In re Simpson

119 F. 620 | D. Me. | 1901

HADE, District Judge.

The petitioner, with four others, was indicted at the present December term of this court under section 5359 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3639], which section is as follows:

“If any one of the crew of any American vessel on the high seas, or other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey •or resist the lawful orders of the master, or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master, or other commanding officer thereof, he shall be punished by a fine of not more than ■one thousand dollars, or by imprisonment not more than five years, or by both such fine and imprisonment.”

The first count of the indictment charges an endeavor to make a revolt, and shows how that endeavor was carried out. The second count charges the endeavor to make a revolt by conspiracy. The third count charges a conspiracy to make a revolt. The respondents were tried before a jury. The jury returned a verdict of guilty. The respondents were then sentenced, and this petitioner is now serving his sentence in the Portland jail.

The contention of the petitioner is that the proceedings under this indictment were a nullity, the court having no jurisdiction, because the statute under which the indictment was found has been repealed, so far as it applied to the particular offense charged in the indictment. The supreme court in Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005, says:

“It may be confessed that it is not always very easy to determine what ■matters go to the jurisdiction of a court, so as to make its action, when, erroneous, a nullity, but the general rule is that, when the court has jurisdiction by law* of the offense charged and of the party who is so charged, its judgments are not nullities.”

In the case at bar it is urged that, the statute under which the indictment was found having been repealed so far as it applied to the particular offense, the court had no jurisdiction, and that the petitioner should be discharged. Upon an application of this kind, if the cause of imprisonment fully appears by the petition, the court may, without using the writ, decide whether, upon the facts of the petition, the prisoner would be discharged if brought before the court. It then becomes incumbent upon us to decide whether the statute under which this indictment was drawn has been repealed so far as it applies to the particular offense. Upon examining the statute historically, it is found that the act of 1872 (section 4596, par. 7, Rev. St. U. S. [See U. S. Comp..St. 1901, pp. 3113, 3115] ) provided that:

“Whenever any seaman who has been lawfully engaged, or any apprentice to the sea service, commits any of the following offenses, he shall be punished as follows: * * * (7) For combining with any others of the crew to disobey lawful commands, or to neglect their duty, or to impede the navigation of the vessel, or the progress of the voyage, by imprisonment for not more than twelve months.”

It is urged that this paragraph 7 by implication repeals so much of section 5359 [U. S. Comp. St. 1901, p. 3639] as relates to combining to "disobey or resist the lawful commands or orders of the master or other officer. In considering the question of the repeal of a statute, it is a rule of the federal courts that “a later act does not repeal an earlier one by implication, unless their provisions are clearly inconsistent and repugnant,” and that “repeals by implication are not favored, and, where sections of earlier and later acts can, by any reasonable conátruction, stand together, they must so stand.” Gowen v. Harley, 6 C. C. A. 190, 56 Fed. 973. In Arthur v. Homer, 96 U. S. 137, 24 L. Ed. 811, the court says: “To induce the repeal of a statute by implication of inconsistency with a later statute, there must be such a positive repugnancy between the two statutes that they cannot stand together.” Now, does such repugnancy exist between the two sections above referred to? Section 5359 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3639] was originally a part of Act April 30, 1790, c. 9, § 19 (1 Stat. 115). It was amended into its present form by Act March 3, 1835, has so continued since, and now appears as part of title 70, c. 3, entitled “Crimes.” I have already quoted above the language of the statute of 1872, namely, the shipping commissioners’ act (section 51, par. 7 [U. S. Comp. St. 1901, p. 3114] ). This shipping commissioners’ act continued in force until 1874, when the following act was passed:

“That none of the provisions of the act entitled ‘An act to authorize the appointment of shipping commissioners of the several circuit courts of the United States, to superintend the shipping and discharge of seamen engaged in merchant ships, belonging to the United States, for the further protection of seamen’ shall apply to sail or steam vessels engaged in the coastwise trade,except the coastwise trade between the Atlantic and Pacific coasts.” 18 Stat. 64 [U. S. Comp. St. p. 3064].

This act of 1874 has been construed to repeal the act of 1872 so far as it applied to vessels engaged in the coasting trade. U. S. v. Buckley (D. C.) 31 Fed. 804. This repeal did not, however, change the act of 1835 (section 5359), under which the indictment is drawn. The act of 1872, as amended, continued until December 21, 1898, when congress re-enacted section 4596, omitting the seventh paragraph, which I have above quoted. 30 Stat. 760, § 19 [U. S. Comp. St. 1901, p. 3114]. It is urged by the petitioner that the act of 1872 repealed the statute under which this indictment is drawn so far as it relates to the offense charged, and that, the statute of 1898 repealing the seventh paragraph, namely, with reference to combining with any others of the crew to disobey the lawful commands, etc., this leaves no legislation upon the subject. It is unquestionably a well-settled rule that a statute may be repealed by implication, the last act being treated as the last expression of congress upon the subject. And also the repeal may be applicable only to a part of the statute to which the subject-matter relates. If paragraph 7 of the act of 1872 did repeal by implication section 5359, it did so only so far as the latter act related to the “combining upon the part of the men to resist the lawful commands of the master”; but an examination of the indictment upon which the petitioner was convicted shows that the charge in that indictment is as set forth above. The offense was that he endeavored to make a revolt, the several counts setting forth this endeavor as above stated. The charge in the indictment is not that he combined to do any unlawful act; so that the act of 1872 was not intended by congress to have any bearing upon the offense charged in this indictment, and it has no bearing upon the present proceedings. Section 5359 is clearly not repealed by the act of 1872, so far, as an endeavor to make a revolt is concerned. Section 5359 properly appears in the compilation of the laws of the United States just issued, and also in the compilation of the navigation laws made by the commissioner of navigation. This fact is affirmed by the opinion of Judge Hammond, of the United States circuit court for the Western district of Tennessee, October 2, 1882,—U. S. v. Huff, 13 Fed. 630,—which decision was 10 years after the enactment of 1872, and discusses offenses similar to this in the present proceeding.

The application for the writ must be denied.