Beecher v. Wetherby, 95 U.S. 517
Case details
Citation
95 U.S. 517
Full caption
Beecher v. Wetherby.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Bee che r v . Weth erby .
1. It was an unalterable condition of the admission of Wisconsin into the Union, that, of the public lands in the State, section 16 in every township, which had not been sold or otherwise disposed of, should be granted to her for the use of schools.
2. Whether the compact with the State constituted only a pledge of a grant in futuro, or operated to transfer to her the sections as soon as they could be identified by the public surveys, the lands embraced within them were set apart from the public domain, and could not be subsequently diverted from their appropriation to the State. If any further assurance of title was required, the United States was bound to provide for the execution of proper instruments transferring to the State the naked fee, or to adopt such other legislation as would secure that result.
3. The right of the Menomonee Indians to their lands in Wisconsin was only that of occupancy; and, subject to that right, the State was entitled to every section 16 within the limits of those lands.
4. The act of Congress approved Feb. 6,1871 (16 Stat. 404), authorizing a sale of the townships set apart for the use of the Stockbridge and Munsee Indians, and originally forming a part of the lands of the Menomonees, does not apply to sections 16.
Error to the Circuit Court of the United States for the Eastern District of Wisconsin.
This was replevin by Beecher to recover from Wetherby, James, and Stille, saw-logs, cut and taken by them during the winter of 1872 and 1873, from section 16, township 28, range 14 east, in Wisconsin. The plaintiff asserts title to the land under patents from the United States bearing date Oct. 10,1872; and the defendants, under patents from that State of Dec. 15,1865, and Sept. 26,. 1870.
Under the eighth article of the treaty of Aug. 19, 1825, Stat. 272, the Menomonee lands were declared to be “ bounded on the north by the Chippewa country, on the East by Green ay and Lake Michigan, extending as far south- as Milwaukee Kiver, and on the West they claim to Black River.” The ands in question are embraced in this tract.
A treaty concluded with the Mehomonees Feb. 8, 1831, id. 342, confirming those boundaries, was ratified by the Senate, with a proviso that two townships on the east side of Winnebago Lake should be ceded for the use of the Stockbridge and Munsee Indians.
By a treaty concluded Oct. 18,1848, and ratified Jan. 23,1849, 9 id. 952, the Menomonees agreed to cede to the United States all their lands in Wisconsin. The eighth article stipulated that they should be permitted to remain on the ceded lands for the period of two years, and until the President should notify them that the same were wanted.
The act to enable the people of Wisconsin Territory to form a Constitution and State government, and for the admission of such State into the Union, approved Aug. 6, 1846, id. 56, provides “ that section numbered 16 in every township of the public lands in said State, and, when such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools.”
The convention called to form a constitution, on the first day of February, 1849, accepted the proposition contained in the organic act. Rev. Stat. Wis. 1849, p. 45. By an act entitled “ An Act for the admission of the State of Wisconsin into the Union,” approved May 29, 1848, id. 233, such acceptance was assented to by Congress.
A joint resolution of the legislature of Wisconsin, approved Feb. 1, 1853, Gen. Laws of Wis. 1853, p. 110, gives the assent of that State “ to the Menomonee nation of Indians to remain on the tract of land set apart for them by the President of the United States, on the Wolf and Oconto Rivers, and upon which they now reside, the same being wdthin the State of Wisconsin aforesaid, and described as follows, to wit: Commencing at the south-east corner of town 28 north, range 19, running thence west thirty miles, thence north eighteen miles, thence east thirty miles, thence south eighteen miles to the place of begin ning.”
On the 12th of May, 1854, 10 Stat. 1064, a treaty was made with the Menomonees, “ supplementary and amendatory to a ratified Jan. 23, 1849, wherein it is recited that, •“ upon mani p. 519festation of great unwillingness on the part of said Indians to remove to the country west of the Mississippi River, &c., which had been assigned to them, and a desire to remain in the State of Wisconsin, the President consented to their locating temporarily upon the Wolf and Oconto Rivers;” and, “to render practicable the stipulated payments therein recited, and to make exchange of the lands given west of the Mississippi for those desired by the tribe, and for the purpose of giving them the same for a permanent home, these articles are entered into.” By the second article of said treaty, the following-described tract lying on Wolf River in the State of Wisconsin was ceded to the Indians to be held as Indian lands are held: “ Commencing at the south-east corner of town 28 N., R. 16 E., 4th principal meridian, running west twenty-four miles, thence north eighteen miles, thence east twenty-four miles, thence south eighteen miles to the place of beginning, the same being townships 28, 29, and 30 of ranges 13, 14, 15, and 16, according to public survey.”
Under an act of Congress approved Feb... 6, 1871, 16 Stat. 404, entitled “ An Act for the relief of the Stockbridge and Munsee tribe of Indians in the State of Wisconsin,” the two townships set apart for their use, including the section upon which the logs were cut, and forming a part of the Menomonee lands, were sold by the United States, and. the plaintiff deraigns title under its patents.
The exterior lines of the township in which the land in question is situate were run in October,. 1852,. and the section lines in May and June, 1854.
There was a judgment for the defendants. The plaintiff then brought the case here.
Mr. Charles IF Felker for the plaintiff in error.
The act was in the nature of an executory agreement, and y its terms.no title to sections numbered 16 could vest in the btate until they were surveyed and designated on the plats filed in t e surveyor-general’s office. The sectional or subdividing ines of the township in question were not run prior to the eaty of May 12, 1854. The proviso to the act implies a reerye power in the government to sell or dispose of sections 16 w i e they remained a part of the public, domain, and that p. 520treaty did not reserve any section, but appropriated the entire tract as a reservation, and vested the title thereto in the Indians. Meade v. United States, 2 Ct. of Cl. 224; United States v. Brooks, 10 How. 442. The State took title to none but public land. Land like that in question, continuously and rightfully in the occupation of an Indian tribe under authority of the government, is not “ public ” within the meaning of the grant. Mr. Justice Davis, in Newhall v. Sanger, 92 U. S. 761, justly remarked, that the words “ public lands ” “ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.” The treaty ratified Jan. 23, 1849, allowed the Indians to remain upon the lands for two years, and until the President should give notice that they were wanted. His subsequent act setting them apart as a reservation was a specific appropriation of them. Not having then been surveyed, no right of the State to sections 16 within the reservation vested, and they have never since become “public lands.” Wilcox v. Jackson, 13 Pet. 498; Cooper n . Roberts, 18 How. 173; Leavenworth, ^c. Railroad Co. v. United States, 92 U. S. 733; Spaulding et al. n . Martin, 11 Wis. 262.
The cession to the United States of two townships in the reservation does not affect the principle contended for: they were in fact ceded for a reservation for the Stockbridge and Munsee Indians, and did not become a part of the public lands. Neither is it material that they were, by the act of Feb. 6,1871, directed to be sold for the benefit of those Indians. The relation of the United States to the property is the same. 16 Stat. 404; Leavenworth, ^c. Railroad Co. v. United States, supra.
Cooper v. Roberts, 18 How. 173, is not in conflict with these views. There the lands had not been legally appropriated y the government before the title of the State vested.
The position that the title did not vest in the State, unti the lands were surveyed and the townships subdivided is no affected by the fact that the subdivision was made in une, 1854, before the treaty of May 12 was ratified by the Sena Aug. 2 of that year. The rights of no innocent third par i intervening, the treaty took effect by relation from the ay its date. United States v. Arredondo, 6 Pet. 691.
It cannot be claimed that the defendants are innocent purchasers. The patents under which they claim were issued, the one over eleven, and the other over sixteen years, after that treaty was made, and they bought with knowledge of it.
If it should be held, however, that the survey was made before that treaty was concluded, the eighth article of the treaty of Oct. 18, 1848, and the acts of the President subsequent thereto, were a legal impediment to the vesting of any title in the State.
But if the State ever had any interest, contingent or otherwise, in section 16 in each township of this Indian reservation, such interest was waived by the resolution of the legislature of Feb. 1,1853. An estoppel is available against the State. Bigelow, Estoppel, 276, 277, and cases cited.
Mr. IF. P. Lynde and Mr. Charles Barber, contra.
The act of Congress of Aug. 6, 1846, did not constitute a present grant, but was in the nature of an executory agreement. Rutherford v. Greene’s Heirs, 2 Wheat. 196 ; Cooper v. Roberts, 18 How. 173; Schulenberg v. Harriman, 21 Wall. 44; Leavenworth, ^c. Railroad Co. v. United States, 92 U. S. 733; Sherman v. Buick, 93 id. 209; Heydenfeldt v. Baney Gold and Silver Mining Co., id. 634; 8 Opin. Atty.-Gen. 260; Houghton v. Higgins, 25 Cal. 255.
At the time of the survey in October, 1852, and the subdivision in May and June, 1854, no legal impediment existed to the complete investiture of the title of the State. Heydenfeldt v. Daney Gold and Silver Mining Co., supra.
The fee to the land was in the United States, subject, in respect to a part, to the right of occupancy by the Menomonees when Congress passed the enabling act of 1846. It was the vious intention that the grant should be executed from time une, as that right was extinguished and the surveys designated the seotions.
01 the government it had been settled that th I might make a valid grant of lands to which n lan right had not been extinguished, and that such a g an passed the title subject to that right. Fletcher v. Peck, Nm-'n " °lark V’ Smith' 13 Pet- 195 5 Cherokee n V- 5 Pet. 1; Johnson v. McIntosh, 8 Wheat. p. 522543; 8 Opin. Atty .-Gen. 262; Veeder et al. n . Guppy, 3 Wis. 502.
The argument of the plaintiff, that the joint resolution of 1853 operated as a grant of the sixteenth section, is based upon the assumed fact that the title was then in the State. Even if this were correct, the joint resolution is for the following, among other, reasons unconstitutional and void: First, because in Wisconsin such a resolution is simply an expression of opinion binding on no one, and without the force of law. Const, of Wis., art. 4, sect. 1; Cooley, Const. Lim. 130, 131. Second, because it does not contain the enacting clause required by the Constitution of the State, and is not a bill. Const, of Wis., art. 4, sect. 17; Rev. Stat. Wis. 1858, p. 30.
Mr . Justic e Field delivered the opinion of the court.
This was an action of replevin brought by the plaintiff to recover two million feet of pine saw-logs of the estimated value of $25,000, alleged to be his property, and to have been wrongfully detained from him by the defendants. The complaint was in the usual form in such cases, and the answer consisted of a general denial of its averments. The logs were cut by the defendants from the tract of land in Wisconsin which constitutes section sixteen (16), in township twenty-eight (28), range fourteen (14), in the county of Shawano, in that State. The plaintiff claimed to be the owner of the logs by virtue of sundry patents of the land from which they were cut, issued to him by the United States in October, 1872. The defendants asserted property in the logs under patents of the land issue to them by the State of Wisconsin in 1870. The question for determination, therefore, is, which of these two classes of patents, those of the United States or those of the State, transferred the title. The logs were cut in the winter of 1872 an 1873; they were, therefore, standing timber on the land when all the patents were issued, and as such constituted a portion of the realty. Although when severed from the soil the tun ber became personalty, the title to it remained unaffecte . The owner of the land could equally, as before, claim i s possession, and pursue it wherever it was carried.
The State asserted title to the land under the compact upon p. 523which she was admitted into the Union. The act of Congress of Aug. 6, 1846, authorizing the people of the Territory of Wisconsin to organize a State government, contained various propositions respecting grants of land to the new State, to be submitted for acceptance or rejection to the convention which was to assemble for the purpose of framing its constitution. Some of the proposed grants were to be for the use of schools, some for the establishment and support of a university, some for the erection of public buildings, and some were to be of lands containing salt springs. They were promised on condition that the convention should provide by a clause in the Constitution, or by an ordinance irrevocable without the consent of the United States, that the State would never interfere with the primary disposal of the soil within it by the United States, nor with any regulations Congress might find necessary for securing the title in such soil to bona fide purchasers ; that no tax should be imposed on lands the property of the United States ; and that in no case should non-resident proprietors be taxed higher than residents. And the act provided that if the propositions were accepted by the convention, and ratified by an article in the Constitution, they should be obligatory on the United States. The .first of these propositions was “ that section numbered sixteen (16) in every township of the public lands in said State, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools.”
The convention which subsequently assembled accepted the propositions, and ratified them by an article in the Constitution, embodying therein the provisions required by the act of Congress as a condition of the grants. With that Constitution the State was admitted into the Union in May, 1848. 9 Stat. 233. t was, therefore, an unalterable condition of the admission, igatory upon the United States, that section sixteen (16) in vex y township of the public lands in the State, which had not een sold or otherwise disposed of, should be granted to the ofTb USe sc^00^s* matters not whether the words . e compact be considered as merely promissory on the part e nited States, and constituting only a pledge of a grant p. 524in future, or as operating to transfer the title to the State upon her acceptance of the propositions as soon as the sections could be afterwards identified by the public surveys. In either case, the lands which might be embraced within those sections were appropriated to the State. They were withdrawn from any other disposition, and set apart from the public domain, so that no subsequent law authorizing a sale of it could be construed to embrace them, although they were not specially excepted. All that afterwards remained for the United States to do with respect to them, and all that could be legally done under the compact, was to identify the sections by appropriate surveys; or, if any further assurance of title was required, to provide for the execution of proper instruments to transfer the naked fee, or to adopt such further legislation as would accomplish that result. They could not be diverted from their appropriation to the State.
In Cooper v. Roberts, 18 How. 173, this court gave construction to a similar clause in the compact upon which the State of Michigan was admitted into the Union, and held, after full consideration, that by it the State acquired such an interest in every section 16 that her title became perfect so soon as the section in any township was designated by the survey. “We agree, said the court, “ that, until the survey of the township and the designation of the specific section, the right of the State rests in compact, — binding, it is true, the public faith, and dependent for execution upon the political authorities. Courts of justice have no authority to mark out and define the land which shall be subject to the grant. But, when the political authorities have performed this duty, the compact has an object upon which it can attach, and, if there is no legal impediment, the title of the State becomes a legal title. The^izs ad rem, by the performance of that executive act, becomes a^ws in re, ju cial in its nature, and under the cognizance and protection o the judicial authorities, as well, as the others.” In this case, the township embracing the land in question was surveyed in c tober, 1852, and was subdivided into sections in May and June, 1854. With this identification of the section the title of t State, upon the authority cited, became complete, unless t ere had been a sale or other disposition of the property y p. 525United States previous to the compact with the State. No subsequent sale or other disposition, as already stated, could defeat the appropriation. The plaintiff contends that there had been a prior reservation of the land to the use of the Menomonee tribe of Indians.
It is true that, for many years before Wisconsin became a State, that tribe occupied various portions of her territory, and roamed over nearly the whole of it. In 1825, the United States undertook to settle by treaty the boundaries of lands claimed by different tribes of Indians, as between themselves, and agreed to recognize the boundaries thus established, the tribes acknowledging the general controlling power of the United States, and disclaiming all dependence upon and connection with any other power. The land thus recognized as belonging to the Menomonee tribe embraced the section in controversy in this case. Subsequently, in 1831, the same boundaries were again recognized. But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose
o t e fee of lands occupied by them has always been recognized y this court from the foundation of the government. It was so ruled in Johnson v. McIntosh, 8 Wheat. 543, in 1823 ; and in United States v. Cook, 19 Wall. 591, in 1873. Other cases
ween t ose periods have affirmed the same doctrine. Clark IN Pet’ See also Jackson v. Hudson, 3 Johns. 1 . Y.) 375 ; Veeder et al. v. Cuppy, 3 Wis. 502; and 8 Opin.
y. en., pp. 262—264. In United States v. Cook, the United p. 526States maintained replevin for timber cut and sold by Indians on land reserved to them, the court observing that the fee was in the United States, and only a right of occupancy in the Indians; that this was the title by which other Indians held their land, and that the authority of Johnson v. McIntosh on this point had never been doubted. But, added the court, “ the right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.”
In the construction of grants supposed to embrace lands in the occupation of Indians, questions have arisen whether Congress intended to transfer the fee, or otherwise; but the power of the United States to make such transfer has in no instance been denied. In the present case, there can hardly be a doubt that Congress intended to vest in the State the fee to section 16 in every township, subject, it is true, as in all other cases of grants of public lands, to the existing occupancy of the Indians so long as that occupancy should continue. The greater part of the State was, at the date of the compact, occupied by different tribes, and the grant of sections in other portions would have been comparatively of little value. Congress undoubtedly expected that at no distant day the State would be settled by white people, and the semi-barbarous condition of the Indian tribes would give place to the higher civilization of our race ; and it contemplated by its benefactions to carry out in that State, as in other States, “its ancient and honored policy ” of devoting the central section in every township for the education of the people. Accordingly, soon after the ad mission of the State into the Union, means were taken for t e extinguishment of the Indian title. In less than eight mont s afterwards the principal tribe, the Menomonees, by treaty, ceded to the United States all their lands in Wisconsin, thougj permitted to remain on them for the period of two years, an until the President should give notice that they were wante 9 Stat. 952. .
It is true that subsequently, the Indians being unwil mg leave the State, the President permitted their tempor pation of lands upon Wolf and Oconto Rivers, and in p. 527State gave its assent to the occupation; and in May, 1854, the United States, by treaty, ceded to them certain lands for a permanent home, the treaty taking effect upon its ratification in August of that year; and afterwards a portion of these lands was, by another treaty, ceded to the Stockbridge and Munsee tribes. But when the logs in suit were cut, those tribes had removed from the land in controversy, and other sections had been set apart for their occupation.
The act of Congress of Feb. 6, 1871, authorizing a sale of the townships occupied by the Stockbridge and Munsee tribes, must, therefore, be held to apply only to those portions which were outside of sections 16. It will not be supposed that Congress intended to authorize a sale of land which it had previously disposed of. The appropriation of the sections to the State, as already stated, set them apart from the mass of public property which could be subjected to sale by its direction.
It follows that the plaintiff acquired no title by his patents to the land in question, and, of course, no property in the timber cut from it. Judgment affirmed.
Unit ed Stat es v . The “ Grace Lot hro p.”
The agreement, in writing or in print, which, with certain exceptions, the master o a vessel, bound from a port in the United States to any foreign port, is required, before proceeding on his voyage, to make with every seaman whom e carries to sea as one of his crew, need not be signed in the presence of a shipping commissioner, when such voyage is to a port in the West India Islands.
Appe al from the Circuit Court of the United States for the District of Massachusetts.
This is an information against the brig « Grace Lothrop ” or a violation of the act of June 7, 1872, 17 Stat. (262), as amended by the act of Jan. 15, 1873, id. 410.
The grounds of the information are, that on the 18th of cem er, 1873, at Boston, one Atwood, while master of that esse , i knowingly receive and accept, to be entered on p. 528board, five seamen who had been theretofore engaged for a voyage from Boston to a port in the West Indies, by agreements in writing that had not been signed in the presence of a shipping commissioner, &c.
The answer of Atwood, the claimant, admits the facts as alleged, but denies that engagements for voyages to the West Indies are within the statutes referred to.
The court having dismissed the information, the United States appealed here.
The Solicitor-Cieneral for the appellant.
Mr. Seth J. Thomas, contra.
Mr . Just ice Clif for d delivered the opinion of the court.
Persons other than a shipping commissioner are in certain cases forbidden to perform or attempt to perform the duties usually required of such an officer, as prescribed by the acts of Congress.
Atwood, the respondent, as the information charges, was the master of the brig “ Grace Lothrop ; ” that he, on the 18th of December, 1873, as such master, did knowingly receive and accept to be shipped on board of the brig five seamen engaged and supplied for the purpose contrary to the act authorizing the appointment of shipping commissioners to superintend the shipping and discharge of seamen, and that the seamen were so engaged and accepted by an agreement in writing not signed by them in the presence of a shipping commissioner.
Due monition was issued and served by seizing the vesse , and the master appeared and filed an answer. Among other things, he admitted that the brig when arrested was bound on a voyage to a port in the West Indies, that he shipped the five seamen for that voyage, and that the shipping agreement was not signed by the seamen in the presence of such a com missioner ; but he denies that he has incurred any penalty y shipping the seamen named in the libel without the presenc^ of such an officer. Hearing was had in the Circuit 0U1 where the libel was filed, and the decree of the Circuit our* was in favor of the respondent, dismissing the libel, an r that decree the United States appealed to this court.
Errors assigned are as follows: 1. That the court erre p. 529holding that the act of Congress providing for the appointment of such commissioners does not require that the agreement to be signed by seamen in voyages between the ports of the United States and the West Indies shall be signed in the presence of a shipping commissioner. 2. That the court erred in holding that the information is defective in not negativing the suggestion that the master of the brig himself acted as shipping commissioner. 3. That the court erred in dismissing the information.
Before proceeding to examine the errors assigned, it should be observed that the appellants contend that the wrongful act charged, if punishable at all, is punishable under the Revised Statutes, which, as they insist, went into operation eighteen days before the alleged wrongful act was perpetrated. Rev. Stat., sect. 5601.
Masters of every vessel bound from a port in the United States to any foreign port, other than such as are therein excepted, are required by those statutes, before they proceed on such a voyage, to make an agreement in writing or in print with every seaman whom they carry to sea as one of the crew, in the manner the act prescribes, which shall be as near as practicable in the form therein directed, to be dated at the time of the first signature, and to be signed by the master before any seaman signs the instrument.
Vessels excepted from those requirements are all such as are engaged in trade between the United States and the British North American possessions or the West India Islands or the Republic of Mexico; nor do those requirements apply to masters of vessels where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to masters of coastwise or of lake-going vessels that touch at foreign ports, but they do apply without qualification to vessels of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice ersa, the vessels bound on such voyages being subject in that &ard to the same rules as those bound on a voyage from a omestic port to a foreign port. Rev. Stat., sect. 4511.
etailed specification of the stipulations and regulations such an agreement shall contain are also set forth in the
v °l . v. 34 p. 530same section : and the succeeding section provides to the effect that every such agreement, except where it is otherwise provided, shall be signed by each seaman in the presence of a shipping commissioner; that when the crew is first engaged the agreement shall be signed in duplicate, and that one part shall be retained by the commissioner, and that the other part shall contain a special place or form for the description and signatures of persons engaged subsequently to the departure of the ship, and that it shall be delivered to the master; and that every such agreement so made shall be acknowledged, and certified under the hand and seal of the commissioner, and that the certificate shall be appended to the agreement in the form therein prescribed.
Argument to show that vessels engaged in trade between the United States and the West India Islands áre not subject to the regulations enacted with respect to vessels employed in foreign commerce not falling within the exceptions contained in the section, is quite unnecessary, as it is as clear as language can make it that vessels engaged in trade between the United States and the British North American possessions and the West India Islands and the Republic of Mexico are excepted from the operation of the clause made applicable to vessels bound from a, port of the United States to any foreign port, by the words “ other than ; ” which clearly and to a demonstration exclude the voyages subsequently described from the category of those previously mentioned in the preceding part of the section.
Concede that the Revised Statutes do support that theoiy, still it may be suggested that, inasmuch as the case was adjudged in the court below as if it was controlled by the previous acts of Congress, it ought to be determined here in view of the same statutory provisions. Suppose that it is so, s i it is certain that it will not benefit the libellants, as it is obvi ous that the antecedent legislation of Congress, when proper y understood, must lead to the same conclusion.
Power to appoint shipping commissioners was conferred y the act of the 7th of June, 1872; and the act provides that t general business of such a commissioner shall be as follows p. 531ister of their names and characters. 2. To superintend their engagement and discharge in the manner prescribed. 3. To provide means for securing the presence of the men so engaged on board at the proper times. 4. To facilitate the making apprenticeships to the sea service, and to perform such other duties relating to merchant seamen and ships as the powers conferred by the act require. 17 Stat. 262.
1
To afford facilities for engaging seamen, by keeping a reg
Where no such appointment has been made, the whole or any part of such business may be conducted by the collector or deputy-collector of such place or port.
Appended to that section is a proviso that nothing in the act shall be so construed as to prevent the owner or consignee or master of any vessel, except such as are described in sect. 12 of the act, from performing himself, so far as the ship is concerned, the duties of shipping commissioner under the act. Id. 263.
Sect. 12 of the same act provides that the master of every ship bound from a port in the United States to any foreign port, or of any ship of the burden of seventy-five tons or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa, shall, before he proceeds on such voyage, make an agreement in writing or in print with every seaman whom he carries to sea as one of the crew, in the manner particularly set forth in the act, which shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same.
Agreements of the kind, subject to certain exceptions not necessary to be noticed, must be signed by each seaman in the presence of a shipping commissioner; and, when the crew is rst engaged, the agreement must be signed in duplicate, one part being retained by the commissioner, and the other part to contain a place or form for the description and signature of persons engaged subsequently to the departure of the ship.
nnexed to sect. 12 is a proviso equivalent to what is enacted m the Revised Statutes, that the section shall not app y to masters of vessels when the seamen are, by custom or g < ement, entitled to participate in the profits or results of a . e Or voya?e’ nor to masters of coastwise vessels or of lake-going vessels that touch at foreign ports.
Congress, on the 15th of January, 1873, added another proviso to sect. 12 of the original act, to the effect that the section shall not apply to masters of vessels when engaged in trade between the United States and the British North American possessions or the West India Islands or the Republic of Mexico. Id. 410.
Explicit as that provision is, it may well be contended that it applies only to the twelfth section of the original act; but Congress, in the month of June, 1874, passed another amendatory act, by which it is provided that none of the provisions of the original act shall apply to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific coasts, or in the lake-going trade touching at foreign ports or otherwise, or in the trade between the United States and the British North American possessions, or in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage. 18 id. 64.
Though the act last referred to is subsequent in date to the supposed wrongful acts of the respondent, as alleged in the libel, yet the language of the act is in terms an explicit declaration that Congress never intended that the original act should apply to vessels engaged in any part of the coasting trade, except that between the Atlantic and Pacific coasts. Nor is it necessary to refer to that act to support the decree below in this case, as the prior act expressly provides that sect, of the original act shall not apply to masters of vessels when engaged in trade between the United States and the Britis North American possessions or the West India Islands or the Republic of Mexico, which affords a demonstration that the decree below, whether tested by the provisions of the Revise Statutes or by the previous legislation of Congress, is correct.
Masters of vessels bound from the port of a State to a por in any other than an adjoining State were required by an ear y act of Congress, before the vessel proceeded on her voyage, make an agreement in writing or print with every seaman the crew, declaring the voyage and the term of time for w i such seaman was shipped. 1 id. 131. Attempt is now m $ to support the theory of the libel, by invoking the provisio p. 533of that act, and blending the same with the provisions of the act creating the shipping commissioners ; but the attempt cannot be successful in the case before the court, as the amendment to the last-mentioned act provides that the twelfth section of the prior act shall not apply to the masters of vessels when engaged in trade between the United States and the West India Islands.
Beyond all doubt, that amendment and the twelfth section of the original act must be read together in disposing of the present case, as the amended act was passed before the supposed wrongful act of the respondent was committed. When those two provisions are read together, it is an easy matter to specify the cases in which shipping commissioners must act, or in which the agreement of the seaman is required to be signed in the presence of such a commissioner. They are as follows : 1. Where the ship is bound from a port in the United States to a foreign port, not including the ports of the British provinces or the ports of the W est India Islands or the Republic of Mexico, or lake-going vessels touching at foreign ports. 2. Ships of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa.
Provision was made by the second proviso in sect. 12 of the original act that that section should not apply to masters o vessels where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to masters of coastwise voyages or masters of lake-going vessels which, as before explained, touch at foreign ports. Three other exceptions to the operation of the twelfth section of the original act were added to the preceding list by thè amendatory act, which provides that the twelfth section of the act shall not apply to masters of vessels when engaged in trade etween the United States and the British North American possessions or the West India Islands or the Republic of Mexico.
Duties are assigned to shipping commissioners which all er persons are forbidden to perform, under the penalty in Th111 Prescribed ’ but the same section provides that nothing . e act shall be so construed as to prevent the owner or consignee oi master of any ship, except such as are described in p. 534sect. 12 of the act, from performing himself, so far as the ship is concerned, the duties of shipping commissioner under the act.
Tested by these considerations, it follows that the provision requiring the agreements of seamen to be signed in the presence of a shipping commissioner refers only to the agreements described in sect. 12 of the original act; nor does it include those which are excepted from the operation of sect. 12 by the second proviso to the same section, nor either of the three cases excepted out of the operation of the same section by the amendatory act subsequently adopted.
Penalties are imposed for shipping seamen contrary to the regulations which the original act prescribes; but it is clear that the clause imposing the penalty does not refer to seamen who have agreed to make a voyage other than one of the two classes within the operation of sect. 12, as modified by the amendatory act subsequently adopted. 17 id. 410.
Where the voyage to be made does not fall within the operation of sect. 12 as amended by the subsequent act, the owner or consignee or master of the ship may himself perform, so far as the ship is concerned, the duties of shipping commissioner which the act prescribes, as the same is expressly authorized by the proviso to the eighth section of the act.
Shipping articles, called agreements in the original act under consideration, are to be made in writing or in print with every seaman shipped for the voyage before the ship proceeds from the port of shipment; and if the voyage is a foreign one in the sense already explained, or one from a port of the Atlantic o a port of the Pacific, or from a port of the Pacific to a port of the Atlantic, in a vessel of the burden of seventy-five tons or upward, the agreement must be signed in presence of a ship ping commissioner, unless it appears that the shipment was made in a port or place in which no shipping commissioner has been appointed, in which event the whole or any Par^e the business of such a commissioner may be conducted by ® collector of the customs or his deputy at the port or place o shipment. .
Such agreements with each and every seaman must be ma before the ship or vessel proceeds for the port of destinatici p. 535in all the other voyages mentioned in the act which are not excepted out of the operation of the twelfth section. Conclusive support to that proposition is found in the first clause of the fourteenth section of the original act, which provides that if any person shall be carried to sea 'as one of the crew on board of any ship making a voyage hereinbefore specified, without entering into an agreement with the master of said ship in the form and manner and at the place and times hereby in such cases required, the ship shall be h^ld liable, and shall incur the penalty therein provided. Where it is not required that such agreements shall be signed in the presence of a shipping commissioner, or that the business of such a commissioner shall be conducted by the collector of the customs or his deputy, the owner or consignee or master of the ship, so far as the ship is concerned, may himself perform the duties of shipping commissioner under the act, by virtue of the provisos contained in the eighth and twelfth sections of the original act.
Ships may be liable to the penalty prescribed by the fourteenth section of the act in case a seaman is carried to sea as one of the crew on board, though making a voyage excepted out of the operation of sect. 12, if it appears that the ship proceeded on such voyage before the master made the required agreement with the seamen in writing or in print, provided the charge in the information covers such a delinquency; but the sole charge in the libel in this case is, that the agreement was not signed by the seamen in the presence of a shipping commissioner. It contains no allegation that the agreement was not in due form, nor that it was not signed in presence of the owner or consignee, or of the master of the ship.
Enough has already been remarked to show that the voyage was one excepted out of the operation of the twelfth section of t e act, and that it was one where the owner or consignee, or master of the ship himself, might lawfully perform the uties of shipping commissioner. Nothing being alleged to e contrary, it must be presumed that the required agreement as made in due form, and that it was properly signed by the men in the presence of some one of the three persons orized by the act to perform that duty, before the ship proceeded on the described voyage.
586 United Sta te s v . Smith . [Sup. Ct.
Examined in the light of these suggestions, it is clear that the decree dismissing the libel is correct. Different conclusions, we are aware, have been reached by other judges; but it must suffice to say, that we are not able to concur in the reasons given in support of those decisions.
Decree affirmed.