54 F. 351 | U.S. Circuit Court for the District of West Virginia | 1893
This indictment, containing six counts, charges the defendants with violating the provisions of sections 6, 7, and 10 of the act of congress approved September 19, 1890, entitled "An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes.” Defendants demur to the indictment, and to each count thereof, and move to quash the same. (By consent of the district attorney and defendants an order was entered in this case, agreeing that the filing of the demurrer and motion to quash should not be construed as waiving the plea in abatement, led by defendants.)
Sections 6, 7, and 10 of the act mentioned read as follows:
“See. 0. That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to 'be cast, thrown, emptied, or unladen, either from ©r out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into sny port, road, roadstead, harbor, haven, navigable river or navigable waters of the United States, which shall tend to impede or obstract navigation, or to deposit or place, or cause, suffer, or procure to be deposited or placed, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, or other waste in any place or situation on the bank of any navigable waters, where the saino shall be liable to be washed into such navigable waters, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: provided, that nothing herein contained shall extend or be construed to extend to the casting out, unlading, or throwing out of any ship or vessel, lighter, barge, boat, or other craft any stones, rocks, bricks, lime, or other materials used or to be used in or toward the building, repairing, or keeping in repair any quay, pier, wharf, weir, bridge, building, or other work lawfully erected or to be erected on the banks or sides of any port, harbor, haven, channel, or navigable river, or to the casting out, unlading, or depositing of any material excavated for the improvement of navigable waters into such places and in such manner ás may be deemed by the United States officer supervising said improvement most judicious and practicable, and for the best interests of such improvements, or to prevent the depositing of any substance above mentioned under a permit from the secretary of war, which he is hereby authorized to grant, Sn any place designated by him, where navigation will not be obstructed thereby.
“Sec. 7. That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the secretary of war, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters; and it shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the secretary of war, or to excavate or fill, or in any manner to alter or modify, the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the secretary of war: provided, that this section shall not apply to any bridge, bridge draw, bridge piers and abutments, the construction of which has been heretofore duly authorized by law, or bo so construed as to authorize the construction of any bridge, drawbridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead,*354 haven, or harbor, or other navigable water not wholly within the limits oí such state.”
“Sec. 10. That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks, and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offense, and each week’s continuance of any such obstruction shall be deemed a separate offense. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. The creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to bo removed by the injunction of any circuit court exercising jurisdiction in any district in which such obstruction may be threatened or may exist, and proper proceedings in equity to this end may be instituted under the direction of the attorney general of the United States.”
TMs legislation is an exercise by congress of its constitutional right to regulate commerce between the states, and the object evidently is to take exclusive control of the navigable waters of the United States, and protect the interests of commerce from the obstructions, encroachments, and carelessness of those using the same, and occupying the lands adjacent thereto.
Defendants have tendered a plea in abatement, to the filing of wMch the district attorney has objected. The plea is as follows:
“And the said David Burns and Gideon Bums, In their own proper person, come into court here, and, having heard the said indictment read, say that the said United States ought not to further prosecute the said indictment against them, the said David Burns and Gideon Bums, because they say that no officer or agent having supervision on the part of the United States of any works in progress for the preservation or improvement of any navigable waters of the United States, and no United States collector of customs, or any other revenue officer, did give any information or make any complaint to the district attorney of the United States for the district aforesaid, regarding the matters in said indictment set forth, or regarding any violation of any provision of the act of congress entitled ‘An act making appropriations for the construction and repair and preservation of certain public works on rivers and harbors, and for other purposes,’ passed by the congress of the United States, and approved September 19, 1890; nor did any officer, or agent having such supervision, or collector or other revenue officer, or any other officer or agent of the United States, authorized in that behalf, sanction, authorize, or procure, or make himself responsible for, the said indictment, or any part thereof, as contemplated by section 11 of said act of congress. Wherefore they pray judgment, and that by the court here they may be discharged and dismissed from the premises in the said indictment above specified.” (Verified by affidavit.)
TMs plea is based on section 11 of the act of congress before men-turned, tbe section reading as follows:
“Sec. 11. That it shall be the duty of officers and agents having the supervision, on the part of the United States, of the works in progress for the preservation and improvement of said navigable waters, and, in their absence, of the United States collectors of customs and other revenue officers, to enforce the provisions of this act by giving information to the district attorney of the United States for the district in which any violation of any pro*355 vision of this act shall have been committed: provided, that the provisions of this act shall not apply to Torch lake, Houghton county, Michigan.”
Counsel ior defendants insist that this section confers upon the officers and agents of the United States having supervision of the work in progress for the preservation and improvement of the navigable waters of the United States, and, in their absence, upon the collectors of customs and other revenue officers, the exclusive right to enforce the provisions of the act of congress mentioned; that they are to determine when the law has been violated, and when and against whom proceedings shall be instituted; and that, if they refuse or fail to give information to the district attorney of the violation of the act referred to, no indictments can be returned, or no informations filed. I do not concur in this construction of the eleventh section. I think the congress intended to require of the officers and agents referred to special attention to the requirements of said act of congress, and to charge them with the duty of protecting the navigable waters of the country from the obstructions to commerce prohibited therein. It is made their duty to give information to the district attorney of any violation of the provisions of the legislation referred to, as their attention would likely be called to such infractions of the law; but1 the right and the duty of the district attorney and of the grand jury to initiate proceedings.in the manner usual to criminal cases, is not affected, and remains .as heretofore. The objection of toe district attorney to the filing of the plea in abatement is sustained.
I come now to the consideration of the demurrer and motion to quash. The Indictment reads as follows:
“In file Circuit Court of the United States of America for the District of West Virginia, in the Fourth Circuit, at Parkersburg, in. the year of our Lord one thousand eight hundred and ninety-one.
June Term, 1891.
"‘First count. The grand jurors of the United States of America within and for the district of West Virginia, now attending the said court, upon their oaths do present that David Bums and Gideon Bums heretofore, to wit on the ■ — — day of October, hi the year of our Lord one thousand eight hundred and ninety, at the district of West Virginia1, aforesaid, did willfully and unlawfully cast, throw, empty, and unlade, and cause, procure, and suffered to be cast, thrown, emptied, and unladen,1 from and out of a certain ship, vessel, lighter, barge, boat, and other craft then and there in and upon the Little Kanawha river, and from the shore of said Little Kanawha, river, and from a certain pier, wharf, furnace, manufacturing establishment, and mill, thou and there situate upon the bank oí and adjacent to the said Little Kanawha river, certain ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, and other waste of divers kinds into the said Little Kanawha river, which said river was then, and there a navigable river, and a part of the navigable waters of the United; States, and which said ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, and other waste so cast, thrown, emptied, and unladed did then and there tend to impede and to obstruct navigation in land upon the said Little Kanawha river, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.
“Second count. And the grand jurors aforesaid, upon their oaths aforesaid, do farther present that David Burns and Gideon Bums heretofore, to wit, on the-— day of October, in the year of our Lord one thousand eight hundred and ninety, at the district of West Virginia, aforesaid, did willfully and tna-*356 lawfully deposit and place, and cause, suffer, and procure to be deposited and placed, certain ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, and other waste of divers kinds, in such a place and situation on the bank of the Little Kanawha river, which said Little Kanawha river was then and there a navigable river, and a part of the navigable waters of the United States, where the same was and is liable to be washed into the said Little Kanawha river, by ordinary and high tide, and by storms, floods, and otherwise, whereby navigation might and may be impeded and obstructed in and upon the said Little Kanawha river, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.
“Third count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that David Bums and Gideon Bums heretofore, to wit, on the-day of October, in the year of our Lord one thousand eight hundred and ninety, at the district of West Virginia, aforesaid, did knowingly, willfully and unlawfully build a certain wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, and certain other structures in, along, upon, and across the Little Kanawha river, on which river no harbor lines were or are established, and without the permission of the secretary of war, in such a manner that the said wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, and structures did, and still do, obstruct and impede navigation, commerce, and anchorage on, in, and upon said river and waters, which said Little Kanawha river is and was a navigable river, and a part of the navigable waters of the United States, in respect of which the United States then and there had, and still has, jurisdiction, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.
“Fourth count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that David Bums and Gideon Bums heretofore, to wit, on the-day of October, in the year of our Lord one thousand eight hundred and ninety, at the district of West Virginia, aforesaid, did willfully and unlawfully cast, throw, and place, and cause and procure to he cast, thrown, and placed, in, into, and upon the waters of the Little Kanawha river, which said river was then and there a navigable river, and a part of the navigable waters of the United States, divers and sundry rafts, logs, sticks of timber, planks, boards, lumber, slabs, and cross-ties, barges, boats, and vessels, loose and adrift, and unconnected and unfastened to and with each other or with the bank, bottom, or shore of said river, or with any pier, post, wharf, draw, abutment, or any other structure or tiling, by which the same might or could be handled, controlled, steered, managed, or navigated, and without any sail, oar, rudder, paddle wheel, steering gear, or other apparatus or device by which the same could be steered, guided, propelled, directed, or controlled, and without any agent, employe, servant, or other person upon’ or in charge of, or having control in any wise of, said rafts, logs, sticks of timber, planks, hoards, lumber, slabs, cross-ties, barges, boats, and vessels, and without any light, signal horn, whistle, or any other device or apparatus thereon or con-, nected therewith, to give signal, warning, or notice of the presence or approach or of the vicinity of the said rafts, logs, sticks of timber, planks, boards, lumber, slabs, cross-ties, barges, boats, and vessels; and the said Gideon Bums and David Burns then and there willfully and unlawfully caused and permitted the said rafts, logs, sticks of timber, planks, boards, lumber, slabs, cross-ties, barges, boats, and vessels to float, drift, and he carried about upon and in the waters of the said Little Kanawha river, propelled, moved, and carried about and controlled only by the current, eddies, and backwater of said river, and by the winds and storms that pass over and upon said river, by all which the navigation of said river was then and there and thereby greatly obstructed, impeded, and endangered, and an obstruction to the navigable capacity of'said Little Kanawha river was created and continued for a long time, to wit, for the space of one week, which obstruction was not affirmatively authorized by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.
“Fifth count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that David Bums and Gideon Burns heretofore, to wit, on*357 tho-day of October, in the year of our Lord one thousand eight hundered and ninety, at the district of West Virginia, aforesaid, were engaged in and carried on and conducted the timbering and logging business on the waters of the Utile Kanawha river, and in conducting and carrying on said business they then and there and thereby knowingly, willfully, and unlawfully created an obstruction not affirmatively authorized by law to the navigable capacity of the said Little Kanawha river, which said river was then and there a. navigable river, and a part of the navigable waters of the United States, in respect of which the United States had and has jurisdiction, contrary to the form of the statute in such case made and provided, and against the peace a.nd dignity of the United States of America.
“Sixth count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that David Burns and Gideon Bums heretofore, to wit, on the-- day of October, in the year of our Lord one thousand eight hundred and ninety, at the district of West Virginia, aforesaid, did willfully and nit lawfully alter and modify the course, location, condition, and capacity of the channel of the Mttle Kanawha river, the said Little Kanawha river being then and there a navigable river, and a part of the navigable waters of the United States, by then and there excavating the bank, bottom, shore, side, bed and channel of the said Little Kanawha river, and by then and there filling the side, bed, shore, bank, and channel of said Little Kanawha river, and by casting, throwing, emptying, and unlading, and by then and there causing, suffering, and procuring to be oast, thrown, emptied, and unladen, ballast, stone, rocks, brick, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, and other waste of divers and sundry kinds upon the shore, bank, sides, and bottom of said river, and into the bod, channel, and -waters of the said navigable river, and by depositing and placing, and causing, suffering, and procuring to be deposited and placed, a large quantity of ballast, stone, roete, brick, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, and other waste in, along, upon, and against the hank, side and shore, bed and bottom of the said navigable river, and iu other manners, without the said excavating, depositing, placing, filling, casting, throwing, emptying, and unlading said materials in manner and form as stated aforesaid having been in any wise approved and authorized by the secretary of war, and contrary to ihe form of tho statute in such case made and provided, and against the peace and dignity of the United States of America.
[Signed] “Geo. 0. Sturgiss, TJ. S. District Attorney.
“Upon the information of
“John Murry,
“R. O. Buckner,
“Parkersburg, W. Va.
“Witnesses sworn in open court, and sent to the grand jury to give evidence.”
It is argued by counsel for defendants that the indictment does not state with sufficient clearness the offense charged, and that the accused are unable to determine from it the nature of the accusation they are called upon to answer; also that the matters and tilings set forth in the six counts do not constitute any offense against the laws of the United States, and do not come within the trae intent and meaning of the act of congress, under which they are drawn; and it is also claimed that several of the counts are bad for duplicity, several separate offenses being charged in each of such counts.
The first count is drawn under section 6, by which the casting, throwing, etc., of certain articles from or out of any vessel, or from the shore, into navigable waters, which shall tend to impede or obstruct navigation, is prohibited. The district attorney claims that
I cannot agree with the district attorney in Ms claim that proof that the defendants did throw or cause to he thrown from any vessel on the Little Kanawha river, at the time and ■ in the district alleged, any of the many articles mentioned, which shall have the result charged, will sustain this count, and justify a verdict of guilty on it. I cannot agree that all the other allegations and charges are mere words .of description of the one offense as to which such evidence would be offered; nor do I think that in this count they can be regarded as surplusage. In my opinion, the count is bad, for the reasons I have stated. If it was good as matter of pleading, then, in order to convict under it, it would be necessary to prove that the defendants did each and all of the different matters charged in the count. I do not mean that proof would be required that they did cast, etc., each and all of the articles enumerated, but that it would be necessary to show that some of said articles were so cast, etc., from each of said separate places, establishments, and objects. A conviction upon this count, as drawn,- would not show for whab offense defendants were found guilty.
There are other objections to this count. The defendants should be advised more clearly as to the character of the article or waste matter they so threw into the river, and as to the place where it was so done, — what was it, and where was it? The evidence must show it, and the district attorney must be advised as to the placei or the prosecution' must fail. Then why should not the defendants be informed? 'The government does not wish their conviction unless they be guilty, and it should not be permitted to demand their conviction until ic has given them a full and fair opportunity to make their defense to a plain and positive charge. How, in fact, can the defendants prepare for trial on this count? Will, they endeavor to show that they did not throw sawdust into the river from their mill on the bank of the river in Wirt county, and be met with testimony that they cast ashes from a steamboat oil said river, in Wood county? The party accused has the constitutional right to he informed of the nature and cause of the accusation. In U. S. v. Mills, 7 Pet. 142, this was construed to mean that the indict-
"The indictment must charge the time and place and nature and circumstances of the offense with clearness and certainty, so that the party may have full notice of the charge, and be able to make his defense with all reasonable knowledge and ability.”
In U. S. v. Simmons, 96 U. S. 360-362, Mr. Justice Harlan uses this language:
“Where the offense is purely statutory, having no relation to the common law, it is as a general rule sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter. 1 Bish. Grim. Proc. § 611, and authorities there cited. But to tins general rule there is the qualification, fundamental in the law of criminal proceeding, that the accused must be apprised by the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute.”
In U. S. v. Nelson, 52 Fed. Eep. 646, — an indictment under the act of congress “to protect trade and commerce against unlawful restraint and monopolies,” — Judge Nelson uses this language:
“It is urged by the district attorney that, the offense being statutory, the general rule in such cases, to wit, that it is sufficient to allege the offense in*361 the lsvngnnge of tho statute, will sustain the first six counts. 1 cannot agree to that. This is not a caso where every fact necessary to constitute the offense is charged, or necessarily implied, by following the words of the atat-iiuj, and the words themselves fully and directly, without any uncertainty or ambiguity, set forth all tho elements necessary to constitute the offense; and it is not sufficient to follow only tho language of the statute. * * * The charge must contain a statement of facto constituting the offense, and a certain description of it, which this indictment does not in either of the first six counts, and they cannot be sustained.”
It is chargeS in the second count, which, is also drawn under the sixth section of the act of congress I have mentioned, that the defendants, in October, 1890, in the district of West 'Virginia, did unlawfully deposit and place, and cause, suffer, and procure, to bo deposited and placed, certain ballast, stone, ote., and other waste of divers kinds, in such a place and situation on the bank of the Little Kanawha river, then and there a navigable river, where the same was and ⅛ liable to be washed into the said river by storms, floods, and otherwise, whereby navigation, might and may be impeded and obstructed in and upon the said river, contrary, etc. It will be observed from the reading oí the section alluded to that the depositing and placing of ballast, stone, and the other articles mentioned in the count under consideration in any place or situation on the bank of a navigable river is hot absolutely prohibited, but the prohibition applies only to such places where the same shall be liable to be washed into such navigable river by ordinary or high tides, or by storms or floods or otherwise, and not even then unless navigation shall or may be impeded or obstructed. The importance of observing the rules 1 have already referred to is strikingly illustrated by this second count. In the offense here alluded to, place is of the utmost importance, and the allegation as to the location should be clear and unequivocal To require this ⅛ not unreasonable; it is not demanding anything that tlm district attorney is not fully advised of. The necessity to so allege could not be avoided in this instance by saying that “it is. to the jurors unknown,” for, in order to convict, it must be shown to he of the character of places prohibited by the statute, and consequently the government is presumed to have the information. If so, it is but simple justice that the defendants be advised of it. Surely it is not sufficient to say, as does this count, that the offense was committed “at the district of West Virginia, at a place on the bank of the Little Kanawha river,” and thus permit the United States to offer -testimony tending to locate the place anywhere in live counties, from the source to the mouth of the river. The defendants should not bo liable to be surprised as to the place, but should be fully advised, and an opportunity given them to show, by witnesses who have examined the place designated, that it Is not such a situation where the articles enumerated ■ were liable to be washed into the river, and navigation impeded thereby. The count is bad.
The third count is based on section 7, and charges that defendants, in October, 1890, at the district of West Virginia, did knowingly, willfully, and unlawfully build a certain wharf, pier, dolphin,
There is another objection to this count. I find, (as I did in reference to the first count,) that there are several distinct offenses combined and charged in this the third count. The reasons assigned for holding the first bad apply even with greater force to the one now under consideration.
The fourth count is drawn under the provisions of section 10, and it is claimed that the defendants, by throwing and placing the rafts, logs, sticks, boats, and other things in the count mentioned, under the circumstances described, have violated that section. Defendants insist that the matters and things stated and set forth in this count do not constitute any offense against the laws of the United States, and do not come within the purview, true intent, and meaning of the act of congress, of which section 10 is part. What is it that the congress has prohibited by the tenth section? All obstructions to the navigable capacity of the river are not prohibited, but only those “not affirmatively authorized by law.” This legislation, in effect concedes that which is well known to be true, that the necessities of commerce, the interests of the country, demand that certain obstructions to the navigable capacity of our rivers must be authorized, and their creation permitted. Under certain circumstances, bridges, piers, docks, dams, and booms, the object of which is to facilitate trade and commerce, become in many instances serious obstructions to the navigable capacity of our waters, and yet they are “affirmatively authorized by law.” In the seventh section of the act under consideration congress has authorized the building
The fifth count is so indefinite that it will not be seriously contended that defendants should be required to plead to it. It gives neither place nor circumstance, and is too vague and general. It charges the defendants with unlawfully creating an obstruction, not affirmatively authorized by law, to the navigable capacity of the Little Kanawha river; but it gives not the slightest notice or description of the acts done by them which they are called upon to defend. For reasons that I have already given, I hold this count bad.
The sixth count is based on that part of the seventh section immediately preceding the proviso thereto, and charges the defendants with unlawfully altering and modifying the course, location, condition, and capacity of the channel of the Little Kanawha river, a navigable river of the United States, by excavating, and by filling, the bank, bottom, bed, shore, and channel of the river, as prohibited in section 7, and by doing all the things mentioned in section 6 as not being lawful to do, and in other manners not described, without the same having been in afiy wise approved and authorized by the secretary of war. The position assumed by counsel for defendants — that this count charges in mass every offense suggested by the statute; that it combines all the offenses mentioned in section 6, and part of those in section 7 — cannot be maintained. The charge is plainly set forth that the defendants did “unlawfully alter and modify the course, location, condition, and capacity of the channel of the” Little Kanawha river, the doing of which, under certain circumstances, is made an offense by the seventh section. The many ways in and by which “the altering and modifying” was done, as alleged in this count, constitute the mass of charges referred to. The district attorney claims that the casting, throwing, etc., and the depositing, placing, etc., of the things mentioned in section 6, constitute such altering or modifying of the course, location, condition, or capacity of the channel of the river as is made unlawful by the portion of the seventh section under which this count is drawn. My judgment is that congress did not so intend, and I construe the statute otherwise. I cannot reach the conclusion that congress authorized the secretary of war to approve and authorize the casting of ballast, stone, earth, rubbish, and filth in any of the navigable waters of the country, in such a manner as to alter or modify the course, location, and capacity of the channel of such waters, as I
The indictment, and each count thereof, will be quashed.