THE: PIllOT.
11
nershio name, respectfully represents that .saldGopartnershi.p' is in. and has its principal place of busmess In, the city of Plttsburgh,and state of Pennsylvania, and is a citizen of .sald state." .
This averment does not show a case of which the circuit court could take jurisdiction. The allegation is that the plaintiff is a ship created by the laws of the state of Pennsylvania, and not a corpot'ation. A copartnership is not a corporation, and cannot be a citizen of a state, within the meaning of the statutes regulating the jurisdiction of the circuit court. By forCe of the decisions of the supreme court, the stockholders of a corporation, for the purpose of determining the jurisdiction of.thefederal courts in suits to which the corporation is a party, are conclusively presumed to be citizens of the state by whose laws the corporation was created. Railroad Co. v. Wheeler, 1 Black, 286; BricJge Co. v. Shepherd; 20 How. 227. But no such presumptionobtain$ as to the members of a copartnership. The fact that, by the laws of the state of Pennsylvania, this copartnership is authorized to sue in its copartnership name in that state, does not authorize it to sue in the federal court as a citizen of that state. Chapman Barney, 129 U. S. 677, 682, 9 Snp. Ct. Rep. 426. When a copartnership sues, the citizenship of the partners composing it be avelTed, and must be such as to confer the jurisdiction. For aught that appears in the record, the members of the copartnership and t'l1e defendants may be citizens of the same state. The judgment of the circuit court is reversed" for want of jurisdiction, at the costs of the plaintiff in elTor, and the cause remanded, with directions to that court to dismiss it unless the plaintiff shall amend its complaint to show jurisdiction.
v.
THE PILOT. THE PILOT v.UNITED STATES. DUNSMUIR 'V.
BRAD8HAW, Collector of Customs. December 1, 1892. Nos. 80. 81.
Circuit Court of Appeals. Ninth Circuit.
CIRCUIT COURT OF APPEAI,S-.JURISDICTTON-TREATIES-FOREIGN
The treaty between the United States and Great Britain of June 15, 1846. fixes the boundary between the two countries In the straits of San Juan de Fuca by a liDe following the middle of the strait; but the same treatv secures to each nation a right of free navigation over all the waters of the strait. Rev. St. 4370. Imposes a penalty against foreign tugs towing American vessellJ from one American port to another except where the towing. in whole or in part. is on foreign waters. Held. that the circuit court of appeals has jurisdiction of an. appeal from a decree in admiralty holding that the waters north of the boundary established by the treaty are not "foreign waters," within the meaning of the statute, since neither the validity nor the construction of the. treaty is drawn in question, so as to require that the appeal should be to the supreme conrt. under the judiciary act of M.arch 3, 1891, 5. Bubd. 5. (26 St. at Large, p. 826.)
Appeals from the District Court of the United States for the Northern Division of the District of Washington. . In Admiralty. Libel by the United States against the British steam tug Pilot- for towing an American vessel between American
12,
FEDERAL REPORTER,
vol. 53.
portsJ' Ui vio.lation of ReV. ,St·· §, 4370. ,A decree for' libelants was entered iti'tne district court. 48 Fed. Rep. 319. Joan Olive Dunsmuir, owner of the Pilot, appealed to this court, and the decree was reversed. 50 Fed. Rep. 487, 1 C. O. A. 523. Libelant now moves to vacate the decree Of reversal, and to dismiss the appeal, on the ground that under 26 St. at Large, c. 517, § 5, subd. 5, the circuit court of appeals had no jurisdiction of the case. Denied. Also, 'a libel by Joan Olive Dunsmuir, owner of the British steam tug Lorne, against Charles M. Bradshaw, collector of customs of the United states for the district of Puget sound, to recover money paid by 'her under protest in order to release the Lorne from a seizure made to enforce a fine for violation of Rev. St. § 4870. In this case the libel was dismissed, libelant appealed, and the decree was reversed. 50 Fed. Rep. 44Q, 1 O. O. A. 525. 'The libelee now moves to vacate the decree of reversal, and to dismiss libelant's appeal, on the ground that uhQer 26 St.at Large, C. 517, ,§ 5, subd. 5, the circuit court of appeals had no jurisdiction of such appeals. Denied. Rev. St. § 4370 provides: "All steam tugboats. not of the United States, found employed in towinA' documented vessels of the United States. plying from one port to another, ilhall be liable to 1\ penalty of fifty cents per ton on the measureJJlent of every such ve,sselso to:wed by them, respectively, which sum shall be recovered by,\Ve.y of libel or suit. ,,'rhis, section shall not apply to any case where the tOWing, in whole. or in part.! is within or upon foreign waters." 'l'he treaty between the United States and Grellt Britain of'June 15,1846, fixes the boundary between the two countries inthe.straits of San Juan de Fuca by a boundary line following the midilleof the strait. and.also secures to each aright of free navigation over the entire waters, pl the strait. 26 St. at Large. c. 517, $\ 5, subd. 5. provides that "appeals or'writs of error may be taken from the district court or from the existing circuit courts direct to the supreme court, in.any case in which the constitutionality of auy law of the United States ur the validity or construction of any treaty made under its authority, is drawn in question."
Burke, Shepard & Woods, for' appellants. Charles A. Shurtleff, for appellees. Before MC:l{ENNA and GILBERT, Circuit Judges, and MORROW, District Judge. PER CURIAM. It is perfectly clear that the validity of the treaty was not "drawn in question." The case, upon the facts, simply called for a construction of section 4370, Rev. St. U. S., as to what was meant by the words "foreign waters." No rights were uirectly elajmed under the treaty. No question of the jurisdiction of either nation over the waters of the straits, on either side of the boundary line, was involved. The question of the construction of the treaty, if at all, was only incidental, as to a question of fact not denied 6yeither Pl.U'ty, to wit,the right of both nations to have free and open navigation .over the waters of the straits. 'rhe statute of the United States was to be constl'1led with reference to the existing state otfacts under the treaty. No direct question l;lS to the construction of the treaty was raised. The treaty established a boundary line between the United States and Great Britain, and gave each nation the right of free navigation. These were facts proper to be considered, and were not in any manner disputed or drawn in question. The qUE'l>tion-and the oDly question.......was whether, upon such admitted
STATES .,. FOWKES.
13
fa{'t8,the waters north of the boundary line establi$.ed by the tI'caty WE're "foreign waters," within the meaning of that term as used in the statute. Section 4370. Decision on the question whether a motion trJ dismiss an appeal can be made after judgment of this court is ref:lel'yed. The motion will be denied.
UNITED STATES v. FOWKES. (Circuit Court of Appeals, Third Circuit. November 10, 1892.)
1.
CIRCUIT COURT OF ApPEALS-JURISDICTION-HADEM CORPUS.
Under Act March S. 1891, §§ 4-6, the circuit courts of appeals have suc· ceeded to the appellate jurisdiction of the circuit courts under Rev. St. § 763. for reviewing habeas corpus proceedings in the district courts. Under Rev. St. 763, the circuit court had appellate jurisdiction to review a decision of the district court, releasing, on habeas corpus. a person arrested in Pennsylvania for viOlation of the intersta.te commerce act, and held for removal to Missouri to answer to an indictment there found. Seavey v, Sey· mour, S Cliff. 439, followed. The signing of a "line voucher" by a freight claim agent at Philadelphia, in the third circuit. relating to the payment of freight in the eighth circuit, if an offense punishable under section 10 of the interstate commerce act. is not begun in one judicial circuit and completed in another. within the meaning of Hev. St. § 731, and is therefore not cognizable in a d.istrict court in the eighth circuit. In re palliser, 10 Sup. Ct. Rep. 1034. 136U. S. 257, and Horner v. U. S., 12 Sup. Ct. Rep. 407, 143 U. S. 207, distinguished. Under Rev. St. 1014, providing for the arrest of offenders, and thelrre· moval to such federal courts as have cognizance of their offenses, a person arrested in Pennsylvania merely on the strength of an indictment found in a federal district court in Missouri for violation of the interstate commerce act can. on application for habeas corpus, and for a warrant of removal to such court. introduce evidence to prove that tbe act alleged as an offense was com· pleted in Pennsylvania, and is therefore not cognizable in the federal court in Missouri. 49 Fed. Rep. 50, affirmed.
2. CIRCUIT COURTS-APPELLATE JURISDICTION-HABEAS CORPUS-OFFENSES UN· DER INTERSTATE COMlfERcE ACT.
B.
INTIDRSTATE COMMERCE ACT-VENUE OF OFFENSES.
4.
CRIMINAL LAW-REMOVAL TO ANOTHER DISTRICT FOR TRI.AL-OFFENSES UNDER INTERSTATE COMMERCE ACT-HABEAS CORPus-EVIDENCE.
Appeal from the District Court of the United States for the East· District of Pennsylvania. l'n Applications by the United States for a warrant of removal of Frank W. Fowkes from the district court for the eastern district of Pennsylvania to the court for the eastern division of the eastern district of Missouri, and by the prisoner for habeas corpus. The district court denied the warrant, and discharged the prisoner. 49 Fed. Rep. 50. The United States appeal. Affirmed. Robert Ralston, Asst. U; S. Atty., and Ellery P. Ingham, U. S. Atty., for the United States. Thomas Hart, Jr., for appellee. :6efore ACHESON and DALLAS, Circuit Judges, and BuFFING· TON, District Judge. DALLAS, Circuit Judge. This was an application made on behalt ()f the United States to the Unjrel1Eiltates district court for the