the aPJtliCj:LtJPIl for a temporary injunction. and .I think no injunction should i8,S14euntil after a full and final hearing. Themotioo for a preliminary injunction is denied.
THE LOUIS OLSEN.
HARITWEN . 'D. THE LOUIS OLSEN.
(District Oourt, N. D. Oalifornia. October 1. 1892.)
:M:AIUTnmLnnrs-STATIlI S'l'ATUTIlIS-FEDIlIRAL COURTS.
2. ,BTATU<rBS":"'PONSTRUCTION-CONll'LICTING PROVIS1ONB. The constitution of California provides that no law shall be amended bv reference to its title, but shall be and published at length as Code Oivil proc·. Oal. 818, was amended and re-enacted by an act which amended the COdll.g 6. ll'l.l'&lly/and proVid.ed that all.. lawsi.n.consistent. therewith should be re. J ... .. . )Iota, l;hat a clause of .this secti.ou which remained uuchanged was not so re-811Boted as to make it a later statute than one prevailing before such re-enactment. Railroad 00. v. Shackelford, 68 Oal. 261-265, followed.
district qourts having jurlslUotion of a contract, as a maritime one, mle12, enforce liens given for itsseourity by state laws. The .Lottawdntnll, 21 Wall. 558, followed.
Pol. COde Cal. § 4481, prOVides that, if the provisions of any title of the California Codes oonftiot with the provisions of another, the provision of each must prevail as to all qUllstions arising out of thll subject-matter of such title. Code Civil Proe. 55, prOVides that prOVisions of this Code, so far as they are substantially the same as the existing statutes, must be construed as a continuation thereof, and not &s uewenaQtments. Held, .that sec,ltion 5 of the Code of Civil Procedure prevails over section 4481 of the Political Code in the oonstruction of Code Civil Proc. 813, and Civil Oode, § 3055, which are iu conflict. People v. Freese, 18 Pac. Rep. 812, 76 . Cal. 634, folJ,o\Ved. The cOmmon law of England, (which f:ave a master no lien on a ship for his wages,). by Aot Cal. April 13, 1850, was adoptEld as. to all courts of the state. By Pro Act Oal. § 317,adopted April 29,1851, a master was giveu such a lien. This was re-enacted in Code Civil Proc. § 813. Civil Code, § 3055, which took 13ffect Jauuary I, 1878, provided that a. master sbould have no such lien. Pol. Code, § 4480, provides that the provisions of the Codes shall be construed as if enacted at the same moment of time. Held, that under Code Civil Proc. § 5, section 3055 of the Oivil Code and i;lection 818 ,of the Code of Civil are re-enactments of the acts of 1850 (the common law) and 1851, respectively. and section 813 of the Code of Civil Procedure,being the latest declaration of the will of the legislature, should therefore prevaiL
.. SAME-M,ARITllimLIIlINS-MASTER'S WAGES.
JnAdmirnlty. S.uit by Charles Haritwen against the 3team schooner Louis Olsen for wages as. waster. Exceptions to libel. Overruled. &Eell8. for lib.elllut. W. W. DaoidBon, for respondent·
·MORROW, District Judg.e. This suit is brought by Charles Haritwen against the steam schooner Louis 0ls.en, to recover the sum of $1,396.30, claimed to. be due the libelant as wages. The claimant excepts to the libel on the ground that it appears from the libel that whatever wages
mB LOUlB OLSEN.
were earned for any services performed or rendered by the libelant were so earned by him while he was acting in the capacity of master of the vessel. The lien is claimed by the libelant under the provisions of section. of the Code of Civil Procedure of this state, which, among other things, provides that "all steamers, vessels, and boats are liable (1) for services rendered on board at the request of, or on contract with, their respective owners, agents, masters, or consignees." In the case of The Lotta,wanna, 21 Wall 558-580, it was held by the supreme court that the district courts of the United States, having jurisdiction of a contract as a maritime one, might, under the provisions of the twelfth admiralty rule, as promulgated in 1872, enforce liens, given for its security, when created by the state laws. In the case of The Mary Gratwick, 2 Sawy. 342, the late Judge HOFFMAN held that the master of a vessel, engaged in navigating the interior waters of this state, might proceed in rem in this oourt to recover his wages upon the lien created by the law of this state. This decision was affirmed by Judge FIELD, sitting in the circuit court. It is not denied that such was the law at that time, but it is on behalf of the claimant, that the state lien no longer exists. At the. time The Mary Gratwick Oase arose in this court, in 1872, the domestic lien was contained in section 317 of the practice act of this state. The Codes (Civil, Civil Procedure, Penal, and Political) took effect January 1,1873. The practice act was incorporated into the Code. of Civil Procedure, dnd $lction 317 of the former act became section 813 of the latter Code. But in the Civil Code it was provided, in section 3055: "The master of a -ship has a general lien, independent of possession, upon the ship and freightage, for advances necessarily made or liabilities necessarily incurred by him for the benefit of the ship, but has no lien for his wages." Here is a conflict between provisions of the Code of Civil Procedure and the Civil Code, and the question is, which is now the law of this state? The first inquiry would naturally be to ascertaiQ which of these two was the last expression of the will of the legislature; but section 4480 of the Political Code provides that, "with relation to each other, the provisions of the four Codes must be construed * * * as though all such Codes had been passed at the same moment of time, and were parts of the same statute." This provision disposes of any question as to which section was the later enactment. The location of two sections, in an ordinary statute, would afford a rule of construction in the pre.f3umption that the later section in number was the last in time. and intended to repeal the provisions of a prior conflicting section; but, in the present case, the conflicting sections belong to different Codes, and, under the foregoing rule of construction, we are :not at liberty to assume that these two sections were passed otherwise than at the same moment ()f time. We find, however, that section 813 of the Code of Civil Procedure was amended and re-enacted in 1874 by an act which amended the Code genand which providett that" all provisions of law inconsistent with the provisions of this act are hereby repealed; " but, in this re-enactment, therlil was no change made in the subdivision of the section now under
was sl.lbl;livIsj,on·Rlfdupon.a .. The of tpjs state that "uo law ,amen-dad :\>yreference to its title; bQtin such case the bere-enactedand published at length, or Is such a re-enactmi3nt.asufficient expressionqi of legislature to authorize us. to hold that a lien in Alaster fqr bjs by the first sllbdivision of section' 81?:Qf, tAl'l.Code of Oi,.vil· Proced:ure, has been re-enacted so as to repealtl1atpaJ"tofsectiQn3055 of the Civil Code which declares that he hali! no lien?,' . Statutory. Construction, (section 133,) the rule reQfameIl<lments of thischaracte.r is sta-tedas follows: , "Tl,econstitutlonal provision ,requiring amendments to be made by setting out, t9Jl asamen4edwas not, intended to make any different rule'l¥I of suctll\lllendlnents. So far as the section is changed. it,must receiyeaJ;lew Operlltion; but so It is not changed. it would bedangerous to bOld 'that the tnetenominal ra-enactment should have the effect whole body 01 statutes in pari materia Which had been of disturblng) passedisineetheflrst enactment. There must be something in the nature of the newlegialatiol1 to f1howsu<;b an intent with reasonable clearness before an can be apiendment operates to repeal all of in the amended form. The portions whicll,are ,merely copied without .change are 'not to and again enacted. but to have been the law all along;· and ,'tile' J.ntlw patts.or' tb'e changed portions. are nqt,to be taken tQ> have beentbe 'Jaw ut any time pl'ior to the pllssage of the amended act." This .$upported by. and approved by the 8up'rePle court ofthis state in Railroad (70. v. Cal. 26h 265. . ofaeption 813 ofthe Code of Civil Procedure is therefore :\VithMtvaJl,le in determining this question of coJ;lflict. It isnex,tclaiilled that section 4481 of the Political Code.furnishes the proper follows: "If th,e .of any titJecQntlict. w,ittlo17 contravene provisions of another pt'ovisio'rtsof each title prevail as to all matters and questions 1lrising out of the 'subject-matter Qf such title."
It 3055 is found title ofthe Civil Code which treats ,general, section 813 is found ina special place in theqoqe 9.fpi vil Pror.e.dure which treats of actions against steamers, v,essels, alld: and, question in controversy relates to ,a lien" it iJ;l former section prevail; but inPeoplev. Freese, 76 Pll,c.,Rep. 812, the court of this. state rejected thi.srule,<;>fWPjitructio,Il inlavor of Ii. rqleprovided in section 5 of theCode. Which i& .fvllows: "The provisions of this Code. so far as they are substantially the same Its. mus.t as continuatioD,sthereof.and not as new emlctments." '
Thilt.,is preaiselythe language of section 50f the Code of'Civil involved in People v; Freese, as to the superior..; ity, of cel'tAiQ conflicting sections of the, Political Code, makes the deci..;
13iou in that case authority; but, in making theapplication, we must notice, also, the rule of construction provided bysectiou 5 of the. Civil Code, as follows: "The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof; and not as new enactments. It The common law gave no lien to the master for his wages. Section 8055 of the Civil Code, declaring that the master has no lien for his wages, is therefore a decla.ration of the common law,and not a new en· actment. Section 317 of the practice act, as we have seen, gave the master a lien for his wages. This was therefore a new right, created by statute, continued in the Code of Civil Procedure. In the practice act, it was in derogation of the common law; so it is in the Code of Civil Procedure. It is therefore claimed that the presence of the declaration, in section 3055 of the Civil Code, that the master has no lien for his wages, cannot' be construed as' an expression of a legislative intent to deprive him of his right of lien, expressly conferred by statute, and continued. in its appropriate place in the other Code. The rule relied upon to justify this conclusion is this: "Where two statutes in pari materia, originally enacted at different peri. ods of time, are subsequently incorporated in a revision and re-enacted hi SUbstantially the same language, with the design to accomplish the purposE! they were originally intended to produce, the time when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the legislature. if they are not harmonious." Suth. St. Const. § 161. '" Now, if we go behind the Codes in this case, and look at the date of the original enactments, we find that the common law of England was adopted as the rule of decision in all the courts of this state. by the act of April 13, 1850, while the practice act, giving the master a lien for his wages,was passed by the legislature, April 29. 1851. This last act, as before stated, has been continued in section 813 of the Code of Civil Procedure, and. as it is the last enactment in point of time, it should cootrol as the last expressed will of the legislature. This rule of construction was adopted in Bank V. Patty, 16 Fed. Rep. 751, with respect to the cOIl;flicting provisions of two different Alabama statutes. The act of 1867, (Alabama statutes) declared that bills of exchange and promissory notes, payable at a bank or privatebankin/l: house, should be governed by the commercial law. The act of 1863 declared that such documents. payable at a.bank or banking house "or a certain place of payment therein designated," should be so governed. Under the first statute, a note payable at a specified place. not a bank or banking house, was not negotiable; under the other. such a note was negotiable. These two statutes were incorporated into a Code,-the later statute being section 2094, the earlier being section 2100. If the latter section wereadoptedas;thelast expression of the legislative will, the court would have to hold that the act of 1867, so far as it conflicted with the act of 1l:l73, would control. But, it having been held by the supreme court of the United States
(Oates v. Ba'1lrk, 100 U. S. 239,) that the act of 1873 repealed the act of 1867, the circuit court now held that the presence, in the Code, of the act of 1867, "was clearly an oversight in the codifiers, which was not
observed by the legislature when it was adopted. The supreme court of Alabama, in such cases, has decided that, in determining the legislative intent, the date of the enactment will be looked to, and the last one in time will beheld to be the law." In tqEl question asto the mll.ster's lien for wages under these Code this poult in the 'case of E. D. v. The Kate. From l;lotesof,the. taken by the late Judge HOFFMAN, it appears thf!t; the same argument was made in favor of the masteJ"S lhm ,!l!S was ma<:le in the present case; and,while the learned judge left 110 opinion on; file, it is s/lidthat he gave such oral intimations in favorqHhe)ien that it as the law, and the owner of the tug paid th,e lib,el In the caSe of John A. Wilson.v· . Trade,l argQell ,before me in February last, I endeavored to reconcile,thl'lcooflicting sectiqnft.pf ,the two Codes .by assuming that the. Coile ofOjvil"P,rpcedure would operate, according to its terms, infavor of all persons rendering services on board of domestic master, who was tllade the sub'steamers,vessels,and boats, ij ect pf a specilil:e;cluiJion b ter,gIs of section 3055 of the Civii Code. iIt appeared to ,me that, as tbeCodes,sre required tobe treated as having )been passed at the same.m'01llentof time, the presumption was that the :previsionsof alHhe Codes wereibtandedto operate, and to give effect of section .3055 of the 'to 'this presurnptio'n;l [Civil Code, declaring that the master had no lien for his wages, should ;be construed as an :exceptionto the general provisions of section 817 of ithe Code OiviIProcedure. ,But, in the argument of that case, my attention was· not called to the provisions of sections 5 of the Civil Code and Code of Oivil Procedure, .ahd the rule of construction based upon those sectionsj as has been done in thiscasej nor was my attention called to the case of ,Wheeler Vi The Kate. On the contrary, I was informed that it had not been the practice in this court to recognize the state statute as giving the masters lien for his wages, and, following what I supposed to betheestablished law of this district and the rule of construction just [email protected]
The opinion 1ntbia'csse was oral, and has not. been reported.
MCGILLIN t1. CLAFI.IN
(CirclJ/tt Court, N. D. Ohw. E. D. December
REMOVA.L Oll' CAUSES-SPECIAL ApPEARANCE IN STATB COURT-EFFECT QlI'REMOVAL. A nonresident defendant, who flies in the state court 0. special appearance, for
the purpose of objecting to the jurisdiction, and subsequently removes the cause to 0. federal court, expressly disclaiming in his petition for removal any purpose to enter 0. general appearance, does not by such removal waive the jurisdictional question, but. may renew the same, and have it determined by the federal court. In an action commenced in an Ohio court by attachment and garnishment proceedings. supplemented by publication of service, defendants, being nonresidents, entered 0. special appearance, as follows: "And now come the defendants, [naJ;1l(ng them,] for the purpose of tb.ifl motion only, and disclaiming any and all of entering an appearance to this action except for the purpose of this motion,and move the court for an order dismissing this action, quashing the process of garnishment herein and the service of notice upon them by publication, for the reason that this court has acquired no jurisdiction in this action of either the persons or the property of these defendants, or either of them, none of them baving. been served withsuminons herein, and no property belonging to them, or either of them, having been seized upon such order of attachment. and none of the garnishees named therein. or served therewith, .having property of these defendants, or either of them, in their possession or under their control, or being indebted to these defendants, or either of them, in any way. and these defendants being nouresidents of and absent from saidstatej and also move the quashing of said process of garnishment upon the further ground that the affidavit of the plaintiff filed herein was not sufficient to authorize the issuing of said process." Hefil, that this motion was not broader than that contemplated by the Ohio statute. and did not operate as 0. general appearance. Smith v. Hoover. 89 Ohio St. 249, followed. In an action in an Ohio court against a nonresident, commenced by the issuance of attachment and garnishment process, and supplemented by publication of service, the sheriff's return on the summons and garnishment showed that neither defendant nor any of his property had been found in the county. Each of the garnishees answered that be had no property or credits belonging to defendant. and these answers were not controverted by plaintiff, as allowed by the Ohio law, though sufficient time had elapsed for him to do so. Hel.d that, as the case stood, there being no personal service and no res to support the publication, defend.ant was entitled to a dismissal of the cause, on special appearance and motion therefor.
ApPEARANCE-SPECIAL A.ND GENERAL.
SERVIOlll BY PCBLICA.TION-RES TO SUPPORT.
At Law. On motion to quash service and dismiss the action. J. M. Jones amI Foran & Dawley, for plaintiff. Henderson, Kline & Tolles, for defendants.
RICKS, District Judge. This suit was instituted against the defendants in the court of common pleas of Cuyahoga count.}', Ohio, to recover the sum of $2,093,000, upon nine different causes of action. set forth in the plaintiff's petition. The controversy between the parties involves a large number of transactions growing out of the sale of dry goods, investment in cattle ranches, real estate, notes, accounts, and other choses in action. The suit was instituted in the state court on the 31st of March, 1892, by the filing of the petition and an affidavit for attachment. Summons for the defendants was issued on the same day. On the 11th of April, 1892, the summons was returned by the sheriff, "Defendllrllts not found in my Gounty." On April 1 th the sheriff returned t4e<;)];der of attachment, showing service and order to answer as such garnishee in the form provided by law made upon each of the insurance v .52F.no.8-42