Opinion of the Court-Deady, J.

[December,

applied by the courts of the state to a judgment of a national court sitting in this state.

In Victor v. Davis, 11 Or. 547, a decree of this court was questioned collaterally, and held for naught, on the alleged ground that the proceeding to acquire jurisdiction of an absent defendant was invalid, on the authority of Odell v. Baker (Campbell), 9 Or. 298.

The suit in which the decree in question was given may be considered as in personam and in rem. So far as it was sought to enforce the lien of the mortgage on the property included therein, it was in the nature of a suit in rem (Pennoyer v. Neff, supra, 733); but so far as it was sought to obtain a money judgment against Grigsby it was in personam. As to the proceeding in rem, it was in the power of the state to provide a substituted service of the summons, in case the defendant could not be found, by delivering it to some person of the family, at his usual place of abode, or otherwise; but as to the judgment in personam, nothing short of personal service or a voluntary appearance could authorize that.

In proceeding to enforce the lien of the mortgage by the sale of the property on a substituted service of the summons, the court was not proceeding according to the course of the common law, and there is no presumption in favor of its jurisdiction, or the regularity of the proceedings on which it depends. (Odell v. Campbell, 9 Or. 298.)

In conclusion it does not appear from the record that Linn County was Grigsby's "usual place of abode" in the state at the date of the service of the summons on Mary Backus for him, and there is no presumption that it was, and therefore it does not appear that the service or notice required by the statute was had or given, or that the circuit court of Linn County ever acquired jurisdiction to order a sale of the property.

It is not necessary to consider the other objections to the service, nor whether the plaintiff could in this action contradict the return of the sheriff, so as to show that Grigsby, at the date of the service on Mary Backus, had no place of abode in Linn County, or even in the state. The question was argued and submitted upon the understanding that if the court found the return

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Opinion of the Court - Hoffman, J.

sufficient, the plaintiff would then, if allowed, offer evidence to contradict it, as suggested. As I have said, my opinion is that the return cannot be contradicted, except in a suit in equity, brought for the purpose of setting aside the judgment thereon.

There must be a finding of fact and law for the plaintiff.

THE UNITED STATES OF AMERICA v. THE STEAMER FRANK

SYLVIA, ETC.

DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA.

DECEMBER 24, 1888.

1. EXCEPTIONS TO LIBEL. A steamer provided with a certificate of inspection permitting her to be used as a freight steamer, but not allowing her to carry passengers, is not liable under sections 4465 or 4466 of the Revised Statutes for navigating with passengers on board. But she is liable to the penalty imposed by section 4499 of the Revised Statutes.

Before HOFFMAN, District Judge.

Mr. Milton Andros, for claimants.

Mr. John T. Carey, United States Attorney, on behalf of United States.

HOFFMAN, J. The steamer libeled in this case was provided with a certificate of inspection duly issued according to law.

By the certificate she was permitted to navigate, as a freight steamer, the bay of San Francisco, or its tributaries, for the period of one year; but she was not allowed to carry passengers.

The libel alleges in substance that on November 6, 1887, she took on board and carried four passengers, she being then employed as a freight steamer on a voyage from San Francisco.

There are great, and in my judgment, insuperable difficulties in bringing this offense within the provisions of either section 4465 or section 4466.

The first of these sections forbids the taking on board of any steamer a greater number of passengers than is allowed by the certificate of inspection. Section 4466 provides for special per

Opinion of the Court-Hoffman, J.

[December,

mits to be issued to passenger steamers engaged in excursions, allowing them to take on board an additional number of passengers over and above the number specified in the certificate. No penalty is denounced for carrying passengers on excursions in excess of the number allowed by the certificate and the special permit.

For carrying passengers in excess of the number allowed by the certificate, the master and owner are, by section 4465, made liable to any person suing for the same, to forfeit the amount of the passage money and ten dollars for each passenger beyond the number allowed.

In the case at bar, the certificate licensed the vessel as a freight steamer, and no passengers were allowed to be carried.

The libel is founded on section 4499. This section imposes on the master and owners a penalty of five hundred dollars, for navigating a "steamer" without complying "with the terms of this title."

It is argued that the master and owner should have been sued under the provisions of section 4465.

But the steamers referred to in this and nearly every other section of chapter 2, title 52, of the Revised Statutes, are steamers "carrying passengers" or "passenger steamers." They seem to be treated as a class distinct from freight steamers, tugs, towing boats, and yachts.

The certificate issued to a vessel of the former class of steamers, other than a ferry-boat, is required to specify the number of passengers she can prudently and safely carry, and for taking on board a greater number of passengers than is stated in the certificate the penalties imposed by section 4465 are incurred.

But the certificates of inspection granted to a freight-boat, tug-boat, etc., do not specify any number of passengers they may lawfully carry.

The violation of law alleged to have been committed in this case consists in using or navigating a freight-boat for the carrying of passengers without having been inspected as a passenger steamer, or having obtained a certificate specifying the number of passengers she can carry with prudence and safety.

The offense denounced in section 4465 is the taking on board

1888.]

Opinion of the Court-Hoffman, J.

of such steamer, passengers in excess of the number "stated in the certificate of inspection."

It is plain that she has not committed this offense. If the penalty imposed by section 4465 for a violation of its provisions had been imprisonment of the master, would it be contended that an indictment against him for taking on board passengers in excess of the number stated in his certificate, could be sustained upon proof that he had no certificate authorizing him to carry any passengers whatever, and that he, therefore, could not have carried passengers in excess of any number "stated" in the certificate of inspection?

But

If the language of the section had been "a greater number of passengers than allowed by law," it might with more plausibility have been applied to the facts alleged in this case. the language is "a greater number of passengers than is stated in the certificate of inspection." It seems clear, therefore, that some number must be so stated before the number actually carried can be deemed to be in excess of it.

My opinion, therefore, is that the libel is properly brought under section 4499, which subjects to a penalty of five hundred dollars, all steamers "navigated without complying with the terms of this title, for which sum the vessel navigated shall be liable, and may be seized and proceeded against in any district court of the United States having jurisdiction of the offense."

A direct and primary liability of the vessel for the penalty imposed is thus created, and the seizure and proceeding in rem is expressly authorized by the statute.

I do not feel called upon, nor hardly at liberty, to consider the very important question raised at the bar as to the constitutional right of Congress to require the inspection of steamers, or in any way regulate the use of vessels employed on the navigable waters of the United States, but not engaged in foreign or interstate commerce.

The validity of the laws regulating the use, equipment, and navigation of vessels used on the navigable waters of the United States, as well as those engaged in foreign or interstate commerce, has long and almost universally been acquiesced in. They are in their object and effect so salutary, and in some particulars

indispensable to the safety of the foreign and interstate commerce, which Congress has the unquestioned right to regulate, and the effect of a decision adverse to their validity would be so momentous and far-reaching, that I consider it to be my duty as district judge of the United States to assume their constitutionality, and to leave the question of their validity, in whole or in part, under the constitution, to be passed upon by a higher tribunal.

IN RE TERRY.

CIRCUIT COURT, NORTHERN DISTRICT OF CALIFORNIA.

FEBRUARY 1, 1889.

1. CONTEMPT - PUNISHMENT-COMMUTATION FOR GOOD BEHAVIOR. - One undergoing imprisonment for contempt is not "a prisoner convicted of an offense against the laws of the United States," within the meaning of the act of Congress of March 3, 1875 (1 Supp. Rev. Stats. 184), which allows to such a prisoner, confined "in any prison or penitentiary of any state or territory which has no system of commutations for its own prisoners," a deduction of five days in each calendar month during which no charge of misconduct has been sustained against him.

2. SAME. Besides, the act is not applicable to one confined in a county jail in California, which state has a system of commutations for its own prisoners, though that system does not allow deductions for prisoners confined in a jail.

3. SAME.Nor is such prisoner entitled to the credit under the Revised Statutes, United States, section 5544, which provides that "in other cases all prisoners now or hereafter confined in the jails or penitentiaries of any state, for offenses against the United States, shall be entitled to the same rule of credits for good behavior applicable to other prisoners in the same jail or penitentiary," as the California commutation act of March 14, 1881, relates only to state prisons, and has no application to prisoners in county jails.

4. SAME. Even if the California act applied to prisoners in county jails, one impris oned for the term of six months would not be entitled to a credit, as it provides that one entitled to credit "shall be allowed from his term, instead and in lieu of the credits heretofore allowed by law, a deduction of two months in each of the first two years," etc., and contains no credits for months or fractions of a year.

Before SAWYER, Circuit Judge, and SABIN, District Judge. Order on W. E. Hale, sheriff, to show cause.

On September 3, 1888, D. S. Terry was adjudged guilty of contempt, and to be imprisoned therefor for the term of six months in the Alameda county jail. (Ante, 440; 36 Fed. Rep.