Ex parte THOMPSON. District Court, D. Massachusetts. July 19, 1927. No. 3727. Habeas corpus 45 (2)-Legality of arrest in interstate extradition should be tested in state court (28 USCA § 455). Notwithstanding the mandatory terms of Rev. St. § 755 (Comp. St. § 1283 [28 USCA § 455]), as to issuance of writ of habeas corpus, to avoid conflict between federal and state courts, legality of arrest of one held in interstate extradition proceeding should usually be tested by proceeding in state court. Habeas Corpus. Petition by Fred H. Thompson for writ of habeas corpus to secure his release from the custody of John F. Stokes. Writ discharged. Edmund A. Whitman, of Boston, Mass., for petitioner. as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and, to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear." The Attorney General of Massachusetts asked that the writ be discharged. It was Ralph W. Stearns, Asst. Atty. Gen., op- stated, without contradiction, that it had alposed. LOWELL, District Judge. Petition for writ of habeas corpus. By the return to the writ the petitioner is alleged to have committed larceny in New Hampshire and to be a fugitive from the justice of that state. The Governor of New Hampshire requested the Governor of Massachusetts to return Thompson to New Hampshire and appointed an agent to bring him back. The Governor of Massachusetts honored the requisition and Thompson was placed in the custody of the New Hampshire agent. He then applied to this court for a writ of habeas corpus, which issued, and the petitioner was admitted to bail. The Constitution of the United States provides as follows: "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." Article 4, § 2. The history of the provision is shown in Ex parte Kentucky v. Dennison, 24 How. 99, 16 L. Ed. 717. In 1793 the Congress passed a statute (1 Stat. 302) relating to the rendition of fugitives from justice. Ex parte Kentucky v. Dennison, supra. The subject is now covered by Revised Statutes, § 5278 (Comp. St. § 10126 [18 USCA § 662]), which reads as follows: "Whenever the executive authority of any state or territory demands any person ways been the custom in this district to test in the state courts the legality of the arrest of a person held on the requisition of the Governor of another state. An instance of this practice is shown in Appleyard v. Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073. The petitioner contended that Revised Statutes, §§ 751 to 761, inclusive (Comp. St. §§ 1279-1289 [28 USCA §§ 451-461]), especially section 755, required the court of the United States to whom application for a writ of habeas corpus was directed to consider the merits of the case. Section 755 (Comp. St. § 1283 [28 USCA § 455]), reads as follows: "The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The statute is mandatory in terms, but in a very well considered opinion, which is often cited, Mr. Justice Harlan decided that, in order to avoid conflict between the federal and state courts, a person should usually be left to his remedy in the state courts. Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868. See, also, Urquhart v. Brown, 205 U. S. 179, 27 S. Ct. 459, 51 L. Ed. 760; Ex parte Coatz (D. C.) 242 F. 1003; Shapley v. Cohoon (D. C.) 258 F. 752. The petitioner admits that this is the general rule on the subject, but insists that it is not the proper rule in the case of interstate rendition, where the application for a writ of habeas corpus is first made to a federal court. He points out that there is no decision in the books in which a petition of this 21 F.(2d) 75 kind has been denied. I have been referred THE SOUTHERN CROSS. THE SOCONY NO. 4. out a stern line to the dock, as it would have endangered the May Queen's cabin to carry a stern line from the Southern Cross to the dock. The dock runs with the creek. While both scows were so made fast and lying safely, the steam tug Socony No. 4 came into the creek at some speed, with the oil barge Socony No. 124, 235 feet long and 38 feet wide, in tow alongside on the tug's starboard side, from Sparkhill, bound to Kings No. 1, a refinery farther up Newtown creek. The Socony No. 4, with her tow, passed so close to the Southern Cross and the May Queen that, with the depth of water at that point in the creek, she created such a suction that she caused the Southern Cross and May Queen to surge back and forth, as a result of which the lines on the after end of the May Queen parted, and the wind caused both boats, which remained fast to each other, to swing around, and, in order to prevent the bow line of the May Queen from parting, the captain of the Southern Cross slacked off the bow line from the May Queen, got out a bow line from his boat to the dock, and let the boats swing around until they brought up District Court, E. D. New York. June 1, 1926. alongside the dock farther up the creek than No. 7538. Shipping 81(1)-Steam tug passing scow In Admiralty. Libel by the C. F. Harms Company, owner of the scow Southern Cross, against the steam tug Socony No. 4. Decree for libelant. Decree affirmed 21 F. (2d) 76. libelant. CAMPBELL, District Judge. There is considerable conflict in the testimony, but the facts appear to me to be as follows: After noon on November 4, 1920, the scow Southern Cross, laden with a load of sand waiting to be unloaded, was lying stern out alongside another scow, the May Queen, which was lying stern out laden with gravel, alongside the Sicilian Asphalt Company's dock at the foot of Box street, Newtown creek. The May Queen was properly made fast to the dock with good, although not new, lines, and the Southern Cross was made fast to the May Queen. She could not have put the place where they were formerly made fast. The captain, using a line which he carried from the dock forward to the winch of the Southern Cross, made considerable effort, with the assistance of men from the Sicilian Asphalt Company, to pull the boats back to the place alongside the dock where they had been made fast, but without success, and then notified the libelant, and it made efforts to get a tug to assist the Southern Cross; but it was election day, and no tug could be obtained. The libelant then notified the harbor police, and finally succeeded in getting Capt. Stillwagon, of the Newtown Creek Towing Company, to get a special crew and take a tug to the assistance of the Southern Cross; but when he arrived nothing could be done, as the tide had fallen. On the falling tide the Southern Cross grounded and sustained damages. The testimony of the witnesses produced by the Socony No. 4, that they saw no scows angling out, is negative, and, even if true, does not show the positive testimony of the captain of the Southern Cross to be other than true, because undoubtedly the Socony No. 4 had passed before the boats began to swing around, and the master of the Socony No. 4 was undoubtedly more concerned with the navigation of his boat and what was ahead than with boats he had passed, and the deck hand of the Socony No. 4 was a lookout on the bow of the barge No. 124, and undoubtedly was concerned with what was ahead, and not with what they had passed. William F. Purdy, of New York City, for appellee. PER CURIAM. Decree (21 F.[2d] 75) affirmed, with costs. The fact that no boats were seen angling P. J. MCGOWAN & SONS, Inc., v. VAN In my opinion, both the captain of the Southern Cross and the master of the Socony No. 4 are in error as to the rate of speed of the No. 4 and her tow, and while she was not going 10 miles an hour, she was going more than 2 miles an hour, and was going fast enough to create, with her deep draft tow, the suction which caused the lines of the May Queen to part. The injuries were received on election day, and there was little activity in the creek, and greater speed could be made. It is not a question of the precise speed of the No. 4, but whether her speed, when passing as she did the Southern Cross, was sufficient to inflict the damage, and, as I have found, she was guilty of negligence in passing at such speed. The New York (D. C.) 34 F. 757; The New Hampshire (D. C.) 88 F. 306; The Rhode Island (D. C.) 24 F. 295. I find no fault on the part of the libelant or the Southern Cross. A decree may be entered in favor of libelant, with costs and the usual order of ref erence. THE SOUTHERN CROSS. THE SOCONY NO. 4. No. 312. Appeal from the District Court of the United States for the Eastern District of New York. et al. No. 8909. June 27, 1927. 1. States 6-Compact between Oregon and Washington respecting regulations for protection of fish in Columbia river held not to prohibit either state from narrowing class of persons who may take fish or appliances which may be used within its own waters (40 Stat. 515). The compact between the states of Oregon and Washington, ratified by Congress in April, 1918 (40 Stat. 515), and providing that laws and regulations then existing or subsequently made for protecting or preserving fish in the Columbia River "shall be made, changed, altered or amended * * only with the mutual consent and approbation of both states," is a limitation beyond which the states singly may not go, but is not an inhibition against the narrowing by either state of the class of persons who may be permitted by it to take fish, or the appliances they may use within its own waters. 2. Fish 9-Initiated law, Oregon 1926, prohibiting use of fishwheel or seine for taking fish from Columbia river in state held valid (Laws 1927, p. 17). Initiated Law Oregon, adopted Nov. 1926 (Laws 1927, p. 17), making it unlawful to maintain or operate any fishwheel in the waters of Columbia river in the state after May 1, 1927, or to take fish therefrom with a seine at any point east of Cascade Locks, held valid. In Equity. Suit by P. J. McGowan & Sons, Inc., against I. H. Van Winkle, as Attorney General, John C. Veatch and others, as Fish Commissioners, and M. P. Hoy, as Master Fish Warden, of the state of Oregon. On motion for preliminary injunction. Denied. W. B. McCord (of Kerr, McCord & Ivey), of Seattle, for complainant. I. H. Van Winkle, of Salem, Or., A. E. Clark, of Portland, Or., and James W. Mott, of Astoria, Or., for defendants. Before GILBERT, Circuit Judge, and Before MANTON, L. HAND, and BEAN and McNARY, District Judges. SWAN, Circuit Judges. Macklin, Brown, Lenahan & Speer, of New York City (Paul Speer, of New York City, of counsel), for appellant. BEAN, District Judge. The plaintiffs and interveners are and have been for some years the owners and operators of sundry fish wheels and fish seines located and operated on 21 F.(2d) 77 the Oregon side of the Columbia river, for the taking of fish for commercial purposes. The wheels are stationary structures fixed to the soil. Seines are appliances depending on the use of the soil for their operation. In November, 1926, the people of the state, under the initiative power of the state Constitution, adopted a law making it unlawful after May 1, 1927, to place, maintain, or operate, or suffer to place, maintain, or operate, any fish wheel in the waters of the Columbia river in the state, or by means thereof to take any fish from such waters, or to take fish from such river at any point east of the Cascade Locks by means of a fish seine. Laws 1927, p. 17. words, the compact is a limitation beyond which the states may not go, but it is not an inhibition against the narrowing by either state of the class of persons who may be permitted by it to take fish or the appliances they may use. This is the effect of the decision of the Circuit Court of Appeals and of the Supreme Court in Olin v. Kitzmiller, 268 F. 348, Id., 259 U. S. 260, 42 S. Ct. 510, 66 L. Ed. 930. What was said in the opinion of the Circuit Court of Appeals concerning regulations which would be within the prohibition of the compact was merely by way of argument, and not a holding that one state cannot lawfully without the consent of the other prohibit the taking of fish within its own waters with certain appliances. Such legislation does not affect the common right with the adjoining state to take fish, but is a matter of local concern. The application for injunction is denied, and the restraining order heretofore issued is vacated. THE SANTA TERESA. THE ASHBEE. 1927. [1] The plaintiffs challenge the validity of this legislation on the ground that it is in conflict with a compact between the states of Oregon and Washington, approved and ratified by Congress in April, 1918 (40 Stat. 515), by the terms of which it was agreed that "all laws and regulations now existing, or which may be necessary for regulating, protecting, or preserving fish in the waters of the Columbia river, over which the states of Oregon and Washington have concurrent jurisdiction, or any other waters within either District Court, E. D. New York. May 17, of said states, which would affect said concurrent jurisdiction, shall be made, changed, altered, and amended in whole or in part, only with the mutual consent and approbation of both states." At the time the compact became effective the taking of fish with stationary wheels and seines, within the territorial limits of the respective states, was permitted by the laws thereof, and the plaintiffs' position is that that fact, in connection with the compact, inhibits either state from prohibiting the taking of fish with such appliances within its own territorial limits without the consent of the other. If this is unsound, the plaintiffs are not entitled to the relief demanded. The object of the compact was to deal with the preservation and protection of fish in the waters over which the two states have concurrent jurisdiction, and to that end it provided that all laws and regulations necessary therefor, which would affect such concurrent jurisdiction, shall be made, changed, altered, or amended only with the consent of both states. Admiralty 64-Interrogatories requiring respondents to state ownership of lighters Into which damaged sheepskins were unloaded, description, and dates of unloading held proper. [2] We cannot conclude, however, that the parties thereto intended by the provisions of the compact to divest themselves of the power to legislate upon the subject embraced therein, so long as they do not undertake to permit the taking of fish at a time, in a manner, by means of appliances not permissible at the time the compact was made. In other In a suit to recover for damage to a shipment of sheepskins, which were unloaded into lighters and transferred to ships of respondents in Valparaiso, interrogatories requiring respondents to state whether they owned or controlled the lighters, to name and describe the same, to give the dates when the skins were discharged into them, and state how long they remained there before being placed on the ships, held pertinent and proper. In Admiralty. Suit by the Winslow Bros. & Smith Company against the steamships Santa Teresa and Ashbee and others. On exceptions to interrogatories. Overruled, as amended, but sustained, if libelant prefers to stand on interrogatory in original form. Harry D. Thirkield, of New York City, for libelant. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City, for respondents. INCH, District Judge. Exceptions to interrogatories. Libelant has brought suit against several respondents to recover damage to certain sheepskins shipped from Punta Arenas to Valparaiso, and thence to Boston. It alleges that the sheepskins, in good order and condition when they were placed on board a steamship at Punta Arenas, presumably reached Valparaiso in the same condition, and at the latter port were delivered to the steamships Santa Teresa and Ashbee, carried by these ships to the port of New York, and at such port loaded on board certain other steamships and thus reached Boston. Libelant evidently intends to limit the place of damage to Valparaiso Harbor, or on board the steamships Santa Teresa and Ashbee, for it states in paragraph 17 of the libel that it "will discontinue without cost or expense as to any respondent" which did not either own, operate, charter, or control either these two steamships or any of the scows, barges, or lighters on which the skins were stowed in Valparaiso Harbor. This motion arises, therefore, in connection with the ownership or control, etc., by the respondents, or any of them, of either the steamships or the lighters. As to the steamships, the answers of the respondents admit that the respondent Grace Line Company at the time owned the steamship Santa Teresa, and that the respondent Grace Line at the time was the charterer and operator of that steamship, as well as of the steamship Ashbee. It is also admitted that respondent W. R. Grace & Co. was the time charterer of the steamship Santa Teresa. The question, therefore, narrows down to the control and ownership of lighters at Valparaiso Harbor. It can be understood that libelant is reasonably ignorant of such owners, etc. Accordingly it has addressed six interrogatories to the respondents, by which it seeks to find out from them who owned these lighters, the names and description of same, the date or dates when the skins were discharged upon the lighters, how they were discharged, and how long they remained there It should be stated, however, as it may not be possible for the respondents to supply a builder's plan of said lighters, or describe them in detail, that, if this is so, the statement of such inability in this particular, should be sufficient. This leaves the first interrogatory. Libelant therein asks: "State what company or individual owned the scows or lighters on which the skins were stowed while they were in Valparaiso." Taking this interrogatory as it stands, I think the respondents would be within their rights in not answering same. It would be immaterial in this suit to simply find out who owned the lighters. For a libelant to sue a respondent simply to find out a party that he should have sued is making unnecessary trouble for parties and should not be encouraged. However it was plain, on the argument, that what libelant is really seeking is whether or not the respondents, or any of them, at the time in question, owned, operated, or controlled any or all of these lighters, etc. This would seem to me to be necessary and proper information for libelant to have for the purposes of this trial, and consequently I shall consider the interrogatory amended to so read, and in this amended form overrule the exception and direct that it be answered. If the libelant prefers to stand upon its interrogatory as framed, I must sustain the exception, with leave, however, to libelant to file another interrogatory in any form it deems best, and without prejudice to a further decision thereon by this or another court, upon exceptions thereto. on before they were placed on board the San- THE SANTIAGO. Petition of CAFFEY. ta Teresa and the Ashbee. Respondents excepted to each of these interrogatories. The burden resting on libelant has a great deal to do with the decision of such questions, whether it is a question of amplification of a pleading or procuring evi dence in support of a claim or defense. Fishing expeditions are not uncommon and should be avoided. Particulars such as dates, places, the agents who acted, so that a party may prepare to present his own evidence, even if such facts relate to another party's case, are usually allowed. Prince Line v. Mayer (D. C.) 264 F. 856. I think, therefore, that the second, third, fourth, fifth, and sixth interrogatories come within this rule and should be allowed. Exceptions to these are overruled. Claim of MAKRINOS. |