l!-EPORTER, vol. 41.

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UNITED STATES

1).

THE SADIE

et al.

(Oircuit Oourt, 8. D.New York. February 11,1soo.)'

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29, 1888, § I, forbids, the depositing of any refuse mud, sand, or tidal waters oithe harbor of New York, or its'adj,aoent or tributary or in, those of Long lsland, sound, within limits prescribed by the lIl1pemaor ohhe harbor, and a penalty is prescribed therefor. 'Held, that the deof such refuse mud or sand hI: t):J.e channel of the Hudson river at a point , 60mijeil,from, the harbor is a violation of the provisions of the act, and punishable , thereunder. ' , ' , ,
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Act

, Ul'--CoN'STRU,OTION 0"8', BTATUTB.

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, " ,An 'omberidesignated fu act as snch supervisor, accordlng.to' the provisions of such act, bll\ued an order providing, that the deposits of, refuse mud, ,sand" al).d dredging take placeeast,of a qartain meridi,an of longitude, and south of a ,,:certain parallel oflatitnde. · B:eld,tha.ti this order prescribed the limitilwithin , matter might ,of the statute.:" '

,BAME'.

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f:':Appeal'ftortt,!l. Decree Of,the Distriet ,Cdurt ',sustainirtg exceptions'to find disrnissingalibel filed under act,ofJune 29, ,'. ·· 'Otl June 29, 1888, oongreS'B passed an aot entitled "An act to prevent obstl'uctave: and injurious deposits within the harbor and 'adjacent ters· of New' York! ,city, by dumping or otherwise, and to punish and prevent suob offenses. "'l'he first thereof provides as follows:

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dischl\rging, or depos'lting, by anyprooesB manner, qfrefuse, Ilirt, ashes,' cinders, mud, .saI.1d, dredgings, slu<lgeaoid, 01' any other matter :ofany kind. other than! that (lowIng from sewers, and passing,thetefromin a liquid state,'in thetidalwaterei of the harbor of New York, or its adjacent or tributary waters, or :inthose of Long :Island sound, with i n the limits which shall be prescribed by the supervisor of the harbor. is hereby strictly forbidden; and every such act is made a misdemeanor; and every person engaged in, or who shall aid, abet. authorize, or instigate, a violation of this section, shall, upon conviction, be punishable by fine or imprisonment. "
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By: the second section every master and engineer, or person or persons acting in such capacity, respectively, on board any boat or vessel, who shall knowingly engage in towing any soow, boat, or vessel loaded with any such prohibited matter, to any point or place of deposit or discharge in the waters ofthe harbor of New York, or in its adjaoent or tributary waters, or in those of Long Island sound, or to any point or place elsewhere than within the limits defined and permitted by the supervisor of the harbor hereinafter mentioned, shall pe deemed guilty of a violation of the act, and upon conviction punished as provided in section 1. Section 3 provides that in all cases of receiving on board of any scows or boats such forbidden matter or substanoe as herein described it shall be the duty of the owner or master, or person acting in such capacity, before proceeding to take or tow the same to the place of deposit, to obtain a permit from the supervisor of the harbor, defining the precise limits of

UNITED STATES.,. THE SADIE.

391

the discharge. Any deviation fronl the terms of such permit by owner, master, or engineer of such scows, or of the boats that tow tbem, is made" a misdemeanor,within the meaning of tbe act." Section 4 provides for the disposition of mud, dirt, dredgings, etc., taken, dredged, etc., from any slip, basin, or sboal in the harbor of New York, or waters adjacent or tributary thereto, and placed on any ljcow, etc., for the purpose of being taken or towed' upon the waters of the harbor of New York to a place of deposit. It requires thlj.t the same shall be · deposited and discharged at such place,or within such limits as shall be defined ,and specified by the supervisor of the harQor, as prescribed in the third section, to-wit, by the special permit therein prqvided f<;>rj and prescribes a penalty for the. violation of its provisions. . The section also provides that "any boat or vessel used or employed in vi.. olating,any provision of this act .shall be liable to the pecuniary penalties imposed tbereby,and may be proceeded againstsummarjly, by:w.ay of libel, in any district court of the United StP,tes hllving jurisdictio\l thereof." By the next section it il3 prqvided that a line officer of t\l,E) navy shall be designated to act as supervisor oithe harbor. Such' cer, hav.ing been designa.ted,published the following: ., r I
"OFnCEOF THE, ARMY BUILDING,

39 'WHITEHALL

HARBOR OF NE'f STREET, NEW YORK CITY."

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"By vIrtue of the al; tllOrtty vested me as supervisor of the' harb<!r York;, the following limits for the deposit of material are prescdbelf. ilB' prOVided in the first section of the foregoing act: The deposit of refuse,' dlrt,ashes, cinders, m'ud, sand, dredgings, sludge acid, or matter of any kind, 6tlietLhan:tbat flowing from streets or sewers. and passing therefrom io',a !iq'uid state, must take place east of the meI'idian 73 q 55'56" passes through the, Scotla,nd light-ship,) and 9f parallel 40Q ay When stone, eartb. sand, ashes, or other,il}offensive lOa-terial,are requir:edtQ fill bulk-heads, reclaim land, or any material cart be properly disposed df. at points other than those speel:tl permits ll1ay be granted. ViOlations of the'foregoingact 'can be reported: to this ottice,where informatidnrelating to the movement arid ,deposit:ef mitteria.l will be furnished.' "JACOBJ. HUNKER,. Lieutenant U. S.Navy, Supervisor.""

1889, in the libel, the employed in towing'from the basin 01,' ahQal at the . coal d9Cks at Newburgb,.N. Y.,to thechanpel,ofthelNqrth (or Hudsc:m)river, oppositlil Newburgh,eertain scows, boats, contajninga large quantity!of mmi and ,. other matter, ,. (not .sewage or a liquid state,) dillcharged the same. "Ne,wbllrgh is .situated .onthe HupSl:lp river, about 60 miles fromNew,York.T1W tide .risesand falls in suoh river: up, to the state dazpat Troy miles above Newburgh. Complaint being ma(,ie, tpe distrjQf libeled the. tug in, the district court. The Ii bel contained four causes of action"Jor more pf.9perly ,four Setting )orth, secQnd, third, and fourth, sectiona, ,and claiinjng separate penalties· therefor. of the tug excepted, to the
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On

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libel,' itliEi Were sustained by the district cQun, tnen't appealed;,!! ; , :' , " ""'J', ' EdwardMUchetfU,S. Atty.\ and: Abrat'l'liJ.Rose,Asst"U. 8. Atty. ;Alexander «Ash,,: fordlaimants. ::) , ', , ,
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,L'ACOMBE,J'.', :(ajtentlUing theJact8 aaaodDe,) ,But Bsingle offense was cont¢ltted by the tug,and there dQnbei.recovered, if at all, but one pen:lilty therefor. It "will, bEl' unnecessary to consider, therefore, any action other than the one :Set out ,under the first section, , .I(the vessel cannot be fou:nd in fQultunder the broad language of this sectioti;'iit certainly Cllnnot be so'held; any of theothersj and, if aViola:tieD: of the first section can be shown, the penalty will be enforce.. able, a'rid,no'inquiry into, any alleged viola.tibnof the other eections will be necessary'or profitable. On 'behalf tug, it is contendedJilirst,' that' the acts cornplairledof were not committed' in w.aters adjacerit 01' tributar-y lathe harbOr of New ¥-ork, !withinthe meaning of those Words ,in the, act;<tlnd l s8condl;9, 'that the su perVisQr of the har. bot htuHiever' prescribed thelhnits withinwhich, material'shall not be dumped, and that, therefore;, the p1'Ohibition of the statute: has never

ofthe'watiersw\th the 'act ta.concerned-a in iheflrst to bedrawn with great carEl. forth and' clearly just what area is the of llse(!is; the tidal,waters of the oritsql\9jacentor trib,\ltary waters, in those of Long IslantL !sound." This lftnguage seems, too plain to for construe-The bodies of wa,ter' referred ,to are (a) the harbor of New York, (b) waters adjacent to ',of New 'York. (0) wafurstributary to ork, ' (41 !pug 'Island: i and as to each of these wat.E!f. there is a, of the;",pIllication. of a,6t to such A!I:tQtQis it is to be noted that it covers not only the harbor proper, but:also by ,which commerce reaches'that harbor ,and it covers aU such as are tidal. That, qho!1e this Ill-nguage wit,ha full appreciation of its meanirlg, and of"fue' geographical!situation be deaU with,'rsplain from the referel)ceto l-ong Island j 'This: batty Of wl1terwould not be incltidedwithin;'tht:l' threegenetalenuil"iemtions, (a" b ,c, '8upra.) It is not lidjacentto thff'harbor of 'New York, 'as the' tespondentargl1es. Apart df the Eastri\ier ,is tnchlded' 'within that harbor.:' but that river runs be.. ·neck' ahd . where the The 'words,!11adJacent 'to"' wol1hl therefore' cover (to the eilstward) East river, 'ahd to britigLong ISland, sound 'within fhWprdviSidqIJ tiC tIle wiA$neceesary'to'nameit."':c'/ artument.as to the statute Stf cafuprehel1sive 1!' 'oon<l'emIiutiOil :oftiots'the! doing,of which work n6 harm tb''(fiJ httrbor. could, c6ngress Thelegislation isct>ncernedwith a,great

or

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#ater-,ways through which app.roaep.\lS it.)t may well thatcongresa was satisfied that the,oQ!y way to preserve :thenfwRs,hylegislation'ota drastic!character, the deposit b'f any foreignsuDstance therein, to, such extent as a,lo<;lltl otlieer:charged with ,permit. At any rate, there is no obscurity in the languagelused" such j,s expressed by Judge WALLACE, delivariag the OpiIli()Il: of ,this court,,in u. s.: 'V.: '(JhlUch o.rthe Holy 'lh'nity, '36: Fed;. Rep. ' the terms, of areptain:,unainbiguous,andexplicit,ihe liberty to go outside anbe ianguage, to search for ·a mea-Ding which reasonabltt"bear, in tbeeffort to ascertain and give ,1;0 whatinay be imagined to bave, been or nat to gress.Whenever the will ,of congress is and lllngullge.thl\t followed, aud J:eltOrttp,lWeGulll,tIons,of nor even.to the views of members of reaSOll8 mbdffytlte statiute:JU. B;v. Ra,;Ctoad, qo., 91'11. s. ',',,' ' , : ,,'" . ,. , "", ,;,

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further qf never prescribed the limits within which refuse material, etc., shall not be dumped, and that, therefore, the prohibition of the first section of the statute has never become operative. It is to be noted, in the first place, that congress has confided full power to the officer to fix lim. its for the dumping or deposit of material. That the designation of a line coincident with high.water mark of the waters named in the act, as the limit within which dumping should not be allowed, would be within the power conferred by the act, is not disputed. With the exercise of such discretion the courts have nothing to do. That the designated officer has, by a hasty order, made the first section operative over flO extensive an area, when in fact fluch extension was unnecessary and works great hardship, is not to be inquired into here. All we have to do is to see if the act and the order, taken together, have prescribed such limits as will make the acts which the avers it can prove against the Sadie a violation of the provisions of the first section. Such modification of the limits as may be necessary and proper can, no doubt, be obtained, but this court is not the place for that application. In the next place, it is to be noted that, under the statute, it is not the supervisor of the harbor who is to prohibit dumping, etc., in the tidal waters named in the act. The act itself prohibits such dumping, "within the limits which shall be prescribed" by that officer. These limits which he is to prescribe are the lines or boundaries on one side and the other of which, respectively, such material may and may not be dumped. The order made py him designates two lines, running, one north and the other west, from a point at the intersection of the merid. ian 73° 55' 36" W., and the parallel 40° 31' N. To the east and south of these lines it is expressly fltated that the deposit of refuse material (repeating the phraseology of the first section) must take place. Why these lines are not thus made the limits of dumping within the meaning

'4dO
'to

'J'JlD;ERAL 'REPORTER,

vol. '. 41.

of the act,. I am at· i1 loss to conceive." Up to them all such material is it is not to be deposited. The limits being' t'htis nxe&, the first section becomes· operative,and 'persons or vessels 'depositingstlch'material within these lines, upon the waters :enull.lerated inthe'act, become liablet<> the penalties prescribed thereby," Undoubtedly,b'y fixing the limits so far out to sea,the section,beco:m.es operative all the tidal watersnallled therein, without exceptit)ll., (save, perhaps, in the case of -special permits,) but such result"is within the of the act,' if it operates the court cannot afford :l!eUef.Tbe decision of the ,district court sustaining the e:x:c:eption to the ,nrst:,bauseof action is reversed, and the" exception The de·cisio'fl Of' the district :court as to the second, third, and fourth causes of " respondent did not on the argument object of failed tq ,set'10rth, the limits'pr,escribed. It sho:uld,d9 so, _ the langullge, used in,tM ,second cause pf action. The ill district attorney may serve an amended' lihel; in accordance withtbis decision, within five days, and respondent may have the' 'usual time to .8.1'llnveitbe 8llrne. No costs of 'either court to either party on this appeal· . ;,

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ITEPHENll

tI.

BERNAY&. .

S'1'EPHENS Co,urt, E. D.

1.

tI.

E. D. February 24. 181lO.)

BANKS.

Uiider Rev. St. U. S. § 568, 'subd; 4, which the district oourts jurisdiotion of "all suits at common law brought by the United States, or by any otncer thereof, authol,'ized by law to sU,e "tbedistrictcourt has jurisqiction ohn action to enforce the liability of a stockholder iii an insolvent national bank, brought by the receiver appointed for the baUk 1>; thacomptroller of,tbe o,un:ency. 2. , " ' , "', .',' . , ." SUll!:tjunsdiotion is not talten away by Aot U. S. july 12, 1882, § 4, and Aot U.S. Aug. tll, 1888, § 4, which take away the specialjurlsdiction of the district courts in which a natipnl101 is a party. .

':.' F!lDlliBAL COURTS-JURISDICTION;-:-RECEIVERS OJ'

So

Under Rev. St. Mo. 1889, § '190, whioh provides that demands against the estates 'ofdeeessed persons may'be established by of 89me counof in tjlle Yjay, and. by cOPyof.suoh judgment to the probate court, the feaetal oourts iil MisSOuri have jurisdiction Of.uits Westablish suoh demands·

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Abttonby Lon V. Stephens, receiver of the Fifth National Bank of St. against TheklaM.Bernays,executrix of George J. Bernays, deceased..' Act U. S. July 12, 1882, § 4, provides that "the jurisdiction fOl'saits hereafter by or against any association established underauylaw providing for national banking associations, except suits between,them and the UnitedSta.tell,or its officel'$ and agents,' sball :be 'the sam'tUS * * * tbejllrisdiction for suits by banks not orgarlized t:tnder any law of the United States." Act U. S. Aug. 13, 1888', § 4, provides that "all·national bll.nkingassociations * * * shall; for the purposes ofllll actions by or against them, * * '" be deemed-citizens of the states in which they are respecti\Yely located, and ID!Bti,eti C8sesthe circuit :and' district courts shall not have jurisdiction otherthan such as they would have in caSes between individual citizens of the same state." George D.Reynolda, U. S. Dist. Atty., for plaintiff. H. A. Loevy, for defendant.
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.AtLaWi

This is an action by the receiver of a national bank, duly order of the comptroller of the currenqy pursuant to the natloft'iil banking laws ofthe United states, and the suit is brought to enforce a liability on 35 shares of stoCk in the insolvent bank, whicb the testator owned at the time the bank .became jnsrlvent. A plea to the jurisdiction of the court has been filed by defendant's counsel. It has several times been held, after mature consideration, that a receiverappointed by tbecoplptroller of the currency to Windup the affairs ()f an insolvent. national b/lnk is an officer, of the United States, and that a suit of this character, brought by such receiver to enforce the liability ora stoCkholder in a national bank, is a States district courts, have jurisdiction of such suits, by subdivision 4 of section,. 563, nev.St. U. S., whichgi,ves the district courts juril;diction of ',' all suits at common law brought, by the v .41F.no.7 -26

THAYER, J.