Sidebilder
PDF
ePub
[ocr errors][merged small]

Headnote 1

[89] We cannot conclude that the Taurus was in fault. She was prudently navigated in plain view of the Gulftrade, who knew the relevant facts; and by assenting that the latter might pass she certainly did not assume responsibility for the manœuver. At most the Taurus obligated herself to hold her course and speed so far as practicable, to do nothing to thwart the overtaking vessel, and that she knew of no circumstances not open to the observation of the Gulftrade which would prevent the latter from going safely by, if prudently navigated. Of course no ship must ever lead another into a trap. There was ample room for the Gulftrade to pass. But if not, she should have slowed down and kept at a safe distance. Her fault was the direct and sole cause of the collision. By the Act to Adopt Regulations for Preventing Collisions, etc., approved June 7, 1897 (chap. 4, 30 Stat. at L. 96 et seq. U. S. C. title 33, §§ 203, 208, 209), it is provided:

"Art. 18, Rule VIII. When steam vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall put her helm to port; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall put her helm to starboard; or if the vessel ahead does not think it safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals. The vessel [90] ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel.

"Art. 23. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.

Headnote 2

"Art. 24. Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel." Under these regulations the duty of the Gulftrade was clear. She should have anticipated the effect of the flood tide in the Delaware upon the flotillas as they rounded into the still water of the Schuylkill and kept herself out of the zone of evident danger.

In Southern P. Co. v. Haglund (The Thoroughfare) 277 U. S. 304, 72 L. ed. 892, 48 Sup. Ct. Rep. 510, we said:

"The Relief was not at fault in accepting the passing signal of the Thoroughfare. This was merely an assent to the proposed passage in the rear of the Enterprise, expressing an understanding of what the Thoroughfare proposed to do and an agreement not to endanger or thwart it by permitting an interfering change in the position of the Enterprise. See Atlas Transp. Co. v. Lee Line Steamers, 149 C. C. A. 38, 235 Fed. 495, 14 N. C. C. A. 406. And the Relief, being in a position to fully carry out its agreement, was under no obligation to decline the passing signal because of the approach of the Union on the other side and to sound instead a warning signal. There was nothing in the situation to indicate that the approach of the Union would prevent the Thoroughfare from passing safely, if, as the Relief had the right to assume, it were navigated with due care."

In Atlas Transp. Co. v. Lee Line Steamers, supra, the circuit court of appeals (C. C. A. 8th) had held:

"The reply of the Josh Cook to the passing signal of the Rees Lee was no more than an assent to it, at the risk of [91] the vessel proposing it. It expressed an understanding of what the Rees Lee proposed to do, and an agreement not to thwart it; but the success of the manoeuver was at the risk of the Rees Lee."

Whitridge v. Dill, 23 How. 448, 453, 16 L. ed. 581, 583:

"The vessel astern, as a general rule, is bound to give way, or to adopt the necessary precautions to avoid a collision. That rule rests upon the principle that the vessel ahead, on that state of facts, has the seaway before her, and is entitled to hold her position; and consequently the vessel coming up must keep out of the way."

The Rhode Island, Olcott, 505, Fed. Cas. No. 11,745:

"The approaching vessel, when she has command of her movement, takes upon

herself the peril of determining whether | for the manufacture of carbon black. Rea safe passage remains for her beside versed. the one preceding her, and must bear the consequences of misjudgment in that respect.'

See also The City of Baltimore (C. C. A. 4th) 282 Fed. 492; The Pleiades (C. C. A. 2d) 9 F. (2d) 806.

See same case below, 11 F. (2d) 386.
The facts are stated in the opinion.

Mr. John W. Davis, of New York city, argued the cause, and, with Messrs. Maurice Bower Saul, Joseph Neff Ewing, and Allen S. Olmsted, 2d, all of Philadelphia, Pennsylvania, and Mr. Esmond Phelps, of New Orleans, Louisiana, filed a brief for appellant:

Objections to the decree below were offered by counsel for respondents in briefs and arguments here. But no application for certiorari was made in their behalf and we confine our consid- The statutes of Louisiana do not proeration to errors assigned by the peti-hibit the manufacture of natural gas intioner. Steele v. Drummond, 275 U. S. to carbon black, nor do such statutes 199, 203, 72 L. ed. 238, 239, 48 Sup. vest the commissioner of conservation Ct. Rep. 53; Federal Trade Commission with power to restrict such manufacture v. Pacific States Paper Asso. 273 U. S. to persons already engaged therein, and 52, 66, 71 L. ed. 534, 540, 47 Sup. Ct. to refuse to permit new concerns to enRep. 255; Webster Electric Co. v. Split-gage in such manufacture. On the condorf Electrical Co. 264 U. S. 463, 464, 68 L. ed. 792, 793, 44 Sup. Ct. Rep. 342; Alice State Bank v. Houston Pasture Co. 247 U. S. 240, 242, 62 L. ed. 1096, 1098, 38 Sup. Ct. Rep. 496; Hubbard v. Tod, 171 U. S. 474, 494, 43 L. ed. 246, 253, 19 Sup. Ct. Rep. 14; The Maria Martin, 12 Wall. 31, 40, 20 L. ed. 251,

252.

[blocks in formation]

trary, the Louisiana statutes expressly accord the right to all to engage in such manufacture, provided they comply with the conditions imposed by said statute.

State v. Thrift Oil & Gas Co. 162 La. 165, 51 A.L.R. 261, 110 So. 188; State v. Carson Carbon Co. 162 La. 781, 111 So. 162; State v. Mahner, 43 La. Ann. 496, 9 So. 480; State ex rel. Galle v. New Orleans, 113 La. 371, 67 L.R.A. 70, 36 So. 999, 2 Ann. Cas. 92; New Orleans v. Palmisano, 146 La. 518, 83 So. 789; State ex rel. Dickson v. Harrison, 161 La. 218, 108 So. 421; Crowley v. West, 52 La. Ann. 526, 47 L.R.A. 652, 78 Am. St. Rep. 355, 27 So. 53; Mandeville v. Band, 111 La. 806, 35 So. 915.

An injunction to restrain the conservation commissioner and attorney general of Louisiana from interfering with the use of complainant's property in the manufacture of natural gas into carbon black is the proper remedy to be pursued.

Mutual L. Ins. Co. v. Boyle (C. C.) 82 Fed. 705; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A. 1916D, 545, 36 Sup. Ct. Rep. 7, Ann. 263 U. S. 197, 68 L. ed. 255, 44 Sup. Ct. Cas. 1917B, 283; Terrace v. Thompson, Rep. 15.

Mr. Percy Saint, Attorney General of Louisiana, submitted the cause for apEdward Rightor, both of New Orleans, pellees. Messrs. W. H. Thompson and Louisiana, were on the brief:

Note. On injunction to restrain acts An injunction to restrain the conserof public officers-see annotation to Mis-vation commissioner and the attorney sissippi v. Johnson, 18 L. ed. U. S. 437.' general of Louisiana from preventing

the complainant from erecting a manufacturing plant for the purpose of manufacturing natural gas into carbon black, without a permit, is not the proper remedy to be pursued.

Packard v. Banton, 264 U. S. 140, 68 L. ed. 596, 44 Sup. Ct. Rep. 257; Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482; Davis & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Rep. 498; Fenner v. Boykin, 271 U. S. 240, 70 L. ed. 927, 46 Sup. Ct. Rep. 492; Amalgamated Oil Gas Corp. v. San Francisco (D. C.) 263 Fed. 617; Pacific States Supply Co. v. San Francisco (C. C.) 171 Fed. 727; Central Consumers Co. v. Austin (D. C.) 238 Fed. 619; Jacob Hoffman Brewing Co. v. McElligott, 170 C. C. A. 487, 259 Fed.

525.

Mr. Justice Brandeis delivered the opinion of the court:

This suit was brought in a Federal court for Louisiana by Herkness, an owner of natural gas wells, to enjoin the [93] commissioner of conservation and the attorney general of that state from interfering with the erection, on plaintiff's land, and the operation, of a factory for the manufacture of carbon black from natural gas. The bill alleges that a number of other persons are now engaged in that business and have been for many years with the sanction of the department of conservation; that it had been its practice to require persons about to engage in such manufacture to apply for a permit; that one of its rules declares unlawful the erection of such a factory without having first obtained one; that plaintiff was refused a permit; that the sole ground of refusal was the policy recently announced by the commissioner not to issue a permit for the erection of any new carbon black plants and to gradually reduce the amount of gas which holders of permits to operate existing plants can utilize for that purpose; and that this policy has become a fixed rule of administration. The bill charges that the order refusing to issue a permit to the plaintiff is void, because in excess of the powers conferred by the statutes or which could be conferred under the Constitution of the state; and also because it violates the due process clause and the equal protection clause of the 14th Amendment. A restraining order and an interlocutory injunction, as well as a permanent injunction, were sought. There were adequate allegations of threatened irreparable injury.

The district judge issued a restraining order. The hearing upon the application for an interlocutory injunction was had before three judges, under § 266 of the Judicial Code as amended, U. S. C. title 28, § 380; and the case was later submitted by agreement as upon final hearing. The court denied the injunction and dismissed the bill, 11 F. (2d) 386; but later granted a restraining order pending the appeal. As the bill challenged the validity under the Federal Constitution of an order of an administrative board of the state, [94] the district court had jurisdiction under § 266, Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 67 L. ed. 659, 43 Sup. Ct. Rep. 353, and this court has jurisdiction on direct appeal. We have no occasion to consider any of the constitutional questions presented. For, in our opinion, the statutes do not purport to confer upon the commissioner power to refuse a permit to a person able and willing to comply with the requirements prescribed by the statute. See Greene v. Louisville & Interurban R. Co. 244 U. S. 499, 508, 61 L. ed. 1280, 1285, 37 Sup. Ct. Rep. 673, Ann. Cas. 1917E, 88; Dawson v. Kentucky Distilleries & Warehouse Co. 255 U. S. 288, 295, 65 L. ed. 638, 646, 41 Sup. Ct. Rep. 272.

The conservation of natural resources has been the subject of much legislation in Louisiana.1 The possible wastefulmanufacture of carbon black was recogness of the use of natural gas in the nized; and the legislature dealt fully with this use by Act 252 of 1924, which, in effect, embodies the provisions of Act 91 of 1922. State v. Thrift Oil & Gas

Co. 162 La. 165, 193, 51 A.L.R. 261, 110
So. 188. No law declares such use
necessarily wasteful. Nor has the state
purported to confer upon the commis-
sioner power to refuse a permit to new
concerns and to restrict the use to the
persons already engaged in the manu-
facture of carbon black. On the con-
trary, the use is expressly sanctioned in
$1 of Act 91 of 1922, which declares
"that natural gas may be used in the
manufacture of carbon black under the
conditions as fixed and imposed by the
And it is to
provisions of" that act.
those conditions and the means of in-
suring their observance that the other
provisions of the act relate.
thereof directs the commissioner to de-

Section 2

[blocks in formation]
[ocr errors]
[ocr errors]
[ocr errors]

GEORGE W. P. HUNT, as Governor of the
State of Arizona, D. E. Pettis, as Game
Warden of the State of Arizona, and
Frank Harrison, etc., Appts.,

V.

UNITED STATES OF AMERICA.

termine "what percentage of consump-by the Constitution [96] of the state uption of natural gas produced by each on discriminatory action and upon delegas well may be used in the manufacture gation of legislative power to an execuof carbon black which percent- tive department.3 age shall not be less than fifteen per cent Reversed. and not more [95] than twenty per cent of the potential capacity of such well. By S3 he is authorized to reduce the consumption of natural gas used in the manufacture of carbon black below that minimum "after promulgation for sixty days of an order to that effect, whenever [and only whenever] it is actually necessary to do so in obtaining an adequate supply of natural gas for domestic heating and lighting purposes in the state of Louisiana, and for manufacturing plants, industries and enterprises located and operated within the state of Louisiana, other than those engaged in the manufacture ." Other sections of the 1922 Act define the conditions under which natural gas can be burned into carbon black. There is not even a contention that condition existed which would have authorized the issue of an order reducing the minimum percentage of use, pursuant to § 3 of Act 91 of 1922.

of carbon black.

the use.

[ocr errors]

Many detailed provisions concerning permits for the building of plants to burn natural gas into carbon black were added by Act 252 of 1924. But the additional provisions, and the specific powers there conferred upon the commissioner, deal only with regulation of The legislation contemplates, not restriction of the use to existing plants, but the further issue of permits to all who will "completely abide by and comply with all the provisions of this act, and with all the rules and regulations of the commissioner of conservation established under the provision of the act." 5. And it expressly provides that "the authority given the commissioner of conservation by this act shall in no sense be understood to supersede or nullify any of the provisions of this act, or any other act of this state, but shall be cumulative and in aid thereof." § 11.

(See S. C. Reporter's ed. 96-101.) States, § 27 game preserve authority to permit killing.

1. The United States may protect its lands and property within a national game preserve by permitting the killing of game which exceeds the resources of the preserve, regardless of the statutes of the state where the preserve is located. States, § 27

injunction against interference with killing game.

2. Injunction lies to prevent state officials from interfering with the acts of Federal officials in killing surplus game within a Federal game preserve for the protection of the property of the Federal government.

[No. 44.]

Argued October 23, 1928. Decided November 19, 1928.

APPEAL by defendants from a decree

of the District Court of the United States for the District of Arizona enjoining interference with the killing of game on a preserve. Modified.

See same case below, 19 F. (2d) 634.
The facts are stated in the opinion.

Mr. Earl Anderson argued the cause, and, with Mr. John W. Murphy, Attorney General of Arizona, both of Phoenix, Arizona, filed a brief for appellants:

A court of equity will not grant an injunction to restrain state officers from prosecution under a state statute, because the complainant has an adequate remedy at law by presenting his defense in a court of law, if he is prosecuted under the state statute.

As it is clear that the refusal of the Re Sawyer, 124 U. S. 200, 31 L. ed. commissioner was not justified by any 402, 8 Sup. Ct. Rep. 482; Davis & F. statutory provision, we have no occa- Mfg. Co. v. Los Angeles, 189 U. S. 207, sion to consider the limitations imposed | 47 L. ed. 778, 23 Sup. Ct. Rep. 498; ArSee State v. Mahner, 43 La. Ann. 496, | misano, 146 La. 518, 83 So. 789; State ex 9 So. 480; Crowley v. West, 52 La. Ann. rel. Dickson v. Harrison, 161 La. 218, 108 526, 533, 47 L.R.A. 652, 78 Am. St. Rep. So. 421. 355, 27 So. 53; Mandeville v. Band, 111 La. 806, 35 So. 915; State ex rel. Galle v. New Orleans, 113 La. 371, 67 L.R.A. 70, 36 So. 999, 2 Ann. Cas. 92; New Orleans v. Pal

8 See State v. Billot, 154 La. 402, 97 So. 589; State v. Thrift Oil & Gas Co. 162 La. 165, 51 A.L.R. 261, 110 So. 188.

buckle v. Blackburn, 65 L.R.A. 864, 51 | 185, 152 N. W. 501, Ann. Cas. 1917B, C. C. A. 122, 113 Fed. 616; Bisbee v.978; State v. Burk, 114 Wash. 370, 195 Arizona Ins. Agency, 14 Ariz. 313, 127 Pac. 16; Barrett v. State, 220 N. Y. 423, Pac. 722; 32 C. J. 283, § 447; Geer v. L.R.A.1918C, 400, 116 N. E. 99, Ann. Connecticut, 161 U. S. 519, 40 L. ed. 793, Cas. 1917D, 807, 17 N. C. C. A. 501. 16 Sup. Ct. Rep. 600; Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; 27 C. J. 946.

If the government may kill deer on said game preserve, contrary to state game laws, the state would have a right to prosecute persons for possessing and removing deer without the state of Arizona contrary to the state game laws. Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; New York ex rel. Silz v. Hesterberg, 211 U. S. 31, 53 L. ed. 75, 29 Sup. Ct. Rep. 10; State v. Shattuck, 96 Minn. 45, 104 N. W. 719, 6 Ann. Cas. 934; 27 C. J. 950.

Even though appellee is the owner of the lands upon which said deer range, it may not take or kill said deer in violation of the Arizona game laws.

State v. Gallop, 126 N. C. 979, 35 S. E. 180; Percy Summer Club v. Astle (C. C.) 145 Fed. 53; Smith v. Odell, 194 App. Div. 763, 185 N. Y. Supp. 647; 12 R. C. L. 687, § 5; Light v. United States, 220 U. S. 523, 55 L. ed. 570, 31 Sup. Ct. Rep. 485; 16 C. J. 160, 173; United States v. Tully (C. C.) 140 Fed. 899; United States v. Penn (C. C.) 48 Fed. 669; State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 Ann. Cas. 824; Gill v. State, 141 Tenn. 379, 210 S. W. 637.

Solicitor General Mitchell argued the cause, and, with Messrs. R. W. Williams and Robert P. Reeder, all of Washington, D. C., filed a brief for appellee:

With respect to the public domain, the United States is a proprietor, but it is more. It is also a sovereign with powers of legislation, and the Constitution gives Congress power to legislate for the regulation and protection of the public domain and the property of the United States thereon.

Camfield v. United States, 167 U. S. 518, 526, 42 L. ed. 260, 262, 17 Sup. Ct. Rep. 864; Utah Power & Light Co. v. United States, 243 U. S. 389, 404, 61 L. ed. 791, 816, 37 Sup. Ct. Rep. 387; McKelvey v. United States, 260 U. S. 353, 359, 67 L. ed. 301, 305, 43 Sup. Ct. Rep. 132; United States v. Alford, 274 U. S. 264, 71 L. ed. 1040, 47 Sup. Ct. Rep. 597. A private proprietor may kill wild game when necessary to protect his property, and state game laws, if construed to prevent it, would be invalid.

Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339; State v. Ward, 170 Iowa,

Mr. Justice Sutherland delivered the opinion of the court:

The Kaibab National Forest and the

Grand Canyon National Game Preserve, covering practically the same area, are situated north of the Colorado river in Arizona. They were created by procla

mations of the President under authorDuring the last few ity of Congress. years deer on these reserves have increased in such large numbers that the forage is insufficient for their subsistdeer have greatly injured the lands in ence. The result has been that these the reserves by overbrowsing upon and bushes and forage plants. killing valuable young trees, shrubs, Thousands

of deer have died because of insufficient forage. Attempts were made under the direction of the Secretary of Agriculture to remove some of the deer from [100] the reserves to other lands, but these entirely failed, as did other means. The district forester, acting under the direction of the Secretary of Agriculture, proceeded to kill large numbers of the deer and ship the carcasses outside the limits of the reserves. That this was necessary to protect the lands of the United States within the reserves from serious injury is made clear by the evidence. The direction given by the Secretary of Agriculture was within the authority conferred upon him by act of Congress. And the power of the United States to thus protect its lands and property does not admit of doubt (Camfield v. United States, 167 U. S. 518, 525, 526, 42 L. ed. 260, 262, 263, 17 Sup. Ct. Rep. 864; Utah Power & Light Co. v. United States, 243 U. S. 389, 404, 61 L. ed. 791, 816, 37 Sup. Ct. Rep. 387; McKelvey v. United States, 260 U. S. 353, 359, 67 L. ed. 301, 305, 43 Sup. Ct. Rep. 132; United States v. Alford, 274 U. S. 264, 71 L. ed. 1040, 47 Sup. Ct. Rep. 597), the game laws or any other statute of the state to the contrary notwithstanding.

Headnote 1

Appellants interfered with these acts of the United States officials and threatened to arrest and prosecute any person or persons attempting to kill or possess or transport such deer, under the claim that such officials were proceeding in violation of the game laws of the state of Arizona, the observance of

« ForrigeFortsett »