N. D.Ne'Jl'Yw7c. Marcb,1891.)
AotCong.Jline 29, 1888, "to prevent in tbe barbor and adjacent waterBof' New York oity, 11 declares that "tbe placing, discbarging, or depos.iting . ** .«)1' of any kind, * * * in the tidal watllrs of the harbor of New York or It.S adjacent or tributary waters, or in those'of Long Island sound, 'within the iimiti:l whioh shall be prescribed by the su p6i'yis<lr of the harbor, is; hereby strictly The s,upervisor ma,de an order ,that tne depositing,of such refuse, etc., .tll)ust take place east of meridian 78° 55' 56" W.(which passes thi'bugh the Scotland light-ship) and south of parallel 40° 31' N." ,Beld, that the c>J,'der lqust be 80 oonstrued as to allow dumping at all points east oftha named meridian, or south of the named parallel, and not to oonfine it to points that are both east of the mel'idian and south of the paralleL
'In A'dmiraTty. These are libels filed by the United States, under the act of June 29, 1888, (25 St,'at Large; '209,) to recover penalties for <:lumping mud, dredgings, etc., into the waters of the Hudson river.. 'l'he first section of the act prqvides "that the placing, discharging qrdepositing, by any process or hI any manner,of refuse, dirt, ashes, cinders, mud, sand, dredgings,sludge, acid, Or any' otnermatter of any kind, other than that flowing from streets, sewers, and passing therefrom, in a liquid state, iIi the tidal waters of the har90r of New York, or its adjacent or tributary or, in thoseof Long)sland sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden." .Violations of this section are made misdemeanors punishable by imprisopment,or a Jine of not less than $250 or more than $2,500.. The supervisor of the' harbor appointed' under this act issued the following order purslluntto the provisions of the first section: "Tile deposit; of refuse, 4irt·. ashes, cinders, mud, sand, dredgings, slndge; acid, or matter 9f any kind, other than' tha.t flowing from streets or and passing therefrom in aliqujd state, must take place east of meridian 78" 55' 56'1 W., (which passes through the Scotland light-ship,) and south of parallel 40° 31' :&." . . ,.
The point where the parallel and the meridian intersect is some three miles south of Ooney.islandand five miles east of Sandy Hook. In the summer of 1890 the tugs,in question were engaged in towing mud scows loaded with dredgings, taken from the channel of the Hudson river, to a point near Stone House dock, which is opposite New Baltimore and a few miles south of Albany. The point where the scows discharged their loads was about 8 miles east of meridian 73°55' 56" W., and about 125 miles north of parallel 40° 31' N. The work was done nnder the auspices of the state of New York, with the design of improving the navigation of the river. The mud taken from the channel was deposited in
THE G. L. GARUC.
shoa!'waternearthe river bank and about a. quarter of a mile from the channel waters,at a point designated by the superintendent ·of public works of the state, of: New York. The waters of the Hudson river rise and fall with the tide as far. north as the state dam at Troy. Frank G. Ferguson, Asst. Dist. Atty. W. Frothingham, for claimants. COXE, J., (after stating the facts a8 above.) The intention of congress in passing the act of June 29, 1888, is clearly expressed in its title. It is "An act to prevent injurious deposits within the harbor and adjacent waters of New York city," etc. Deposits which do not injuriously affect the was the harbor that the lawharbor are not prohibited by the act. makers had in view; it was the harbor that they sought to protect. Recognizing the; fact that the usefulnesS of the harbor would be destroyed if its approaches were obstructed, the act is careful to designate all waters adjacent or tributary to the harbor. where the dumping of deposits can, in any manner, affect it injuriously. It will be observed, however, that dumping is not forbidden in all parts of the enumerated waters, but only in 8uchparts of these. waters as flit: "within the limits which shall be prescribed by the supervisor of the harbor." It can hardly be presumed that congress intended, under pretense of protecting the harbor of New York, to relluire refuse taken from the harbors of Stonington or New London, for instance, to be towed through the sound and dumped far out at sea. Improvements at Albaqy and Troy and in the harbors of }forts 'al<mgthe sound will have to cease if dredgings taken therefrom are to be towed several hundred miles and dumped at a designated point in the Atlantic ocean. Clearly congress did not intend to weigh down a law, having a single object to accomplish, with conditions so expensive, onerous and useless. The purpose of the actis to prevent; dumping where it will injure the harbor mid to prevent itnow.here else. To insure this result the supervisor, taking the watars enumerated in the act as the theater of his operations, is required to d.raw protecting lines around the harbor. When these lines are fixed the act becomes operative. Within them is the harbor of New York and such waters as are necessary. for the protection of the harbor." Within these limits, says the act, no dumping shall be done, without them it is not prohibited. The supervisor had DO power to issue his -ukase commanding that all dumping 8hall bedone within limits fixed by him far out in the which: include waters not mentioned in:.the act. What the sdp,ervisor did do was to direct that the deposit oftefuse, dirt, etc., "must take place east of the meridian 73° 55' 56" W., parallel 40° 31' N." The libelant insists that this order means that the dumping must not only be east of the meridian, but it must also be south Of the parallel, and that under the provisions of the act the supervisor had ,authority to make such an order. The claimants, on the contrary, argue-First, that the order is void for indefiniteness; 8econd, that the libelant's construction is inadmissible under the actj and, third, tht\t if sustained at all the order must
FEDERAL :1REPOJlTER J . vol.
be -construed as fixing" within the designated' meridian andparallel,tbe limi-ts beyond which,.at all pQints,both on the ,east and south, refuse The.situationCiin bestbelllustrated by the follow.. ing diagram ·Showing :tnese· opposing: theories: :. . _'. ;
DUI1PING GROUND. CJ.Alft£D8Y
THE G. L.' .GARLIOe
'The libelant 'contends that dumping must all take place within the angle represented by the dotted lines.' The claimants ccntend that, if the supervisor's order can be upheld at all, it must be construed to prohibit dumping within the angle formed by the plain black lines. It the libelant's the supervisor possesSed the power to fix upon any point. in ocean where a Qleridian and parallel intersect, and command every person from Coney island to Troy and from Staten island to Montauk point, under pain of imprisonment, to deposit refuse material at the vertex,or somewhere within the ever-widening lines, of the angle thus formed--an angle which necessarily includes a large part oceaninuo way referred to in the act. Under sucha construction a contractor engaged in improving the harbor of ton, who shc>uld dump dredgings in the Atlantic 500 miles easto! Boston would be' liable to the penalties of the act, because the dumping would take. place north of the parallel. If the power to designate an.area where refuse must be deposited is once conceded, the supervisor (lOlIld have nameci adumpin'g ground 10, 20, or 80 miles from New York, with as mucb propriety as the one he did name. It is that a construction which leads to such absurd especiallY: in a penal statute, is out of the qtiestion. In order to reach it it, is necessary to reverse the plain meaning of the first section and substitute the word "without" for the word "within." !fthis section made it a misdemeanor to deposit dirt, etc., withOut (olltside of) the limits fixed by the supervisor, the contention of the libelant would be more plausible. The supervisor was not authorized to say where the dumping should be done, but only where it should not be done. The remaining question is, has he done so? When read alone his order certainly bears the construction put upon it by the libelant, but, as such a construction renders it utterly void, it remains to be seen whether, when considered in connection with the act, 8n interpretation can be placed upon it which renders it operative. Though most infelicitously expressed, it is thought that the order can be construed to mean that the deposit 9f refuse material may take place at any point east of the meridian or at any point south of the parallel. In other words, that no dumping is permitted within the angle formed by the plain black lines as shown on the above diagram. The decision of the circuit court in the case of TM 41 Fed. Rep. 896, does not conflict with these views. The point now under discussion was not considered in that case for the reason that it was not pretended that the dumping took place east of the meridian. Although there are expressions in the opinion which appear to uphold the contention of the libelant, the following language indicates that the court construed the supervisor's order as fixing limits coincident with the northwesterly allgle as indicated on the above diagram. Says the opinion, at page 899: "In the next place, It Is to be noted that, under the statute, It Is not the lupervisor of the haroor who fa to prohibit dumping, etc., in the tidal waters
named 'ill the act. The act itself prohibits such dumping · within the limits which shull 'be prescribed' by that 'officer. These liinits which he is to pre. scr1be. are the lines or bl)U,ndaries on one side and the other of which, respectively, such materIal mayaud may not be dumped. The order made by him designates two lines, rtuiriing, one nortli- and the other west, from a point at the inters,ection of the meridian 73° 55' 56" W. and the parallel 40° 31'N. To the east and south of these lines it is expressly stated th'at the deposit of refuse materiai( repeating the phraseology of the first section) must take place. Why these lines are not thus made the limits of dumping within the meaning of the act I am at a loss to conceive. Vp to them all material is to be beyond thl'lln it is not to be deposited. 'rhe. limits being thus fixed, the first section becomes operative. and persons or vessels depositing such material within tltese Jines, upon the waters enumerated in the act, become Hable to the penalties prescribed thereby." ' The italics do not appear in the opInion and are introduced to emphasize the point in question. . It seems quite clear that if the circuit court intended to sa,nction the theory that the supervisor had power to designate a dumping ground and make a criminal of every person depositing refuse elsewhere, it would have described the south-easterly angle as above shown-an angle formed by two lines running, one 80uth and the other east from the point of intersection-instead of using the language above quoted. As the tugs were not engaged in dumping within the. limits prescribed by the supervisor, it follows that the libels must be dismissed.
KURlU.Y fl. BLUEBIRD MIN. 00.
MURR4YfI. BLUEBIRD MIN.
(04treu1.t .Court, D. Montana. February 4,1891.)
.JURISDICTION OP CIRCUIT COURT.
A case in which the disputed questions are either not vital, or questions of fact purely, or questions of mixed law and fact, which may be decided by a jury according to the evidence, under rulings and instructions of the court, not involving a decision of any controverted point as to the applicability or construction of any provision of the constitution or of any statute of the United States, does not come within. the jurisdiction of a circuit coun of the United States, by virtue of the clause df the statute giving jurisdiction of causes arising under the constitution or laws of the United States. .
(SyZlabus b'I/ the Oourt.)
In Equity. .... WiUiam ScaUon, (Thomas M. Patterson and F. W. Oole, of counsel,) for plltintiff. . Diwn Drenntln, M.K,irkpatiick, and Forbis Forbis, for defenaant.
, HANFORD, J. By a demurrer to the complaint herein the defendant has challenged the jurisdiction of the court over the case, the sole question being whether the case is one.atising under the constitution orlaws of the United States. The object of the action is to try the title tocertain mining property, and to recover possession of said property, to which the plaintiff claims to have derived title by It patent from· the United States. The complaint charges that, while the plaintiff was owner and;,in lawful possession, the defendant wrongfully, by means of under-ground workings, did enter upon a certain vein of ore or mineral deposit, which is the property in controversy, and run thereon a drift or level, and extend cross-cuts, stopes, and raises, and to reach said vein did by cross-cuts penetrate the country rock from a shaft sunk from the surface within the boundaries of mining ground,to which the defendant has title from the United States by a patent, and that by so doing the defendant has dispossessed· plaintiff of said vein, and of the space under"ground occupied by the several extensions, levels,. cross-cuts, stapes, and raises referred to. The complaint also alleges that the de-,. j'f;\\dant justifies the ouster by asserting that the said vein or mineral de-,. posit is in fact the Bluebird vein or lode, which has its apex within the surface limits of the ground, to which it has acquired the title by a ent from the United States; that the same is a true vein or lode of rock in place, bearipg precious metal; that it is situated and extends so as to be intersected by one of the end-lines of its property drawn downward vertically, !tnd continued in its own direction; and that by its dip said vein or lode so departs from a true perpendicular course downward as to extend over a vertic;al line dividing the grounds of the defendant from the grounds of the plaintiff. The plaintiff denies that said vein or lode mthe Bluebird: vein, the complaint shows, denies practically the .claims andpretensij)ns of the defendant respecting all therook, mineral,andgrourid above and beneath the outside of the ver" v.45F.no.6-25