10, 1927.

No. 60.

Criminal law 97(3)-Act relating to homlcides on high seas held not to apply to offense committed on American vessel when moored to wharf in foreign port (Criminal Code [18 USCA § 451]).

The provisions of Criminal Code, § 272 (18 USCA § 451), defining and prescribing punishment for homicides "committed upon the high seas, or within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state,

on board any vessel belonging in whole

or in part to the United States or any citizen thereof," do not apply where the offense charged was committed on an American vessel where moored to a wharf in a foreign port.

Habeas Corpus. Petition by the United States, on the relation of Joseph Maro, against W. Frank Mathues, United States Marshal, for writ of habeas corpus. Relator discharged.

Adrian Bonnelly, of Philadelphia, Pa., for relator.

George W. Coles, U. S. Atty., of Philadelphia, Pa., for defendant.

DICKINSON, District Judge. The final disposition of this cause has been delayed. The conclusion reached is that the relator should be discharged.

Discussion.

The relator is under indictment for an offense arising out of homicide. The sole question now raised is one of jurisdiction. This word is a very comprehensive one, and is used in many different senses. It is used to express the presence of governmental power, as, for illustration, that a vessel of any nation is viewed as part of the territory subject to the governmental control of that nation. It is this thought of jurisdiction which is urged upon us in the brief submitted by the prosecution. Jurisdiction, however, may have a much narrower significance. This cause affords us an apt illustration of the distinction. Conceding jurisdiction in the sense of governmental control over a vessel, a secondary question arises of the jurisdictional power to denounce some act as a crime and of a particular court to try the offense. The third question suggested is not here raised, but the second question is.

Analyzing the general question of jurisdiction into these three parts, the first and third may be conceded, and our attention cen

jurisdiction of the United States. The power here is to be found, if it exists, in that provision of the Constitution which granted the express power to Congress "to define and punish [inter alia] felonies committed on the high seas," etc. Article 1, § 8, cl. 10. The act here charged to have been committed, if an offense against the laws of the United States, is a felony, and its definition and punishment undoubtedly within the power of Congress, if the other condition is likewise present. That condition is that the offense was committed upon the high seas. Inquiry here is in consequence narrowed to the fact inquiry of where the act was committed. If on the high seas, Congress has declared it to be an offense against the laws of the United States; otherwise, not.

waters

In the assertion of the power thus committed to it, Congress has ordained that the different grades of homicide committed "upon the high seas or on any within the admiralty and maritime jurisdietion of the United States and out of the jurisdiction of any particular state,

on board any vessel belonging in whole or in part to the United States or any citizen thereof," etc. (Criminal Code, § 272 [18 USCA § 451]) are offenses against the laws of the United States. The offense here, if any, was committed in an Italian port. The quoted expression of Congress evidently has application to domestic and not foreign waters and to waters which are outside of the jurisdiction of any nation and are commonly denominated the high seas.

The Wildenhus Case, 120 U. S. 12, 7 S. Ct. 383, 30 L. Ed. 565, gives very clear expression to the doctrine of the law so far as it arises out of the principle of comity. The act of Congress expresses the same thought with respect to the jurisdiction of our states and nation. There is no insuperable objection, however, to an act being denounced as an offense against the laws of one government and being likewise also denounced as an offense against the laws of another. This doctrine is so well recognized that the citation of authorities in support of it would be superfluous. The doctrine is, of course, open to the objection that the offender is subjected to a double charge for the same act; but there are other considerations deemed to be of sufficient importance to override this objection.

This brings us back to the fact question of the locality of the commission of the offense.

The feature of the admiralty and maritime jurisdiction of the United States does not directly affect the question before us. It affects it only in so far as the territorial limits of admiralty and maritime jurisdiction define the territorial limitations of the criminal jurisdiction. The question here is really narrowed to one of the powers of Congress, and deference to this view of it probably accounts for the difference in phraseology between the earlier acts of Congress and the act now in force. Congress (at least expressly) is not given authority "to define and punish felonies," but is given such power only when the felonies are committed on the high

seas.

The point sought to be made clear is that the question is not one of admiralty and maritime jurisdiction, but is one of criminal jurisdiction.

The distinction, of course, may fade into vanishment in the presence of the doctrine that a vessel is part of the territory of the nation of its owners, and hence the qualifying phrases, "waters within the admiralty and maritime jurisdiction," etc., "and out of the jurisdiction of any particular state,

on board any vessel," etc. This, however, does not enable us to escape the constitutional restriction of the power of Congress to define and punish felonies only when committed on the high seas. The power to denounce crimes committed on a vessel of the United States, and thus within its territorial jurisdiction, when not within the jurisdiction of any particular state, may be within the implied powers of Congress. If it were, however, the power must have been exercised by Congress, and the courts have inclined to the view that the quoted act of Congress does not apply outside of the strictly territorial jurisdiction of the United States, and has not been made to apply to offenses committed on a vessel as part of such territory.

This brings us to the proposition that Congress has not undertaken to define and punish felonies, other than those committed on the high seas, or upon waters within the territorial jurisdiction of the United States, which are not within the jurisdiction of any particular state, and back to the question of fact, already several times adverted to, of whether or not the offense here charged was committed on the high seas. The question of what constitutes the high seas, as distinguished from what are called territorial waters, really belongs to the domain of international law. The numerous cases to which we have been referred all make the ruling turn upon this question of fact. In the argu

ment at bar it would seem to be conceded that a vessel lying at dock, as when tied to a pier or wharf, is not on the high seas. It is not conceded that a vessel within the recognized limits of a harbor lying at anchor would not be on the high seas. There is a controversy here over the evidentiary fact of where this vessel was, with respect to its being tied to a pier or at anchor within the harbor. We dispose of this fact controversy by the finding that the vessel was moored to the wharf.

The ruling follows that the relator be discharged without day. We may add that the brief submitted by the district attorney assumes that the Italian authorities discharged the relator because of recognition of the fact that the offense, if any, was committed outside of the domain of Italian law. It would seem that this assumption is not justified, but, on the contrary, that the defendant was discharged because there was no evidence that a homicidal offense had been committed

COHEN v. BLAIR et al.

District Court, E. D. Pennsylvania. September 9, 1927.

No. 3573.

Intoxicating liquors 108 (5)-To warrant revocation of permit, all the evidence must fairly support finding of permittee's violation of law.

While diversion of a shipment of alcohol consigned to a permittee may be made prima facie evidence that he was responsible therefor, and while his guilt need not be established beyond reasonable doubt to warrant revocation of his permit, all the evidence must be considered, and must fairly support a finding of guilt.

In Equity. Suit by Philip Cohen, trading against David H. Blair and others, to review as the Golden Ray Manufacturing Company, an order revoking a permit. Order of revo

cation reversed.

Benjamin M. Golder, of Philadelphia, Pa., for plaintiff.

Geo. W. Coles, U. S. Atty., and W. C. Graham, Asst. U. S. Atty., both of Philadelphia, Pa., for defendants.

DICKINSON, District Judge. The conclusion reached is that the order revoking the permit of the plaintiff should be reversed.

Discussion.

The cause is the familiar appeal bill from the revocation of a permit. The merits of the case turn on a question of fact, but the

legal question is one of the sufficiency of the evidence to support a fact finding adverse to the appellant. The admitted fact is that there was an attempted diversion of alcohol. The diversion was while a shipment of alcohol was on its way to the plaintiff's place of business. The real question is whether the permit holder was a party to the conversion, or whether it was the independent act of the truckman, whose duty it was to make the delivery. The plaintiff most earnestly protests his innocence, and strongly complains of the injustice of being held responsible for the acts of a truckman, in whose selection he is permitted no choice, being bound to employ one of those named by the prohibition authorities. There is no affirmative evidence that the plaintiff was in any sense a party to the misdeed, which was admittedly committed.

A finding against the permit holder is based upon a more or less arbitrary (although necessary) principle of policy. One of the main leaks in alcohol distribution occurs in the course of shipments to permit holders. All which goes on at the plant is in strict conformity with law. Alcohol may, however, be shipped to a plant, but never reach it. One method of possible detection is to follow such shipment. If it does not reach the plant, the inference of diversion is compelled. There remains, however, the at least possibility that the consignee is innocent of the diversion. To hold him so, however, is to invite frauds. In the practical administration of the permit law there is a justified prima facie inference that a shipment made to a consignee, and which, in the orderly course of business would reach him, has done so. This is nothing more than a presumption of fact, which results in merely a regulation of the burden of proof. Here we have, first, the circumstance of the absence of any evidence that the shipment came within the control of the plaintiff, other than its shipment; second, the most positive and direct negative evidence that it did not, and evidence which can be attacked only by questioning its credibility; and, third, equally positive and direct evidence that the diversion was the act of the truckman, confirmed by his indictment and conviction of the offense. The guilt of the truckman is clear, but it is true that his guilt would not of itself argue the innocence of the consignee, because they may both have been guilty. The confessing testimony of the truckman, however, for what it is worth, exculpates the consignee.

The real question is, not what the truth may be, but whether a fact finding against

all the evidence (other than a prima facie inference) has support on legal principles. The appeal of the permit holder is further strengthened by the fact that a conspiracy between an employee and the truckman to divert the shipment was unearthed, or at least suspected, and the guilty parties detected in the act and prosecuted for it by the permit holder. Some special features of the case urged upon us call for comment. It is stated that the question of the adoption of a regulation making the permit holders answerable (with or without guilty knowledge) for the acts of the truckman, bonded by the prohibition authorities, has been under consideration, but thus far has not been adopted. We see no value to us in this. The case was before the court on another occasion, when application was made and allowed for a re-reference to the prohibition authorities for the purpose of taking further evidence. It was charged against the plaintiff that he had refused his attendance at such rehearing. The district attorney has frankly admitted this statement to have been inadvertently made, and has withdrawn it. The rehearing was had, but the authorities adhered to the order of revocation.

In the charge of conspiracy, the appellant and another of his employees were included among the defendants. The plea of guilt by the other defendants, and their assumption of sole accountability for what was done, made it useless to try the appellant on the criminal charge. The issue here is different. It is whether the appellant is guilty of the charge, not whether he has been proven guilty beyond all reasonable doubt. We are quite in accord with the learned district attorney on this proposition. None the less the question is still one of guilt, the finding of which must be based upon evidence. We are likewise in accord with the district attorney upon his further proposition (as already stated) that the diversion of a consigned shipment is prima facie evidence of diversion by the consignee, and if nothing else appeared would support an order of revocation of his permit. We cannot accept, however, the final proposition advanced that, unless every taint of suspicion of guilt be removed, the presumption of guilt prevails. A permit cannot lawfully be revoked, unless the fact finding of guilt be made under all the evidence. The authorities are not called upon to adduce evidence of guilt beyond all reasonable doubt, nor are permittees to be placed in a class with the wife of Cæsar.

The question to be decided is one of substantial fact, and there is no real finding

here that the permittee was guilty of diversion. All that has been found is that the attempted diversion justifies, as well founded, suspicion of the guilt of the consignee, and that he has failed to relieve himself of this suspicion. Something more than this is required. The authorities must take it upon their consciences to make, under all the evidence, a fact finding of guilt.

perintendent of Banks, by W. J. Davis, General Agent." It is stipulated that Davis, and not Bennett, determined on the assessment and issued the fi. fa., and that the question is whether this could be lawfully done by an agent. Davis was acting by virtue of a written power of attorney of file in the office of the superintendent of banks, signed by the superintendent, and purporting to be made

In re GILES.

District Court, N. D. Georgia. September 8,

1927.

No. 12736.

1. Banks and banking 631⁄2-Superintendent of banks cannot delegate determination of stockholders' liability to depositors, or assessment and collection thereof (Banking Act

Ga. 1919, art. 2, § 10; art. 7, §§ 9, 10, 23, and § 20, as amended by Acts 1925, p. 130).

Authority of superintendent of banks to determine stockholders' liability to depositors and assessment and collection thereof under Banking Act Ga. 1919 (Acts 1919, p. 135) art. 7,

§ 20, as amended by Acts 1925, p. 130, cannot be delegated to agent by power of attorney authorized by article 7, §§ 9, 10, of Act of 1919, notwithstanding section 23 and article 2, § 10.

2. Officers 47-Public officer is agent who cannot Intrust performance of duties, except mechanical or ministerial acts, to others without consent of principal.

Public officer is, in large sense, agent who may not intrust performance of his duties to another without consent of principal, except that he may delegate to subagent execution of mechanical, clerical, or ministerial acts, where they are not expressly required to be performed by him.

In the matter of James L. Giles, bankrupt. Referee's conclusion that certain execution should be disallowed as a preferred lien against the bankrupt's estate affirmed.

Astor Merritt, of Douglasville, Ga., for petitioner.

Boykin & Boykin, of Carrollton, Ga., for respondent.

SIBLEY, District Judge. [1] The bankrupt, Giles, was a stockholder in an insolvent state bank. Its receiver seeks to prove for preferred payment an execution issued upon an assessment against the stockholder upon his liability to depositors, which was recorded on the execution docket more than four months before the bankruptcy. The execution, directed to all and singular the sheriffs of the state, is signed, "T. R. Bennett, Su

the Georgia Banking Act of 1919 (Acts 1919, p. 135), and to "appoint W. J. Davis general agent to supervise the liquidation of all banks now or hereafter placed in liquidation, and to make distribution of the assets, as provided by law, and until and unless this power and appointment be revoked. He is authorized to do and perform such duties in connection therewith as I might and could in person do and perform." There follows a list of specific acts included in the authority, but no special mention is made of the stockholders' liability to depositors or the assessment and collection thereof.

The act of 1919 establishes a state department of banking, and authorizes the appointment, as its head, of a superintendent of banks, who is to have specified qualifications of age, character, and experience, is to take an official oath, and give a fixed bond. By section 10 of article 2 the superintendent must appoint an assistant superintendent and needed bank examiners, each of whom must take the same oath and give bond. The assistant is authorized to act as superintendent in cases mentioned in article 2, § 3. Article 7 deals with failed banks, and section 9 thereof provides:

"The superintendent may, under his hand and official seal, appoint an agent to assist him in taking possession of, liquidating and distributing the assets of any bank under the provisions hereof. • The superintendent may authorize such agent to perform such duties connected with such liquidation and distribution as the superintendent himself could in person do and perform."

By section 23, the compensation of the agent is to be paid from the assets of the liquidated bank. Section 10 contains nothing important here. Section 20 of article 7, as amended in 1925 (Acts 1925, p. 130), provides:

"Within ninety days after the superintendent of banks has taken possession of the assets and business of any bank, as in this act authorized, he shall make a careful estimate of the values of the cash assets of said bank which can probably be converted into cash within one year after so taking posses

sion of the assets and business of said bank, and of the amount of such cash assets which will be available to pay depositors, and he shall immediately thereupon make an assessment upon the stockholders of said bank sufficient, when added to the cash assets so available for depositors, to pay the said depositors in full provided that such assessment shall not exceed the liability of stockholders upon their said stock. Notice of such assessment shall be given by mail to each of the stockholders of said bank, and if any stockholder so notified shall refuse or neglect to pay any such assessment within thirty days after the levy of such assessment and notice thereof, the superintendent of banks shall issue an execution against said stockholders for the amount of said assessment, which shall be enforced in like manner as executions issued by the superior courts of this state upon judgments regularly rendered by said courts; provided, however, that any stockholder shall have the right by affidavit of illegality, as in cases of affidavits of illegality to other executions to contest his liability for such assessment and the amount and necessity thereof.

Said exe

cution shall be a lien on all property of the defendant subject to levy and sale for the amount which shall be adjudged to be due thereon from the date of the issuance thereof by the superintendent."

By the words of section 20, it is the duty of the superintendent of banks to determine on the assessment and issue the execution, and to enforce it if not paid.

[2] A public officer is, in a large sense, an agent, and falls within the general rule that an agent in whom is imposed trust and confidence, or who is required to exercise discretion or judgment, may not intrust the performance of his duties to another without the consent of his principal; but, having exercised his discretion and determined the propriety of an act, he may delegate to a subagent the execution of merely mechanical, clerical, or ministerial acts not involving judgment or discretion. 31 Cyc. 1425, 1428. Specifically of public officers it is said: "In those cases in which the proper execution of the office requires on the part of the officer the exercise of discretion and judgment, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given him, he cannot delegate his duties to another." Even where the act is purely ministerial or executive in its nature, where the law expressly requires it to

be performed by the officer in person, it cannot be delegated to another. Mecham on Public Offices and Officers, §§ 567, 568, quoted in Horton v. State, 112 Ga. 27, 37 S. E. 100, in holding that none but the clerk of the court himself can issue a subpoena for a witness. So it is generally held that a notary cannot act by a deputy in presenting and protesting commercial paper. 29 Cyc. 1091. If these lesser officers cannot, without legislative sanction, act through another, it requires no argument to establish that the head of the state banking department must use his own judgment in such important matters as determining the solvency of a bank or the probable sufficiency of its assets to pay depositors, or the amount of the insufficiency, or the necessity for present enforcement of the stockholders' liability. Such drastic power as that of issuing final process before a judicial hearing, of commanding the assistance of all sheriffs of the state, and of fixing a recorded judgment lien upon all the property of each stockholder unless it shall be vacated by a successful litigation, surely is official power. These things have been held nonjudicial and executive as respects the unconstitutional commingling of judicial and executive powers (Coffin Bros. & Co. v. Bennett, Supt. [Ga. Sup.] 138 S. E. 670), but that does not prove them to be so devoid of official nature as to be delegable to another. The analogous power of assessment in the Comptroller of the Currency in the National Banking Act is also held nonjudicial in the same sense (Bushnell v. Leland, 164 U. S. 684, 17 S. Ct. 209, 41 L. Ed. 598), but it is often referred to as quasi judicial (Deweese v. Smith [C. C. A.] 106 F. 438, 66 L. R. A. 971, affirmed 187 U. S. 637, 23 S. Ct. 845, 47 L. Ed. 344; Aldrich v. Campbell [C. C.] 97 F. 663; Weitzel v. Brown, 224 Mass. 190, 112 N. E 945). That the Comptroller's power is nondelegable seems to be assumed in Adams v. Johnson, 107 U. S. 251, 2 S. Ct. 246, 27 L. Ed. 386, where it was held that his letter directing the assessment was sufficient evidence of his action in the matter.

The question therefore narrows to whether the Legislature has provided for a delegation of the power by section 9 of article 7 of the Act of 1919. That section seems to contemplate the appointment of a liquidating agent for each bank taken in charge by the superintendent. There is nothing, however, to prevent the same agent acting for two or for all banks in liquidation, if he is equal to the task. We pass, therefore, without discussing, the extreme breadth of the appointment involved in this case, to take up the