184

FEDERA.L REPORTER.

UNITED STATES V. CURTIS.

(District Court, 8. D. New Yark.

April 10, 1883.)

l.

PENALTffiS AND FORFEITURES-INTENT-REV. ST.

As guilty knowledge or evil intent are not necessary mgredients lU statutory crimes or penalties, where the intention of the statute appears not to make them so, in an action against the master of a vessel, under section 2873, for unlading goods without a permit, the master's .want of knowledge or of participation in the unlawful acts is no defense.
2.

SAME-DESIGN OF STATUTE-}IASTERS OF VESSELS.

The design of section 2873, 1il,e that of section 50 of the act of March 2, 1799, is to secure vigilance on the part of masters, or the persons havinll; charge of the vessel, in preventing illicit traffic, which by virtue of their command they are presumed to be able to prevent.
SAME-DEUELlCT OU SALVAGE GOODs-AcCIDENT.

Section 2873, imposing a penalty for unlading goods without a permit, is to be interpreted and applied according to its intention,-viz., to impose vigilance in preventing such unlading upon the persons having command,-and it is not to be applied in cascs evidently outside of the intention of the statute, such as derelict or salvaged goods, or goods unladen in case of accident to save them from loss, nor to cases of unlading by a superior attacking force; nor, in like manner, where it is affirmativ(lly. shown that it not by any practicable means be prevented by the or person in command. 4. SAME-SECTION 16, MOIETY FOR JURY. In an action for a penalty agl\in.st the master in such cases, section 16 of the moiety act (1 Supp. Rev. St. 80) requires only that the intent with which the acts were done by the persons who committed them should be submitted to the jury, not the intent of the master.
6. SECTIONS 2873 AND 2768, HOW CONSTRUED. Sections 2873 and 2768 are to be construed together as the equivalent of sec-

tion 50 of the act of March 2, 1799, and as-imposing only one penalty, viz., a penalty either upon the master, or, if he be not in command at the time, then upon the person who is in command of the vessel.

6.

SAME-SUIT AGAINST ABSENT MASTER.

Where 77 packages of cigars Were secretly lowered for the purpose ot SlllUgglingfrom the bowso! the steamer S., at 2 o'clock A. M., while she lay at anchor at lower quarantine, New York harbor, while the master was absent from the ship, he having gone the day previous to the New York custom-house, 15 miles distant, to make entry of the arrival of the vessel, as he was bound to do by law, held, that, though the penalty of $400 was incurred, the suit should have been against the person in actual command of the vessel at the time, and not against the absent master, and that the latter was not liable.

Action to Recover Penalty. S. L. Woodford, Dist. Atty., and Wm. C. Wallace, Asst., for the United States. Goodrich, Deady « Platt, for defendant. BROWN, J. This action was brought under section 2873 of the Revised Statutes, to recover a penalty of $4-00 against the defendant,

UNITED STATES V. OUR'rIS.

185

as master of the steam-ship Saratoga, for the unlading of goods from the steam-ship in the night-time, and without a permit, con· trary to the provisions of section 2867. The steamer arrived at New York from Havana in the forenoon of July 13, 1881, and dropped anchor at lower quarantine. The master left the vessel to make due entry of her arrival at the custom-house, as required by law, and did not return until the following morning. During the night, at about 2 A. M. of the 14th, a small boat from the vicinity of Coney island approached the bows of the steamer, and after a few signals, evidently preconcerted, came along-side the bows and received 77 boxes of cigars and 1,600 bundles of cigarettes, lowered from the side of the steamer, and immediately put off for shore. This was observed by detectives who were watching from another vessel, and the men and cigars were pursued and captured. The cigars were afterwards condemned and sold. This action was thereupon commenced against the master to recover the statutory penalty of $400; and a separate libel was also filed against the Saratoga, to enforce a lien upon her for the same penalty under section 8088 of the Revised Statutes. -It being conceded that neither the master nor owner was "a consenting party, nor privy to the act," this court held that the act of February 8, 1881, (1 Supp. Rev. St 591,) was applicable, and that the vessel could no longer be seized for the enforcement of penalty incurred by the master. The Saratoga, 9 FED. REP. 322. This decision has since been affirmed on appeal in the circuit court. 15 FED. REP. 382. Upon the trial of the present action it was contended on the part of the defendants (1) that under section 2873 the master is not liable for such illegal acts unless he is knowingly concerned therein; (2) that under section 16 of the moiety act of June 22, 1874, (18 St. at Large, 186; 1 Supp. Rev. St. 80,) no penalty can be imposed on the master unless there was an actual intention on his part to defraud the United States. Upon the above facts and others not necessary to be set forth here, the court submitted. to the jury the following questions: First. Were the cigars in question unladen without a permit? Second. Was the defendant at that time master of the Saratoga? Third. Were the .cigars unladen with the actual intention of defrauding the United States? Fourth. If so, did the defendant participate in this intention, or was- he privy to it? Fifth. Was the defendant knowingly concerned in, or did he aid or concur in, the unlading of these cigars, direotlyor indirectly? The jury answered "Yes" to each of the three

188

FEDERAL REPORTER.

first inquiries, and "No" to the last two. By consent the qnestion was reserved for further argument as to the proper verdict to be rendered upon these findings. It is strenuously contended on the part of the defendant that by the true construction of section 2873 the master is not liable unless he knowingly concurs in the unlawful acts. This section is derived from 'section 50 of the of March 2, 1799, (1 St. at Large, 665,) and that section provides, in casesof unlawful unlading, that "the master or person having the charge or command of such ship or vessel, and every other person who shall knowingly be concerned or aiding therein," etc., "shall forfeit the sum of $400," etc. 'The provision that "theper80n having the charge or command of 8uchship Or vessel shall be liable" is covered by section 2768 of the Revised Statutes, which declares that "the word' master' as used in this title may'include any person having the chief charge or cqmmand of the employment and navigation of the vesse!." The' clear reading. both of the original act and of section 2873 of the Revised Statutes, rna-kes a distinction between the "master or person having charge of the vessel, " and "obhers who may aid or be con, cerned" in 'the unlawful unlading of the goods. Knowledge on the part of the'latter is plainly necessary to be shown, but not, as I read it, in the former. The general purpose of this provision; as well as various others in the same title,' is to prevent smuggling and frauds on the revenue. The opportunities which vessels approaching the coast, or coming into port, have for the unlawful discharge of goods, and the difficulty on the part of the government in detecting the particular persons guilty of. it on board ship, are so great that convictions would be very few, and the prevention of smuggling well nigh impossible, if no punishment or penalty on any person connected with the vessel were inflicted, except upon those proved to have knowingly taken part in the unlawful acts. From the necessity of the case, therefore, and from the fact that the "master or person having charge of the vessel" has supreme authority and control over the ship, the receipt arid delivery of goods, and the persons on board, and from his presumed ability, therefore, to prevent the unlawful delivf.ly of goods, section 2873, like section 50 of the act of, March 2, 1799, is designed to make the master answerable for any unla wful unlading of goods without proof of his actual knowledge of or participation in the unlawful acts. The design is to secure vigilance on his part to prevent illicit traffic; and if he does not do it, he is presumably negligent, und punishable for such negligence. The lIar-

UNITJl:D. STATES V. CURTIS.

187

mony,l Gall. 128; The Id. 114; The Saratoga, 9 FED. REP. 328. The maxim of the common law insisted on by counsel, which makes guilty knowledge or an evil intent a necessary ingredient in the punishment of crimes, (U. S. v. Silk UmbreUas, 12 FED. REP. 412,) does not necessarily apply to statutory offenses or penalties. Where the statute prohibits an act being done" or being done under certain circumstances, without making knowledge or intent an ingredient in the offense, the person doing the act is bound at his peril to see tHat the circumstances are such as do not make it unlawful. Thus, where the statute makes criminal the sale of liquors that are "intoxicating," or their sale to an "habitual drunkard," or the sale of adulterated milk or tobacco, or prohibits bigamy or adultery, or the enticing away ·of infants within a certain age, want of knowledge of the particull;tr facta making the act unlawful is no defense; the offender will be held guilty, though he had no knowledge that the liquors were intoxicat· ing, or the vendee an habitual drunkard, or that the milk or tobaccc were adulterated, or that the person cohabited with wasIL mal'riea woman, or that the person enticed was within the prohibited age. Com. v. Boynton, 2 Allen, (Mass.) 160; State v. Heck, 23 Minn. 549; Com. v. Waite, 11 Allen, (Mass.) 264; Reg. v. Woodrow, 15 Mees. & W. 404; Com. v. Mash, 7 Mete. 472; Com. v. Elwell, 2 Mete. 190; Reg. v. Olijier, 10 Cox, Crim. Cas. 402. Many other cases to the same effect are collected in the elaborate argument of the attorney general in the case of Halsted v. State, 41 N. J. (12 Vroom,) 577, 583. In the case last cited, BEASLEY, C. J., says:
.. Nothing in law is more incontestable than that, with respect to offenses, the maxim that crime proceeds only from a criminal mind does nol. universally apply. The cases are almost without number that vouch for this. ·. * · As there is an undoubted competency in the law-maker to declare an act criminal, i.rrespective of the knowledge or motive of the doer of such act, there can be, of necessity, no jUdicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention. And in looking over the decided cases on the subject, it will be found that in the considered adjudications this inquiry has been the judicial guide. And, naturally in such an inquiry, the decisions have fallen into two classes, because there have been two cardinal considerations of directly opposite tendency, influencing th(' minds of judges; the one being the injustice of punishing unconscious violations of law; and the other the necessity, in vie'w ()f public '.ltility, of punishing, at time:;, of that very class of offenses,"

188

FEDERAL

This principle is not merely applicable to affirmative acts, but extends also to cases of mere omission of what, under the circum stances, is a legal duty, (u. S. v. Bayaud, post, 376, recently de. cided in this circuit; as on a sale of poisonous drugs, the omission to attach a proper cautionary label;) and so in many other cases of negligence. Bish. Crim. Law, §§ 216, 313, 316. "In these cases," says Bishop, (section 317,) 'Ithe law casts upon the master a duty of care in the employment of his servants,. and a constant supervision. The real thing punishable, therefore, is his own carelessness." That the intention of the. statute in section 2873 is not, to make knowledge on the part of the master a. necessary ingredient in incurring a. penalty, is to be inferred not only from the distinction made by that section between the master and other persons aiding him, but from the fact that the same distinction is found in other sections of the same title, in some of which knowledge, or fraudulent intent, is expressly made a necessary ingredient, as in sections 2839, 2864, 2865, 2873, 3051, 3082; while in other sections it is not so, as in sections 2772, 2774, 2.775,2797, 2802, 2809,2828,3069. That forfeitures and penalties were expected to be incurred under these provisions of law, notwithstanding the want of knowledge or evil intent, is shown also by the provisions for remission of the forfeiture or penalty by the secretary of the treasury, whenever, in his opinion, the same was incurred without "willful negli.lJence, or any intention of fraud, in the person or persons incurring the same." 1 St. at Large, 596; Rev. St. § 5292; 1 Supp. Rev. St. p. 81, § 18. A considerable portion of the forfeitures on importations under the sections above cited have been had under this construction of the law, where the importer had no knowledge or intent of wrong; and applications to the secretary of the treasury for remi6sion have accordingly been of very frequent OMurrence on that ground. I have no doubt that the intention of secuon 2873, as respects the masters of vessels, is similar, and that mere want of knowledge of the unlawful unlading is no defense; and such, I think, is, in effect, the decision in the case of The Sarah B. Harris, 4 Cliff.. 147. I de not mean to hold that are no possible circumstances in whicb the master may be exonerated from liability. If while the Saratoga was lying at anchor she had taken fire, and the goods were unladen without a permit in order to save them from being consumed; or if, being about tv sink, the goods were removed to save them from loss, although they would be literally unladen without a permit, it is plain that that would not be such an unlading as the statute contem-

UNITED STATES V" OURTIS·.

189

plates, nor within the intent of the statutory prohibition; and, independent of the moiety act, it would be the duty of the court, in construing the statute according to its obvious purpose, to hold that it did not apply to such a case, and that no penalty was incurred. Again, the law, as STORy,J., says in Jackson v. U. S. 4 Mason, 190, "does not require impossibilities, but supposes the party able to comply, and the case such as admits of compliance, with its requisitions." The law does not apply to cases of derelict or salvaged goods, where there are no means of complying with the requirements of the law, nor to cases of inevitable accident or necessity. Peisch v. Ware, 4 Cranch, 347, 364, 365; The Waterloo, 1 BIatchf. & H. 120; U. S. v. 88 Barrels of Spirits, 1 Low. 241; U. S. v. Randall, 1 Spr. 546. , Section 50 of the act of 1799 provides, as I have said above, for the liabilit.y "of the master or person having the charge or command of such ship or vessel." This alternative liability "of the master or person having charge or command of the vessel" indicates on the face of the statute itself, as it seems to me, the ground of the liability, viz., the presumed ability of the master or person having command to prevent the offense. The statute should, therefore, he construed and applied with reference to the reasons and grounds of it, apparent upon its face. In effect the statute charges upon the master or person in command the duty of preventing the unlawful unlading of goods, and the penalty is inflicted upon the one or the other of them because of his presumed negligence in not preventing it. The statute thus construed is brought into harmony with the general principle stated by THOMPSON, J., in the Case of 651 Chests of Tea, 1 Paine, 499, 507, in which he says: "r am not aware of a single instance where - · - a forfeiture is incurred that it does not grow out of some fraud, misconduct, or negligence of the party on whom the penalty is visited." If goods were unladen from a vessel by an overwhelming attacking force, which the master could not resist, no one, I think, would claim that the master was liable; and so if unladen through any other cause, which the master, after performing his whole legal duty, could not, in fact, prevent. These are matters of defense; and if it were shown that all possible and practicable means were used to prevent goods being smuggled on or off the vessel, and to discover them if brought aboard, not only would smuggling very speedily be suppressed or reduced to a minimum, but on proofs of such facts I should regard it as the duty of the COUl't to hold that the penalty waS not incurred. The Queen, 11 BIatch£. 416; U. S. v. Sttnberg, unreported;

190

FEDERAL REPORTER.

The Stadacona, 14 Int. Rev. Rec. 147. In this case the proof was merely that orders were given by the captain to make an examination of the vessel, and that a report was made to him that nothing was discovered. It is needless to say that this is altogether insufficient. Every part of a. vessel is known, or should be known, to her officers; and goods so bulky as these, it must be assumed, would have been found on proper search, or the failure to "find them should .be more clearly explained or accounted for. The Missouri, 9 Blatchf. 433. 2. By section 16 of the act of June 22, 1874,.(1 Supp. Rev. St. 80,) it is provided "that in all actions, suits, and prooceedings," etc., "to enforce or declare the forfeiture of any goods," etc., "or to recover the value thereof, or any other sum alleged to be forfeited by reason of any violation of the provisions of the customs revenue laws, in which action," etc., "an issue or issues of fact shall have been joined, it shall be the duty of the court, on the trial there,of, to submit to the jury, as a distinct and separate proposition, whether the alleged acts were done with an actual intention to defraud the United States. shall be so found, no fine, · · · And unless intent to penalty, or forfeiture shall be imposed." It is claimed on the part of the defendant that this section means an intent to defraud on the part of the person sued. The statute does" not say whose intent is referred to; what is required to be submitted to the jury is whether "the alleged acts" were done with the intent to defraud. I have no doubt that under this section it is the duty of the court'to submit to the jury the question whether the prohibited act was done with the intent to defraud on the part of those who com· mitted it. In the case even of an uulading of goods to avoid loss by fire or by the sinking of the ship, the jury might find that the reo moval was or was not also accompanied with the intent to smuggle the goods unladen. In the present case the question was submitted to the jury, and they found that "the alleged acts" were done with the intent to defraud, but that the :master was not privy to it. I think the intent referred to in this section does not include the intent of masters of vessels who are made responsible for the illegal and fraudulent removal of goods by persons nnder their control. "The alleged acts" referred to are the acts necessary to be set forth in the suit as the legal cause of action; ana the intent referred to is the intent with which the acts were done by the persons who did the acts. Section 16 applies to that extent, and, in my judgment, no further. The only acts needed to be set forth in a suit for the penalty are those pertain
o

STATES

v.

CURTIS.

t91

mg to the unlawful unlading of the goods. If these ,acts were done with intent to defraud, then the master is, by statute, made liable to the penalty on account of his presumed power to prevent it. His .intent is not in question. I should be slow to believe that it was the inteption of oongress in, passing theaClt of 1874 to absolve masters of vessels from all responsibility for smuggling by those on and under their oontrol, or to relieve ql,asters from that duty of vigilance to prevent smuggling whioh has existed and been deemed necessary to the proteotionof the ever since theoollection act,of 1799,. The language of section 16 of the aot of 1874 does not require ,this oonstruction. It, is foreigI\, It1;link, to the general purpose of the act. It would be a (lonsequel¥le, :qever ooptemplated by oqngres8, a.nd ,hence should not be so oonstrued"where the language , .dpes not require ,The passage,moreover, of the act of February 8, .1881, (1 Supp. Rev. St. 591,) and tb;e memorial whicb.led to (The Saratoga, 9 FED. REP. 322, 330,) five years a:t;ld upwa.rds after. the passage of the,aot ,pf 1874, show that neither masters nor vessels were deemed to be relie,vedby aot of 1874 for liability for penalties through any in,nocenoe on the part,of the master. scope of the aot of 1881! above referred to, go The:whole no further than to relieve the vessel from seizure or forfeiture, where it appears that the owner or master was not a consenting party, or privy to the aUegedillegal act. Under the law previously existing, the vessel was liable to be seized for the r,ecQvery of the penalty imposed upon the master; but ,if the master, after th,e passage of the aot of 1874, was not liable unless there was inte,nt to defraud on his part, of oourse the vessel would not have been liable, and she could not have been seized for the recovery,oi the penalty imposed on the master, beoause in such case there was no such penalty. Under the oonstruction of the act of 1874 :oontended for by the defendant, the aot of 1881 would, therefore, have been entirely superfluous. For under that aot the vessel still remains liable as before, if the master was privy to the illegal aot, beoause the act only purports to relieve the vessel from seizure when "neither the owner nor master were a oonsenting party or privy to the unlawful aot." As the cigars in question were unladen in the night-time without a permit, with the intent of smuggling, and therefore with intent to defraud the United States, a penalty was incurred on the part of the master or person in command. There was no proof in defense suf· " ficient to show either that the oigars might not have been discovered

192

FEDERAL

previously by that reasonable diligence which men exercise in their own affairs to prevent frauds, or by such diligence as men usually exact from their own employes, and which the government has a right to demand of the owners and masters of vessels, as a part of its revenue system, to prevent the commission of frauds by those on board. 3. As it turns out upon the evidence, I feel bound to hold, however, that in this instance the suit for a penalty has been brought against the wrong person. During the day previous the master had come up to the custom-house, some 15 miles above the place of anchorage, to make entry of the arrival of the steamer, as he was by law bound to do under a penalty of $1,000, and he did not get back to the vessel until the morning after the unlading of the cigars, and the jury found that he was in no way privy to it, directly or indirectly. During this absence fl'Om the vessel about the business of the .ship, though he did not cease to be "master," and the jury have found that he was so, he was not during that absence the person having the charge or command of the ship at the time, within the meaning of section 50 of the act of 1799 and of section 2768 of the Revised Statutes. If section 2768 and section 2873 were to be construed without any reference to the preceding law, there might be difficulty in determining whether both the master and the first officet, in a case like this, were not liable to the penalty. The words, "having the chief charge or command of the employment and navigation of the vessel," in section 2768, in connection with section 2873, must have reference to the charge or command at the time when the unlawful unlading or delivery is committed, and that person in this case was obviously the first officer, and not the absent captain. But on comparing the various provisions of title 34 of the Revised Statutes with the act of March 2, 1799, and the various acts amendatory thereof, I am satisfied that there was no intention in the Revision to extend the penalty for the unlawful unlading of goods under section 2873 beyond that which existed under section 50 of the former act, which provides that in such case "the master or person having charge or command of such ship or vessel" shall be liable for the penalty. In numerous sections of the collection act of 1799 this same alternative phrase is used. In title 34 of the Revised Statutes that phrase is not used; but, as it is to be presumed, for the purpose of avoiding needless repetition, it is provided by section 2768 that the"word 'master,' as used in this title, may include any person having the chief charge or command," etc. I think the intention

STATE OF INDIANA V. PULLMAN PALACE CAB CO.

193

of both statutes is the same. Under section 50 of the act of 1799 j it is clear that the penalty could not be imposed upon both the master and other p.erson in charge, etc., under this alternative clause, but only upon the one or the other,-namely, the one who at the time of the unlawful act is on board and charged with the control or command of the vessel. In this case it was admitted, and the evidence clearly showed, that the master was not on board nor in command at the time; and, as the jury have found that he was in no way privy to the unlading of the goods, on this ground judgment should be entered for the defendant.

STATE OF INDIANA

ex rel.

WOLF,

CAB Co.-

Auditor, etc., v.

PALAOlll

.

'Oircuit Oourt, D. Indiana. March 8,1883.)
1.

STATE UNCONSTITUTIONAL.

Section 87 of the act of the legislature of Indiana of March 29, 1881, entitled "An act concerning taxation," imposing a certain proportionate tax according to distance traveled in Indiana on the gross receipts of foreign sleeping-car companies, conveying passengers to, from, and through Indiana, heU unconstitutional, as being in conflict with article 1, § 8, of the constitution of the United States.
2.

TAXING POWER OF STATES.

While the taxing power of a state Is unlimited over subjects wlthlnits jurisdiction, it cannot, however, be exercised on persons and property beyond its territory or jurisdiction. 8.
INTERSTATE COMllEIWE - REGULATION OF, VESTED EXCLUSIVELY IN CONGRESS AND PnOHIBITED TO STATES.

The transportation of freights and passengers from state to state is interstate thereof by the states is forbidden by the federal commerce, and the constitution. Such commerce, whether carried on by individuals or COl'POrations, is under the exclusive jurisdiction of congress. And while a state may exclude from its jurisdiction foreign corporations not engaged in interstate commerce, it cannot exclude a foreign corporation engaged in such commercl' any more than it could exclude an individual so engaged.

At Law. D. P. Baldwin, Atty. Gen., and Ralph HilS, for the State. O. A. Lochrane and Baker, Hord <t Hendricks, for defendant. 1. Under the allegations of the complaint the defendant is a for- . eign corporation engaged in the business of carrying passengers, and
t'Reported by Chas. H. McUarer, Asst. U, S. Atty.