THE VESSEL 'ABBY DODGE,' A. Kalimeris, Claimant, Appt., v. UNITED STATES.

223 U.S. 166 (32 S.Ct. 310, 56 L.Ed. 390)

THE VESSEL 'ABBY DODGE,' A. Kalimeris, Claimant, Appt., v. UNITED STATES.

No. 41.

Argued: November 6 and 7, 1911.

Decided: February 19, 1912.

Mr. Edward R. Gunby for appellant.

Argument of Counsel from pages 167-169 intentionally omitted

Solicitor General Lehmann and Mr. Charles E. McNabb, Assistant Attorney, for appellee.

Argument of Counsel from pages 169-172 intentionally omitted.

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Mr. Chief Justice White delivered the opinion of the court:

By libel of the vessel Abby Dodge, either her forfeiture or the enforcement of a money penalty was sought because of an alleged violation of the act of June 20, 1906, 34 Stat. at L. 313, chap. 3442, U. S. Comp. Stat. Supp. 1909, p. 1087, entitled, 'An Act to Regulate the Landing, Delivery, Cure, and Sale of Sponges.' The specific violation alleged was 'that there was at the port of Tarpon Springs, within the southern district of Florida, on the 28th day of September, A. D. 1908, landed from the said vessel, Abby Dodge, 1,229 bunches of sponges, taken by means of diving and apparatus from the waters of the Gulf of Mexico and the Straits of Florida, . . . at a time other than between October 1st and May 1st of any year, and at a time subsequent to May 1st, A. D. 1907.'

The owner of the vessel appeared and filed exceptions which, although urged in various forms, were all, as stated by counsel, 'directed to and based upon the alleged unconstitutionality of the said act of June 20, 1906.' The exceptions were overruled, and, the claimant declining further to plead, a decree was entered assessing a fine of $100 against the vessel. This appeal was then taken.

For the purposes of the questions upon which this case turns, we need only consider the 1st section of the act of June 20, 1906, which is as follows:

'That from and after May first, anno Domini nineteen hundred and seven, it shall be unlawful to land, deliver, cure, or offer for sale at any port or place in the United States, any sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida: Provided, That sponges taken or gathered by such process between October first and May first of each year in a greater depth of water than fifty feet shall not be subject to the provisions of this act: And provided further, That no sponges taken from said waters shall be landed, delivered, cured, or offered for sale at any port or place in the United States of a smaller size than four inches in diameter.'

Broadly, the act, it is insisted, is repugnant to the Constitution because, in one aspect, it deals with a matter exclusively within the authority of the states, and in another because, irrespective of the question of state authority, the statute regulates a subject not within the national grasp, and hence not embraced within the legislative power of Congress. The first proceeds upon the assumption that the act regulates the taking or gathering of sponges attached to the land under water, within the territorial limits of the state of Florida, and it may be of other states bordering on the Gulf of Mexico, prohibits internal commerce in sponges so taken or gathered, and is therefore plainly an unauthorized exercise of power by Congress. The second is based on the theory that, even if the act be construed as concerned only with sponges taken or gathered from land under water outside of the jurisdiction of any state, then its provisions are in excess of the power of Congress, because, under such hypothesis, the act can only apply to sponges taken from the bed of the ocean, which the national government has no power to deal with.

We briefly consider the two propositions. If the premise upon which the first rests be correct, that is to say, the assumption that the act, when rightly construed, applies to sponges taken or gathered from land under water within the territorial limits of the state of Florida or other states, the repugnancy of the act to the Constitution would plainly be established by the decisions of this court. In McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248, the question for decision was whether the state of Virginia had such exclusive authority over the planting and gathering of oysters upon the soil in tide waters within the territorial limits of the state as not only to give the state the power to control that subject, but to confer the right to exclude the citizens of other states from participating. In upholding a statute exerting such powers the doctrine was declared to be as follows: 'The principle has long been settled in this court that each state owns the beds of all tide waters within its jurisdiction, unless they have been granted away. Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Smith v. Maryland, 18 How. 74, 15 L. ed. 270; Mumford v. Wardwell, 6 Wall. 436, 18 L. ed. 761; Weber v. State Harbor Comrs. 18 Wall. 66, 21 L. ed. 802. In like manner the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012. . . . The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship.' True it is that the rights which were thus held to exist in the states were declared to be 'subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States;' but with that dominant right we are not here concerned.

Again, in Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 559, in upholding a statute of the state of Massachusetts regulating the taking of menhaden in Buzzard's bay, the doctrine of the case just cited was expressly reiterated. True, further in that case, probably having in mind the declaration made in the opinion in the McCready Case, that fish running within the tide waters of the several states were subject to state ownership 'so far as they are capable of ownership while so running,' the question was reserved as to whether or not Congress would have the right to control the menhaden fisheries. But here also, for the reason that the question arising relates only to sponges growing on the soil covered by water, we are not concerned with the subject of running fish, and the extent of state and national power over such subject.

The obvious correctness of the deduction which the proposition embodies, that the statute is repugnant to the Constitution when applied to sponges taken or gathered within state territorial limits, however, establishes the want of merit in the contention as a whole. In other words, the premise that the statute is to be construed as applying to sponges taken within the territorial jurisdiction of a state is demonstrated to be unfounded by the deduction of unconstitutionality to which such premise inevitably and plainly leads. This follows because of the elementary rule of construction that where two interpretations of a statute are in reason admissible, one of which creates a repugnancy to the Constitution and the other avoids such repugnancy, the one which makes the statute harmonize with the Constitution must be adopted. United States ex rel. Atty. Gen. v. Delaware & H. Co. 213 U. S. 366, 407, 53 L. ed. 836, 848, 29 Sup. Ct. Rep. 527, and cases cited.

While it is true that it would be possible to interpret the statute as applying to sponges taken in local waters, it is equally certain that it is susceptible of being confined to sponges taken outside of such waters. In view of the clear distinction between state and national power on the subject, long settled at the time the act was passed, and the rule of construction just stated, we are of opinion that its provisions must be construed as alone applicable to the subject within the authority of Congress to regulate, and, therefore, be held not to embrace that which was not within such power.

In substance the argument is that this case does not come within the rule, since it is insisted to confine the statute to sponges taken or gathered outside of state territorial limits would also, although for a different reason, cause it to be plainly unconstitutional. This but assumes that the second proposition, denying all power in Congress to exert authority in respect to the landing of sponges taken outside of the territorial jurisdiction of a state, is well founded; and we come, therefore, to the consideration of that proposition. For the sake of brevity we do not stop to review the general considerations which the proposition involves for the purpose of demonstrating its inherent inaccuracy, or to point out its conflict with the law of nations, and its inconsistency with the practices of the government from the beginning. We thus refrain, since there is a simpler and yet more comprehensive point of view disposing of the whole subject.

Undoubtedly (Lord v. Goodall, N. & P. S. S. Co. 102 U. S. 541, 26 L. ed. 224), whether the Abby Dodge was a vessel of the United States or of a foreign nation, even although it be conceded that she was solely engaged in taking or gathering sponges in the waters which, by the law of nations, would be regarded as the common property of all, and was transporting the sponges so gathered to the United States, the vessel was engaged in foreign commerce, and was therefore amenable to the regulating power of Congress over that subject. This being not open to discussion, the want of merit of the contention is shown, since the practices from the beginning, sanctioned by the decisions of this court, establish that Congress, by an exertion of its power to regulate foreign commerce, has the authority to forbid merchandise carried in such commerce from entering the United States. Buttfield v. Stranahan, 192 U. S. 470, 492, 493, 48 L. ed. 525, 534, 535, 24 Sup. Ct. Rep. 349, and authorities there collected. Indeed, as pointed out in the Buttfield Case, so complete is the authority of Congress over the subject that no one can be said to have a vested right to carry on foreign commerce with the United States.

Although, for the reason stated, we think the statute, limited by the construction which we have given it, is not repugnant to the Constitution, we are nevertheless of opinion that, as thus construed, the averments of the libel were not sufficient to authorize the imposition of the penalty which the court below decreed against the vessel. As, by the interpretation which we have given the statute, its operation is confined to the landing of sponges taken outside of the territorial limits of a state, and the libel does not so charge,—that is, its averments do not negative the fact that the sponges may have been taken from waters within the territorial limits of a state,—it follows that the libel failed to charge an element essential to be alleged and proved, in order to establish a violation of the statute. United States v. Britton, 107 U. S. 655, 661, 662, 27 L. ed. 520, 522, 523, 2 Sup. Ct. Rep. 512, and cases cited.

As we deem that it has no relevancy to the power of Congress to deal with a subject not within its constitutional authority, that is, the taking of sponges within the exclusive jurisdiction of a state, we have not considered it necessary to refer to a statement made by the district judge concerning legislation of the state of Florida, making it unlawful to gather or catch sponges 'in and upon any of the grounds known as sponging grounds along the coast of Florida from Pensacola to Cape Florida, by diving either with or without a diving suit and armor.' Equally, also, have we refrained from attempting to reconcile the enactment of this state law with some reference made by the govenment in argument to certain statements in testimony given before a committee of the House when the act which is before us was in process of adoption, to the effect that there were no sponge beds within the jurisdiction of Florida, because 'the sponge beds were from 15 to 60 and 65 miles out.' In view of the paramount authority of Congress over foreign commerce, through abundance of precaution we say that nothing in this opinion implies a want of power in Congress, when exerting its absolute authority to prohibit the bringing of merchandise, the subject of such commerce, into the United States, to cast upon one seeking to bring in the merchandise, the burden, if an exemption from the operation of the statute is claimed, of establishing a right to the exemption.

While it necessarily follows from what we have said that the decree must be reversed, we are of opinion that, under the circumstances of the case, it should be accompanied with directions to permit the government, if desired, to amend the libel so as to present a case within the statutes as construed. The Mary Ann, 8 Wheat. 389, 5 L. ed. 643.

Reversed.

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