Mr. Justice Brewer,’

after stating the case, delivered the opinion of the court.

The questions in this case are mainly of a local character, in respect to which the settled rule of decision in the courts of the State is controlling. They relate to the form of the action, the title of the plaintiff to submerged lands in Huntington Bay, and the special defences of the defendant.

By Rev. Stat: § 914, the practice, forms, and mode of proceedings in actions at law in the Federal courts are required to conform as nearly as may be to those in the state courts.

The present action is one in the nature of' an action of ejectment, and to secure to the plaintiff the undisturbed control of the tract in controversy. In the State of New York there is but one form of action, the plaintiff being required by the statutes of that State to set forth in his petition the facts upon which he bases his cause of action, and the relief is given according to the facts as stated and proved.

In a certain sense these submerged lands are not in the actual possession of any one, but § 1502 of the Code of Civil Procedure of New York provides for just such, an exigency. It reads: “Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant thereof must be made defendant in the action. If it is not so occupied, the action must be brought against some, person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein at the time of the commencement of the action.”

*19 The defendant claiming the right to occupy this submerged land for the cultivation of oysters, must be deemed to have been in the actual possession thereof, or, if not, as exercising acts of ownership thereupon and claiming an interest therein. Under those circumstances he was properly made a defendant in an action to secure to the plaintiff the immediate possession of the premises; such an action is recognized as appropriate in New York. Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1, and cases cited in the opinion.

With respect to the matter of title, there are involved not merely the construction of public grants and charters, but also the extent and purposes to and for which the title and control of submerged lands may be passed away from the State to towns and individuals. The- question is of the rights attaching to certain lands within the territorial limits of the State, and whatever becomes a settled rule of real property by the decisions of its courts is conclusive on this court. Bondurant v. Watson, 103 U. S. 281, 289; Burgess v. Seligman, 107 U. S. 20, 33; Gage v. Pumpelly, 115 U. S. 454; Hardin v. Jordan, 140 U. S. 371, 382, 402; Shively v. Bowlby, 152 U. S. 1.

The title of the plaintiff rests primarily on the three charters referred to in the complaint, and which were admitted in evidence. Those charters are grants of both territory and corporate franchises. The description in the first, that from Governor Nicolls, is as follows:

“ All ye Lands that already have been or hereafter shall bee Purchased for and on the behalfe of the said Towne of Huntington whether from the Natives Proprietors or others within the Limitts and Bounds herein exprest (vizt) that is to say from a Oertaine River or Creeke on the west comonly called by the Indyans by the Name of Nackaquatack and by the English the Coldspring to Stretch Eastward to Nasaquack River on the North to bee Bounded by the Sound runing betwixt Long Island and the Maine and on ye South by the Sea Including there Nine Severall Necks of Meadow Ground all wch Tract of Land together with the sd Necks thereunto Belonging wthin the Bounds and Limitts ■ aforesaid and all or any Plantacon there upon are to belong to the said Towne of *20 Huntington as also all Havens Harbours Oreekes Qdarryes Woodland Meadowes Pastures Marshes Waters Lakes fBshing Hawking Hunting and ffowling And all other Proffitts, Oommodityes, Emolumts, and Hereditamts to the said Land and prmisses within the Limitts and Bounds aforementioned described belonging or in any wise appertaining To have & to hold the said Lands and Necks of Lands Hereditamts and prmisses with their and every of their Appurtenances and of every Part & Parcell thereof to the said Patentees and their Associates to the proper use and behoofe of the said Patentees and their Associates their Heires Successors and Assignes forever; And I do likewise hereby Confirme and Graunt unto the said Patentees and their Associates their Heires Successors and Assignes all the Priviledges belonging to a Towne within this Governmt and that the Place of their prsent Habitacon shall continue and retaine the Name of Huntington by wch name it .shall bee distinguisht and knowne in all Bargaines and Sales Deedes Eecords and Writings.”

The second charter, that from Governor Dongan, is a confirmation of the first, and the description is substantially the same. The third, from Governor Fletcher, refers to the prior charter from Governor Nicolls, and recites a petition of the freeholders, inhabitants of the town of Huntington, for- a “ Grant and Confirmation of the Premisses so only as that the Limits & Bounds of the say4 Towne of Huntingtone shall not be as above mentioned but as hereafter Expressed,” and then grants by a description as follows :

“Bound on the West by a Biver Called & known by the Name of Cold Spring a Lyne Buning .South from the Head of the sayd Cold Spring to the South Sea & on the North by the Sound that Bunns between our sayd Isld of Nassaw and the maine Continent & on the East by a Lyne Buning from the West, syde of a Pond called & known be the Name of fresh Pond to the West syde of Whitmans Dale or Hollow and from thence to a Biver on the South syde Of our sayd Island of Nassaw on the East syde of a; Neck called Sumpawwawins and from the sayd Biver Buning South to the sayd South Sea Togither with all and Singular the Houses Mes *21 suages Tenements Buildings Mills Mill damms fenceing Inclosures Gardens Orchards fields Pastures Feedings Woods Underwoods Trees Timber Comon of Pasture Meadows Marshes Swamps Plaines Rivers Rivoletts Waters Lakes Ponds Brooks Streams Beaches Quarries Creeks Harbors Highways & Easements fishing fowleing hunting and hawking Mines Mineralls (Silver and Gold Mines Excepted) & all.other franchises Profits benefits Comoditys & Hereditaments whatsoever to the sayd Tract of Land within the Limits and Bounds next above mentioned belonging or in any ways appertaining or there with all used Accépted Reputed or' taken to belong or in any ways Appertaine to all intents and Purposes and Constructions w’tsoever and also all & Singular the Rents Arrearages of Rents Issues and Profits of the sayd Tract of Land & Premisses heretofore due and Payable.”

It will be seen from these quotations that the boundary oh the north, as given in the Nieolls charter, is the “ sound Tuning betwixt Long Island and the Maine,” and in the Fletcher, “ the Sound that Runns between our sayd Isle of Nassaw and the maine Continent.” And the question is whether the tract in controversy is south of this north boundary line. The map will help to a clear understanding of the question (ante, 3).

The tract in controversy, marked “A” on this map, is within the limits of what is named thereon “Huntington Bay.” The contention of the defendant is that that body of wTater is a part of the Sound, and that, therefore, the north boundary granted to the town of Huntington runs to the south of the tract in controversy. . Referring to the words used to describe the. appurtenances to this grant, it is urged that, although the general term “ waters ” is found therein, its place alongside of the words “rivers, rivoletts, lakes, ponds, brooks, streams,” indicates that it refers exclusively to interior-waters, and not to anything in the nature of a harbor, bay, or haven; and -that when we turn to the terms which may properly be construed as referring to exterior waters, only the two, “ creeks” and “ harbors,” are found; that this Huntington Bay is not, strictly speaking, a harbor, in that it is not land-locked and a place of absolute safety for shipping, being entirely open *22 and exposed on the northerly side; that this, being a public grant, is to be construed strictly against the grantee; that, inasmuch as bays are not mentioned, bays are not granted; and that the description of the Sound as the north boundary excludes that body of water, with all its inlets and bays, from'the scope of the grant.

We are unable to concur in these views. If the language in the description of boundaries is clear, that should control, and should not be narrowed and limited by any mere ambiguity in the subsequent statement of. the appurtenances to the grant. Or, to state the proposition in another form, whenever we are considering the matter of boundary we naturally turn to the words by which the boundary is described, and accept those words' as controlling, and do not look to those by which the scrivener attempts to define that which is to pass with the granted premises as appurtenant thereto, to see what is omitted therefrom, or what is uncertain therein. For when in the preparation of any instrument the attention is directed to a particular subject, it is to be expected that language expressing the exact thought of the writer in respect thereto will be selected, and the ordinary force and scope of that language should not be destroyed by words and phrases used in another portion of the instrument in the description of some other matter. As said by the Supreme Court of Kansas, in Long v. Culp, 14 Kansas, 412, 414: “ It is also a rule of construction that when one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over other sections in which only incidental reference is made thereto. Not because one section .has more.force as a legislative enactment than another, but because the legislative mind having been, in the one section, directed to this matter, must be presumed to have there expressed its intention thereon rather than in other sections where its attention was turned to other things. Griffith v. Carter 8 Kansas, 565.”

The northern boundaries in all these charters is given as “ the Sound.” That was then, and is now, a well-known body of water. It opens into the Atlantic Ocean, but is separate and distinct therefrom. Into it flow many rivers, and open *23 many bays, harbors, and inlets; but the fact of a connéction between them and it does not make them a part of the Sound. If the words describing the appurtenances were omitted from this grant, should not its boundaries be understood to be the same as now ? So the question is not whether this body of water in which the tract in controversy is situated is strictly a harbor or a bay, but whether it is neither, and only a part of the Sound. If it was then known as an independent body of water, by whatsoever name called, that is enough to eliminate it in tracing the boundary of the grant. That it was so known is not open to question; it was not, therefore, a part of the Sound, and the boundary of the grant ran on the north of it.

' While not perhaps of much significance, it may be noticed that in the first charter, that from Governor Nicolls, the description of the appurtenances is “ havens, harbors, creekes,” etc. The word “ haven ” has perhaps a broader signification than “ harbor.” At any rate, the use of both words in- the same grant suggests that all bodies of water which might come within the reach of either term were intended to be included in the grant. In Webster the first definition given to the word “ haven ” is “ a bay, recess, or inlet of the sea, or the mouth of a river, which affords good anchorage and a safe station for ships.” While this bay might not be a place of safety against all storms coming from any direction, it was protected on three sides, and.to that extent was “a safe station for ships.”

In, the case of Rogers v. Jones, 1 Wend. 237, the controversy was in respect to the property in the town immediately west of the town of Huntington, to wit, Oyster Bay. An examination of a .map of Long Island and the Sound shows that the bay .of Oyster Bay is no more of a harbor than Huntington Bay. It is just as open on the northerly side. The town of Oyster Bay had a charter similar to that of the town of Huntington, the .northern boundary being “the Sound,” and the grant being “with all the woodland, plains, meadows, pastures, quarries, marshes, waters, lakes, rivers, fishing, hawking, hunting, and fowling, and all other profits and emoluments to the tract belonging.” The action was one *24 to recover a penalty for taking oysters contrary to a by-law of the town. The facts, as stated in the record, were as follows:

“ On April 8, 1825, Rogers, the defendant below, being a citizen of the State of New York, did fish and oyster in the waters of the bay or harbor of Oyster-Bay, and took and carried away 100 oysters. The place where the oysters were taken was adjacent to and within one mile of Long Island Sound, opposite the village or town of Oyster-Bay, nearer Lloyd’s Neck than any other land, within about one hundred yards of the beach on the said neck, and where the water in the bay is at least twenty feet deep at low water. On April 11, 1825,-the suit was commenced before the justice by Jones, who was, at the time, the supervisor of the town.”

Comparing the maps of the two bays, it is obvious that the loous m quo in that case was as properly to be considered within the limits of Long Island Sound as that in the present case. It is true no discussion of the point here made is found in the opinion there filed, and, therefore, it is not a direct adjudication. It seems to have been assumed that the tract being within the limits of the bay was south of the Sound; and, therefore, within the boundaries of the. grant, and the question considered and determined was whether the grant carried the land under water, together with the exclusive right of fishing in such water, and it was held that it did.

A case also in point is- Brookhaven v. Strong, 60 N. Y. 56, 57. That action was, as stated, one “ brought to recover damages for taking oysters from the. Great South Bay which extends along the south side of Long Island, separated from the ocean by the Great South beach, and to establish the exclusive right of the town of Brookhaven to the oyster fisheries in that portion of said bay lying, between Huntington, East Gut, and Long Point.”

“ The bay is a sheet of water some fifty miles long and in the widest part five miles wide. The tide ebbs and flows throughout its whole extent, and -it is navigable for vessels drawing from seven to eight feet of water. Plaintiffs claimed to be the owner of the bay within the limits above mentioned, *25 and of an exclusive right of fishery therein. Defendant admitted the taking of the oysters, but denied the exclusive right claimed by plaintiffs, and alleged that the place where they were taken was within the bounds of the town of Islip and was part of the navigable waters of the State, and that he being a resident of the town of Islip had a right to take the oysters.”

The south boundary of the grant made in 1666 to the town of Brookhaven was “ the sea or main ocean,” and it was held that the grant included this bay, the court saying : “ Nor can the objection that the bay was not included in the grant be sustained. The general boundary is the ocean, which includes the beach, and of course the bay.”

There is nothing in the case of Robins v. Ackerly, 91 N. Y. 98, 104, which makes against the conclusion we have expressed. In that case the question was as to oyster beds in Northport harbor, a body of water adjacent to Huntington Bay. That harbor, as appears from the map, is land-locked, and this fact was referred to in the opinion as among the matters indicating that it was within the grant to the town of Huntington. While the court refers to that as an additional reason for. the conclusion reached, it does* not make that the turning point. We quote its language:

“ The northern boundary of the town is the Sound. This includes, we think, Northport harbor where the oyster beds in question are located. The language of the grant includes ‘ all havens, harbors, creeks,’ as well as ‘ fishing, hawking, hunting and fowling.’ In the BrooMmen case the south boundary was the ocean, and th'ére was a sandy flat or beach between.'the ocean and the bay, and the question was raised that the South Bay was not within the ■ grant. This court held that this objection could not be sustained, and that the southern boundary, which was the ocean, included the beach and of course the bay, etc. The patent under which the plaintiff claims is bounded on the north by the Sound. Adjacent to the Sound is Eaton’s Neck and Eaton’s Neck Beach, and south of this is Northport harbor. By analogy, both Eaton’s Neck and Eaton’s Neck Beach are within the patents and necessarily *26 the harbor also. The boundary by the sound includes all the land south of the Sound. Thai this was intended is indicated by the use of the words in the grant, ‘ harbor, havens,’ etc. That Northport harbor was included within the limits of the boundaries was proved by the undisputed evidence of the surveyor and others. It was also proved that Eaton’s Neck Beach was leased by the town. It should also be noticed that Northport harbor is land-locked, and has always been used and distinguished as a harbor.”

Each of these three cases from the. highest court of the State of New York treats that which is named as the boundary on the north or south, the Sound or the ocean, as referring directly to the body of water known by such name, .and not as including waters opening into or connected with it.

Further, there is independent testimony tending to show that this Huntington Bay was called indiscriminately “ bay ” or “harbor” at the time of the original grant. Thus, in the grant made by Governor Nicolls, on June 22, 1667, of Eaton’s Neck to George Baldwin, the description is “a Certain Parcell or Neck of Land Commonly called Eaton’s Neck lying and being in the East Biding of Yorkshire upon Long Island on the North side of the said Island to the East of Huntington Bay where striking out into the Sound it is thereby bounded to the North East and South and on- ye West with Huntington Harbour; ” and in a conveyance of the same land made by Baldwin, on July 11, 1668, the description is “neck of Land commonly Called and known by the name of Easton Neck lying on the East side of Huntington Harbour bounded as is Specified in the patent granted for that Neck of Land.” There is also other testimony to the effect that this body of water has been known as “ Huntington Bay ” as far back as any memory extends, or any records are found; and whether bay or harbor, it was a distinct body of water, always so known and called.

No question exists as to the validity of these ancient grants, or that they were broad enough to include oyster rights in the waters within them. The' subsequent legislation of the colony and the State affirms their validity. Thus, on May 6, 1691, *27 the colonial legislature passed an act, entitled .“An Act for Settling, Quieting and Confirming unto the Cities, Towns, ■Manors, and Freeholders within this Province their several Grants Patents and Eights respectively.” The first section enacted:

“ That all the Charters, Patents and Grants, made, given, and granted, arid well and truly executed under the Seal of this Province, constituted and authorized by their late and present Majesties, the Kings of England, and registered in the Secretary’s office, unto the several and respective' Corporations or Bodies Politick of the Cities, Towns, and Manors, and also to the several and respective freeholders within this Province, are and shall forever be deemed, esteemed, and reputed good and effectual Charters, Patents, and Grants authentick in the Law, against their Majesties, Their Heirs, and Successors, forever.”

And in the second section it was provided:

“And be it further Enacted by the Authority aforesaid, That all the Charters, Patents, and Grants made, given, and granted, as aforesaid unto all and every the several and respective Corporations or Bodies Politick qf the Cities, Towns, .and Manors, and their successors, and also unto-all and every the respective Freeholders, their Heirs and Assigns, forever, within this Province, are, to all Intents and Purposes whatsoever, hereby ratified and confirmed.”

Section 36 of the first constitution of the State of New York contained this provision:

“ And be it further ordained : That all grants of land within this State, made by the King of Great Britain, or persons acting ■ under his authority, after the fourteenth day of October, 1775, shall be null and void; but that nothing in the Constitution contained shall be construed to affect any grants of land, within this State, made by the authority of the said King, or his predecessors, or to annul any charters to bodies politic by him, or them, or any of them, made prior to that date.”

A similar one is found in section 18 of article 1 of the constitution of 1816. See upon this question of validity, in addition to the authorities heretofore quoted, People v. Van Rensselaer, 9 N. Y. 291, 346.

*28 Again, it is worthy of note that that fact is apparent from the testimony in this case, which was noticed by the Court of Appeals as significant- in the case of Brookhaven v. Strong, 60 N. Y. 56, 71, to wit, a long-continued exercise and control over these submerged lands on the.part of the town. Several entries taken from the records of the proceedings of the town were offered in evidence. One, dated. June 1, 1795, is as follows : “ Whereas sundry- persons are making a practice of taking and carrying away clams and oysters from the harbors on the north side of the town of Huntington, for the prevention of which be it enacted and ordained by the trustees.of the freeholders and commonalty of tfie town of Huntington, and it is hereby enacted and ordained by the authority of the same, that if any person or persons, after the 10th day of June, 1795, shall take and carry away out of any of the harbors-of the north side of the township, of Huntington any clams or ousters he or they, or any of them so offending, shall forfeit the sum of 40s. for every offence contrary to the true intent and meaning of this act, and shall be prosecuted,” etc.; one substantially similar, of ■ date June 20, 1796. Subsequently, in 1803, 1810, 1818,' 1823, 1828, 1833, 1838, 1844, and 1849, by-laws were passed, aimed with more or less directness of expression at restraint upon the “ fishing, clamming, oystering,” catching oysters, clams, and fish, in the waters of the town of Huntington. It is not meant by this to imply that any of these by-laws specifically named Huntington Bay as a part of the waters belonging to the town of Huntington; all that is meant to suggest is that there was during those years a continued assertion of the right on the part of the town to control the catching of oysters in the waters of the town. Obviously, the planting of oysters was not then a matter much thought of, but from 1855 the occupation of the submerged lands for the purpose of the cultivation of the oyster seems to have attracted the attention of the town, authorities. ■ Thus, on April 3, 1855, at a town meeting, this resolution was passed:

“ Resolved, That all persons be prohibited from putting down stakes in any. of the harbors, of the town of. Huntington to mark the lines of the oyster beds that will in any way obstruct fishing with nets, under the penalty of $12.50;”

*29 On April 7, 1857, at a town meeting, the trustees- were authorized “ to make rules and regulations for the planting of oysters, receive applications, and grant permissions to the inhabitants ” of the town for planting oysters. On April 4, 1871, the town record contains this recital:

“ At a town meeting, resolved that the trustees of this town be authorized, empowered, and directed to lease the lands immediately suitable for oyster beds in the bays and "harbors belonging under the waters of the town of Huntington. Before doing so they'shall take proper counsel therein as to the best and safest manner of leasing said grounds. None but residents have the privilege to said lease, and those residents having oysters already planted be entitled to the first privilege, and the trustees be required to give public notice for two weeks before adopting the resolution for the terms and manner of leasing.”

And in the town records are found, subsequently to these entries, by-laws and resolutions of a similar import.

Still further, on May 10, 1888, c. 279, the legislature of New York passed an act which is as follows:

.“Section 1. All the right, title, arid interest which the people of the State of New York ha^e, if any, in and to the lands outside of and beyond low-water mark under the waters of Huntington Bay, in the town of Huntington, Suffolk County, southerly of a line drawn from a granite monument now set near high-water mark on the northernly point of Eaton’s Neck, and west of the United States Life Saving Station to a locust monument now set on Lloyd’s Neck, which .line runs on a course south fifty-nine degrees, twenty minutes and twenty-five seconds west, and which is the line claimed by the trustees' of the town of Huntington as the northerly line of their grants under colonial patents, is hereby ceded to thq present trustees of the town of Huntington, Suffolk County, and their successors in office, for the purpose of oyster cultivation. Provided, nothing in this act shall be held to interfere with the rights and powers of the commissioners of the land office to grant all the right, title, and interest of the State to lands under water in said bay, to the owners of *30 adjacent uplands for purposes of commerce or beneficial enjoyment, and nothing herein contained shall be construed as interfering with the rights of riparian owners. Subject, however, and without prejudice to the legal rights, if any, of such persons as now have oysters planted on the lands aforesaid.” (Laws of New York, 111th Session, 1888, p. 494.)

In respect to this cession the Court of Appeals in People v. Lowndes, 130 N. Y. 455, 461, said: “ If .the locus in quo was not'within the colonial patent or grant, it was the property of the State, and passed to the trustees of the town of Huntington by the legislative act of cession of May, preceding the time of the alleged offence.” That was a case .in which the defendant was prosecuted for a violation of section 441 of the Penal Code of the State of New York, which is as follows: “A person'who, not being at the time an actual in-' habitant and resident of this State, plants oysters in the waters of this State, without the consent of the .owner of the same, or of the shore, or gathers oysters or other shellfish’ from their beds of natural growth, in any such waters on his own account, or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor, punishable by imprisonment not exceeding six months, or by a -fine not exceeding one hundred dollars, or both; ” and the place at which the offence was charged to have been committed was in Huntington Bay. That case was, however, decided on the question of the sufficiency of the indictment, and - perhaps, therefore, the -quotation may be considered as simply dictum, but whether dictum or not, we think it is correct. Either the title to these submerged lands passed - by virtue of the colonial grants to the town of Huntington, or else it was in the .State of New York, Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Shively v. Bowlby, 152 U. S. 1, and this act, whose validity seems not to. be questioned, cedes all the right, title, and interest of the State in these lands to the town, so far at least as is necessary for the purpose of oyster cultivation.

It is clearly exclusive in its scope. Such is the plain import of its terms. Even if the language were less clear, reliance *31 might be had on the rule of construction in' respect to such • grants laid down by the- Court of Appeals. Langdon v. New York City, 93 N. Y. 129, 144. “ But when the sovereign grants land under water, which cannot in its natural state be subjected to any of the uses to which dry land may be devoted, then a different rule of construction must be applied to the grant, so as to make it effectual for some purpose. Such a grant may be made to give an exclusive right of fishery, or of navigation, or to enable the grantee to fill up the land for wharves and docks or other buildings. The purpose may be plainly expressed in the grant; if it be not, then the intent of the parties must be ascertained from the nature and situation of the land granted and all the circumstances surrounding the grant which may properly be considered for the purpose of ascertaining such intent.”

• Proper notice to quit was served upon the defendant, and hence it follows/that the' judgment" was rightfully entered against him, unless he has shown some affirmative title or right in himself. He pleads possession and use of the premises for the purposes of oyster .cultivation for more than twenty years, -but in order to create a title springing out of possession such possession must be adverse and exclusive, and of that the defendant makes no pretence. There was in evidence an application made by him on October 10, 1887, to the commissioner of fisheries of the State of New York for a perpetual franchise for planting and cultivating shellfish on the premises, ■ which application was denied, and in respect to it he testified :

“ The lands described in that exhibit are the lands embraced in this suit. These are the lands I occupy now. I did not get any grant on that application. The town put in a demurrer. When I commenced to plant oysters on these grounds, I claimed that the bottoms were owned by the State. I do yet. I don’t claim to own the-ground at all. In the year 1867 I planted probably — well, I never measured. I staked off a square what I thought would be competent to hold 3000 bushels or 2500, the amount I had money enough to buy and plant on it, indiscriminate of the number of acres. I didn’t -plant more than 3000 bushels then. I did not plant *32 more than ten acres jn 1867. I don’t think I planted more than ten acres in 1868.”

In other words, all that he claims is that he had an implied license from the State, but such license (if one existed) was subject to revocation, and was revoked by the notice served upon him by the plaintiff, to whom the State had ceded all its rights.

These are the material questions in the case, and in the decision of them there was no error. Therefore the judgment is

Affirmed.

Mr. Justice White was not a member of the court when this case was argued, and took no part in its decision.