to involve some delivery, I
Therefore I might admit the plaintiffs’ interpretation of the word, if it were necessary. Nevertheless it seems to me at best very' doubtful whether it carries with it any such limitation. The cases on which the plaintiffs rely come only to this: That the jurisdiction of the United States under the interstate commerce clause does not terminate until delivery after a transit across state lines. Gloucester Ferry Co. v. Pa., 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088; Louisville & Nashville R. R. v. F. W. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355; Danciger v. Cooley, 248 U. S. 319, 39 Sup. Ct. 119, 63 L. Ed. 26. From this it does not follow that the term “transportation,” as used in this statute, implies delivery to another than the person who carries the liquors. Suppose, for example, a parcel of liquor, made after the amendment, and carried off to be laid away in a cache. There can be no question, I believe, that two separate crimes would be committed, “manufacture” and “transportation.”
Nor does it seem to me that the thirteenth and fourteenth sections of title 2 of the Prohibition Act help the plaintiffs. Under these carriers are required to' mark the consignor’s and consignee’s names on the outside of all packages. But it, does not follow that a regulation like this of one kind of transportation imputes to the word itself any of the conditions which it enacts. In common use, to transport means to carry about, and I see no reason why it should mean less in section 3. The law clearly intended, by immobilizing liquor, to make surreptitious traffic in it impossible, and its policy would as well cover move-, ments which might be incidental to, as those which immediately terminated in, a delivery to some one else. The case of Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 41 Sup. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548, did not decide anything to the contrary; it turned upon the fact that the possession of the liquor in the leased room and in the house were both lawful, and that the movement from one to the other could not be unlawful. To apply it to the cases at bar is to beg the question, because the lawfulness of the possession here depends upon whether this is transportation under the statute. The steamers have no express warrant of law, as Street had, for the possession of the liquor. I conclude, therefore, that the carriage in question is “transportation.”
It is, of course, true that one should not interpret a statute, and least of all a Constitution, with the text in one hand and a dictionary in the other, and so courts have often held in similar cases to these. Brown v. Duchesne, 19 How. 183, 15 L. Ed. 595; Taylor v. U. S., 207 U. S. 120, 28 Sup. Ct. 53, 52 L. Ed. 130; Scharrenberg v. Dollar Steamship Co., 245 U. S. 122, 38 Sup. Ct. 28, 62 L. Ed. 189. Nevertheless every one must agree that the question is no more than one of interpretation, for in the cases at bar Congress certainly might, if it chose, prevent the entrance of any liquor whatever within the borders of the United States, not only under the Eighteenth Amendment, but, indeed, under its power over foreign commerce. It is a question, therefore, of the implied limitations upon words which literally in any event cover the case.
Grogan v. Walker, supra, and Anchor Eine v. Aldridge, supra, plainly meant to adopt a broad canon for the interpretation of the National Prohibition Act, following the admonition at the end of the first paragraph of section 3. Effecting a revolutionary reform in the habits of the nation, the statute is to be understood as thorough-going in its ■ intent to accomplish the results desired. It did not specify the extent-of its application in detail, but left that to be gathered from its occasion, and the generality of the words used. It intended to exercise once for all the complete power of Congress under the amendment, and its very want of particularity is a good index that it meant to cover what it could. For this reason it is to be distinguished from earlier local acts of the same kind, as, for example, the Alaskan Prohibition Act, upon the language of section 29 of which the plaintiffs rely. Indeed, specification in the statute might have defeated its ends, on the theory that what was omitted must be taken as excluded. At least I cannot read the two decisions cited without supposing that it was in the foregoing sense that the Supreme Court meant section 3 to be read.
Starting with that premise, there appears to' me more reason for
However, the motives for positively assuming that such stores must be considered as included within section 3 appear to me stronger than any which could apply to a bare carriage across our territory. It is true that all such reasoning as to legislative motives is speculative, but that vice, if it be one, is of the plaintiffs’ making, because the language of the statute, taken in its natural meaning, is general, and covers the case of stores, as of other merchandise. It is the plaintiffs who insist upon implying limitations on that meaning, because of the supposed intent of Congress. Since, therefore, I am asked to have recourse to implications, I cannot avoid some speculation as to what Congress would probably have said, had it been faced with the actual situation which now arises.
In the decisions cited there was no conceivable danger in the transit of liquor across the -United States, except the chance of its escape. It is -true that, as suggested in Grogan v. Walker, .supra, the provision against export may have been intended to prevent the use of stimulants outside the United States, and, so far as it was, the argument applies with stronger force to the cases at bar. But, taken substantially,- the only evil which the transit could accomplish was that some of the liquor should not complete its passage. In the cases at bar the danger of an escape is equally present, not perhaps in the case of these plaintiffs ; but I cannot regard them alone. Less responsible owners may not be as scrupulous, and the law runs for all. The distinction which puts these cases within the law with much greater certainty is the purpose for which the liquors are brought and kept here. Ignoring for the moment the crews, all of the stocks are avowedly intended for the consumption of those who are now within the United States, of which a substantial part are residents or citizens, the very persons whom it was the whole purpose of the amendment to prevent drinking liquors.
Naturally I have nothing to say about the wisdom of the amendment or the law; but, wise or not, one thing is clear: That a drink of whisky is as hurtful to health and morals outside as inside Ambrose Light.
It is indeed different with so much of the stocks as are kept for the crews, and a much stronger argument can be made for the legality of their carriage, though these also seem to me to fall within the decisions I have so often cited. However, that question is really irrelevant as these cases are presented. The plaintiffs base their argument on the improbability that a statute in such general words should have meant to cover sea stores. This in turn rests upon the unlikelihood that what has been for so long treated as not subject to municipal law should all at once become so. But the argument breaks down as soon as it appears that the stores as a whole cannot fairly be excluded. • To say that the section covered some of such stores, but not all, would be to admit that as such they were not excluded by implication. What, then, becomes of the argument? There are indeed cogent reasons why these might be excepted, but these are not because they are ships’ stores. Congress may indeed determine to make an exception in their favor, as to the validity of which I have nothing to say; but I do not think that a judge can imply the exception because of the unquestioned difficulties in which its absence leaves the plaintiffs. There is a narrow limit to judicial redrafting of statutes. Indeed, the argument was not suggested at the bar that passengers’ refreshment and crews’ rations stood in different positions. Probably none was intended, and I mention it only against the possibility that it might be taken later.
Cases like Brown v. Duchesne, supra, Taylor v. U. S., supra, and Scharrenberg v. U. S., supra, are all indeed in point. They illustrate the extent to which seamen and ships are regarded as enclaves from the municipal law. But they were all judicial exceptions by implication out of the words of a statute, and they therefore depended upon how far, in the circumstances of each case, it was improbable that “the natural meaning of the words expressed an altogether probable intent.” Were it not for the declaration of the Supreme Court, in what I regard as far weaker circumstances, that the literal meaning of section
It is obvious that this ruling disposes of the cases of the American ships, as well as of the foreign. The American bills contain no allegations that the defendants intend to prosecute them for the sale of liquors upon the high seas, as, for example, on westward voyages. _ It is true that the prayers for relief do include so much, but prayers without allegations are ineffective. I do not, therefore, find it necessary to consider the legality of any sales of liquor under the American flag on the high seas, assuming no liquor is brought within our territorial limits. It was my understanding at the argument that the territoriality of an American ship at sea was discussed only in case I should hold that it was not illegal merely to carry liquors into and out of the port.
I suppose that the question of a temporary restraining order pending the appeal is of a good deal more consequence to the plaintiffs than anything I may think about the law. The power under the seventy-fourth rule (198 Fed. xxxix, 115 C. C. A. xxxix) to grant such an order is undoubted, notwithstanding a dismissal of the bill. Merrimac River Savings Bank v. City of Clay Center, 219 U. S. 527, 31 Sup. Ct. 295, 55 L. Ed. 320, Ann. Cas. 1912D, 513; Staffords v. King, 90 Fed. 136, 32 C. C. A. 536. Moreover, the whole thing rests in the discretion of the trial judge. The question is how far the absence of any protection to the losing party will expose him to serious and irreparable damage, if in the end he wins, without imposing an equal damage upon the other party, if he holds his decree. Kike all such matters,” it depends upon a balance between the two, and I must now assume that the chances of success are not equal.
' On the one hand,- the plaintiffs are in unquestionable embarrassment. They must take off their stocks of liquor now in port, and if they bring any westward with them they must calculate with some nicety on the consuming capacities of their passengers or take the chances of a seizure of the residue in New York. Nevertheless, so far as the loss of the liquors themselves is concerned, the damage cannot be said to be irreparable. These must be condemned before they can be forfeited, and in the present state of the calendars the cases at bar will be finally determined long before such libels can be tried. If I am wrong, the plaintiffs will get back their property after a delay which I cannot regard as an irreparable damage. If I am right, it would be obviously improper, by staying the defendants, to allow the liquor to escape a seizure to which the United States is entitled under its laws. With the conduct of any such proceedings I have nothing» to do.' It may be that the long acquiescence of the authorities in the practices here in question will moderate the ultimate penalty of confiscation. I must assume that the plaintiffs will receive such consideration as the law permits, but I ought not to protect them against proceedings to which they by hypothesis would be legally subject.
However, I do not understand that ^hey are so much concerned over
As to the maintenance of passengers’ stocks the case is otherwise. The plaintiffs are all upon the same competitive footing inter se, and only claim to fear the competition of Canadian lines. How serious that may be no one can tell, but certainly it will be felt much less during the next two or three months than at another season. In any event, on the balance of advantage I ought not to allow it. It is easy to say, if one does not take seriously the opinion'behind the amendment, that the United States will not suffer by the continuance of the status quo. But it is impossible to say so, if one does. I repeat what I said in Dryfoos v. Edwards, 284 Fed. 596, filed October 10, 1919, on a similar occasion. The suspension of a law of the United States, especially a law in execution of a constitutional amendment, is of itself an irreparable injury, which no judge has the right to ignore. The public purposes, which the law was intended to execute, have behind them the deep convictions of thousands of persons whose will should .not be thwarted in what they conceive to be for the public good. No reparation is possible, if it is.
Furthermore, it is at best a delicate matter fon a judge to tie the hands of other public officers in the execution of their duties as they understand them, and the books are full of admonitions against doing so, except in a very clear case. Here not only is the case not clear, but, so far as I can judge, the plaintiffs have no case. Therefore I will go no further than to issue an injunction against interfering with the carriage of a stock necessary for the crews’ rations on the eastbound voyage. The plaintiffs must each give a bond in the sum of $25,000, conditional against the use of such stocks for any other purpose than as crews’ rations.
Bill dismissed, with costs; injunctions as indicated pending an appeal, if the same be taken at once. Settle orders on notice.