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the logs consigned to that port, to proceed to Bellingham with the remaining logs in tow for delivery there, or whether the towing under such circumstances from Anacortes to Bellingham may lawfully be done only by an American vessel.”
Section 4371, Revised Statutes, provides as follows:
"SEC. 4371. Every vessel of twenty tons or upward, other than registered vessels found trading between district and district, or between different places in the same district, or carrying on the fishery without being enrolled and licensed, or if less than twenty tons and not less than five tons, without a license, in the manner provided by this title, if laden with merchandise the growth or manufacture of the United States only, distilled spirits excepted, or in ballast, shall pay the same fees and tonnage in every port of the United States at which she may arrive as vessels not belonging to a citizen of the United States; and, if she have on board any articles of foreign growth or manufacture, or distilled spirits, other than sea-stores, she shall, together with her tackle, apparel, and furniture, and the lading found on board, be forfeited.”
Section 7 of the act of June 19, 1886 (24 Stat. 79, 81), provides as follows:
SEC. 7. Every vessel of twenty tons or upwards, entitled to be documented as a vessel of the United States, other than registered vessels, found trading between district and district, or between different places in the same district, or carrying on the fishery, without being enrolled and licensed, and every vessel of less than twenty tons and not less than five tons burden found trading or carrying on the fishery as aforesaid without a license obtained as provided by this title, shall be liable to a fine of thirty dollars at every port of arrival without such enrollment or license. But if the license shall have expired while the vessel was at sea, and there shall have been no opportunity to renew such license, then said fine of thirty dollars shall not be incurred. And so much of section four thousand three hundred and seventy-one of the Revised Statutes as relates
to vessels entitled to be documented as vessels of the United States is hereby repealed.”
Clearly section 4371, Revised Statutes, as it stood prior to the passage of section 7 of the act of June 19, 1886, did not apply to foreign vessels at all, but only to such vessels as were capable of being enrolled and licensed, or licensed only, which foreign vessels are not.' (R. S. 4131, 4311, 4142, 4312, 4320.) The penalty prescribed by section 4371 is the payment of the tonnage dues to which foreign vessels are liable by section 4219, Revised Statutes, so that of course such vessels can not be within section 4371, Revised Statutes. If any authority be needed on such a plain proposition it is furnished by the opinion of Attorney General Brewster in 17 Op. 388.
Section 7 of the act of June 19, 1886, quoted above, provides:
And so much of section four thousand three hundred and seventy-one of the Revised Statutes as relates to vessels entitled to be documented as vessels of the United States is hereby repealed.”
It must be admitted this language suggests that Congress thought section 4371 did, in some way or to some extent, apply to vessels which were not entitled to be documented as vessels of the United States. But, as pointed out above, section 4371 is incapable of a construction which shall make it applicable to such vessels, and Congress did not see fit to change its language. The bare inference as to what Congress thought the act covered, to be drawn from the peculiar terms of the repealing clause of section 7 of the act of June 19, 1886, can not operate to make a new act or bring within the old one a subject-matter clearly not within its terms.
Moreover, it is not certain that Congress meant by the repealing portion of section 7 to intimate that foreign vessels were within section 4371, Revised Statutes. Section 7 was a part of H. R. 4838, Forty-ninth Congress, first session (49th Cong. Rec., 1st sess., pp. 958, 1149). The Senate struck out section 7 altogether. (Ibid., p. 4571.) . It was restored in conference, and the managers on the part of the
Senate in the conference reported of this restoration as follows (Ibid., 4992):
“Amendment 8 adopts section 7 of the bill as passed by the House, by which a vessel of the United States without the usual papers is subjected to a fine instead of forfeiture.”
The House managers made the same statement. (Ibid., p. 4999.) It appears to me clear, therefore, that section 4371, even when read in connection with section 7 of the act of June 19, 1886, has no application to foreign vessels.
Section 4347, Revised Statutes, as amended, provides:
“That no merchandise shall be transported by water under penalty of forfeiture thereof from one port of the United States to another port of the United States, either directly or via a foreign port, or for any part of the voyage, in any other vessel than a vessel of the United States. But this section shall not be construed to prohibit the sailing of any foreign vessel from one to another port of the United States: Provided, That no merchandise other than that imported in such vessel from some foreign port which shall not have been unladen shall be carried from one port or place in the United States to another.”
I do not feel any doubt that this section has not been violated in the case put by you. Indeed, the facts stated appear to show the very kind of traffic which section 4347, Revised Statutes, excepts. It is the transportation by water of merchandise, viz, logs, from a foreign port, viz, Vancouver, British Columbia, to a port of the United States, viz, Bellingham, via another port of the United States, viz, Anacortes, without unloading.
In the two cases of In re Laidlaw (42 Fed. 401), and Laidlaw v. Abraham (43 Fed. 297), it appeared that a vessel sailed from England with a cargo consisting partly of goods invoiced to San Diego, and partly of cement invoiced to Portland. It stopped at San Diego, unloaded the goods destined for that point, and proceeded to Portland with the cement. Judge Deady held that section 4347, Revised Statutes, had not been violated. He said (42 Fed. 402):
So long as the cement remained on board of the vessel, as a matter of fact, it was not in my judgment
unladen. The general object of the statute is to prevent vessels owned by foreigners from engaging in the coasting trade, and the special exception is, that such a vessel may carry its cargo, or any part of it, brought from a foreign port, from one district to another of the United States." (Italics mine.)
I am unable to distinguish the case decided by Judge Deady from the case submitted by you. Certainly to tow logs is to transport merchandise within the meaning of section 4347, Revised Statutes. In The Annie S. Cooper (48 Fed. 703, 701), Judge Billings said:
* A raft of logs is a contrivance whereby the logs themselves are kept together, and thus made capable of being transported. They are not the means, and the whole structure is not a means of transporting anything but the things which make up the structure. Therefore a raft of logs might not be strictly a vessel.”
It is equally certain that the portion of the logs destined for Bellingham was not “unladen " at Anacortes. The words “imported in ” in the proviso to section 4347, Revised Statutes, must be given the same meaning as the words “transported by” in the opening clause of the section. Originally “imported ” was used in both places (Comp. Stats. 1901, p. 2971), and the change is simply for the purpose of greater accuracy in the use of terms. The main consideration is that these logs were not transported coastwise in trade between Anacortes and Bellingham, but were, in every substantial sense, transported from Vancouver to Bellingham. Moreover, a comparative examination of sections 4219, 4371, as amended, and 4347, as amended, Revised Statutes, shows that the towing referred to in your letter does not come within the spirit of these prohibitory statutes. Section 4219 levies a tonnage tax “upon every vessel not of the United States, which shall be entered in one district from another district, having on board goods, wares, or merchandise taken in one district to be delivered in another district." Section 4371 inflicts the penalty of a fine upon vessels “ found trading between district and district, or between different places in the same district "
without proper papers. Section 4317, as amended, provides that merchandise shall not be transported from one port of the United States to another port of the United States in foreign vessels under penalty of forfeiture. Evidently all these statutes refer to the coasting trade only, and supplement each other so as to cover the whole field. If foreign vessels are within section 4371, Revised Statutes, then, for the same act, they are liable to a fine by that section, and to forfeiture of their cargo by section 4347, as amended. In like manner, a comparison of the three sections shows that section 4347, Revised Statutes, as amended, can only apply to the coasting trade, to “trading between district and district,” or to goods “taken in one district to be delivered in another district."
I have the honor, therefore, to advise you that the towing in question does not violate any law of the United States to which you have called my attention. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF COMMERCE AND LABOR.
PORTO RICO-LEGALITY OF BOND ISSUE.
The issuance of bonds by Porto Rico for an extension of the system
of irrigation, as provided by an act of the legislative assembly of Porto Rico, approved March 9, 1911, not being in excess of 7
per cent of the aggregate tax valuation of its property, is legal. The form of the proposed bond appears to comply with the require
ments of sections 11, 12, and 14 of said act of March 9, 1911, the relevant sections upon this subject.
DEPARTMENT OF JUSTICE,
Novenber 22, 1912. SIR: I have the honor to acknowledge the receipt of your letter of the 6th instant informing me that the Executive Council of Porto Rico has adopted a resolution approving the issue of registered bonds of the denomination of $5,000 each to the amount of $1,000,000, under authority of an act of the Porto Rican legislative assembly (No. 74) approved March 9, 1911 (Laws of Porto Rico, 1911, pp. 237,
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