UNITED STATES

PETEBBOlf.

145

UNITED STATES T. PETERSON.

(DIstrict CoUli, E. D. Wisconsin.

hDERAL COURTS-JURISDICTION-HIGH SEAS.

Oetober 23, lS94.J

The district court of the Eastern district of Wisconsin has no jurisdiction of an indictment for an assault committed on a vessel on Lake Buron within the boundary of the jurisdiction of the Eastern district of Michigan.

On Demurrer to Indictment against John G. Peterson. J. H. M. Wigman, U. S. Atty. Markham & Nickerson, for defendant. SEAMAN, District Judge. An indictment is presented cbargtn'g the defendant, master of the schooner Belle Brown, for an assault with a dangerous weapon upon one of the crew. It is alleged that the vessel belonged to a citizen of the Vnited States, and the assault was eommitted thereon, "on waters on the high seas, and within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, to wit, upon the waters of I,ake Huron." The defendant demurs to the indictment, alleging that this court is without jurisdiction of the offense charged; and, for the purpose of having the question determined at this stage, the district attorney requests that the following undisputed facts be considered as though set forth in the indictment: That the vessel was within 25 or 30 feet of a bridge pier, known as "Spencer's Pier," in the state of Michigan, on the west shore of Lake Huron, where the offense was committed; that the crew were warping the vessel to the pier, for landing, by means of rope and tackle; that it was upon the open waters of the lake, and not in any harbor or bay. So considered, the question of jurisdiction is fairly presented. Section 5346, c. 3, tit. 70, of the United States Revised Statutes provides:
".Every person who, upon the high seas, or In any arm of the sea, or In any river, haven, creek, basin or bay witQin the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, on board of any vessel belonging in whole or In part to the United States, or any citizen thereof, with a dangerous weapon, or with intent to perpetrate any felony, commits an assault on another, shall be punished by a flne of not more than three thousand dollars. and by Imprisonment at hard labor not more than three years."

An act .of congress of September 4, 1890 (26 Stat. 424, c. 874), provides for the punishment of any person who commits offenses mentioned in the chapter which contains the above section, upon United States vessels, "being on a voyage upon the waters of any of the Great Lakes" (naming them, and including Lake Huron), or connecting waters; and "the circuit and district courts of the United States, respectively," are vested with the same jurisdiction in respect of such offenses that they possess in respect of offenses in said chapter. The recent decision of the supreme court in U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, is based upon section 5346, as the offense there charged arose prior to the enactment of 1890, and the opinion ,v.64F.no.2-10

, .146
'i "

::i'

REPORTER,

vol. 64.

states that the latter act does not enter into consideration. It was held that the Great Lakes'. 'earne within the general designation of "high that district court of Eastern. of Michigan had Jurisdiction of 'an' offense described in section 5346, which was,e0DlID.itted upon a,n vessel while in the Detroit river, boundary line between the United States and Canleged fsnot probable that any question would have been raised .on the state of facts there shown, for the power of congress to legislate with reference:to the Great Lakes, as within the admiralty jurisd[ction of the United States, is now firmly established. The Justice while district judge, in the Case of : .. 4P4, clOOJ'ly states this· power of congress, and seems .to the legislation. of 1890. That decision .is only py the in so far as it held that the Great ,Lakes the designation of under the statutes , , In force of the provision contained in the second. of the constitution of the United States,.I:4!leem it'llnnecess::w:tyto enter into an inquiry with reference . to thedAstlWce.of the vessel from the Michigan shore, or ·of the effect of any ofherUnes to Or near the pier while warping the vesseLiQJ' ''l'he: constitutional provision requires that the trial of t\U "shall, be 'held in the state where the said crime committed; but, when not .committed within any state, place or pla,ces as the congress may ,by law, ,d:i,:rect." The is, in support of the indictment, thatthe.WQrds "out of the jurisdiction of any, particular state," as recited in section 5346,(10' not qualify the term "high seas" thereill, "b'lltonly tb:e;localities which are subsequently named. On the open coast of the ocean there is no extension of the territorial boundaries of the.· state" ;except the. marine league, conceded by international law for certain purplliles, well defined in Manchester v. .Massachusetts, 139,U. S. 240, 11 Sup. Ct. 559. Even there, as stated in 1 Blsh. Or; I.4\.w,§ 143, whej;e,an offense is "upon seas washJqg an open, and within the marine league belonging to the territory ·of the 'state, still it is punishable as committed against the United States." See U. S. v. Grush, 5 Mason, 290, Fed. Cas. No. 15,268, ,for a clear exposition by Mr. Justice Story of the original statute {)f 1825 (now section 5346), and of which that distinguished judge was ,the,reputElda.uthor. But it is unnecessary to decide whether the terms "out of the jurisdiction of any particular. state" wouJ.d qualify or .apply to the term "Great ,Lakes," as ,employed in the act of ;1.890, ,beca'llse it is:clearthat the vessel was within the limits and jurisdiction of thel'COurts of the United States for the Eastern district of Michigan, when the alleged offense was committed, and hence within . the constitutional inhibition of trial in this court. By section 538, Rev. St.u. S., the Eastern district of Michigan "in,cludes sllthe territory amd waters of said state not included within" the boundaries there given of the Western district, which leaves the

UNITED STATES 11. PETERSON. ,

147

waters of Lake Huron in theiEastern district. By treaties between the United States and Great Britain, a certain line through the center of Lake Huron was established as the national boundary line, but with jurisdiction retained by each nation over its vessels, as a portion of its territory, while navigating such waters, irrespective of the boundary line. The act admitting the state of Michigan as one of the states of the Union establishes the same line as the easterly and northerly boundary line of that state. In lllinois Cent. R. Co. v. lllinois, 146 U. S. 387, 13 Sup. Ct. 110, it is clearly recognized that the limits of the states bordering upon the Great Lakes extend to the center of the lakes, respectively. In U. S. v. Bevans, 3 Wheat. 336, Chief Justice Marshall says the extent of jurisdiction which a state possesses "iscoexistensive with its territory; coextensive with its legislative powers." It is held· in U. S. v. Rodgers, supra, that this boundary line does not change the character of the lakes as high seas, nor impair "the jurisdiction of the United States to regulate vessels belong: ing to their citizens navigating those waters, and to punish offenses committed upon such vessels;" but this remark is only with reference to the right or assertion of national jurisdiction, which becomes paramount to that of the state in matters of national commerce and navigation. The actual limits of the state are not changed by this view. The place of this alleged offense is within the state of Michigan, and within the territory assigned to the district and circuit courts of the Eastern district of Miohigan. In U. S. v. Jackalow, 1 Black, 484, the supreme court states the rule which governs here:
"Crimes committed against the laws of the United States out of the limits of a state are not local,· but may be tried at SUch place as congress shall designate by law. but are local if committed within the state. They must then be tried in the district in which the offense was committed."

There the alleged offense occurred upon Long Island Sound, which is recognized and charged as of the "high seas." The issue, as there declared, was whether or not it was committed outside the jurisdiction of any particular state, ''because, if not, inasmuch as it was not committed within the state of New Jersey [where the indictment was found], the circuit court of the district of that state had no jurisdiction." The case of U. S. v. Dawson, 15 How. 467, states the same rule imposed by this constitutional provision. The statute (section 730, Hev. St. U. S.) under which this jurisdiction is asserted is clearly in accord with this provision, as it authorizes trial in a district where the offender is found or first brought, in case the offense be committed "out of the jurisdiction of any particular state or district," and not otherwise. The question here presented would not arise in a case of offense committed upon the open coast of the ocean or great seas forming external boundaries of the nation, because the boundaries of the state and district are not extended upon such waters, as they are upon the Great Lakes and upon Long Island Sound. The constitutional provision would have no room for application to the former case, but it does apply to the latter. Whether Lake Huron be regarded as high seas, in the light of the Rodgers decision, or as one of the Great Lakes,tinder the legislation of 1890, the boundaries .and

Jl'EDlIlRA:LREPORTEB,

.

vol. 64.

jul"isdietion of the Eastem district of Michigan are not changed, but extend,tothe center Of the lake, and include the place of this alleged To confer' juisdiction upon' this court, it must appear that the offense was committed outsjde the Michigan boundary line, beyond the Eastern· district of Michigan; and I am inclined to the opil1ionthat the indictment mustlw allege where an offense upon Lake Huron is charged. Upon the admitted facts, the demurrer mtlJStbe sustained. The second indictment is within the same rule, an'd demurrer is sustained.
DANAHY v. NATIONAL BANK OF DENISON. (Olrcult Court of Appeals,
FEDE:ij.r.ColJR'l'S-JURISDICTION-DIVERsE

Circuit. No.t7L

November 27, 1894.)

BANKS.

p..

Fedetal courts have no jurisdiction. of an action by a national bank on Where the record does not show diverse citizenship.

In El'ror to the Circuit Court of the United States for the Northern DIstrict of Illinois. Assmnpsitby the National Bank of Denison against Daniel Danahy. Flaintiff obtained judgment. Defendant brings error. Rafferty (James Maher, of counsel), for plaintiff in error. D. H.jPinney, E. R. Eldridge, and E. J. Wilbur, Jr., for defendant in error. . Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.
JENKINS, Circuit JUdge. A review is here sought of a judgment rendered in a suit upon certain promissory notes claimed to have by the firm of Danahy & }IcDonald. We are constrained to're'Verse this judgment without passing upon the merits of the and for want of showing of jurisdiction in the court below;iThe allegation of the declaration is as follows:
"The 'Nitional Bank of Denison, a corporation, complains of Daniel Danahy and' Donald J. McDonald, late partners under the firm name of Danahy & McDonald, defendants in this suit, summoned," etc., "of a plea of tresp$.S1i! on the case on promises."

There is no allegation in the declaration of the citizenship of either; the plaintiff or the defendant There is no other allegation of the incorporation of the plaintiff than that stated. We are asked is a national to take' judicial notice that the defendant in bank,because of its name. If we could do this, it would not avail. a national bank could. sue or be sued in the courts of the United!!States in the district in which it is established, without respect to the citizenship of the, opposite party. Rev. St.. § 629, subd. 10; County of Wilsonv. Bank, 103 U. S. 770, decided in 1880. But under the act of July' 12,1882: (22 Stat. 162, § 4), and the act of 1887 (24 St. 552), as corrected and re·enacted in 1888 (25 Stat. 433), all national banking associations shall, for the purposes of suit,