EDITORIAL NOTES

This paragraph, which is part of the first section of the Interstate Commerce Act, approved Feb. 4, 1887, ch. 104, 24 Stat. 379, as amended, was added thereto by an act of May 29, 1917, ch. 23, 40 Stat. 101, as amended by an act of Feb. 28, 1920, ch. 91, sec. 402, 41 Stat. 476-477.

The term "Commission", as used in this paragraph, means the Interstate Commerce. Commission.

This paragraph, as amended, is embodied in the U. S. Code as par. 15 of set. 1 of title 49.

/1887, Feb. 4. Priority in transportation of troops and war materials.

Sec. 6. *** That in time of war or threatened war preference and precedence shall, upon demand of the President of the United States, be given over all other traffic for the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic. And in time of peace shipments consigned to agents of the United States for its use shall be delivered by the carriers as promptly as possible and without regard to any embargo that may have been declared, and no such embargo shall apply to shipments so consigned.--(24 Stat. 380, ch. 104; 25 Stat. 855, ch. 382; 34 Stat. 586-587, ch. 3591; 39 Stat. 604, ch. 417.)

EDITORIAL NOTES

This paragraph, which is part of sec. 6 of the Interstate Commerce Act, approved Feb. 4, 1887, ch. 104, 24 Stat. 380, as amended, was expressly amended, was expressly amended and reenacted to read as above by act of Aug. 29, 1916, ch. 417, 39 Stat. 556, 604. Sec. 6 had previously been expressly amended by an act of Mar. 2, 1889, ch. 382, 25 Stat. 855, and an act of June 29, 1906, ch. 3591, sec. 2, 34 Stat. 586-587.

Transportation of explosives:

see the Criminal Code, act of Mar. 4, 1909, ch. 321, sec. 232, 35 Stat. 1134-1135, as amended.

Transportation of troops and property by landgrant railroads: see act of Mar. 3, 1875, ch. 133, 18 Stat. 453-454.

CASE NOTES

In general.- "The various Acts of Congress authorizing the President to take action in the event of a National Emergency show that congress throughout the years made little or no distinction between a State of National Emergency and a State of War." (Brown v. Bernstein, 49 F. Supp. 728, 732, Apr. 13, 1943.)

The authority vested in the President by section 6 (8) is a war power. See Congressional Record, 59th Congress, 1st Session, vol. 40, pt. 6, p. 5483; ibid., pt. 7, p. 6620. Section 6 (8) requires, upon demand of the President, that preference and precedence over all other traffic be given for the transportation of troops and material of war. It operates directly upon the carriers, without benefit of interposition by the Interstate Commerce Commission and without restraint of limitations elsewhere placed upon the Commission's powers. Upon the President's demand, carriers are required to adopt 'every means within their control to facilitate and expedite the military traffic.' (40 Op. Atty. Gen., No. 40, Mar. 20, 1942.)

1887, Feb. 23. Hiring out labor of United States prisoners.

That it shall not be lawful for any officer, agent, or servant of the Government of the United States to contract with any person or corporation, or permit any warden, agent, or official of any State prison, penitentiary, jail, or house of correction where criminals of the United States may be incarcerated to hire or contract out the labor of said criminals, or any part of them, who may hereafter be confined in any prison, jail, or other place of incarceration for violation of any laws of the Government of the United States of America.

Sec. 2. That any person who shall offend against the provisions of this act shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned for a term not less than one year nor more than three years, at the discretion of the court, or shall be fined not less than five hundred dollars nor more than one thousand dollars for each offense.--(24 Stat. 411, ch. 213.)

EDITORIAL NOTE

The sections set out above are embodied in the U.S. Code as secs. 708 and 709 of title 18.

1887, Feb. 23. Holidays for per diem employees.7

CROSS REFERENCE

Employment and training of Federal prisoners: see act of May 27, 1930, ch. 340, 46 Stat. 391-392.

That all per diem employees of the Government, on duty at Washington or elsewhere in the United States, shall be allowed the day of each year, which is celebrated as "Memorial" or "Decoration Day" and the fourth of July of each year, as holiday, and shall receive the same pay as on other days.--(24 Stat. 644, Res. No. 6.)

Punishment for injuries intentionally done. That any person who shall willfully and wrongfully break or injure, or to attempt to break or injure, or who shall in any manner procure, counsel, aid, abet, or be accessory to such breaking or injury, or attempt to break or injure, a submarine cable, in such manner as to interrupt or embarrass, in whole or in part, telegraphic communication, shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to imprisonment for a term not exceeding two years, or to a fine not exceeding five thousand dollars, or to both fine and imprisonment, at the discretion of the court.--(25 Stat. 41, ch. 17.)

Sec. 2. Penalty for culpable neglect. That any person who by culpable negligence shall break or injure a submarine cable in such manner as to interrupt or embarrass, in whole or in part, telegraphic communication, shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to imprisonment for a term not exceeding three months, or to a fine not exceeding five hundred dollars, or to both fine and imprisonment, at the discretion of the court.--(25 Stat. 41, ch. 17.)

Sec. 3. Injury in effort to save life. That the provisions of the foregoing sections shall not apply to a person who breaks or injures a cable in an effort to save the life or limb of himself or of any other person, or to save his own or any other vessel: Provided, That he takes reasonable precautions to avoid such breaking or injury.--(25 Stat. 41, ch. 17.)

Sec. 4. Observance of rules concerning signals. That the master of any vessel which, while engaged in laying or repairing submarine cables, shall fail to observe the rules concerning signals that have been or shall hereafter be adopted by the parties to the convention with a view to preventing collisions at sea; or the master of any vessel that, perceiving, or being able to perceive the said signals displayed upon a telegraph ship engaged in repairing a cable, shall not withdraw to or keep at a distance of at least one nautical mile; or the master of any vessel that seeing or being able to see buoys intended to mark the position of a cable when being laid or when out of order or broken, shall not keep at a distance of at least a quarter of a nautical mile, shall be guilty of a misdemeanor, and on conviction thereof, shall be liable to imprisonment for a term not exceeding one month, or to a fine of not exceeding five hundred dollars.--(25 Stat. 41-42, ch. 17.)

Sec. 5. Duties of masters of fishing vessels. That the master of any fishing vessel who shall not keep his implements or nets at a distance of at least one nautical mile from a vessel engaged in laying or repairing a cable; or the master of any fishing vessel who shall not keep his implements or nets at a distance of at least a quarter of a nautical mile from a buoy or buoys intended to mark the position of a cable when being laid or when out of order or broken, shall be guilty of a misdemeanor, and on conviction thereof, shall be liable to imprisonment for a term not exceeding ten days, or to a fine not exceeding two hundred and fifty dollars, or to both such fine and imprisonment, at the discretion of the court: Provided, however, That fishing vessels, on perceiving or being able to perceive the said signals displayed on a telegraph ship, shall be allowed such time as may be necessary to obey the notice thus given, not exceeding twenty-four hours, during which period no obstacle shall be placed in the way of their operations.--(25 Stat. 42, ch. 17.) Sec. 6. Duties of commanders of warships. That for the purpose of carrying into effect the convention, a person commanding a ship of war of the United States or of any foreign state for the time being bound by the convention, or a ship specially commissioned by the Government of the United States or specially commissioned by the Government of such foreign state, may exercise and perform the duties vested in and imposed on such officer by the convention.--(25 Stat. 42, ch. 17.)

Sec. 7. Penalty for refusing to show papers. That any person having the custody of the papers necessary for the preparation of the statements provided for in article ten of the convention who shall refuse to exhibit them or shall violently resist persons having authority according to article ten of said convention to draw up statements of facts in the exercise of their functions, shall be guilty of a misdemeanor, and on conviction thereof shall be liable to imprisonment not exceeding two years, or to a fine not exceeding five thousand dollars, or to both fine and imprisonment, at the discretion of the court.--(25 Stat. 42, ch. 17.) Sec. 8. Suits for damages. That the penalties provided in this act for the breaking or injury of a submarine cable shall not be a bar to a suit for damages on account of such breaking or injury.--(25 Stat. 42, ch. 17.)

Sec. 9. Liability of master of offending vessel. That when an offense against this act shall have been committed by means of a vessel, or of any boat belonging to a vessel, the master of such vessel shall, unless some other person is shown to have been in charge of and navigating such vessel or boat, be deemed to have been in charge of and navigating the same, and be liable to be punished accordingly.--(25 Stat. 42, ch. 17.)

Sec. 10. Meaning of terms. That unless the context of this act otherwise requires, the term “vessel" shall be taken to mean every description of vessel used in navigation, in whatever way it is propelled; the term "master" shall be taken to include every person having command or charge of a vessel; and the term "person" to include a body of persons, corporate or incorporate. The term "convention" shall be taken to mean the International Convention for the Protection of Submarine Cables, made at Paris on the fourteenth day of May [sic], eighteen hundred and eighty-four, and proclaimed by the President of the United States on the twenty-second day of May, eighteen hundred and eighty-five.--(25 Stat. 42, ch. 17.)

Sec. 11. Summary trials. That the provisions of the Revised Statutes, from section forty-three hundred to section forty-three hundred and five, inclusive, for the summary trial of offenses against the navigation laws of the United States, shall extend to the trial of offenses against the provisions of sections four and five of this act.--(25 Stat. 42, ch. 17.)

Sec. 12. Applicability of act. That the provisions of this act shall be held to apply only to cables to which the convention for the time being applies.--(25 Stat. 42, ch. 17.)

Sec. 13. Jurisdiction and venue of actions and offenses. That the district courts of the United States shall have jurisdiction over all offenses against this act and of all suits of a civil nature arising thereunder, whether the infraction complained of shall have been committed within the territorial waters of the United States or outside of the said waters: Provided, That in case such infraction is committed outside of the territorial waters of the United States the vessel on board of which it has been committed is a vessel of the United States. From the decrees and judgments of the district courts in actions and suits arising under this act appeals and writs of error shall be allowed as now provided by law in other cases. Criminal actions and proceedings for a violation of the provisions of this act shall be commenced and prosecuted in the district court for the district within which the offense was committed, and when not committed within any judicial district, then in the district court for the district within which the offender may be found; and suits of a civil nature may be commenced in the district court for any district within which the defendant may be found and shall be served with process.--(25 Stat. 42-43, ch. 17.)

EDITORIAL NOTES

This act is embodied in the U.S. Code as secs. 21-33, inclusive, of title 47.

In United States v. Western Union Telegraph Co., 272 F. 311, Feb. 25, 1921, a district court held that the President, in the absence of congressional legislation, does not have the power to prevent unauthorized cable landings on the shores of the United States or the operation of cable lines connecting with foreign countries in a way contrary to executive policy. The district court was reversed by the Supreme Court on Oct. 23, 1922, in accordance with stipulation (see 260 U.S. 754).

An act of May 27, 1921, ch. 12, 42 Stat. 8, as amended, prohibits the landing and operation, without a license from the President, of submarine cables in the United States. The term "United States", as used in this act, includes all territory, continental or insular, subject to the jurisdiction of the United States of America. Exec. Order No. 3513, July 9, 1921, as amended by Exec. Order No. 6779, June 30, 1934, authorized and directed the Federal Communications Commission "to receive all applications for licenses to land or operate submarine cables in the

Scope and operation of statute.- "The act of February 29, 1888 (25 Stat., 41), protects submarine cables through civil and criminal liability for injuries to the same, in pursuance of the convention of March 14, 1884 (24 Stat., 989), which obviously relates to international cables only. The act of 1888 (sec. 12) is restricted to cables to which the convention applies, although it embraces injuries (sec. 13) within as well as outside the territorial waters of the United States. It would seem clear that the act does not relate to domestic Government cables maintained in connection with military stations in fortified harbors, and at all events the act furnishes no authority for establishing anchorage areas for the protection of cables or any other United States interests.'" (26 Op. Atty. Gen. 258, 259, May 24, 1907.)

1888, June 29. Depositing refuse in New York Harbor and adjacent waters.

That the placing, discharging, or depositing, by any process or in any manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those of Long Island Sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden, and every such act is made a misdemeanor, and every person engaged in or who shall aid, abet, authorize, or instigate a violation of this section, shall upon conviction, be punishable by fine or imprisement, or both, such fine to be not less than two hundred and fifty dollars nor more than two thousand five hundred dollars and the imprisonment to be not less than thirty days nor more than one year, either or both united, as the judge before whom conviction is obtained shall decide, one half of said fine to be paid to the person or persons giving information which shall lead to conviction of this misdemeanor.--(25 Stat. 209, ch. 496.)

EDITORIAL NOTE

This section is embodied in the U.S. Code as sec. 441 of title 33.

CROSS REFERENCES

Depositing refuse in navigable waters: see act of Mar. 3, 1899, ch. 425, sec. 13, 30 Stat. 1152.

Oil pollution of coastal navigable waters: see the Dil Pollution Act, 1924, approved June 7, 1924, ch. 316, 43 Stat. 604-606.

CASE NOTES

Scope and operation of statute.- The bodies of water referred to are a the harbor of New York, (b) waters adjacent to the harbor of New York, (c)

waters tributary to the harbor of New York, (d) Long
Island sound; as to each of these bodies of water
there is a restriction of the application of the
act to such waters only as are tidal.' (United
States v. The Sadie, 41 F. 396, 398, Feb. 11, 1890.
See also: The G. L. Garlic, 45 F. 380, March, 1891;
19 Op. Atty. Gen. 317, May 21, 1889; 20 Op. Atty. Gen.
293, Jan. 6, 1892.)

Under this statute, a vessel from which ashes are dumped in an unlawful place, by firemen presumably acting under orders from some superior officer, is liable as having herself violated the law. (The Bombay, 46 F. 665, June 4, 1891. Compare: The Anier Head, 46 F. 664, Dec. 8, 1890.)

"The act of Congress here in question imposes a direct liability upon the vessel for the pecuniary penalties prescribed, and declares that it may be proceeded against summarily by libel in any district court of the United States having jurisdiction thereof. This precludes the idea that the proceeding by libel is to be deferred to await the possibly slow course of criminal proceedings against the persons individually responsible. It treats the offending vessel as a guilty thing, upon the familiar principle of the maritime law, and permits a proceeding against her in any court of admiralty 'having jurisdiction thereof' --meaning any court within whose jurisdiction she may be found." (The Scow "6-S.", 250 U.S. 269, 272, June 2, 1919.)

"The statute enumerates the specific materials which, in the opinion of Congress, would ordinarily be deposited into the waters and would obstruct and

injure the harbor, but made sure that it should not
be obstructed or injured because of the failure to
mention all the materials that might possibly be
placed or deposited in the prescribed limits, and
so Congress added the words, or any other matter of
any kind. This means, applying the maxim of
ejusdem generis, matter of the same general class as
before mentioned. The materials mentioned, except
acid, are mostly solids, and the injury which they
would do the harbor would be to obstruct it. While
obstruction is the primciple injury Congress had in
mind, it was not the only one; for 'acid' would not
obstruct, but would corrode and be detrimental to
boats, wharves, etc., and would thus be injurious to
the harbor as such. (Warner-Quinlan Co. v. United
States, 273 F. 503, 505, June 17, 1921. See also:
The Albania, 30 F.2d 727, Dec. 26, 1928; The Colomoo,
42 F.2d 211, May 12, 1930; The S. S. Nea Hellis, 116
F.2d 803, Jan. 13, 1941.)

/1888, June 29. Supervisor of New York Harbor.

Sec. 5. That a line officer of the Navy shall be designated by the President of the United States as supervisor of the harbor, to act under the direction of the Secretary of War in enforcing the provisions of this act, and in detecting offenders against the same. This officer shall receive the sea-pay of his grade, and shall have personal charge and supervision under the Secretary of War, and shall direct the patrol boats and other means to detect and bring to punishment offenders against the provisions of this act.--(25 Stat. 210, ch. 496.)

EDITORIAL NOTES

This section, except that part relating to pay, is embodied in the U.S. Code as sec. 451 of title 33.

So much of this section as relates to pay was rendered obsolete by act of June 10, 1922, ch. 212,

sec. 22, 42 Stat. 633. In this connection, see un-
published decision of the Assistant Comptroller
General of the United States dated Feb. 18, 1943
(No. B-31305).

1888, Aug. 1. Condemnation of realty for sites and other uses; jurisdiction; procedure./

That in every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses he shall be, and hereby is, authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so, and the United States circuit or district courts of the district wherein such real estate is located, shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney-General of the United States, upon every application of the Secretary of the Treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application at the Department of Justice.--(25 Stat. 357, ch. 728.)

Sec. 2. The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.--(25 Stat. 357, ch. 728.)

EDITORIAL NOTES

Circuit courts of the United States were abolished by the Judicial Code, act of Mar. 3, 1911, ch. 231, sec. 289, 36 Stat. 1167. Sec. 291 of the Judicial Code provides that any references to, or power or duty conferred upon, circuit courts shall be deemed held to refer to, and be conferred and imposed upon, district courts.

This act, as amended, is embodied in the U.S. Code as secs. 257 and 258 of title 40.

This act was supplemented by an act of Feb. 26, 1931, ch. 307, 46 Stat. 1421-1422, entitled, "An Act to expedite the construction of public buildings and works outside of the District of Columbia by enabling possession and title of sites to be taken in advance of final judgment in proceedings for the acquisition thereof under the power of eminent domain." The following is the text of the act of Feb. 26, 1931, supra:

"That in any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto-

"(1) A statement of the authority under which and the public use for which said lands are taken. "(2). A description of the lands taken sufficient for the identification thereof.

(3) A statement of the estate or interest in said lands taken for said public use. "(4) A plan showing the lands taken.