• THE EMMA KATE ROss.
  

607

into the States, and landing or attempting to lana them; but in this, case the only persons whom it is claimed were 1(uilty of any attempt to violate the law are persons who were trespassers and wrong-doers against the owner,. of the vessel. They were not put in charge of the v,essel by him in th.e capacity of master. The vessel had no master. It cannot be that a thief in possession of a vessel is the master of it. He may be in full physical, manual possession and control of it, and have. power over it, until the law gets hold of him and deprives him of that power, but he is not the master of the vessel in the sense in which that titIe.is applied to an officer of a vessel in the statutes of the United States. This case does not come within the letter or spirit of any law of the United States under which a forfeiture can be claimed, and I think, as counsel has contended nere, that if congress had made a law that would apply to thiS case it would be unconstitutional as depriving a person ofhis property without compensation, and in a case in which no punishment or penalty could be rightfully inflicted upon him, he having violated no. law. .The decree will be in favor of the claimants. Counsel may. prepare findipgs and a decree. The. court will find the allegations of the libel. t,o be true as far as they allege the bringing. aud attempting to land iii the United States of Chinese persons, llond.all the affirmative allegatioll3o' the answer to be true.

TIl.

EMJU KATE

Ross.'

Ross.

GEIN

11. TaE EMMA KATE

(lXsUiCt OO'Ub"t, E. D. New York. October 9, 18OO.)
CoLLlSlON-SAJLlNG VBSSBL AND TOW-CROS81NG CoURSES-FAULT.

Tile tug $. :It.,with two heavy mud-scows astem ona hawser came down the North river, about QOO feet oft the New York piers. A lighter, having her mainsail hoisted, but With the peak dropped and with her jib furled, came out from the piers in tow ol':a t.ug,aheB.d of the E. K. R., and crossing her course. The wind at tbe time was fre&h from the south·west. When the lighter came ahead of the towhshe cast oft her tug, the momentum carrying ·her past the course 01 the tow. S e thereupon /IotteIb.pted to shape her course to Hoboken, but was carried by the wind , against tile foremost scow. He/4, that the cbllision was the fault ol.the lighter.

In Admiralty. Suit for damages by collision. Oa1penter &: Mosher, for libelant. .· R. D. Benedict, for claimant.
BENEDICT, J. This is an action to recover for injuries to the lighter Union, caused by a collision between that lighter and a mud-scow, at the time in tow of the tug Emma Kate Ross. The tug was proceeding

lReported by EdwardG. Benedict, Esq., of the New York bar.

FEDERAL REPORTER,

vol. 43.

loaded. The dowil'theNorth'river, having in towastem two out of the slip at pier 6 in tow of It tug, the wind blowing lighter freshly from the south-west. When the lighter was about ahead of the tow, she cast off her tug,andwas carried by her momentum across the course of the tow; but, 'wbile endeavoring to get upon ber course, was struck by the leading scow in tow of the Ross. The faults charged upon the tug are-Fir8t, in taking tpe scows in tow astern on a hawser; 8econd in taking the scows astern by a hawser so arranged as to render it impossible for tbe tug to control the course of the scow; third, in not keeping out of the way of the lighter, ,as required by law of a steam-vessel approachinga vessel ' , In regard to the ,first charge Qfnegligence, I find that it is not negligence'to tow mud-scows "astemin the barbor of New York in ordinary ' wind gnd tide. In regard to the second charge, the evidence shows that the scows were connected to the tug by a hawser ajtacbed to a bridle; and, further, that by using a bridle the courseofsc,o;ws towed astern ,can be controlled by the tug. I therefore bold it 'not to be negligence totow mud-scows in this harbor by a hawserattached'tQ8 bridle under ordinary circumstances of wind and tide. In support of the third charge, it is contended by the libelant that the proof shows that the collision was caused by the scow swinging out of the course of the tug and agains! the lighter, then outside of the tow. But the weight of the evidence is the other way. The lighter came out of the slip and under the bow of the tow, having ber mainsail up, with the peak lowered,'and Ilttbe time blowing fresh from the south-west. When about abreast of the tow the steam-tug let go the t\len, irnp,ulse giyen by the tug, passed lighter, and the outside of the course of the tow. The master of the lighter tben put his upon her helm up, andll-fterwa,rdsd9wp" in ,an effort to course, but, owing to' the conuition of his salls, was unable to do so in time to avoid being carried by the}Vind down scow,then ingslowlydown the river in towoHhe Ross. If it was not possible for thelightep, after ba,vingdropped her tug, to get underway without being driven by ,the wind upon the course of the tow, it was fault in the lighter to drop her wheil, s):ledid. If it was possible for the lighter to continue to move out from the tow it was, fault not to do so. It is impossible to believe that the collision ,was caused by the beavy scow swinging out into the river and into the lighter, 88 claimed by the libelant. The libel must be dismissed.· .. . .

..

AMERICAN

FERT. co. V.BOARl> OF AGRICULTURE, NORTH CAROLINA.

609

AMERICAN FERTILIZING CO.

V.

BOARD OF AGRICULTURE OF NORTH CAROLINA et al.
August 14, 1800.)

(Oircuit Oourt, E. D. North Oarolina.

L

CIROUIT COURT-JURISDICTION:...-AMOUNT IN CONTROVERSY;

In a suit to enjoin the enforcement of a state tax, claimed to be unconstitutional, the subject of controversy is not limited to $500, the tax imposed for a sin&,le year; nor can it be determined, on a motion to dissolve the temporary injunctIon, that the damages will be less than $2,000, the sum required to give the court jurisdiction, where plaintiff asks to be relieved from threatened penalties and interference with its business, the damage to result from which it places at $10,000. '

I.

CoNSTITUTIONAL LAW-TAXATION-DUTIES ON !MPORTS..,...!NllPECTION LAWi".

Code ]S'. C. § 2190, as amended by Act March 7. 1877, § 8, declares that no commercial fertilizers shall be sold or offered for sale until the manufacturer or importer obtain a license from the trE\asurer of the state. for which shall be paid a privilege tax of $500 per annum for each separate brand. Sections 22 and 23 appropriate the revenues arising from the tax to an industrial association and other purposes. HeW,. that the statute is void, in that it violates Const. U. S. art. 1, § 10, providing that "no state shall, without the consent of congress, lay any imposts or duties on imports, * * * except what may be absolutely necessary for executing its inspection laws, " and is also an interference with interstate commerce. The act is not unconstitutional as abridging the privileges and immunities of the citizens of other states.

8.

BAME-PRIVILEGES OP CITIZENS.

In Equity. Before BOND and SEYMOUR, JJ. SEYMOUR, J .. The plaintiff, a citizen and resident of Virginia, brings this suit pgaillst the board of agriculture of Carolina, to perpetually enjoin the latter from enforcing against itthe state tax on fertilizers.' The act in litigation (Code, § 2190, amended and re-enacted in the statute of March 7, 1877) provides, in section Sof the last-mentioned statute, IlS well as in the act which it amends, brought forward in the Code, that no commercial fertilizers shall be' sold or offered for sale until the manufacturer or importer obtain a license from the treasurer of the state, for: which shall be paid a privilege tax of $500 'per annum for each separate brand. The plaintifl'ilJleges that. it is engaged in the manufacture and sale of commercial fertilizers; that it has a large 'and profitable business in North Carolina, amounting annuaJly,to-ovet:$25,OOO; that it has on hand in the state more than $2,000 worth of fertilizers; that defendants have, under the pretext that they are subjept to forfeiture, for non-payment of such tax, seized a car-load of its fertilizers, and that they threaten that they will seize all fertilizers which plaintiff has shipped, or shall ship, into the state; and will prosecute its agents for misdemeanor in selling its fertilizer without having obtained the license reqUired by. the statutes above cited. Plaintiff further avers that, unless defendants are restrained, its business will be entirely destroyed, and it willba damaged in a sum exceeding $2,000, and that its goods in excess of$2,000 will be seized by defendants under the provisions of such legislation. Defendants by their answer admit the seizure of the fertilizer, as alleged in the complaint, and aver that the cause of such seizure is the failure and rafnsal of plaintiff to pay a license tax of $500, as required by the la WB of the state. They' v.48F.no.l0-89