tending in obedience to a writ. He attends pursuant to.1awwhenhe subjects himself to the law. He waives the formal service of the writ. tnatter personal to himself and to the party who calls him. Astd the remaining question, I am of opiuionthat in case of a witness resident without the district the mileage must be restricted to not exceeding 100 miles. The various statutory provisions governing the subject are in pari materia, and to be construed toget4er. By section 848 nlileage is allowed for going from ,. and returning to the place of residence ofthe witness, By section 876 the writ of subpama may run into another distriqt as to witnesses living at a distance not exceeding 100 miles from the, place of trial. Section 863 authorizes the deposition of witnesses resident more than 100 miles from the place of trial. It seems clear to me that intended to allow mileage only to the extent that a sub,. pama would rUn. The statute should be read ,as though the words "within the jurisdiction of a writ of subprena "were added to section 848. A different construction would open the door to great abuses. A defeated party might be charged with the mileage of witnesses from across the sea, or from distant points in the United States, rendering litigation oppressive, if 110t ruinous. As the testimony of witnesses resident more than 100 miles from the place of trial may be taken by deposition, I think it was designed to limit the mileage to the running of the writ of subpcena. Itmay be that oral evidence delivered in court is more potential than that taken ,by deposition. That consideration, however, should notavail to a constr\l.C\tion of the statute that would work oppression. The law has provided ,an inexpensive mode of obtaining the testimony of nonresident witnesses. If personal attendance at the trial is deemed essential, the expense,except as to 100 miles, should be borne by the party inducing such, attendance.
THE CITY OF SALEM.
(Dtatriot Oourt, D. Orego1/,; February 12, 1889.)
NAVJGABLB WATER8'-INTERSTATE REGULATIONS.
The power to regulate commerce among the several states comprehends the power to reg,ulll,te the navigable watllrs of the United, States on which such commerce may be or is carried. and to 'this end congress mll-Y make any regulation concerning such navigation, including the vessels engaged therein. as ,may be necessary and proper to secure and maintain the safety and convenieuce of the water-way; which regulations are so far applicable to vessels en. gaged only iil'intrastate commerce thereon as to those engaged in interstate ' commerce; , " , :The, con,tli\ined in section 4465 Qfthe Revised Statutes, forbidding " steam-boat to, ca,rry more than allowed in her certificate of inspection, held to apply to such boats, engaged in carrying passengers on a navigable water of the United States between ports of the same state only.
(SVlla1nl.8 b'll tM OotU't.)
mE CITY OJ' llALEII.
At Law. . W. Scou Beebe, for libelant. Charles.J. Macdougall, for owner and claimant.
DEADY, J. This suit is brought by the libelant, A. F. Reed, against the steam-boat City of Salem and Robert Thompson, her owner, to recover sundry penalties for carrying more passengers than is allowed by the vessel's certificate of inspeption. 4n exception is filed tQ the libel, to the effect that the transportation -of passengers in question was wholly within the state, and is therefore not within the grant of power to congress to regulate commerce nor the jurisdiction of this court. Section 4399 olthe Revised Statutes declares: "Every vessel propelled in whole or in part by steam shall be deemed a steam-vessel within the "All meaning of this title," (52;) and section 4400 of the same navigating any of the waters of the United States which are common highways of commerce, or open to general, or competitive navigation, excepting public vessels of the UnitedSfutes, vessels of .other .countries,and boats * * * for navigating canals, shall be subject 10 the provisions of this title" (52.) It is also provided in this title that there shall bean inspector of hUlls, .and one of boilers, in each district, who shall inspect all steam-vessels, and when they. "approve a vessel and her equipment" they shall make .a certificate to the collector to that effect. Section 4421, Rev.St. In ease of a steamer "carrying passt'ngers, other than ferry-boats, the DumPer of passengers of each class that any such steamer has accommo·dation for and can carry with prudence and safety" shall be stated in :Said certificate, (section 4466, Id.;) and, if any steamer shall "take on board" any more passengers than the number stated in the certificate of inspection, the owner shall be liable to any person who may sue for the ,sameinthe penalty of SIO for each such passenger, (section 4465, Idi.;,) .and such penalties shall be a lien on the vessel. (Section 4469, Id.)! It appears from the libel that on July 4, 1888, the City of Salem was .8, vessel wholly propelled by steam, and engaged in navigating the Wallametriver, and was duly enrolled and licensed therefor; that by her certificate of inspection she was only entitled to carry 60 passengers; that -on said day said vessel was engaged in carrying passengers from the port ·of Portland to other points and places on said river, and within this dis. trict, and did on four such trips carry, in the aggregate, 2910 more pas:sengers than allowed by her certificate. The precise question raised in this case has never been passed on by the supreme coort. In the district courts there have been apparently .conflicting decisions on the point. In The Gretna Green, 20 Fed. Rep. 901, it was held. that a steam-boat .4'regularly enrolled and licensed" for the navigation of the Ohio river, subject tathe laws of congress," was not liable under section 4492 :-Qf'the Revised Statutes for carrying passengers in barges intow, the same ..Jlot being equipped as prescribed by the supervising inspectors, between
different ports of the same state. But the opinion leaves it iri doubt whether the steam-boat would be liable for carrying paSsengers on her own decks between the same points, contrary to the laws of the United States on the subject. After substantially admitting that congress has the power to prescribe the law of the highway, so far as may be necessary to protect interstate commerce, the court says:
"The steamer which had these barges in tow being snbject to the navigation laws of the United States, the mere fact tbat she took in tow the barges had nothing to do with any interference with the proper navigation of the Ohio river."
In U. S. v. Ferry Co., 21 Fed. Rep. 331, it was held that the owners of the vessel engaged in navigating the waters of the Mississippi, carrying passengers between two ports in the state of Iowa, in excess of the number authorized by a permit issued under section 4466 of the Revised Statutes, are liable for the penalties prescribed in section 4500 of the same, The court held that congress has power to regulate the navigation of vessels on the navigable waters of the United States, when engaged exclusively in interstate commerce, and that when a steam ferry-boat, contrary to section 4466 ()f the Revised Statutes, carries passengers between ports of the same state, in excess of the numb<9r allowed in her permit, she is guilty of a marine tort, and a district court of the United States has jurisdiction of a suit in admiralty against her owners to .recover the penalty prescribed by section 4500 of the Revised Statutes for the same. In The Seneca, 1 Biss.371, it was held that a steam-boat employed in carrying passengers between two ports of the state of Wisconsin was not liable to a penalty 10r not having her hull and boilers inspected under the steam-boat act of 1852. In the case of The Oyster Police Steamers of Maryland, 31 Fed. Rep. 763, it WIlS held that three steam-vessels belonging to the state of Maryland, not engaged in carrying freight or passengers, but used to enforne the state fishery laws in the Chesapeake bay, are liable to the penalties prescribed by section 4499 of the Revised Statutes, for failing to have their hulls and boilers inspected by the United States inspectors, under sections 4417 and 4418 of the Revised Statutes. The court held that the "supreme and exclusive control" of congress of the navigable waters of the United States "might be defeated or rendered less effective for its objects if there WE're to be recognized a class of vessels privileged to use them, without subject to those provisions which congress determines are required for the safety of all. I am therefore unable to assent to the contention that the fact that the vessels in the present ca8e are not used in commerce, but solely for the police pur. poses ofthe fishery force, prevents congress from haviIlg the constitutional power to legislate with regard to thero. It is not their use, but the fact tha.t they navigate the highways of commerce, which brings them within ,.the constitutional grant of power, and within the language of section 4400 of the act of congress."
In LYrd v. Steam-Ship (h., 102 U. S. 541, it was held by the supreme court, in the language of the syllabus, that "while navigating the high seas, between ports of the same state, a vessel of the United States is, together with the business in which she is engaged, subject to the regulative power of congress." Mr. Chief Justice WAITE, in speaking for the court said, in substance, that the Ventura, while navigating the Pacific ocean, although bound from and to ports in the state of California, was without the state, and on a highway of nations, and therefore "engaged in commerce with foreign nations, and as such she and the business in which she was engaged were subject to the regulating power of congress." This case falls within the language of the statute (sections 4399, 4400, Rev. St.) defining what vessels shall be subject to the provisions of title 52. The City of Salem is a vessel propelled by steam. On the occasion in question she was navigating the Wallamet river, a navigable water of the United States, (Hatch v. B"idge Co., 7 Sawy. 136, 6 Fed. Rep. 326; Bridge Co. v. Hatch, 9 Sawy. 648,19 Fed. Rep. 347,) which" is a common highwayof commerce, and open to general and competitive navigation." Unless the act of congress, so far as the carriage of the passengers in question i,s concerned, is unconstitutional, the vessel is liable for the penalties prescribed for carrying more passengers than the law allows. In my judgment, the solution of this question wholly on whether the regulation limiting the number of passengers which a steamboat may carryover a navigable water of the United States, between ports of the same state, is necessary to maintain this highway of foreign and interstate commerce in a safe and desirable condition for the use of vessels and persons engaged in the same. The power to make this regulation cannot, in my judgment, be derived from the grant of admiralty jurisdiction. The admiralty jurisdiction of the United States is a part of its judicial power, and not its legislative. I t extends" to all cases of admiralty and mari time jurisdiction." Const. U. S. art. 3, § 2. And while it does not authorize congress to create admiralty cases, yet, if in the exercise of its power derived from other clauses of the constitution, it should do so, as the power to regulate commerce, the grant of judicial power would extend to them, and include them, because in their nature and constituents they would be cases of admiralty and maritime jurisdiction. Take this case as an illustration. The City of Salem is alleged to have violated a law of the United States, to which a penalty is affixed, and made a lien on the vessel. The act was committed on a navigable water of the United States, and the admiralty has jurisdiction of the case, to hear and determine it. But if congress had not the power to pass the law in question the suit must fail, because no wrong was in fact committed. The power to make this regulation must be derived, if at all, from the power granted to congress "to regulate commerce with foreign nations, and among the several states." ld. art. 1, § 8. v.37F.no.15-54
In'Gilmanv. PhiJ,a,Mphia,3 Wall. 724,Mr. Justice SWAYNE, speaking for the court, said: ' .. The power to regulate commerce comprebends tbe control for that purpose, and to the extent necessary, of all navigable waters of the United States which are accessible from a state otber than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requi. site legislation of congress. " And in the case of The Daniel Ball, 10 Wall. 564, Mr. Justice FIELD, speaking for the court, said: power to regulate commerce authorizes appropriate legislation for the protection of either interstate or foreign commerce; and for that purpose such or safe navigation of all navigable legislation as will insure the waters of the United States, whether that legislation consists in regulating the removal of obstructions to their use, in prescribing the form and size of vessels employed upon them, or in subjecting the vessels to inspection and license in order to insure their proper construction and equipment." ,That in the case of steam-boats, the inspections of their hulls and boilers, the licensing of their pilots and engineers, the carrying of prescribed lights, and the giving and answering of prearranged signals when meeting and passing, do materially increase the safety and convenience of navigable water, considered as a highway of commerce, there is no doubt, and therefore there is no question that congress may make regulations on these subjects, which are applicable to vessels engaged in intrastate commerce aswell as tbreign or interstate commerce. The power to regulate the navigation of the waters of the United States being' comprehended in the grant of power to regulate commerce, not merely'lis an incident, but a part of it, congress has power "to ma.ke all laws which shall be necessary' and proper for carrying into execution" such power. Oonst. U. S. art. I, § 8. . lriMcCulloch v. Maryland, 4 Wheat. 421, Ohief Justice MAttlmALL said: "Lettha enu be legitimate.-let it be within the scope of the constitution. -and aIlml'ai1s which are appropriate. which are plainly adapted to that end, .which are not prohibited, but consist with the letter and spil'itof the constitution" are constitutional." And again, (Id: 423:) "But where the law is not prohibited. and Is really calculated to effect any of the objects intrusted to the governme'nt, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the jUdicial department, and to tread on legislative ground." Upon this exposition of the law is this regulation limiting the right of steam-boatstd carry passengers on a navigable water of the United States . to the number prescribed by the certificate of inspection of the Ideal inspectors,' a necessary and proper regUlation of navigation, when such boat is engtigedin carrying passengers on such water between different POl'ts of the same state only? That it is so, is at least not so apparent as in the instances mentioned, in which it appears there is no doubt on the subject. In what particular a boat carrying more passengers than allowed by
THE CITY OF
r, ' ,
" .·· i,
her certificate of inspection or special permit affects the ssfety or convellThat the pasience of the highway has not been suggested by sengers so carried are inconvenIenced, and, it'may be, endangered, is likely. But the question is, how is the safety and convenience of the highway thereby unfavorably affected as to other vessels engaged in interstate or foreigll comm,erce thereon? If it was shown that an overloaded boat was more difficult to handle, or more likely to become unmanageable or burst her boiler or steam-chest, the danger resulting to other vessels on the highway would be apparent. But there is no proof on this subject, and I am not satisfied that it is within the limits of judicial One thing is probable. If a steam-boat is' allowed to carry passengers between the ports of any state over the navigable waters of the United States, in excess of the number prescribed in its certificate of inspection, the boatsrdnningbetween said ports, and from or beyond, to ports of another state, will be compelled to do the same thing, or substantially abandon what may be called their "way business;" for anyone can understand that a vessel can carry 200 passengers'much cheaper per head than another one of the same character and dimensions can carry half the number for. The result would be to nullify the regulation, or make its enforcement difficult in cases where it is admitted to be legal Rnd presumably beneficial. It may be said that, when it is determined that the carrying of passew. gers between different ports of the same state is not within the power of congress to regulate, the state will make proper regulations on the subject. But it is not probable that any state regulation on this subject would be either effective or well enforced. Congress has expressly declared (sections 4399,4400, Rev. St.) that this regulation shall apply to steam-boats carrying passengers over any part of a navigable water of the United States. The regulation, when applied to the carriage of passengers between ports of the same state;-is a beneficial one, and its enforcement tends to the safety of human .life. Without it,the excursion boats, which on festive occasions ply between ports of the same state, would often become floating coffins. . If this regulation, as applied to vessels engaged in intrastate commerce, is reillly calCUlated to promote the safety and convenience of interstate and foreign commerce in any appreciable degree, the enactment of it is within the discretion of congress. And while I am not as clear in my mind, ori this, point, as 1 would like to be. I have an impression that I feel more certainly than I can express, that the regulation in its effect and operation does materially tend to maintain the safety and convenience of this highway of interstate and foreign commerce,-the Wallamet river. On this view of the matter I feel sitting here in the district court. in declaring this act of congress unconstitutioual. It is a to,g9to the court. , is disallowed.. ,
(Cl'rcuit Court, B. D. Mi88i88ippi. January tIS, 1889.)
GUlmo-CONTRACTS FOR FUTURE DELIVERy-CONFLICT OF LAws.
. Contracts for the future delivery of cotton, made by a commission merchant in New Orleans, to be performed there, for his principal, residing in the state of Mississippi, are governed by the laws of the state of Louisiana, and, if valid in that state, will be enforced by the circuit court of the United States in the state of Mississippi. A cl)ntract for the future. delivery of cotton is valid and binding unless shown by those challenging its validity that it was mutually agreed and understood by the parties to the contract when it was made that there was to be no delivery of the property, but that only the differences in the price were to be paid at the time the contract by its terms required delivery should be made. The rules and regulations adopted by the New Orleans Cotton Exchange in the settlement and substitution of contracts for the future delivery of cotton, when not used to promote a gambling transaction, are valid and legal. and are binding upon all persons familiar with such rules and regulations, or charge· able with knowledge thereof, when they employ members of said' exchange to buy or sellon the floor of said exchange cotton fOr' future deli very, and who in good faith so buy and sell in' accordance with the said rUles and regulations. . A commission merchant, who in g'ood faith buys and sells cotton for future delivery under the directions of his principal, without knowledge or reason to believe that said principal had no intention to deliver or receive said cotton, but only expected to pay the differences in the price at the maturity of the contracts of purchase or sale, may recover from said principal compensation for services performed. and money advanced at his request, notwithstanding the existence of such Illegal intent on the part of the principal. When, under the rules and regulations of the New OrleansCotton Exchange, a commission merchant becomes the guarantor for the performan'ce of the contract entered into by him for his principal; he has the right to demand margins from said principal to secure him against loss on account of said contract, and to close out said contract in the event the principal fails to remit saidmar$'ins on demand; and said commission merchant may, upon the default of his prlDcipal in the remittance of said margin when so demanded, close out .aid contract, and recover the losses sustained hy him, although the party' with whom the commission merchant dealtfor his said principal has made no demand for any margin. . Where the agent,at the of making a contract, discloses the name of his principal, he is not personally liable or bound to those who are thus tied that he acts as agent, for the default of the principal.' '
SA.ME-.lNTENT-BURDEN OF PROOF.
SAME-CUSTOMS AND USAGE-VALIDITY.
.. SAME-FACTORS AND BROKERS-RIGHT TO COMMISSION.
G. SAME-RIGHT TO DEMAND MARGINS.
PRINCIPAL AND AGENT-LIABILITY OF AGENT.
(811Zlabua btl the Oourt.)
Hir8h, for plaintiffs· Anderaon, for defendants.
HILL, J. The questions for decisiOnllte presentedbyamotion for a peremptory instruction to the jury to fina filr'the plaintiff's, and 'il. motion for a similar iWltruction to tind for This action is brought