UXITED STATES V. THE SADIE.
823
UNITED STATES V. THE SADIE. (Df8trlct Oourt, S. D. New York. February 28,18110.)
Astatv.tory(power to fix the limits of a prohibited area should be exeouted with reasonable and aooording to the statutory intention. . 2.. SAME;...(}bNS'l:BUCTION OF ACT CONGo JUNE 29. 1888. The act of June,1888, prohibited the disoharge of refuse, eto., "in the .tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those of LoIIg Island Bound, within the limits which should be presoribed by the,super. visor." The,supervisor direoted that deposits of must take place east 'of the meridian 73° 55' 56", and south of parallel 40° Held: (1) That the superviSOr's direction was not a oompliance with the statute, for laok of definiteness and certainty. for excluding ,bY implication aU the "tributary waters,'l and all the waterso! Long Island sound, both of which were to the northward of the designatedP.:ara.11el.;. that this w.as in excess of his power; and contrary.to the. p.lain in. tent of the statute. (2) libewords "the tidal waters" in the first seotion of the act were not to be construed as limiting the subsequent words, "itsadjacept or tributary'waters,'" there being no suoh limitation.of the same words in ,the second and fourth seotjpns, and thalthe northern limit of the arlla, within the tributary waters, was to fixed b\"' the supervisor} until that was done by him no suit forpenaltiellwould'liefor deposits within tne Hudson river.
1.
BABBOBS-DEPOSITI:i{G REFUSE-PROHtBITED AREA.
'
InAdmiralty.. ,Action (or ,penalties. Exceptions to libel. Edward Mitchell and Mr. Ro$e, for libelant. AleJ:ander .A8h· .forolahnants. , BROWN, ,I. The, above ,l.ihel was filed to recover penalties under the . act of congress l),pprovedlune 1888, (25 St. l;lt Large, 209,) "to,prevent obstructive and injurious withiIl.. the harbors and waters of New York oity"by liurnping or other.wise." The libel avers use of the in discharging.and dumping into the wate]:'sof the North river, opposite Newburgh. certain loads ofmud, contrary to tbe provisions of the said act, for Sadie madeliable. ' The exceptions aver that no cause of action is statl;ld libel, a,ct has been submitted to the court for its conand upon the struction. ' The first, section of the act declares that the II discharging * * * of r,efus6,,dirt, ashes, cinders, mud, sand, * * * sludge, * * * in the tidal. vaters of the of New York, or its adjacent or tributary watersior in those of Long Island sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden;" and every sucb act is made a misdemeanor punishable by fine or imprisonment, or both. Section 2 provides similar punishment of "every master and engineer * * * who shall knowingly engage in towing any * * * boat or vessel loaded with any such prohibited mator place of deposH or discharge in the waters of barter any lwr of or in its adjacent or tributary waters, or. intbose of Isllm(Lsound, or to ,apy point or place elsewhere than with.in the limits defined. and permitted by the of the .harbor hereinafter mentiQned."d Section 3makes.it tbe duty of the master, on receiv;ing on board any such .forbidden znalter, before proceeding to take it to the to apply,for and obtain from the supervisor a permit place of
is
824
FEDERAL REPORTER,
vol. 41.
defining the precise limits within which the discharge may be made, and any deviation from the permit in discharging is made a misdemeanor. Section 4 provides that" all mud * * * tQ.ken * * * from any slip, basin, or shoal in the harbor of New York, or the waters adjacent or tributary thereto, and placed on any boat, * * * for the purpose of being taken or towed upon the waters of the harbor of New York to a place of deposit, shall be deposited and discharged at such place, or within such limits, as shall be defined and specified by the supervisor of the harbor as in the third section of this act prescribed, and not otherwise." Under this act the supervisor undertook to prescribe, and in fact did prescribe, "the following limits for the deposit of material, as provided by the first section of the foregoing act, viz.: The deposit of refuse, mud, etc., must take place east Of the meridian 73° 55' 56" west, light:-ship,) and south of parallel 40° (which passes through the 31' N." .No other designation of limits has been prescribed. The complaint, in myjudgment, cannot be sustained. The first three sections of the act all hinge upon a proper designation by the supervisor of "the limits" within which the deposit of refuse, etc., is to be "forbidden." No designation has been made of prohibited limits except by implication, and that so broadly as to be in exceSS of the supervisor's power. Section 4 is limited to materials placed on any boat "for the purpose of being taken or towed upon the. waters of the harbor of New York to a place or-deposit," which has noapplicaHon torefusetQ.ken and dumped at Newburgh, because the,watei's of the Hudson river at Newburgh are not." waters of the harbor of New York." The subsequent words, "such mud,dirt," etc., in section 4, refer to mud, dirt, etc., loaded for. the same purpose of being towed upon the waters of New York harbor, which is not the present case. Section 1 does not prohibit the deposit of refuse, etc;, anywhere except "in the tidal waters of New York harbor, or its adjacent or tributary waters, or in those of Long Island sound, within the limits which shall be prescribed by the supervisor." It does not prohibit deposit of such material on land anywhere; nor in all the "tributary waters," but only in such parts olthe tributary waters, etc., as are "within the limits to be prescrib!'ld," i. e., not embracing the whole tribntary waters. The tributary waters of the harbor of New York, inthe largest extension of the word "tributary," might include the brooks from the tops of the Adirondack mountains, and over all the water-shed of the Hudson. ' But it is neither reasonable to suppose, nor is it credible, that congress intended so wide an application of this act as that a shovelful of dirt should not be thrown into a brook, nor a boat-load of sand birried across a lake, in the Adirondacks, without a permit from the supervisor, under penalty of fine and imprisonment.· But, if any such prohibition Were authorized to be breated, the prohibition itself should at least appear plainly, and without indirection or ambiguity, in order .that a citizen proposing to deposit or to transport such material ill a particular place may know whether such act is prohibited and criminal, or not. It is a rule that the construction of statutes must be reasonable, since'the'law-making power ianot supposed to intend anything irrational
UNITJtD STATES V. THE SADIE.
825
or absurd. So a power conferred to make acts penal or criminal must be pursued strictly, and executed with reasonable definiteness and certainty, and within a reasonable construction of the statute. The primary condition of the practical application of this act is the designation by the supervisor of fixed and certain limits, within the tributary and other waters of New York harbor and of Long Island sound, within which the deposit ofrefuse, etc., is prohibited. The act contemplates, first ofall, a certain prohibited area within those waters, marked. by definite, certain, and intelligible limits. Refuse, dirt, mud, etc., dredged, found, or brought within those limits, becomes thenceforth prohibited material, and subject to the operation of the act. Similar material while outside of the prohibited limits are wholly outside of the scope of the act. They are not prohibited materials, nor within the operation of the statute. The supervisor has not designated, as required by the act, any limits or boundaries .or parts of the tributary waters within which such deposit is to be prohibited. No prohibited area is specified. Instead of that, he has said that "the deposit of material under the first section must be made east of the meridian of the Scotland light-ship, and south of the parallel 40 0 31' north." That section gives him no authority to prescribe where materials shall be deposited. His permissive authority is only to issue special permits under section 3, and that applies only to what is loaded upon vessels. Section 1 has a wider scope and purpose, namely, to create a prohibited area within the tributary waters, wherein no refuse can be deposited from vessels or otherwise. If the supervisor's rescript could be taken to mean conversely, and by implication, what is not expressed in it, namely, that a deposit ofrefuse, etc., was prohibitedanywhere else than to the. eastward and southward of the lines specified, then the scope of the act and the rescript would be to make criminal the deposit of a shovelful of dirt anywhere within the boundaries of the United States, on land or water, and within a large part of the high seas. Manifestly, the statute had no such intention, nor had the supervisor any such authority. If, however, the implication of the order does not go to that extent, no one can say, or is authorized to say, to what extent less than that it does go, nor where it stops. In other words, it is void, as an implied prohibition, for unreasonablenesl;l, indefiniteness, and uncertainty, and for substituting a designation of the place of the deposit, not authorized by section 1, instead of designating with definiteness and certainty the limits of prohibition within the tributary waters, as section 1 requires. The tidal waters, which in fact extend over 150 miles up the Hudson, cannot, I think, be construed as fixing the northerly limit of the prohibited area, because the words "tidal waters" cannot be connected by construction, in the first section, with the words "its adjacent or tributary waters," as a limitation of them, except by a forced and unnatural reading; and the fact that in sections 2 and 4 the same words, "its adjacent or tributary waters," are used without any connection with "tidal waters," seems to me conclusive that no such construction was intended in the first section of the statute; and the title of the act does not indicate
826
FEDERAL RE1>ORTER,
voL 41.
any such construction. The limitifin either direction were not designed to be fixed by the statute itself, hut by the supervisor. Those limitswepe to be within the tributary waterl:l', i. e., to embrace less than the whole of such tJ'ibutary waters,-and oilly-such as the supervisor should specify by nxinga northerly as well as a southerly limit. This he has not done, and that in terms which Elxclude all the tributary waterst9 the north, and exclude also all the waters of Long Island sound, both of which are in of the authority given by the statute. In my judgment, such a power to create a limit of prohibition, in the case of a higbly!,enal and criminal statute, cannot be properly executed by mere implication or indirection; :opr by terms whioh in themselves pro-: hibit nothing, but leave the eitent of the alleged implied prohibition, without reasonable definiteness and certainty. The promulgation by , the supervisor undel'aection 1 is such a departure from the authority of the statute, and the mode in which it was intended to be exercised,. and such a' fuilure to perform whatthe statute required, namely,to fix: the limitS hf th¢. prohibited area within the tributary waters, as, in my have nO validity; and.:no cause of action accrued under it. The q,efect is one that can be' remedied at any moment by the supervisor, by a proper fi:Xibg of the limits as; contemplated by the statute; and he should 'be required to execute the,statutory power according to its intent before 'it is enforced against Sections 3 refer exclusi"ely to cases of"such prohibited matter," or of" such forbidden matter," when loaded on a boat,etc. But it is plain'thatthe words "forbidden matter" and "prohibited matter" do not refer torefuae, dirt, anywMrewithin the United States, but only tosutih matter as is within the scope of this act, namely, such as is within, or within, the prohibited area that is designed to be constituted and established within the prescribed limits of the tributary waters under tlie first section. Dirt or refuse in Washington or Philadelphia isnot prohibited matter. It first bebomes so when found or brought within the prohtbited limits. 'As nO'prohibited area has yet been legally con· stituted, there is nothing in this case to which the words "such prohib. ited matter" can attach. The cauEjes of action under sections 2 and 3, therefore, cannot be maintained" and the libel inust be dismissed·
. MEYERS EXCURSION
&
NAVIGATION
Co· .". THE EMMA KATE Ross.
(DiBtniot Oourt, D. NeW Jersey. Maroh 4,1890.) L. CoUISION-CROSSJNG BTEAHERS. Under 28 U. S. at. at 441, which provides that, "if two ships under steam are orosslng 80 as to involve risk of collision, the ship whioh has tlie other on her '.'" own starboard side shsU keep out Of tl:!e way of the othEjr, " when a collision under 8uoh oiroumstanoes .lih\! vessel whose duty it is to keep out of the way should be held in fault, unless clear and undisputable evidence establishes the contrary. I. SAME-ABSENCE OF LOOKOUT. The absence of a lookout on the other vessel is immaterial where it does not apo lear that the oollision oould in any wise be attributed to his absence.
