author: ATWELL, District Judge.

text:
    UNITED STATES v. LAZENBY.
    (District Court, N. D. Texas, Dallas Division.
    June 3, 1925.)
    1. Equity <§=>363 — Motion to dismiss waived by answer containing same defense.
    When a motion to dismiss and an answer are filed at the same time, if their scope and effect involves the same defense to the bill, the answer amounts to a waiver of the motion.
    2. Internal revenue <§=>28 — Bill to recover income tax held not subject to motion to dismiss.
    A bill by the United States to recover income tax assessed against a corporation, filed more than five years after return made by the corporation, but alleging that such return was “incorrect, misleading and false,” will not be dismissed on motion, as barred under Revenue Act 1924, §§ 277, 278, but the question of limitation will be deferred until evidence is heard as to the facts of the return.
    3. Internal revenue <§=>28 — Limitation of action to recover income tax not extended by dissolution of corporation.
    The dissolution of a corporation liable for income taxes does not extend the time to bring suit for their collection, as limited by Revenue Act 1924, § 277, where under the laws of the state such dissolution does not interfere with the bringing of the suit.
    In Equity. Suit by the United States against R. S. Lazenby. On motion to dis-. miss bill.
    Denied.
    Coke & Coke, of Dallas, Tex., for the motion.
    N. A. Dodge, Asst. U. S. Atty., and Henry Zweifel, U. S. Atty., both of Fort Worth, Tex., A. W. Gregg, Solicitor of Internal Revenue, and Mark H. Adams, Sp. Atty., Internal Revenue Department, both of Washington, D. C., opposed.
   ATWELL, District Judge.

The bill alleges that the Dr. Pepper Company, a corporation, was dissolved on December 15, 1920, at which time the defendant, R. S. Lazenby, was the sole and only stockholder; that prior to the dissolution and dissipation of the Pepper corporation assets, it, the corporation, had on May 7, 1919, filed a corporation income profits tax return for the calendar year 1918, “purporting to be a true and correct statement of the gains, profits, and income from all sources received by or accrued to said company during the calendar year ending December 31, 1918”; that it showed a net income of $1,802.58; that such return was “incorrect, misleading, and false,” in that it should have shown a net income of $12,802.58; that the Commissioner of Internal Revenue upon additional information and facts directed a review and audit, and ascertained that the tax due by the dissolved corporation was $3,550.15; that by reason of the dissolution and distribution of all of the assets and property of the said company to the defendant, sole stockholder, the company was left without money, assets, or property of any kind with which to pay the tax that was due to plaintiff; and that the defendant received such money, assets, and property charged with a trust in favor of the plaintiff to the extent of said due tax. The bill prays that the court decree that the corporate assets that passed to the defendant constitute a trust fund for the payment of such taxes, and that the defendant shall account to this court therefor; that the defendant be held accountable to the plaintiff for the taxes to the extent of the assets received by him, etc.

The bill was filed on the 5th day of August, 1924. On November 28, 1924, the defendant filed a motion to strike and an answer. That portion of the Revenue Act pertinent to the five-year limitation provides:

“The amount of income, excess profits, and war profits taxes imposed by the * * * Revenue Act of 1918, and by any such act as amended, shall be assessed within five years after the return was filed, and no proceeding in court for the collection of such taxes shall be begun after the expiration of such period.”
“In the case of a false.or fraudulent return with intent to evade tax, or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.”

Revenue Act 1924 (43 Stat. 253), part of sections 277 and 278.

1. When, in a court of equity, a motion to dismiss, in the nature of a demurrer, and an answer, are filed at the same time, if their scope and effect involves the same defense to the bill, the answer amounts to a waiver and an overruling of the demurrer, Bryant Brothers Co. v. Robinson, 149 F. 321, 79 C. C. A. 259; Sage Land & Improvement Co. v. Ripley, 192 F. 785, 114 C. C. A. 339; Board of Levee Commissioners v. Tensas Delta Land Co., 204 F. 736, 123 C. C. A. 40; equity rule 29. The motion to dismiss and the answer were filed on the same date, and the question of limitation is presented in the answer as well as in the motion.

2. Let us overlook, for the purpose of argument, the improper method of filing the motion and the answer. The face of the bill shows that the return that was filed by the corporation on May 7, '1919, was “incorrect, misleading, and false.” Overlooking, also, that tight-laced line of technical cases which hold that the chancellor may not look to any part of the reeord to ascertain when the suit was filed, unless it appears on the face of the bill, we come at once to the larger and more important question. Do the words “incorrect, misleading, and false” mean the same as either “false” or “fraudulent”? If so, section 278, quoted above, saves the suit from any limitation bar. Courts have written somewhat about these phrases. In Eliott National Bank v. Gill, 218 F. 602, 134 C. C. A. 358, the Circuit Court of Appeals for the First Circuit thought that an “incorrect” return would be a “false” return, but might not, necessarily, be “fraudulent.” The Eighth Circuit, in National Bank v. Allen, 223 F. 478, 139 C. C. A. 20, viewed the question in the same way and held that “the full purpose of the law and the rights of all parties may be preserved by construing the word [false] broadly enough to include a return which was made in good faith, but incorrect.” See, also, Seaman v. Bowers (C. C. A.) 297 F. 371, second circuit.

But, if a taxpayer renders a return that is “false” or “fraudulent,” with the intent to evade the tax, the government can proceed in court at any time. In view of the allegations of the bill that the return made by the corporation was .“incorrect, misleading, and false,” I believe it to be the safer procedure to hear the evidence. Beam v. Hamilton (C. C. A.) 289 F. 9; United States v. Updike (D. C.) 1 F.(2d) 550; United States v. Scudder (D. C.) 2 F.(2d) 632.

The allegations are sufficient to show that the taxpayer did not make the return in the proper form, and did not finally and fully disclose all of the information necessary to enable the Commissioner of Internal Revenue to determine the true tax liability. The duty of doing so is clearly imposed upon the taxpayer. If that was not done, the taxpayer should not be permitted to take advantage of his own wrongful act, especially if the return he does make is “incorrect, misleading, and false.”

3. The government maintains that the running of the statute may be suspended by causes not mentioned in the statute itself, as when a corporation, by voluntary dissolution and distribution of its assets, prevents either summary collection of a tax, or service of legal process, the running of the statute should be not merely suspended, but should be forever prevented. Reliance is placed upon the well-known case of Braun v. Sauerwein, 10 Wall. 218, 19 L. Ed. 895, and the following cases: Tax Collector v. Hubbard, 12 Wall. 11, 20 L. Ed. 272; Cheatham v. U. S., 92 U. S. 90, 23 L. Ed. 561; Amy v. Watertown, 130 U. S. 323, 9 S. Ct. 537, 32 L. Ed. 953; Bauserman v. Blunt, 147 U. S. 657, 13 S. Ct. 466, 37 L. Ed. 316; Devereaux v. Brownsville (C. C.) 29 F. 751; Brockway v. Oswego (C. C.) 40 F. 615; Muse v. Arlington Co. (C. C.) 68 F. 649; Jackson v. Fidelity Co., 75 F. 365, 21 C. C. A. 394; Alice E. Mining Co. v. Blanden (C. C.) 136 F. 255; Collier v. Goessling, 160 F. 611, 87 C. C. A. 506; In re Lee (D. C.) 171 F. 267; Irvine v. Bankard (C. C.) 181 F. 212; Hubbard v. Worcester Art Museum, 196 F. 873, 116 C. C. A. 433; Irvine v. Elliott (D. C.) 203 F. 112.

The reason of the rule in the foregoing cases is found in the sensibleness of the idea that, whenever the ability to sue is suspended temporarily, such suspension time should be deducted from the limitation period. A dissolved corporation in Texas does not bar the government’s right to collect the tax. Under the Texas statute (article 1206, R, S. Tex.) the president and directors, as managers of the corporation, “by whatever name they may be known in law, shall be trustees of the creditors * * * of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders after paying the debts due and owing by such corporation at the time of its dissolution,” and the existence of the corporation may be continued for three years after its dissolution for the settlement of its affairs. Article 1208 of the statute also provides for the bringing of a suit against any of the stockholders at the time of dissolution without joining the corporation, and they will be liable for any judgment rendered, etc.

That the instant suit is not against the original taxpayer, but is at equity against a person who received all of the assets of the taxpayer, must not prevent a reasonable view of the statute of repose which Congress evidently intended. The language of the statute is that “no proceeding in court for the collection of such taxes shall be begun after the expiration of such period.” Certainly there can be no other object in -the present suit. It is for the collection of a tax. While I do not think that a narrow construction of the statute should be made, I am of the opinion that the first two criticisms of the motion to dismiss are well taken.

The motion is denied, and an order will be drawn accordingly.


source: Caselaw Access Project

author: SYMES, District Judge.

license: Public Domain

text:
    GEPFORD et al. v. BURGE.
    (District Court, D. Colorado.
    May 16, 1925.)
    No. 7775.
    Vendor and purchaser <@=»I30(6) — “Good and merchantable title” to realty conveyed held not shown.
    Where title records showed conveyances by J. C. Miller, John F. Werner, and L. D. Sergeant at times when Joel C. Miller, John Wer-ner, and human D. Sergeant, respectively, held record title, and there was no evidence as to identity of such persons, held, “good and merchantable title” was not shown; such title being one not subject to such reasonable doubt as would create just apprehension in mind of reasonably prudent person, one that persons of reasonable prudence, guided by competent legal advice, would be willing to take and pay the fair value of land for.
    In Equity. Suit 'by Samuel F. Gepford and W. J. Moss against Pearl F. Burge. Decree for defendant.
    Frank B. Goudy and Frank L. Ross, both of Denver, Colo., for plaintiffs.
    T. E. Munson, of Sterling, Colo., for defendant.
   SYMES, District Judge.

This is an action brought by the plaintiffs to recover the balance of the purchase price due on a contract for the sale of certain real estate, consisting of 320 acres in Phillips county, Colo., or to recover the possession thereof. J. L. Magill and Frank Nelson, the predecessors in title of the plaintiffs, made the contract, dated March 5, 1920, by which they agreed to sell the land in controversy to the defendant, in consideration of certain payments to be made by the defendant. The said Magill and Nelson agreed to sell and convey by “a warranty deed and a good and merchantable title,” for $27,200, $11,000 as a down payment, $10,200 on March 1, 1921, and $6,000 to be represented by a mortgage on the premises. The defendant went into possession and failed to make the payment due March 1,1921, and the time of payment was extended to September 1, 1921.

On March 21, 1921, defendant paid $612 interest in full on the contract to that date. On September 1, 1921, by agreement among the parties, the time for final payment was extended from September 1, 1921, to September 1, 1922. Magill conveyed his interest to one Nelson and one Severns, subject to the contract of purchase outstanding.

On the 27th of March, 1922, defendant wrote to Nelson that he could not see his way clear to pay the balance of the $10,200 On the contract; that the land was not worth it, and, unless he could get enough discount for cash, he would have to let Nelson take the land on September 1, 1922. Again, on" April 1, 1922, defendant wrote Nelson, advising him that he would rather lose the amount already paid than to put any more money in the land.

On August 22, 1922, defendant and Nelson and Gepford, who had now acquired the interest of Severns in the property, entered into an agreement in writing extending the time of payment of $7,200 to September 1, 1923. Thereupon the defendant paid $3,000 on principal and $1,200 on interest. On August 17, 1923, defendant wrote to Nelson, asking for further time to pay the final payment due on September 1, 1923, and again on February 7, 1924, defendant requested further time to pay the balance due.

On February 23, 1924, defendant wrote Nelson that, because he had failed to tender deed and abstract for a period of three years, defendant had become suspicious of the title, and that he had obtained an abstract himself, had it examined, and secured an attorney’s opinion that the title was no good; that he had elected to rescind, and would return the land upon the payment to him of the $14,000 he had paid and interest, less the rents and profits of the land while he was in possession.

The plaintiff thereupon brought this action to require the defendant to accept a deed to the property, and to pay the balance due, or to deliver up possession of the property. The trial was to the court without a jury, and the plaintiff and defendant agreed that title is as shown by the abstracts put in evidence, but disagree as to the legal effect of the entries. Formal proof of original instruments was waived by the defendant, and the plaintiff admits that the alleged defects are correctly set forth by the abstracts of title. There is no question but that the defendant breached his contract, and that the plaintiff is entitled to the relief sought for, were it not for the defects which it is claimed make the title tendered doubtful in its character, and “hot good and merchantable.”

Counsel for the defendant has pointed out at great length many technical flaws that appeared in the abstracts, but most of them are without merit, and the only ones that require consideration are as follows:

To the northwest quarter of section 15, township 7, range 45: At entry No. 7 of the abstract there appears a warranty deed from.J. C. Miller; Joel C. Miller took title by patent. At entry No. 41 on the abstract, John Werner took title. At entry No. 42 John F. Werner conveyed.

To the southwest quarter of section 15, township 7, range 45, Luman D. Sergeant obtained title by patent. At entry No. 4 on the abstract L. D. Sergeant conveyed. At entry No. 24 on the abstract John Werner obtained title. At entry No. 25 John F. Werner conveyed.

The real issue, therefore, is whether the abstracts show “a good and merchantable title.” A marketable title has been defined as being:

“Á title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to.take and pay the fair value of the land for.” Eggers v. Busch, 154 Ill. 604, 39 N. E. 619.

“The well-established rule that a vendee contracting for a good title is entitled to demand and receive a marketable title has been adopted by the courts to protect him from such defects only as would cause a prudent and cautious purchaser to entertain a just -apprehension of future trouble. It was not adopted to arm and equip the vendee with a sword of defense, in the form of technical and unsubstantial objections, to aid him in escaping liability in the event of his desire to avoid the obligations imposed upon him by the contract into which he has voluntarily entered.” Summy v. Ramsey, 53 Wash. 93, 101 P. 506.

Are the defects pointed out above merely capricious, frivolous, and astute niceties, or are they such as would induce a prudent man to hesitate in accepting a title affected by them? There was no evidence affecting the title introduced outside of the abstracts of record. I will consider first the deeds made by J. C. Miller and L. D.. Sergeant. Do they convey property standing in the name of Joel C. Miller and Luman D. Sergeant?

Names are the only marks and indicia which human kind can understand each other by. In Skelton v. Sackett, 91 Mo. 377, 3 S. W. 874, there was an action in ejectment. In proving title it appeared there was a patent to Quinces R. Noland, and that a tax judgment had been entered against Q. R. Noland. The court held that this was not sufficient evidence that publication on which the deed rested had been notice to Quinces R. Noland. In Bennett v. Libhart, 27 Mich. 489, the plaintiffs sued on a judgment purporting to be in favor of H. F. Libhart. His true name was Henry Y. Libhart. It was held that: “It will not be assumed as a legal presumption that, where the family name and initials are the same, there is identity of person; and therefore Henry Y. Libhart is not entitled to recover in an action upon a judgment in favor of H. Y. Libhart, without any proof of his identity with the plaintiff in such judgment.”

Considering now the objection to the conveyance from John F. Werner, where it appears that the title stood in John Werner, can it be said without other proof that there is identity of the person? In Gibson v. Foster, 24 Colo. App. 434, 135 P. 121, the court considered a case where there yas a decree quieting the title' to land, based upon publication of the summons against A. L. Dele-plane. Albert S. Deleplane had received a patent. The court held there was no presumption as to identity, and said, at page 436 (135 P. 121):

“The middle name or initial in a person’s name has become quite material in modem times, especially aá a distinguishing identification of the ‘ person. Many persons now have the. same Christian or given name, and the same patronymic family or surname, and it is by the middle name or initial only, in many instances, that the person may be distinguished or .identified in writing.”

In Ambs v. Chicago, St. Paul, Minneapolis & Omaha Railroad Co., 44 Minn. 266, 46 N. W. 321, the court considered a case where William H. Brown held title. William B. Brown conveyed. The court held there was no. presumption as to the identity of the persons, and said, at page 270 (46 N. W. 322):

“But while, under many circumstances, it has been held that a middle initial in the name of a person will not be deemed a material part of his name, it is a matter of common knowledge that very many, and perhaps at this day most, persons bear a double, or more than one, Christian name, and that in the writing of the name one of these is very commonly indicated merely by its initial letter. The use of such initials, in addition to a full written Christian name, is the most common means by which, in all the affairs of life, persons bearing names otherwise the same are distinguished. In judicial proceedings involving and determining questions of title this should not be ignored. Taking this ease as an illustration, the title of land shown or admitted to have been formerly in William H. Brown does not prima facie appear to have been transmitted to the plaintiffs by proof of a deed to them executed by William B. Brown, and upon that bare fact the title to real estate, the same being in issue, should not be finally adjudicated to be in a grantee from the latter-named person. » -s jn vjew 0£ facinty with which the title or the rights of any person appearing upon the public records may be apparently transferred and divested by a deed or other instrument executed by any person bearing the same name, the question of identity of person becomes one of the highest importance when title is in issue and to be adjudicated, and when, at least, any circumstance appears casting a reasonable doubt upon the identity of persons upon whose identity the title depends, we think that identity is not to be presumed merely from the identity of names.”

It may be that J. C. Miller and Joel C. Miller, John Werner and John E. Werner, and L. D. Sergeant and Luman D. Sergeant are one and the same parties, but there is no evidence of that fact.. I am therefore of the opinion that the title tendered is not free from reasonable doubt, and is not of the character called for by the contract. It necessarily follows that the purchaser cannot be compelled to perform the same.

A decree will therefore be entered for the defendant.


author: PER CURIAM.

text:
    DELAWARE & HUDSON CO. v. UNITED STATES.
    (District Court, S. D. of New York.
    May 26, 1925.)
    I. Constitutional iaw <@=>62 — Congress, having declared 'rule that railroads may be required to install automatic train-stop and train-control devices, may leave application to Interstate Commerce Commission.
    As general proposition, Congress cannot delegate legislative power to Interstate Commerce Commission, but may delegate to that commission application of general rules legislatively prescribed to particular situations, and held, Congress, by Interstate Commerce Act. § 26, as added by Transportation Act 1920, § 441 (Comp. St. Ann. Supp. 1923, § 8596b), having described rule that railroads may be required to install automatic train-stop and train-control devices, may leave application of it, consisting of choosing railroads and devices and laying down specifications and requirements, to Commission.
    2. Railroads <@=>23 ( — Order of Interstate Commerce Commission, requiring automatic train stop, held not based on insufficient investigation.
    That order of the Interstate Commerce Commission, requiring railroad’s installation of automatic train-stop and train-control devices, and accompanied by long and fact-finding report or opinion, did not refer to complaining railroad by name, held not to excuse railroad from compliance with order, on ground that Commission’s action was based on insufficient investigation of petitioner’s needs and requirements.
    3. Railroads <@=»23l — Interstate Commerce Commission’s order, requiring automatic train stop, not invalid as requiring expenditures for experimental purposes.
    Order of Interstate Commerce Commission, requiring certain railroads to install automatic train-stop and train-control devices, held, not invalid because it amounted to requiring railroad to expend capital for experimental purposes.
    4. Railroads <@=>231 — Railroad held entitled to two years within which to comply with order of Interstate Commerce Commission requiring automatic train stop.
    Under Interstate Commerce Act, § 26, as added by Transportation Act 1920, § 441 (Comp. St. Ann. Supp. 1923, §• 8596b), authorizing; Interstate Commerce Commission to require railroads to install automatic train-stop and train-control devices, such order to be issued and published at least two years before date specified for its fulfillment, and Interstate Commerce Act, § 16a, as added by Act June 29, 1906, § 6 (Comp. St. § 8585), authorizing Commission to grant rehearing, and reverse, change, or modify an original decision, where commission, after ordering installation of automatic train-stop and train-control devices, which should be independent of any manual control, on rehearing, more than a year and a half later, modified order to permit use of devices changing element of manual or en-gineman’s control, held, railroad could not be put in default for failure to comply with such order until two years after date of its modification; modified order constituting new order.
    In Equity. Suit by the Delaware & Hudson Company against the United States, wherein the Interstate Commerce Commission intervened. On motion for preliminary injunction.
    Motion granted in part.
    Motion for preliminary injunction suspending and restraining the enforcement, operation, and execution of three separate orders of said Interstate Commerce Commission, dated, respectively, June 13, 1922, December 26, 1922, and July 18, 1924, all relating to the installment of automatic train-stop or train-control devices upon the lines of petitioner and other common carriers. The petition herein having been verified December 30, 1924, an order to show cause why preliminary injunction as above stated should not be granted was obtained January 2, 1925, returnable January 15, 1925. By consent of parties, hearing was had March 27, 1925, at which time petitioner filed pertain affidavits in support of its motion. Time was given to respondents to file answering affidavits, if desired, but on April 3, 1925, respondents notified the court that they would not answer said affidavits.
    Uneontradieted facts are that, by Transportation Act 1920, § 441 (41 Stat. 498, 499), section 26 of the Interstate Commerce Act was added and made to read as follows: “That the Commission may, after investigation, order any carrier by railroad subject to this act, within a time specified in the order, to install automatic train-stop or train-control devices or other safety devices, which comply with specifications and requirements prescribed by the Commission, upon the whole or any part of its railroad, such order to be issued and published at least two years before the date specified for its fulfillment.” Comp. St. Ann. Supp. 1923, § 8596b. For failure to obey such an order a penalty of $100 for each day of refusal or neglect is imposed by the same section.
    By section 16a of the Interstate Commerce Act (as added by Act June 29, 1906, § 6; 34 Stat. 592, 593 [Comp. St. § 8585]) it was provided that, after a decision, order, or requirement has been made by the Commission it shall be lawful for the Commission to grant a rehearing, and if after such hearing it shall appear that the original decision, etc., was unwarranted, “the Commission may reverse, change, or modify the same accordingly. Any decision, order, or requirement- made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order.”
    For a considerable number of years, beginning at least as early as 1907, various boards or investigating authorities were busied in studying the subject of train-stop and train-control devices. It was after years of such investigation that the powers contained in the above-cited section 26 were granted by Congress to the Interstate Commerce Commission, which continued investigation and experimentation of and concerning the devices mentioned. All these devices amount to some scheme 'of automatically stopping or slowing a power-driven train of cars, when it moves at all or moves too fast on a section of track on which any movement or such speed is by prearrangement of signals forbidden.
    Known and existing devices of this nature may be subdivided into several classes, but the classification important here is that a train-stop system may be completely beyond the control of the engineer of the train or of any operator along the right of way. If so arranged, it stops or slows the train, if the prearranged conditions exist, automatically, certainly, and unchangeably, if it works at all. Such a system is spoken of as one “without manual control.” But the same system may also be so arranged that the engineman, knowing that he is approaching a portion of track where a stop or slow system is established, may forestall the operation of the system upon his train, in which ease he will pass the place where the stop or control system is installed without any interference with the speed of his train, other than that entailed by attention to various and usual signals.
    The Commission’s order of June 13, 1922, directed that a large number of carriers, including petitioner, should upon certain specified portions of their tracks install a train-stop or train-control device, and make such installation on or before January 1, 1925. This order, made under the provisions of section 26, supra, sets forth the “specifications and requirements” prescribed by the Commission, and they are given wholly in terms of result or function; i. e., the various carriers, which are instructed under penalty to put in some system, are only told to produce certain results by whatever system they install.
    A study of these “specifications and requirements” shows that the carriers were given 2x/% years within which to make up their minds as to what device they would choose, and there were a considerable number of devices that they might choose from that would come within the limitations imposed by the Commission, but one thing that they could not do was to put in any system that was subject to manual control by the engineman. The order of June 13, 1922, was accompanied by a long and fact-finding report or opinion, and this question of manual control is treated at length. In this report or opinion. the Commission concludes flatly that it will not permit any system to be installed subject to manual control.
    By the order of December 26, 1922, this petitioner procured a change of that part or section of its road which was to be equipped with a train-stop or train-control device, and by the order of July 18, 1924, the Commission decreed that upon further consideration of the record it excused a very considerable number of carriers from complying with the order of 1922, and then changed or modified said order by specifically permitting the introduction of automatic train-stop devices “under control of the engineman, who may, if alert, forestall the application of the brakes by the automatic train-stop device, and control his train in the usual manner in accordance with” the operating rules of the company. Thereupon this petitioner petitioned the Commission for relief from said orders and all of them. The Commission denied any relief on December 30th, and thereupon this proceeding was begun, as above indicated.
    Walter C. Noyes and H. T. Newcomb, both of New York City, for petitioner.
    Blackburn Esterline, Asst. Sol. Gen., of Washington, D. C., for the United States.
    P. J. Farrell and R. Granville Curry, both of Washington, D. C., for Interstate Commerce Commission.
    Before HOUGH and HAND, Circuit Judges, and BONDY. District Judge.
   PER CURIAM.

The issues presented by this motion may be summarized thus:

(a) Section 26 of the statute is an unconstitutional attempt to delegate legislative power.

(b) The action of the Commission was not based upon any special investigation of petitioner’s needs or requirements and was therefore arbitrary.

(c) The orders really do no more than require petitioner and others to experiment at their own charges with devices of an untried nature and doubtful utility.

(d) The order of July 18, 1924, was in substance a new order with new requirements, and the Commission had no power under the statute to require compliance with that order within less than two years from its date.

(a) No one doubts the general proposition that Congress cannot delegate purely legislative power to a commission. Interstate Commerce Commission v. Goodrich, etc., Co., 224 U. S. 194, 32 S. Ct. 436, 56 L. Ed. 729. But equally is it beyond question that the Legislature can delegate to a commission the application of general rules legislatively prescribed to particular situations as ascertained by commissions.

Of course the subject-matter committed to the Commission must be within the power of Congress, and surely the regulation of interstate and foreign commerce is as thoroughly within congressional authority as anything can be. Wherefore any question as to the constitutionality of this statute is limited to the inquiry whether Congress has laid down any general rules and left to the Commission the application of the rules so made, or whether Congress has avoided the making of any rules and left their manufacture wholly to the Commission.

We think it plain that Congress has prescribed sufficiently a rule, to wit, that railroads may be required to install “automatic train-stop or train-control devices or other safety devices.” That is the rule. The application of it consists in choosing what railroads shall install such devices, and laying down specifications and requirements for such installation; and this is left to the Commission. . On reason, we see no objection to this procedure. On authority, the matter is quite within St. Louis, etc., Railway v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523; Avent v. United States, 266 U. S. 127, 45 S. Ct. 34, 69 L. Ed. -.

(b) We can hardly think the complaint serious that in the Commission’s reports of June 13, 1922, and July 18, 1924, this petitioner “is nowhere referred to by name.” No reason appears why this or any other carrier should be referred to by name. The serious inquiry is whether there are findings of fact made by the Commission on the subject of these stop or control devices, which on their face are based upon evidence. It would serve no useful purpose to go through the findings of fact in detail. It is enough to state the inferences that we draw from a perusal of these reports.

We are informed by the opinions of the commissioners that there are numerous and differently constructed devices for train control. They are made by incorporated companies competing with each other for business, and that competition largely consists in as nearly as possible procuring the favor of the Commission for a style of device which would let in say one manufacturer and exclude as many of his competitors as possible. There is no one style of device which has met with the approbation of the majority of railway corporations. In fact, railway opinion is not very friendly to devices which wholly or partially do at times take the control of trains out of the hands of men who have spent their lives in learning to manage them. Yet there is plainly a substantial and growing body of opinion, even among railway operators, that a practicable system of train control is near at hand, and sufficiently near so that a prudent railway manager, who wishes to keep up with the times, would incur no blame for putting in at least experimentally a system of train control or stoppage.

We have stated in a manner perhaps ultra favorable for. plaintiff’s contention the impression made upon us by the recital of evidence set forth in the Commission’s reports, plus the statements of plaintiff’s affidavits. It seems to us too plain for discussion that such a situation is one that ’most plainly requires the intervention of an impartial commission or other fact-finding powerful body to push the matter forward, for no progress will he made if accord is waited upon. Some one must decide the matter both in gross and in detail. Congress has decided it in gross, and it had power to say that the Commission should decide it in detail, and we are of opinion that the Commission has decided in' substance the necessary details, to wit, that what has been doné during the last 15 years has “demonstrated the practicability of and the necessity for automatic train stops or train control.”

(b) The assertion under this head of argument is that “Congress never intended and would never have power if it did so intend to require expenditures of railway capital for experimental purposes.” As a proposition of law we cannot accept this, and deem the statement so unsound as to call for some discussion.

In .the whole field of human effort there is no one definable department that requires experiment for advancement more plainly than does transportation. And it is also true that, when it comes to such a scheme as that of automatically controlling the movements of huge trains normally running at high speed, no experiment is possible, except on the railways themselves, under actual traffic eondi-: tions.

Thus the argument amounts to this: That no railway can be compelled to .conduct experiments, although there is no other place to experiment, and no change in existing conditions can he made until experiments are concluded to the point of demonstration. This is merely untrue. It is really the same argument by which efforts have been made to sidetrack any of the other efforts at improvement stated and declared ‘by Congress and carried out. through the ■ Commission; for example, all the safety appliance statutes, hours of service acts, and the like.

(d) The effect of the Commission’s order of July 18,1924, was this: That whereas, for two years, certain of the railroads of the country had been told to make a choice of a certain number of train-stop or control devices, after that date they were given the option to affect any one of said devices with the element of manual or engine-man’s control; and for all that appears the problem of affecting one kind of device with manual- control was an entirely different problem from that of affecting any of the other devices similarly. It is probably true that, if there were, say, a choice of four kinds of control before July 18, 1924, there were eight kinds to choose from after that date.

To call such a change in the effect of an order . a mere amendment is unfair, if not absurd. It was a new order, and a wholly new choice. How new is plainly .shown by the opinions of 1924, which frankly eat a great many of the words used in 1922. To such a situation the two-year clause of section 26 plainly applies.

The plaintiff petitioner may take an injunction against prosecution or other effort to enforce any penalties for failure to install manual control or permissive train-stop or train-control devices before July 18, 1926. In every other respect, the motion for in-junctive relief is denied.


author: GODDARD, District Judge.

text:
    THE PLEIADES. LUCKENBACH S. S. CO., Inc., v. UNITED STATES.
    (District Court, S. D. New York.
    May 7, 1925.)
    1. Collision <®=>98 — Overtaking steamer held solely at fault.
    Under Inland Rules, arts. 21, 24 (Comp. St. §§ 7895, 7898), and pilot rule No. 10, steamer overtaking another at Horseshoe Bend on Delaware river helé solely at fault in failing to signal desire to pass or giving warning of presence, and in coming so close that, when overtaken vessel suddenly sheered because of tide, collision resulted.
    2. Collision ®=94 — Vessel, consenting to have overtaking vessel pass, must hold her course and speed.
    Under Inland Rules, art. 21 (Comp. St. § 7895), where overtaking vessel notifies .vessel ahead that she wishes to pass and receives consent, overtaken vessel must then hold her course and speed.
    3. Collision <§=>94 — Overtaking vessel solely at fault in approaching so close as to cause collision, when tide or current causes overtaken vessel to sheer.
    Under Inland Rules, arts. 21, 24 (Oomp. St. §§ 7895, 7898), vessel helé in fault for following another in narrow channel at such proximity and speed that, when tide or current caused vessel ahead to suddenly sheer, overtaking vessel embarrassed navigation of ship ahead and collided with her.
    4. Collision <®= 126 — Damages for collision held to include injuries from stranding.
    Damages recoverable for collision caused solely by fault of overtaking vessel includes injuries from stranding directly after collision.
    In Admiralty. Libel by the United States against the steamship Pleiades, the Lueken-baeh Steamship Company, Inc., claimant, wherein claimant filed cross-libel.
    Libel dismissed, and decree entered in favor of cross-libelant.
    Carter, Carter & Phillips (by Peter S. Carter and Robert Phillips), of New York City, for Luckenbach S. S. Co., Inc.
    Emory R. Buckner, U. S. Atty. (by Horace M. Gray, Sp. Asst. U. S. Atty.), of New York City, for the United States.
   GODDARD, District Judge.

These are cross-suits to recover damages alleged to have been sustained as a result of a collision which occurred between the steamship Plei-ades and the steamship Lake Delaneey on the Delaware river at Horseshoe Bend shortly after 1 p. m. on May 21, 1920. The Plei-ades, loaded with a cargo of coal, left Port Richmond piers, Philadelphia, at 11:50 a. m. bound for Rotterdam. As she was proceeding down the river, about an hour later, she passed the Lake Delaneey, also with cargo, backing out from the Greenwich coal piers into the stream with the assistance of two tugs. When the Lake Delaneey straightened out, the Pleiades was about a quarter of a mile ahead and proceeding at her full speed of about 7 knots. The Lake Delan-eey then proceeded at her full speed, which was between 8 and 10 knots.

The Pleiades was 331.5 feet long, 47 feet beam, and drawing 24.6 feet on an even keel. The Delaneey was 251 feet long, 43.5 feet beam, and was drawing 20 feet forward and 22.6 feet aft. Both ships were in charge of licensed Delaware river pilots. When the Pleiades reached Horseshoe Bend, which is a strip of water a little less than a mile in width, with a dredged channel about 900 feet wide, curving through it, which channel is marked at intervals with buoys, the Delaneey was following the Pleiades at a distance variously estimated to be from 200 to 900 feet astern, and 2 or 3 points on her port quarter. Upon reaching the vicinity of Horseshoe buoy, the Pleiades ported her helm in order to make the turn to the starboard, but, instead of taking the bend, she took a sudden sheer to port. Her pilot then, with the intention of preventing her from stranding on the Jersey side of the river, towards which the sheer was causing her to go, set her engine room telegraph at “full speed astern,” and then blew danger signals.

In the meantime the Delaneey had continued to overtake the Pleiades, and by so doing had reached a position so close to the Pleiades that there was imminent danger of-the Pleiades being struck on the port side amidships by the Delaneey, as that was the point on the Pleiades for which the Delan-eey was headed. The pilot of the Pleiades therefore immediately put the engine room telegraph “at full speed ahead,” in order to prevent being struck amidships and possibly sunk by the Delaneey. The Delaneey, continuing ahead, struck the Pleiades a glancing blow on the port quarter, and shortly thereafter the Pleiades stranded on the Jersey shore, from which she was later floated by tugs. Surveys were subsequently held, which showed that the Pleiades was not only damaged by the impact of the collision, but by the stranding.

It was broad daylight. The weather was clear, with a light wind. There was a strong flood tide running, and at 'the turn, where the collision occurred, it sets from Horseshoe Bend towards the New Jersey side of the channel. It is admitted that, to make the turn to the starboard at Horseshoe Bend, the Pleiades put her helm hard to port; further, that her steering gear functioned properly, and that her rudder was moved to the fuff extent of its travel to starboard under the hard-aport helm. It appears from all the evidence that the Pleiades did not at any time actually move astern, for the order “full speed astern” was immediately followed by “full speed ahead,” and the only effect of the full speed astern was the partial stopping of her headway.

The witnesses do not agree as to-the speed at which the ships were proceeding, or the distance at which the Delaneey was following the Pleiades when the sheer occurred, the testimony varying from 200 to 1,000 feet; but it is admitted that the proximity of the ships was such that the pilot of the Delan-cey shouted to the pilot on the Pleiades to go ahead, instead of going astern, so as to avoid, if possible, being struck by the Delaneey. I find that the more reliable testimony and the circumstances lead to the conclusion that the Delaneey was overtaking the Pleiades just before the sheer occurred, and that, when the Pleiades sheered, the order for full speed astern was given by her pilot, followed within a few seconds by a warning signal.

■ The fault charged against the Delaneey is that she was an overtaking vessel, proceeding at too great a rate of speed, and that she was allowed to come so close to the Plei-ades that, when the Pleiades sheered, the De-lancey was unable to stop or avoid running into her; the charge of fault against the Pleiades is that her sheer was caused by a too close proximity to the starboard side of the channel and delay in the sounding of her danger signal.

Whether the Delaneey was following behind the Pleiades at a distance of 200 or 1,-000 feet, or the exact number of knots she was making, does not seem to me particularly important, if her nearness to the Pleiades and her rate of speed were sueh' that she could not avoid a collision with the Pleiades in the event that the Pleiades sheered or altered her course. Even if there was a failure on the part of the Pleiades to give a warning of her change of course, that would not, it seems to me, free the Delaneey from fault, because she should have had a lookout observing the Pleiades; but I do not find that the Pleiades was remiss in giving warning signals. The testimony as to what caused the sheer is not positive, but I think it can be said, with reasonable certainty, to have been the force of the tide against the starboard bow of the Pleiades as she attempted to round the bend, and possibly aided by the tide against her port quarter as it sets from the Jersey shore, as explained in Knight’s Modem Seamanship (7th Ed.) p. 427. It is admitted that her steering gear was in good working order. The testimony as to the handling of the wheel eliminates this as the cause.

Pilot rule No. 10 provides:

“In narrow channels each steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midehannel which lies on the starboard side of said vessel.”

Article 24 of the Inland Rules provides (Act June 7,1897, e. 4 [Comp. St. § 7898]):

“Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel. Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in sueh a position, with reference to the vessel which she is overtaking, that at night she would be ■unable to see either of that vessel’s side lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.
“As by day the overtaking vessel cannot always know with certainty whether she is forward of or abaft this direction from the other vessel, she should, if in doubt, assume that she is an overtaking vessel and keep out of the way.”

In The M. J. Rudolph (C. C. A.) 292 F. 740, where a steam lighter overtook and collided with a tug, Circuit Judge Rogers states (at page 742):

“If the overtaking vessel comes so close to an overtaken vessel that a sudden change of course by the latter may bring about a collision the fault is that of the overtaking vessel. She should not come so close without a signal. As this court held in The Merrill C. Hart, 188 F. 49, 51, 110 C. C. A. 187, 189: ‘The overtaken vessel is not required to look behind before she changes her course, however abruptly.” And the rule which requires a signal from the overtaking vessel and asfeent from the other is intended, as we said in that ease, to avoid just what, on the ■Rudolph’s theory, happened on this occasion.”

And on page 743:

“But as he was going up the river, and observed the boats that were coming down the river, he was not under obligations to observe wh'at boats were approaching him from the rear. It was the duty of all sueh boats to keep away from him. * * * But he was under no obligations to warn a vessel coming up behind him, and which had not given him notice of her presence, that he was going to make the maneuver; and from what has already been said in this opinion it appears that it is not the duty of an overtaken vessel to look behind, or to give warning to a vessel behind her, and which has not herself given warning of her presence, before she changes her course, however abruptly.”

In The Merrill C. Hart, 188 F. 49, 110 C. C. A. 187, where it is claimed that collision occurred when a tug suddenly changed her course and was struck by a steamboat which was following, Circuit Judge Laeombe, says on page 51 (110 C. C. A. 189):

“Manifestly, however, she approached so close to the vessel she supposed she was overtaking that a sudden change of course by the latter would bring about a collision. But she should not have come so close to an overtaken vessel without signal. The overtaken vessel is not required to look behind before she changes her course, however abruptly.”

In the present ease the Delaneey had not requested permission to pass the Pleiades, and no consent had been given. The Delaneey had not given warning of her presence, although the Pleiades had observed her and kndw that she was following her, but the Delaneey had placed no restrictions upon the Pleiades’ maneuvering. If the Pleiades was keeping so close to the starboard side of the channel as to catch the strong tide on her bow and cause her to' sheer, the Delaneey was in a position to observe what was happening, and should not have come so close to the Pleiades as to crowd her, and to prevent her from maneuvering so as to avoid getting into difficulties.

The rule is clear that, where an overtaking vessel notifies the vessel ahead that she wishes to pass and receives in reply that vessel’s consent, the overtaken vessel must then hold her course and speed. Article 21, Inland Rules, supra (Comp. St. § 7895); Spencer v. The Dalles, P. & A. Navigation Co., 188 F. 865, 110 C. C. A. 499. Even though there had been no exchange of signals or permission to pass, it is quite true that the overtaken vessel might maneuver with such palpable negligence as to be inexcusable, but here the sheer was caused by the tide. “The precautions against danger of necessity, in any case, rest to a greater extent upon the boat in the rear than upon the boat in advance, and this is imminently true of a large and fast steamer following a small and slow boat.” The Great Republic, 90 U. S. (23 Wall.) 32, 23 L. Ed. 55.

In The City of Baltimore, 282 F. 490, 492, Circuit Judge Waddill, speaking for the court, states:

“She was an overtaking vessel, charged specifically with the duty of securing the assent of the other vessel before attempting to pass, and at the same time with the duty of keeping clear and out of the way of the overtaken vessel. ” * * The Baltimore was not only neglectful of her duty and. clearly at fault in the respects mentioned, but she was proceeding at a rate of speed that should have admonished her not to approach too closely the overtaken vessel.”

In Robinson v. Detroit & C. Steam Nav. Co. and Hurley et al. v. City of Mackinaw, 73 F. 883, at page 889, 20 C. C. A. 86, 92, Circuit Judge Taft, speaking for the Circuit Court, says:

“But, if he did not choose to signal and establish an agreement with the Majestic, it was certainly the duty of the captain of the Mackinaw to take every reasonable precaution to keep out of the way of the vessel Ahead.”

In The Ed B. Smith, 135 F. 32, at page 38, 67 C. C. A. 506, 512, Circuit Judge Lurton stated:

■ “Thus, if the Massaba by her own wrongful conduct placed the Smith in a position of immediate and extreme danger, she would not be held to blame if she did something wrong in her endéavor to extricate herself, and should not be held to have contributed to her own danger.”

In Long Island Railroad Co. et al. v. Killien, 67 F. 365, at page 367, 14 C. C. A. 418, 420, Circuit Judge Wallace, speaking for the Circuit Court, said:

“As an overtaking vessel, it was the duty of the Garden City to keep out of the way of the tug; and in this behalf it was incumbent upon her, when shaping her course to pass the tug, to allow a sufficient margin for safety, taking into consideration all the incidents of the situation; among them, the tendency of the cross-current to deflect the course of the tug. * * * He was perfectly familiar with the tides and currents around the Hook. * * * He undoubtedly knew what reasonable allowance ought to be made for the influence of the cross-current upon the course of the tug, and the dictates of ordinary prudence enjoined upon him the necessity of making such allowance. * & *

In The Osceola (D. C.) 30 F. 383, affirmed (C. C.) 35 F. 559, where the O., a steamboat, overtaking the -S., collided with her, and, on suit brought, defended by alleging a sheer on the part of the S., but the evidence showed that she had approached dangerously near the S. without giving the signal required by the rules. Judge Benedict stated:

“If, as the libelants contend, the Spray made no sheer, the liability of the Osceola is clear. If, on the other hand, the Spray did sheer, still the Osceola was in fault, for she was the overtaking vessel, and approached dangerously near to the Spray without giving the signals required by the inspectors’ rules. Had the signal been given, or had it been proved that the Spray had been otherwise informed, of the position of the-Osceola, the Spray would have been in fault for changing her course when she did, but, in the absence of such signal or such knowledge, her change was not a fault.”

In The Hackensack (D. C.) 32 F. 800, Judge Benedict stated:

“Testimony in this ease has satisfied me that the cause of this collision was the approach of the Hackensack to the Dumont ahead of her so near that, when the Dumont, in order to allow a vessel to pass, stopped her engine and reversed, the Hackensack had not time to avoid collision, although she promptly stopped her engine and ported her wheel.. The proof is that the tide was strong flood, and that, as soon as the Du-mont stopped and reversed her engine, the Hackensack stopped and hove her wheel hard-apqrt, but in spite of those efforts she ran into the Dumont. This shows the Hacken-sack to have been, in dangerous proximity to the Dumont. To be so near the vessel ahead in that place was a fault, and* the fault that caused the collision. There was no fault on the part of the Dumont. She made no stemway but simply stopped and reversed her engine. When she did this she had the right to presume that in that place and tide no vessel would be so near her from behind as to strike her stem without backward movement on her part.”

Mr. Justice Clifford in Whitridge v. Dill, 23 How. 448, at page 454 (16 L. Ed. 581), quotes the following as a long-recognized rule:

“A ship going out of a port last,” says Emerigon, “is to take care to avoid the vessel that has gone out before her.” Emerig-on, c. 12, § 14, p. 330. And Valin says (section 2, p. 578): “Whether it be by night or day, the ship that leaves after another, and follows her, should take care to avoid a collision, without which she will have to answer in damages.”

As I understand the rule, and it is a rule calculated to prevent collisions, a ship is at fault if it follows another in a narrow channel at such proximity and speed that when the tide or current causes the ship ahead to suddenly sheer, the following ship embarrasses the navigation of the ship ahead and runs into her. Atlas Transportation Co. v. Lee Line Steamers, 235 F. 492, 149 C. C. A. 38; Killien v. Hyde (D. C.) 63 F. 172; The Governor, Fed. Cas. No. 5,645; The Rhode Island, Fed. Cas. No. 11,745; The Sicilian Prince, 144 F. 951, 75 C. C. A. 677; The Fleetwing (D. C.) 114 F. 409.

From the above, it appears that there was no fault on the part of the Pleiades, and accordingly the libel against the Plei-ades is dismissed, and a decree may be entered in favor of the Pleiades against the De-lancey for the damages sustained as a result of the collision, which include the injuries from her stranding directly after the collision, with the usual references to ascertain the amount-of damages.


author: THOMAS, District Judge.

text:
    THE OVER THE TOP. SCHROEDER v. BISSELL, Collector.
    (District Court, D. Connecticut.
    February 26, 1925.)
    Admiralty Nos. 2796-2798; Equity No. 1746.
    1. Constitutional law <§=>70(3) — Federal court would enforce act of Congress, though contravening international law.
    A federal court could refuse to enforce an act of Congress only if it was unconstitutional,' and not merely because it contravened international law..
    2. Constitutional law <§=>48 — Presumed intended- to be in conformity with international comity.
    In construing an act of Congress, unless it unmistakably appears that it was intended to be in disregard of a principle of international comity, the presumption is that it was intended to be in conformity with it.
    3. Customs duties <§=>124 — Tariff Act, as to entry of vessel or unlading cargo, held) not to attempt to extend jurisdiction beyond boundaries of country.
    Tariff Act 1922, § 447 (Comp. St. Ann. Supp. 1923, § 5841el6), making it unlawful to make entry of vessel or unlade any part of its cargo elsewhere than at a port of entry, is impliedly limited to acts accomplished within the territory of the United States, especially in view of section 586 (section 5841h5), ex--plicitly attempting to extend sea jurisdiction of United States by denouncing act of a master of vessel from foreign port committed within four leagues of the coast; and the same considerations apply to sections 448, 450, 453, 585, 593, and 594 (sections 5841el7, 5841el9, 5841e22, 5841h4,' 5841hl2-5841hl4); so that, no statute enbraeing the subject-matter of such sections having extended jurisdiction to a point on the seas 19 miles from the coast, an act there committed by foreign nationals on ships of foreign registry is not an offense against the United States.
    4. Treaties <§=>8 — Speed of vessel when conveying liquor determines distance from coast that liquor-bearing vessel may be seized.
    Under American-British Treaty of hifay 22, 1924, providing that right to seize vessel endeavoring to bring liquor into the United States in violation of its laws shall not be exercised a greater distance from the coast than can be traversed in one hour by the vessel, it is the speed of the boat .conveying liquor, and when so engaged, that determines the distance from shore in which seizure may be made in a particular instance.
    5. Treaties @=38 — No new criminal legislation enacted by American-British Treaty as to seizure of ships.
    American-British Treaty of May 22, 1924, waiving objection to seizure, outside the limits of the territorial waters of the United States, of any British ship attempting to commit an offense against the Prohibition Law of the United States (Comp. St. Ann. Supp. 1923, § 1013814 et seq.), enacts no new criminal legislation.
    6. Customs duties <S=>125 — No «smuggling by vessel which sells and delivers 19 miles from shore.
    There is, no smuggling into the United States in violation of Tariff Act 1922, § 593 (Comp. St. Ann. Supp. 1923, §§ 5841hl2, 5841hl3), by a vessel or those on board, where 19 miles from shore they sell and deliver liquor to a government agent who then pays therefor, so that title passes.
    Three libels by the United States, one against the schooner Over the Top,' and two against its cargo, with application by A. L. Schroeder, owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
    Libels dismissed.
    John Buckley, U. S. Atty., and George H. Cohen, Asst. U. S. Atty., both of Hartford, Conn., for the United States.
    Louis Halle, of New York City, for cargo. John E. Maey, of Boston, Mass., for owner of schooner.
   THOMAS, District Judge.

On November 7. 1924, Schroeder, the owner of the cargo, brought an application against the collector of customs for the Port of Connecticut to show cause why the cargo of liquor should not be returned to him. This application was returnable November 11, 1924. This proceeding was entered on the docket and is known as equity No. 1746. Following this rule to show cause and on November 12, 1924, the United States fled a libel of forfeiture against the schooner itself, and this proceeding is entered on the docket as No. 2797, in admiralty. On the same day, the government filed two libels against-the cargo, and those eases are entered on the docket and known as No. 2796 and No. 2798, in admiralty. The trial on the issues raised by the libels and respective answers was had on January 16, 1925, and as these cases were tried together, they will all be discussed and decided in one opinion.

From the evidence I find the following facts established: On August 27, 1924, the schooner Over the Top, carrying a cargo of whisky and operating under the British flag and under British registry, cleared for Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks prior to October 19, 1924. The schooner was chartered by one A. L. Sehroe-der, the owner of the cargo, who operates in Montreal but whose residence or citizenship is 'undisclosed.

On the 19th of October, 1924, at about 10 o’clock in the evening, the supercargo on board the schooner sold 25 eases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the direction of the captain, unloaded these cases of whisky and transferred the same to a sea sled employed in the government service. Both captain and supercargo knew that the whisky so transferred was to be transported to a point on the 'adjacent coast, but neither one of them knew that the sea sled or the men on it were in the government service. The transaction occurred at a point approximately 19 miles distant from the shore, or 115 degrees true from the southeast light of Block Island, and within one hour’s running distance as computed by the possible speed of the sea sled when running empty and in the daytime. The sea sled thereupon proceeded to the United States coast guard cutter Tampa, and 23 of the cases were unloaded on board the Tampa, and the other two cases were landed at New London.

On the following day, Over the Top was seized by officers of the United States coast guard, and the captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New London and turned over to the collector of customs and are now in his custody.

I further find that the schooner had been hovering for some time off the coast of the United States at the point where she was seized, and that those in command were engaged during that period in selling liquor and delivering the same to boats proceeding from the coast of the United States and returning thereto. IThe testimony seems to support the conclusion that business was slow.

Upon these facts, the United States demands judgment decreeing the forfeiture and sale of the ship and cargo. The owner of the ship and the owner of the cargo have appeared separately, but the trial of the three actions was consolidated, and, as will be seen in the sequel, the principles of law governing are applicable alike to both the schooner and cargo.

The government bases its claim of forfeiture upon the alleged violation of sections 447, 448, 450, 453, 585, 586, 593, and 594 of the Tariff Act of 1922 (Comp. St. Ann. Supp. 1923, §§ 5841el6, 5841el7, 5841el9,' 5841e22, 5841h4, 5841h5, 5841hl2-5841hl4), as well as upon the provisions of the American-British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as follows:

“See. 447. Unlading — Place.—It shall be unlawful to make entry of any vessel or to unlade the cargo or any part thereof of any vessel elsewhere than at a port of entry: Provided, that upon good cause therefor being shown, the Secretary of Commerce may permit entry of any vessel to be made at a place other than a port of entry designated by him, under such conditions as he shall prescribe: And provided further, that any vessel laden with merchandise in bulk may proceed after entry of such vessel to any place designated by the Secretary of the Treasury for the purpose of unlading such cargo, under the supervision of customs officers if the collector shall consider the same necessary,, and in such ease the compensation and expenses of such officers shall be reimbursed to the government by the party in interest.

“See. 448. Same — Preliminary Entry— Permit. — Except as provided in section 441 of this act, no merchandise, passengers, or baggage shall be unladen from any vessel or yehicle arriving from a foreign port or place until entry of such vessel or report of the arrival of such vehicle has been made and a permit for the unlading of the same issued by the collector: Provided, that the master may make a preliminary entry of a vessel by making oath or affirmation to the truth of the statements contained in the vessel’s manifest and delivering the manifest to the customs officer who boards such vessel, but the making of such preliminary entry shall not excuse the master from making formal entry of his vessel at the custom house, as provided by this act. After the entry, preliminary or otherwise, -of any vessel or report of the arrival of any vehicle, the collector may issue a permit to the master of the vessel, or to the person in charge of the vehicle, to unlade merchandise or baggage, but merchandise or baggage so unladen shall be retained at the place of unlading until entry therefor is made and a permit for its delivery granted, and the owners of the vessel or vehicle from which any imported merchandise is unladen prior to entry of such merchandise shall be liable for the payment of the duties accruing on any part thereof that may be removed from the place of un-lading without a permit therefor having been issued. Any merchandise or baggage so unladen "from any vessel or vehicle for which entry is not made within forty-eight hours exclusive of Sunday and holidays from the time of the entry of the vessel or report of the vehicle, unless a longer time is granted by the collector, as provided in section 484, shall be sent, to the public stores and held as unclaimed at the risk and expense of the consignee in the ease of merchandise and of the owner in the ease of baggage, until entry thereof is made.” •

“Sec. 450. Same- — Sundays and Holidays. —No merchandise, baggage, or passengers arriving in the United States from any foreign port or-place, and no bonded merchandise or baggage being transported from one port to another, shall be unladen from the carrying vessel or vehicle on Sunday, a holiday, or at night, except under special license granted by the collector under such regulations as the Secretary of the Treasury may prescribe.”

“Sec. 45,3. Penalty for. Violation. — If any merchandise or baggage is laden on, or unladen from, any vessel, or vehicle without a special license or permit therefor issued by the collector, the master of such vessel or the person in charge of such vehicle and every other person who knowingly is concerned, or who aids therein, or in removing or otherwise securing such merchandise or baggage, shall each be liable to a penalty equal to the value of the merchandise or baggage so lad-' en or unladen, and such merchandise or baggage shall be subject to forfeiture, and if the value thereof is $500 or more, the vessel or vehicle on or from which the same shall be laden or unladen shall be subject to forfeiture.”

“See. 585. Departure Before Report or Entry. — If any vessel or vehicle from a foreign port or place arrives within the limits of any collection district and departs or attempts to depart, except from stress of weather or other necessity, without making a report or entry under the Provisions of this Act, or if any merchandise is unladen therefrom before such report or entry, the master of such vessel shall be liable to a penalty of $5,000, and the person in charge of such vehicle shall be liable to a penalty of $500, and any such vessel or vehicle shall be subject to forfeiture, and any customs or coast guard officer may cause such vessel or vehicle to be arrested and brought back to th'e most convenient port of the United States.

“Sec. 586. Unlawful Unlading — Exception— The master of any vessel from a foreign port or place who allows any merchandise (including sea stores) to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States and before such vessel has come to the proper place for the discharge of such merchandise, and before he has received a permit to unlade, shall be liable to a penalty equal to twice the value of the merchandise but not less than $1,000, and such vessel and the merchandise shall be subject to seizure and forfeiture: Provided, that whenever any part of the cargo or stores of a vessel has been unladen or transshipped because of accident, stress of weather, or other necessity, the master of such vessel shall, as soon as possible thereafter, notify the collector of the district within which such unlading or transshipment has occurred, or the collector within the district at which such vessel shall first arrive thereafter, and shall furnish proof that such unlading or transshipment was made necessary by accident, stress of weather, or other unavoidable cause, and if the collector is satisfied that the unlading or transshipment was in fact due to accident, stress of weather, or other necessity the penalties above described shall not be incurred.”

“See. 593. Smuggling and Clandestine Importations. — (a) If any person knowingly and willfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the custom house any false, forged, or fraudulent invoice, every such person, his, her, or their aidors and abettors, shall be "deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years, or both, at the discretion of the court.

“(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.

“See. 594. Seizure of Vessels and Vehicles. — Whenever a vessel or vehicle, or the owner or master, conductor, driver,-or other person in charge thereof, has become subject to a penalty for violation of the customs revenue laws of the United States, such vessel or vehicle shall be held for the payment of such penalty and may be seized and proceeded against summarily by libel to recover the same: Provided, that no vessel or vehicle used by any person as a common carrier in the transaction of business as such common carrier shall be so held or subject to seizure or forfeiture under the customs laws, unless it shall appear that the owner or master of such vessel or the conductor, driver, or other person in charge of such vehicle was at the time of the alleged illegal act a eon-' senting party or privy thereto.”

So much of the Treaty as is necessary for consideration is as follows:

“Article I.
“The high contracting parties declare that it is their firm intention to uphold the principle that 3 marine miles extending from the coastline outwards and measured from low-water mark constitute the proper limits of territorial waters.”
“Article II, Sections 1, 2, and 3.
“(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions in order that enquiries may be addressed to those on board and an examination be made of the ship’s papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted.
“(2) If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with such laws.
“(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States, its territories, or possessions than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In eases, however, in which the liquor is intended to be' conveyed to the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall be' the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised.”

But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may be well to dispose of one of the contentions made by counsel in behalf of the cargo and the schooner.

The proposition is advanced that, regardless of our municipal legislation, the acts complained- of could not constitute offenses against the United States when committed by foreign nationals, on foreign bottoms, on the high Seas at a point beyond the territorial jurisdiction of the country. Well-known principles of international practice are invoked in support of this contention accompanied with the citation of authority. Upon careful consideration, however, I am led to conclude that a misconception exists here' as to the status, in a federal forum, of so-called international law when that law encounters a municipal enactment.

■ If we assume for the present that the national legislation has, by its terms, made the acts complained of a crime against the United States even when committed on the high seas by foreign nationals upon a ship of foreign registry, then there is no discretion vested in the federal court, once it obtains jurisdiction, to decline enforcement. International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of the Congress. It is not the function of courts to annul legislation; it is their duty to interpret and by their judicial decrees to enforce it — and even when an act of Congress is declared invalid, it is only because the basic law is being enforced in that declaration. There is one ground only upon which a federal court may refuse to enforce an act of Congress and that is when the act is held to be unconstitutional. The act may contravene recognized principles'of international comity, but that affords no more basis for judicial disregard of it than it does for executive disregard of it. These libels, therefore, cannot be attacked upon the ground that the territorial jurisdiction of the United States cannot be extended beyond the three-mile sea zone under international law.

If, however, the court has no option to refuse the enforcement of legislation in contravention of principles of international law, it does not follow that in construing the terms and provisions of a statute it may not assume that such principles -were on the national conscience and that the congressional act did not deliberately intend to infringe them. In other words, unless it unmistakably appears that a congressional act was intended to be in disregard of a principle of international comity,-the presumption is that it was intended to be in conformity with it. It is with such a principle in mind that we now proceed to an examination of the legislation upon which the government relies.

Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo -of Over the Top was unloaded on the high seas, and the govern-, ment contends that the statute was thereby violated. To me it seems that the statute was'intended to prevent entry or unlading at a port or place in the country other than a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost all criminal statutes, or statutes prohibiting defined conduct, are phrased in general language without mention of territorial limitation. But they are all to be read in the light of the principle that jurisdiction is not extraterritorial'and that the municipal legislation is not attempting to regulate or to punish conduct performed outside of the national domain. Por example, the statutes qf Connecticut do not forbid larceny in Connecticut — they forbid larceny. The statutes of the United States do not forbid counterfeiting in the United States — they forbid counterfeiting. That the Congress may, in disregard of the law of nations, prohibit acts by foreign nationals not committed within our domain, has already been conceded; but unless such intent clearly appears from the language of the statute such intent is not to be presumed.

It would seem that the libelant does not take the view that the acts complained of constituted an infraction of our law by the very force of the language of the statute, else there would be no reason to invoke the aid of the provisions of Ameriean-British Treaty. It is obvious that if the unlading of the whisky 19 or 20 miles out at sea constituted a violation of section 447 of the Tariff Act, then such violation was justiciable and punishable irrespective of the provisions of the treaty; The treaty would serve to obviate diplomatic embarrassments arising out of the seizure of a British vessel on the high seas, but it would be useless for the purposes of determining the intent of the provisions of section 447 of the Tariff Act.

The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts therein denounced be accomplished within the territory of. the United States. * No attempt is there discernible to extend the legislative jurisdiction of the United States beyond its boundaries. Of utmost significance, therefore, is the language of section 586 of the act providing that the master of any vessel from a foreign port, who allows any merchandise to be unladen from such vessel at any time after its arrival within four leagues of the coast of the United States, and before such vessel has come to the proper place for the discharge of such merchandise, and before permission has been given 'to unlade, shall be liable to a penalty, and the vessel and the merchandise shall be subject to seizure and forfeiture. It appears to me that this section has a most important, if not a determinative, bearing upon the point under discussion. This enactment has been part of our legislation for over a hundred years. Here we have a distinct extension of our sea jurisdiction to a point 12 miles from the coast — an assertion of authority which may perhaps clash with international practice, but which, whether challenged or not, is unmistakable, and which, therefore, it is the business of our courts to enforce. Had the master and super cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that we would have had no difficulty in sustaining the libels.

Indeed, the applicability of section 593 of the Tariff Act to the case at bar has already been negatively determined in the authoritative opinion of the Supreme Court in Keck v. United States, 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505. The statute which was the subject of construction in that case was substantially the same in language as section 593 now under consideration, and there it was held that the offense denounced by the statute could not be accomplished until the customs barrier had been passed, and therefore, even though goods intended to be smuggled were brought within the three-mile sea zone, that, nevertheless, smuggling was not perpetrated until the goods were landed and passed into the country.

My conclusion, then, is that as no statute embracing the subject-matter of sections 447, 448r 450, 453, 585, 586, 593, and 594 of the Tariff Act of 1922 has extended our territorial jurisdiction to a point on the high seas distant 19 miles from our coast, conduct which would have been in violation of these sections if performed within our territory cannot constitute an offense against the United States when performed at such a distance by foreign nationals on ships of foreign registry. If, for the purpose of our treasury, we can” extend our sea jurisdiction to a point four leagues' from the coast, I see no reason why we cannot extend it four leagues more. I merely observe that we have not done so yet.

I now come to the provisions of the Amer-icam-British Treaty, which was obviously contracted for the purpose of preventing hovering ships from supplying intoxicating liquor to carriers running between the ships and the shore. There can be no question as to the general intent of the treaty and as to what was supposed to have been accomplished by its provisions. But it is one thing to apprehend the purpose of an act and quite another to determine that the language of the act is effective. The treaty in question provides that no objections will be raised by the British government to the boarding of vessels flying the British flag outside the territorial waters of the United States for the purpose of investigating the eargo in order to determine whether the vessel or those on board are endeavoring to import alcoholic beverages into the United States in violation of our laws. The British government further does not object to the seizure of such a vessel found violating our law and to its disposition in accordance with such laws. The treaty further provides that the zone of operations by the United States is extended to a point one hour’s running distance from our coast, wholly irrespective of the mileage eoverable within such hour, and that where the liquor is intended to be conveyed to the coast by a vessel other 'than the one boarded and searched it is the speed of that vessel-which is to determine the distance.

I have already found that the possible speed of the sea sled under the conditions disclosed by the testimony was about 30 knots an hour. But the evidence showed that this speed was made in the daylight when the boat carried no load, and when it skidded along over the top of the water with its stem only displacing water and while running from New London to Point Judith Gas Buoy and along the lee of the land. There is absolutely no evidence in the record as to how far the sea sled could travel in an hour and in the dark with 25 eases of liquor and three men aboard as on the night it left the schooner Over the Top with wind, weather, and tide as it in fact existed on the night in question.

Now the treaty provides that the right of seizure cannot be exercised at a greater distance from the coast “than can be traversed in one hour by. the vessel suspected of endeavoring to commit the offense.” As we are dealing here with'fines and forfeitures, I cannot assume that this language was intended to cover an hypothetical ease; that the seizure would be treated as legal if accomplished at a point constituting the greatest distance which the unladen ship could traverse in one hour at' her maximum speed under the most favorable conditions of wind and tide. It seems to me that a rational construction requires us to measure the distance by the actual speed of the boat accomplish-, ed from the point of capture to the nearest available point on the coast in normal wind and tide and under the same conditions as pertain at the time of the seizure. Nor can I see any reason for applying any different rule when the distance is to be measured by the speed of the carrier from ship to coast. It is the speed of the boat conveying liquor, and when it is .engaged in conveying liquor to the United States, that must be determined. When conveying liquor, her speed may be below that of her speed when empty. ■

That such jurisdictional facts may be exceedingly difficult of proof, and that penalties and forfeitures are to be determined by a standard as uncertain as the.equity which once was-said to vary with the size of the chancellor’s foot, may be a matter of regret; but it is the business of the courts to construe treaties and not to make them. But it is to be noted in this particular ease the sea sled, owned by the government and operated by government officials, had full opportunity to time its run laden with its crew and 25 cases of liquor on the night in question and so present in court reliable and satisfactory evidence. Instead, they turned and made for the Tampa, and on it unloaded 23 eáses and carried only 2 cases to New London. And no explanation was offered for such operations.

There being no evidence before me from which I can determine the speed of the sea sled when laden with the 25 cases of liquor, and no evidence to meet the provisions of the treaty that, “In eases, however, in which the liquor is intended to be conveyed to the United States- * * * by a vessel other than the one boarded and searched, it shall be the speed of such other vessel, * * * which shall determine the distance from the coast at which the right under this article can be exercised” (article 2, § 3), I would feel obliged for this reason alone to decree a dismissal of the libels. _ But I am not unmindful of the possibility of error in my construction of this part of the treaty and a much larger question looms in the background.

It must be noted that the treaty does not define the acts constituting an offense against the laws of the United States prohibiting the importation of alcoholic beverages. These acts are defined in the statute. If reasonable grounds exist for believing that a vessel under British registry is in fact guilty of contravening the Prohibition Law (Comp. St. Ann. Supp. 1923, § 1013814 et seq.), then our government may seize it if it is within the specified area, and when seized its fate may then be determined in accordance with our laws. If it is not within the specified area, it may not- even be seized. But if it is within the specified area, it does not follow that it is for that reason violating our laws.

Now the grant by one sovereign to another of the right to seize its nationals upon the high seas without process and by force ma-jeure for crimes committed by those nationals against the offended sovereign, by no means declares that those acts when committed on the high seas constitute such crimes. If, before this treaty was contracted, the un-lading óf merchandise by a ship of British registry at a point more than four leagues removed from the coast of the United States did not constitute a crime against the United States (and there appears to he no contention that it did), then the treaty could not and did not make it a crime.

In support of its contention, the government cites and relies upon United States v. The Pictonian, 3 F.(2d) 145, recently decided in the Eastern district of New York, where it was held that the Ameriean-British Treaty did, as to ships of British registry, extend the operation of the criminal laws of the United States to the shifting line designated in the treaty. I have carefully read Judge Campbell’s opinion and find myself unable to agree with its reasoning. The learned judge speaks of the treaty as self-executing. The significance of the phrase in this connection is somewhat obscure. As a treaty, there was no need of congressional legislation to make it effective, and in this sense all treaties are self-executing. But if it was the intent of the government to make it a crime for a ship of British registry to unlade liquor within a sea zone on our coast, traversible in one hour, then that intent was not effectuated by the mere execution of the treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no treaty is self-executing. Congress may be under a duty to enact that which has been agreed upon by treaty, but duty and its performance are two separate and distinct things. Nor is there any doubt that the treaty making power has its limitations. What these are has never been defined, perhaps never need be defined. Certain it is that no part of the criminal law of this country has ever been enacted by treaty.

Illustrations of congressional effectuation of treaties are plentiful. All treaties requiring payments of money have been followed by acts of Congress appropriating the amount. The treaties were the supreme law of the land, but they were ineffective to draw a dollar from the treasury. The Russian-Ameriean Treaty of 1824 (8 Stat. 302) against selling liquors to the Alaskan natives was followed by the necessary penal legislation by the Congress. The treaty with various powers made in 1847 defining piracy and declaring its punishment, received similar reinforcing enactments. The same was true of the Treaty of 1862 with Great Britain (12 Stat. 1225), suppressing the slave trade; of the Treaty of 1884 (24 Stat. 989), with various powers imposing fines and penalties for the protection of submarine cables; and of the Treaty of 1912 (37 Stat. 1542), for the protection of seals in the North Pacific Ocean.

The instances just cited indicate the practice of congressional action in order to effectuate the penal provisions of a treaty, and I have no doubt that such practice is necessary in order to accomplish the purposes of the treaties. It happens that the Ameriean-British Treaty here under consideration does not declare it a crime for a British national on a ship of British registry to sell liquor for purposes of importation into this country within one hour’s running distance of our shore. Nor does the treaty forbid such an act. But even if such conduct' had been prohibited by the terms of the treaty, no indictment could- lie for transgressing that prohibition. If an indictment could not lie for violating the direct command of the Eighteenth Amendment to the Constitution until the Congress had defined the offense and proclaimed the penalty, then the fiat of a treaty would be inadequate for such a purpose. No distinction exists here between the necessary basis of an indictment and that of a libel for forfeiture. If the facts do not warrant an indictment, they do not warrant a penalty.

In this connection it may be well to emphasize the general nature of the provisions of the Tariff Act relied upon by the libelant. In the instance at bar, we happen to be dealing with liquor, but the legislation which is invoked is by no means concerned exclusively with this commodity. A British or French ship unlading coffee or coal within the 12-mile limit, and before entry and permission to unlade, would be just as guilty of violating these acts as if she were unlading liquor. Neither her nationality nor the nature of her cargo would have any bearing on the issues.

Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the device of a mere treaty is a question which fortunately we need not discuss. It is sufficient to conclude that the Ameriean-British Treaty did not in fact enact new criminal legislation.

There are other considerations which should be noted. It is conceded that a sale was made; that the supercargo sold the cases of liquor-to the government agent aboard the government sea sled and received $550. This transaction was on the high seas and 7 miles beyond the 12-mile limit and at a place where the transaction was valid. Title therefore passed. Can it be claimed that there was a violation either by schooner or cargo (for these libels are against them)’ of any law of the United States? After the sale, title to the goods vested in the government men. Under section 593 is it claimed they smuggled the goods into this country? If they did not, there was no violation of United States law — certainly none by cargo or schooner or even by the men aboard who made the sale, as they all lost title when the goods were bought and paid for, and, of course, no one claims the government men smuggled the liquor. The whole situation seems a perfect paradox. The respondents plead entrapment as a defense, and urge it strenuously in the brief. In view of the conclusions above reached, it is not necessary to discuss at length this question. It is sufficient to say that there is much merit in the defense when considered in connection with the above proposition that when the title to the goods passed and became vested in the purchasers, the respondents could not smuggle what they sold, and which they would not have sold had they not been importuned by the men on the sea sled.

The considerations as above expressed therefore impel the conclusion that there is no legal basis for these libels, and it follows that they must be and the same are dismissed. Submit findings and decree.