26 F. Cas. 559 | S.D.N.Y. | 1841
The United States prosecute an action, of debt against the defendant as owner or master of a steamboat, demanding a penalty of $500, under the provisions of the act of congress entitled ‘‘An act to provide for the better security of the lives of passengers on board vessels propelled ’ in whole or in part by steam,” approved July 7, 183S. The declaration alleges that the defendant, being master or owner of a steamboat named the Daniel Jackson, duly licenced, at this port, used and employed her on the East river, on the navigable waters of the United States, in the transportation of goods, wares, and merchandize. and passengers, between the city of NewYorkand the village ofWilliamsburgh, in the county of Kings; but utterly failed, neglected, and refused to have her inspected, from December 1, 1839, to January 1, 1840, as required by the said act, or to deliver to the collector a certificate of such inspection within twelve months from the date of said act, &c.
The defendant pleaded that, during the period in the declaration mentioned, he was a citizen and actual resident of the state of New York, and that the said steamboat was an ordinary ferryboat, used and employed by him to keep up and maintain a ferry, licenced by and under the authority of the city of New York, between that city and Williams-burgh, in the county of Kings; and that the said steamboat was never used or employed for any other purpose whatsoever, or on any other waters than the East river, lying exclusively within the limits of the state of New York. To this special plea the plaintiffs demurred.
The steamboat had been duly licenced under the existing laws by the owner. The sixth section of the act makes it the duty of the owners of steamboats to have the hulls inspected once in every twelve months, and the boilers and machinery once in every six months, and to deliver to the collectors of the port a certificate of such inspections; and on failure, to forfeit the licence and be subject to 5500 penalty.
The questions raised under the demurrer are, whether the provisions of the act apply to this vessel, which is owned and navigated wholly .within this state, and employed only ,as a ferryboat; and, if the act has that extent, whether congress had constitutional power to pass and enforce it.
The opinion of the court will be directed to these inquiries: 1. Are the provisions of the act restricted to steam vessels engaged in the transportation of freight and passengers at sea, or on the Lakes Champlain, Ontario, Erie, Huron, Superior, and Michigan? 2. If the act is not so limited, does it embrace any vessels other than those subject to be enrolled and licenced under the laws then in force? 3. Has congress power to legislate over vessels exclusively employed within a state and on its waters, and especially over ferryboats?
Although these inquiries involve legal propositions of considerable importance, I apprehend they may be satisfactorily answered, without any elaborate examination or discussion. It appears to me most manifest, upon the face of the statute, that congress did not mean this new legislation to be limited to any particular class of steam vessels, or to those employed in any particular localities. The first section makes it the duty of all owners of steamboats to take out new li-cences. The second section forbids the owner of any steamboat, to transport merchandize or passengers in or upon the bays, lakes, rivers or other navigable waters of the United States, without obtaining the licence re-'
The rule of construction contended for by the defendant, that general words of a statute are to be controlled by subsequent restraining ones, is not to be questioned; but, to have that effect, the restraining words or clause must have evident relation to the whole subject matter; otherwise they are to be understood as supplementary, or exceptive to the main provisions. In view of these principles of construction, the provisions of sections 8 and 9 are, in my opinion, not to be regarded as restricting the general operation of the act; but as providing additional regulations in respect to steam vessels employed at sea and on the Great Lakes. Every steam vessel engaged in the transportation of merchandize or passengers, at sea or on the lakes named, must be supplied with particular boats or yawls, and fire engines and apparatus. It seems to me plain, upon the language of these sections, that the intention of congress was, to compel that class of vessels, besides conforming to the general requirements of the statute, furthermore to equip themselves in reference to the dangers of the navigation they pursue, and which might be regarded as more imminent to them, remote from aid and succor, than to vessels employed on inland waters; and it is to be remarked, when this special purpose is satisfied, the ninth section, with only the break of a semicolon in the clause, drops the limitation of “every steamboat so employed.” and, taking up again the general phraseology before used, directs that “iron rods or chains shall be used in the navigation of all steamboats, instead of wheel or tiller ropes, under a penalty of $300.” In suits heretofore brought in this court to enforce that penalty, against boats navigating Long Island Sound and the North river, it has been held that they fell within the provisions of the clause, and that it was not to be construed as having relation only to the boats particularly referred to in sections S and 9. U. S. v. Stone [Case No. 16,407], I think it follows, plainly, from the analysis given of the statute, that congress contemplated a system of regulations to govern every description of steam vessels; and I adhere to the former opinion expressed, that every steamboat, wherever employed, is liable to the penalties of the act on disobeying it; unless it be shewn that congress had no power to establish these regulations, or has, by implication, limited them to particular vessels.
2. It was earnestly insisted that the first and second sections of the act distinctly indicate the intent of congress, to bring under its provisions only those steam vessels which at the time were subject to be enrolled and li-cenced by the existing laws; and these, it is contended, can be no other than -vessels engaged in the coasting trade or foreign commerce; and accordingly the general terms, “all and every,” used in different parts of the act, must be so qualified. Although this point is substantially involved in the first, and must be disposed of under the principle governing that, yet, perhaps, it demands a special consideration. The reference to existing registry and licence laws, is supposed to adopt the provisions of those acts as criteria of the description and employ of steamboats made subject to the regulation of the present statute, and thus indirectly to establish a restriction or qualification to the general operation of the act. The second section obviates the question made under the first, whether the statute was designed to operate prospectively, or must be limited to boats at the time actually licenced; because it interdicts the employ ~ ment of boats, after the succeeding October, without having first obtained a licence, &e. The new licence, therefore, required by the first section, must be understood to be that particular document pointed out by this statute, and not merely a reissue or renewal of one existing at the time. But a construction restrained to the strictest meaning of the words would not aid the defendant; because, by the pleadings, it stands admitted that this steamboat had before taken out a licence under the laws of the United States. The argument, however, is. that the boat is no way compromitted by taking a previous li-cence; as there was no obligation on her part to seek it, and no authority in law in the collector to grant one. The position is undoubtedly correct, that the defendant cannot be made liable to the penalties of the statute because of a step by him or the custom house, not exacted nor authorized by the existing laws. But I do not accede to the proposition of the defendant, that the act of 1838 must be interpreted in subordination to the laws then in force, in respect to the enrolment and licencing of vessels, so that no vessel can fall within its provision unless she was previously obliged to be licenced or enrolled. And it is to be remarked, in this connection, that there is manifestly a misapprehension of the effect
3. The last general topic touches the competency of congress to pass a law which would compel this boat to take out a licence. The positions urged by the defendant are (1) that congress has no power to legislate over vessels owned exclusively within a state, and navigating only the waters within such state; and (2) that to enforce the act against this boat would be to regulate a ferry,—a matter not within the constitutional authority of congress.
(1) The “East River,” as it is termed, is an arm of the sea connecting Long Island Sound and the Bay of New York. It has no property of a river. Its waters are all supplied by the sea, its source and outlet being both in the- ocean. To all purposes, this strait comes within the description of navigable waters of the United States. 3 Kent, Comm. 412. The admiralty law embraces it, and it moreover comprises the transit to and from the navy yard, and a haven for the commercial and national marine of the United States. The jurisdiction of the general government embraces all tide waters navigable from the sea. [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 203; 3 Cow. 747; [Peyroux v. Howard] 7 Pet. [32 U. S.] 324; [City of New York v. Miln] 41 Pet. [36 U. S.] 125; [U. S. v. Coombs] 12 Pet. [37 U. S.] 76. Jurisdiction over a place ordinarily includes, as an incident, jurisdiction over persons and things therein. 1 Kent. Comm. 430. Without, however, looking to the admiralty power of congress, or its authority resulting from the locality of these waters, I am satisfied, full power to legislate over the subject in question is found in the authority to regulate commerce given by the constitution. Article 1, § 8. The supreme court has considered most deliberately the force and extent of this grant of power, and. as applicable to the point under consideration, it must be regarded as settled, on the highest judicial authority, that the power to regulate commerce includes, and is in fact, a power to regulate navigation. Gibbons v.
It is urged that congress can exercise no regulation over navigation, except when it is immediately connected with, and incidental to commerce with foreign nations or among the several states; and that, consequently, no other vessels are subject to the authority of congress in this behalf, than such as are shown to be employed in such commerce. This position is sustained by no authority. The power of congress is not limited to controlling exports and imports—to the cargoes of vessels; but it equally extends to and governs intercourse its.elf. Commerce, in the sense of the constitution, is not trade only; and navigation, as the instrument and incident of commerce, is so in relation to intercourse as well as trade. The power to enact navigation laws imports a power to give those laws their essential vitality and effect. A primary ingredient in the system is. that it acts directly upon vessels, fixing the mode of their construction—their muniments of ownership and national character—the quality and number of officers and crew to be supplied for their navigation and such other equipments as may be appropriate to the service in which they are engaged; and, perhaps, in addition, subjecting them to inspection and condemnation when not seaworthy or safely equipped. Such laws necessarily control and regulate the vessel, irrespective of her employment. She becomes subject to the regulation before being put in motion, or receiving a crew or cargo; because the power to regulate navigation or intercourse, may be exercised in limiting it or inhibiting it entirely. Restrictions and interdictions, partial or total, are regulations of intercourse equally with rules which allow and govern it in its prosecution. 2 Story, Const. §§ 1057, 1058, 1060, 1062. I am accordingly of opinion that the act of. 1838 is valid, and operative in respect to vessels therein designated, without regai-d to their employment as coasting or sea-going vessels, or in carrying on trade or traffic with foreign nations or among the several states.
(2) Doesthenheractualoccupation as a ferryboat exempt this vessel from the operation of the act? No one will contend that congress has power to regulate ferries. This is matter of municipal provision, and rests exclusively with the states. [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 1; [City of New York v. Miln] 11 Pet. [36 U. S.] 102. To regulate a ferry imports a power over territory and persons, to grant a franchise, to impose contributions and lay restrictions. Congress exercises no such powers directly within the states. Yet, in the exercise of constitutional powers, congress may, by its laws, incidentally or indirectly interfere with and effect a ferry grant equally with other subjects of state legislation. [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 1; [Brown v. U. S.] 12 Wheat. [25 U. S.] 419; [City of New York v. Miln] 11 Pet. [36 U. S.] 102. The grant of a ferry between New York and Albany or intermediate places, with exclusive right to run particular boats on it. or carry all description 'of merchandize or persons, would be countervailed and abrogated by a licence or importation under the revenue laws of the United States. [Gibbons v. Ogden] 9 Wheat. [22 U. S.] 1; [Brown v. U. S.] 12 Wheat. [25 U. S.] 419; [City of New York v. Miln] 11 Pet. [36 U. S.] 102; 3 Cow. 747. So would any ferry grant, I apprehend, by enactments in respect to the establishments of ports, the transportation of the mail, &c.. &c.; the rule being that legislation by congress over subjects within its constitutional power is necessarily absolute and exclusive, superceding and controlling all state regulations directly or incidentally in conflict with it. If then this statute acts upon the business of ferrying, it is indirectly, and because proprietors of ferries seek to employ on them boats subject to
On the whole case, I am of .opinion, congress has the constitutional power to require steamboats to be licenced or inspected, without regard to the business they follow or the places they run between, and that boats wholly engaged on ferries within a state, and owned in such state, are subject to the law. I accordingly pronounce against this vessel, and condemn her to pay the penalty of $500 demanded, with costs of suit.