490
, FEDERAL REPORTER.
the statute of limitation& applicable to the case creates an absolute bar without exception, and the facrthat such period has, elapsed clearly appears from the face of the petition. If the statute Cif limitations applicable to a given case is the general statute of limitations, and the bar of the statute may be avoided by nny one of the numerous exceptions mentioned in the act, it is certainly more logical to require the defense of the statute be taken by plea, and. such seems to be the meaning of the Missouri decisions heretofore cited. The ,demurrer to the second count will accordingly be overruled, and the defendant will beheld to make the defense of the statute by plea instead of by demurrer. . Twenty days will be allo",ed' to file a plea or answer.
to
UNITED STATES fl. TRICE.
, (Diltrict (Joq,rt, 2. -"OB'FICER." "
w: D.
Tenn68'68. March 15,.1887.) ' , '
CBnrmAL LAw-MALTRJI4\TUlCNT OF CREW 01' VESQL--REv. ST.
U. S.§ IiM7
, Anyone who by authority exercises the function of control over theactfons Of the crew, or any part of it, bygiving direction to their work, is an "offil;Jer, II within the meaning of the Revised Statutes oj the United States, § 5847,'and is liable to the penalty if hI! beat or wound one of the crew. t .· SAME-CASE IN JUDGllENT-"CAPTAIN OF TRE WATCH." Where :the roustabouts belonging. to the crew of a steam-boat are divid!!d into watches, and one. of their )luJJl1:ler is set over. them as "captain. of thll watch, " with power to direct their'work and demand obedience to his orders, keM,'that he is an officer within the meaning of the statute, (Rev. St. U. S. !'\ 5847,) and may be held to l!'nswer a charge of beatil\g and wounding one of the crew so placed under,
On Habeas Cory'!l:8. , H. C. Anderson, Asst. U. S. Atty., for the United States. H. C. Warinner, ';"i,
HAMMOND, J. The defendant 'having been held t6bail by a commissioner to answer for a violation of section 5347 of the Revised Statutes of the United States, maclt:l to the district judge for a warofremoval to another district fortx:ial"but, there being much doubt whether the facts brought hIs offense within the statute, counsel was assigned to him, and, by agreement with the district attorney, the matter was heard as if upon habetJs corpus. U. S. v. Bra'lJJ'lU'i', 7 Fed. Rep. 86; Inre Jame8, 18 Fed. Rep. SSa, 854. .' . . The defendant is one of the "roustabouts." or deckhands engaged on steam-boats to do the work ofloading, unloading, etc. He is charged with" beating andwounding " one of the crew, another" roustabout, j, contrary to the p'rovisions of thl1t statute. He is what is known in that service as a "captain of the. watch," and it is by reason of that relation that
UNITED STATES V. TRICE.
491
heis charged as an officer, and as being, therefore, amenable to the penalty of the statute, which enacts that ".every master or other officer of any American vessel," etc., "who beats, wounds," etc., "shall be punished," etc. Rev. St. U. S. §.5347. It seems.that this" captain of the watch" is a kind of foreman or overseer: who, under the supervision of the mate, has charge of one of the two" wa.tches" into which the crew is divided for the convenience of work, each having 'a "captain" in charge. He calls them "out" and "in," directs them where to store freights, which pack. ages to move, when to go" aboard" or come "ashore," and generally directs their work; or, to state it in the language of defendant's counsel: 88
"It is the practice oltha mates to select one member of each watch to act the head or chief of that watch. Ordinarily he is so selected because of his supposed experience in such business, and his fitness to intelligently guide and direct his watch- in the performance of their duty. IDs wages are generl}lly thOse of any experienced ·rouster.' and be is classed and paid as a · rouster.' Among his duties are to call out his watch When needed, put them at work according to direCtions of the mate on watch, guide tbem in receiving, storing, and delivering cargo: or, in other words, to give his aid and attention to systematize thlllabor of the crew. he himself ordinarily performing a. part of the duties required of his watch. 'He is not known or recognized as an officer by steam·boat owners, but penorms his duty·in obedience to' orders alld directions given, as occasion requires. by the mate, iBsubject to his orders as any other · rouster' is, aqdmay be called by the mate to perform any duty that a.' rouster I may be called. to perform. The crew look upon him, probably. as practically occupying a superior or quasi superior position over .bis . watch."
This fairly represents the testimony as to the functions of the II captain oUhe watch," and the questionis,does the statute apply to a person O{lCupying such a position? It is·conooded that this statute was not intended to punish fighting or other assaults committed by the crew upon each other, in which respect it is different frOiD the British act passed in the same year, and· about the same time, with the same general purpose, which provided for the summary punishment of "common 8$Baults on shipboard," (2 McCul. Diet. tit."Seaman," 442;) and, this being so, there is a wide margin for interpretation,whether we look at the lexicographicalexpressions that may be used to represent the meaning of the words in dispute, the technical terminolOgy they employ, and the judicial definitions that have been attempted in other connections, or seek the more contracted mischief to be preventedcthan the punishment of all and wounding on shipboard, by'confining the statute to the suppressilm only of the abuse of authority;· for I take it that whatever may be said oithe effect of section 4611 of the Revised Statutes of the United States, abolishing flogging, passed many years later, it was not the intention of this statute to curtail the lawful authority of the master or other officer in charge of! the sbip to inflictrE'RBonable corporal punishment. And when, in oursell.rch for the real congress had in mind· to remedy, to arrexamillation of the master's8uthority in that regard, we find that fa.ct' only master" and . notany other officer whatever,· except when the roaster
me.
in
492
·. FEDERAL REPORTER.
was not on board and some other exercised' his powers; had any right to strike or punish in any other way, one of the crew. Whoever inflicted the punishll1ent, be it hyohe; blow or more, or by some other kind of punishll1ent, could only do that by order .of the master, specifically given. One exception there wasta this, and that was that the mate or other offioer, in charge of the particular business might, by a single blow, stimulate instant and prompt obedience in the performance of a given act,;·which could· not await an application or complaint to the master. Of course, I do not consider here the niceties of this very interesting subject,. nor attempt to express the full nature or extent of the master's powers, nor any of its.limitation,s through the right of sanctuary in the prow of a vessel or a fur.ther retreat, after which, even asagairist the master, the seaman purslled might strike his pursuer without incurring tbebarbaric penalties for striking an officer, as the general' statement above made is sufficient for the present,purpose.. 2 Browne, Oivil & Adm. Law. 160; 1 Oonk: Adm. '(2d 1M:) 427'-448;U. S. v. Taylor, 280m. 585-588; J!'uJJ);r v. Colby, 3 Woodb. & M.l; U.S. v.Freeman, 4 Mason, 511; Ourt.J94,' . Now, in. view .ofthis o,fthe.law, that ,ll1aste,rcould punish or bad authority to strike, and of the conceded fact that it was not intended by this statute to denounce all beating 011 shipboard; it would 'riot bean unreasbnable construction Of the words" ot 'other officer," as ,Used in the section, to hold that they were 'intended to designatesolfle ohe substituted for the master; and exercising his p6wers in his so that the section would read, that "every master, or other officer exercising his powers, who beats," etc., "shall be punished," etc;; thus confining the statute to the. prosecution ofan abuse of his official authority by the commander of the vessel, and leaving all other misconduct by the master or other officer where the common assaults among the crew are left, to be otherwise redressed, outside of this statute. As, if the master and one of the crew should fall out over a game of cards, and the master should.'''beat'' and" wound" the other, he would not be guilty under this actjthe affair not being within the scope of his official conduct qua master; so, if any but the master, or one acting as iriaster, should "beat" or wound another, he would not be liable,no matter what other relation might exist, or what might be the occasion of the beating; and looking to the phraseology of the statute about "imprisoning" and suitable food," and f'inflicting cruel and unusual punishment," etc., describing clearly a commander's acts, and belonging only to the master, or oneactiilg in his place as such, there is great force in this interpretation as the one that meets the technical requirements of statutory con.struction. This being a penal statute, I should not hesitate to adopt that construction but for a conviction that congress did not really. intend to so narrowly limit therellledial effects of this :beneficial act. The common interpretation of. the words used.go fUl1ther than that; the evil then exist. ing extended beyond that, and the scope of the legislationwhich had preceded. ,this act demanded more than this interpretation would
493
Congress, as the Englishparliamehtj had been long engaged in of a. ·codeoflawsof the sea, intended.to advance commerce, but more to nurture able-bodied and efficient seamen, for use when needed in time. of war;. anq. ,the general purpose was to mitigate the rigors of and make it more attractive, by protecting the sea· men from personal injury. These injuries were not inflicted alone by the master; as such, as they generally were in the beginning, when the abovementioned powers and duties of the master were established. Then he was not much removed in social position from'the rest of thecrewj worked among and was in constant contact with them , great as was his authority. Afterwards the master became less a part. of the crew; and had become,. when this act was passed, and has since far more become; separated from such dutiesj which are now mostly,devolved on underofficers who control the men while he exercises'only:a general ion, until now the master of a vessel is mo:re like a naval commander of a ship than like the old-time master. Congress no doubt had in view this modern style ofsea-service.and that of our lakes.and rivers, to which the act applies, where the master doos not beat his crew but to the mates· and "captains of the watch," and .!lid not have in view the ancient lawsjupon which this narrow construction is based. The learned counsel forthe defendant has not contended for the est construction, but doesiosistthat the words l!or ?ther officer"mu.st be limited to the recognized officers of a vessel, as known to the oa11" ing attention to the differences between ocean navigation and that .0(OUl rivers; yett if We get away from the interpretation already noticed, is no guide in the. technical rules of construction that direct us> to thE) meaning of the words used in their relation to the subject-matter. ,The word" officer is very elastic; As appliedto the military establishments 01 the army and navy, it would be more definite, perhaps, and somewhat so as applied to the civil establishments; where there are certain indicia of authority to point them out; but we have only to look adjudicated cases to see that, as used in statutes, the term oftenoonnot be so confined. And even.by common understanding in the army· and the navy, as well as the civil service, there are distinctions, social; tech, nical and arbitrary, that frequently influence the judicial of statutory and other administrative regulations. The marine service on board ships and steam-boats furnishes fewer of the usual indicia pretation, or of the intention to. be implied from· the mere use· of the words, tha.n these others, for the obvious reason that the offices are private in their origin ,and characteristics, and the duties .attached are altogether arbitrary, in every respect whatever. Each owner of a vessel mayE'stablish any and what officers he pleases, call them as he will, and distribute the service and duties as he may. choose, .and the rank and social relations may be what anyone may wish who has the power to regulate the subject. Custom very la.rgely, no doubt, and to some extent legal or statutory re/2;u" lations, may enter into the particular organization as·a controlling iriHu.:. ence; but, ;giving these all the consideration .possibleI and the fact ,re" Illains thlJ,tsubstantially the orgap.ization oLtheship',s company is asrbi"
ply.
FEDERAL· REPORTER.
trary, and the owner may make it quite at his will, particularly below the master. He must have engineers,pilots, etc., no doubt; but whether these shall be "officers" who have social rank and distinction as such on board; or be only part of the "seamen," the "crew," or the "men," etc., is purely discretionary with the owner, or, at most, regulated by arbitrary custom among themselves. Learned counsel cite from the books which name the "officers" of a ship as "master, mate, boatswain, surgeon, pilot, and supercargo;" or as "master, pilot, carpenter, carabita, purser, cook, and harbor watchman;" or· as "master, mates, pilot, boatswain,coxswain," etc.; and "surgeon, purser, cook, steward,cabi'n-boy, carpenter, cooper, engineers, and firemen." Jac. Sea Laws, 120-128; Fland. Shipp. 33; Curt. Seam. 3-6; 1 Conk. Adm. 107. But, as counsel say, these are rather subdivisions according to the duties performed, or classifications of the marines into those who· are common seamen arid those who hold. inferior official positions, or doIiot belong to the essentially maritime classes at all, than the designation of the recogniZed <dJicer8 of a vessel. Manifestly, these designations would not furnish"any criterion for the interpretation of this statute, and just as plainly,as it seems to me, will any other recognized classification or ranking fail to meet the requirements of this statute. Certainly, there can be none based on the 8ocialdistinctions which would be satisfactory. Why should a pilot, for example, who, away from the wheel, has control of nobody,' be amenable to this statute because he is recognized as an "officer," eats with the captain, and associates with him, while the steward, who beats Il,nd wounds a cabin-boy under his control, escapes because· he is not recognized as an officer and does not associate with the cti.ptain? The primarYsignifieationoftbe word "officer" will include this "captain oCthe watch;"and it is often used in that primary sensdo statutes, and is by judioialconstruction to include like positions. One of the earliest definitions of the word" officium" is "that ftlnction by virtue whereof a man, hath some employment in the affairs of another,as.of the kingoranoiher person.:" Oowell,Diet. h. t. Again: "It is said that the word' officium:' principally implies a duty:, and, in the place, the¢harge of such duty; and that it is a rule that where a man hath to do with another's affairs against his will, and without his leave, that this iss.n"'OjJice, and he who is in it an ojJicer.'! King v; Dr. Burnell, Carth. 478; 4cJac. Diot. 43S; tik"Office;" 2 Tom!. :Diet. 664; 2 Abb. Dict.200. . In Stone W U. S., 3 Ct. Cl.200, a foreman 'oflaborersat work upon the 'l!>ublicgt'oullds was held tG·· be employed "in his' office;" in relation to an appropriation 'for those eIriployed "in hisoffica" by the commissioner in charge; and in Com.:v; Wyman,8 Metc.24'f,a statute punfor :bashier :or other officer''',wltS held to in· elude allMove and below thai'officer who "are· within·the mischief intended to:ibe prevented." Many other cases might be!cited;but these are sufficient; and it would seem that the jUdibialdefiniti<>n always con-' forms ito an; enlarged or restricted· iqterpretatioii,according to circum.-
UNITED STATES". EAGAN.
495
sta.nces,tbe·reasonable rule being to give that effect to the act which it shall appear from the words used, and the object to .be accomplished, that the legislature wished should be done. Nor is the rule of strict construction for penal acts against this method of interpretation. U. v. Hartwell, 6 Wall. 385, 396; U. S. v. Mattock, 2 Sawy. 148, 151; TM Bolioo; 1 Gall. 76, 83; U. Winn, 3 Sum. 209. In the last case cited Mr. Justice STORY construed this very statute, arid, upon similar reason'" ing to that 1 have used, held that the chief officer next below the captain or mar:;ter was under the protection of the statute as one of the Upon the whole, I am satisfied that anyone who by authority exercises the function of command over the actions of the crew while on duty, or of any of them, is an officer pro hac vice, and liable to the penaltiesof this statute, as such, if he violate its provisions. So construed, the statute secures the purpose of congress to protect the. seamen or ",l'Ouster8," and all on board who, being of the Crew; are under the bondage of.obedience to authority, from any abuse of that authority; w.bile the more .restricted construction would permit the evil to continut:l by allowing the "officers" to delegate the beating and wounding to lings having all the power of, ,official place, with the right to j,t, and yet. .no responsibility; such as this statute iDlpQses. the master ever had the power to punish, or has ·now, but if any assume it by ,virtue of his office. be that office what it may; thereby hebe'Qomes, to alUnten.tB and purposes of this statute, amenable to the COD. sequences, if he abuse that power which he The defeudant will be held, to answer.
s.
(OWouU Oourt, E. D. .Miuouri, E. D. March 29, 188'7.)
Under.1he registration law,applicable to the ,citY' 01S1;. LatHs, Missouri, (Sesil. Laws .Mo. ·l883,p. 88,) a deputy i-ecorder of 'Voters for a ward of said city is not obliged to register apersdn merely becaule he applies forregistration /IoDd takes the oath prescribed 1?Y seclion 8 of said act. Such officer may reject ap. applicant (or registration who has taken the oath, if helli aware the.t the applicant ha:snottruly stated in'his oath and entered on the relPstration book the number of his residence. .Accordingly held, that· an. indIctD1e!ltunder of thE! Revised Statutesof·the United States against · deputy recorder of voters for a ward of said city was not demurrable which charged that said officer, at a registration fora congressional elec1ion;knowlngly and' willfully registered oneA.B. as a duly.qualUied voter· then and there residing at nJJ,mber"207 North 12th street," in U1eTenth ward, he, the laid defendant, well knowing that said ,... B. did not reside at said number, and Was not, entitled to be registered therefrom. Held, fu?·theI',tbat although $beappliQant for regiatralion resided in the Tenth ward and was a qQalified voter therein, the officer could not la.wfully pel;'Ulit h,im tl;) reglllter orregtster' him froDl a atreet number in aaidward wliere h.' did not re8id.; " .' o(S,Ualru. bI/ ,eM Ooun.)
VOTJIl:B&-REGISTRATION-DUTIE8 OF RECORDl\lR .Ol!': V()'fJ!lB8.