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all dischargeable debts, and by section 17, subd. 2, of the bankruptcy act, liabilities for willful and malicious injuries to the person or property of another are not dischargeable. So far as can be learned from the papers submitted, the action on which the original judgment was recovered against Fritz was brought in the Municipal Court of the city of New York, upon oral pleadings, for injuries to personal property. The answer was a general denial, and the plaintiff obtained a judgment.
If this action was for "willful and malicious injury to personal property,” the restraining order of December 3, 1906, did not affect this judgment. Further, if the order of Mr. Justice Jaycox, directing the defendant's punishment for contempt, was intended as a punishment, and not to assist merely in the collection of the debt, the commitment of the debtor was not stayed by the order of December 3, 1906. The Supreme Court can decide as to the scope of its own order, and determine the duty of the sheriff. Until the questions above suggested are cleared up, and until some conflict arises from the effects of the restraining order, there is no necessity for any modification of its terms.
The motion is therefore denied.
(District Court, E. D. New York. March 23, 1907.) 1. SEAMEN-WAGES-EFFECT OF DISCHARGE FOR CAUSE.
A seaman is entitled to recover wages for the time served, although dis charged because of fault on his part.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Seamen, $ 83.) 2. SAME.
Conflicting evidence considered, and held to sustain the claim of a seaman for wages, but not to show that they were withheld without sufficient cause, so as to subject the owner to the penalty provided by Rev. St. $ 4529 [U. S. Comp. St. 1901, p. 3077].
[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Seamen, $ 150.) In Admiralty. Suit by seamen for wages. James J. Macklin, for claimant. F. A. Acer, for libelants.
CHATFIELD, District Judge. The libelant Peterson claims wages to the amount of $93.33 for services as engineer upon the yacht Sentinel during the month of May and up to the 2d of June, 1905, and the further sum of $475, wages at the rate of $1 a day, under the provisions of section 4529, Rev. St. (U. S. Comp. St. 1901, p. 3077], computing the time from the date when the alleged wages of $93.33 became due. The libelant Evje claims wages in the amount of $100, for the month of June, 1905.
The testimony in the case shows that the libelant Peterson was discharged upon the 2d day of June, 1905, at the request of the officers of the Engineer Corps of the United States Army, who were operating the yacht Sentinel under a charter with the owner at that time. The
nant produces a receipt for the sum of $75 (alleged by the libelant rson to have been altered from a receipt for $5), which it is stated he claimant covered the wages of the libelant Peterson for the th of May. On behalf of Peterson a check for the sum of $90 is uced, which he received at the end of the month of May, and
which payment was stopped. The claimant offers proof to the t that this check was made out on information furnished by one rds, then mate of the vessel, but that payment on this check stopped, inasmuch as information was obtained that the $75 re1 to in the receipt had already been paid. is impossible to determine from the testimony what the exact ion was. Edwards, the mate of the vessel, who was a witness ghout the whole transaction, and by whom the $75 was paid to on, if paid at all, is in Australia. Upon the testimony it is nt that Peterson rendered services for the time alleged. Withe testimony of the man Edwards, it seems to the court that on is entitled to his wages for the month of May, and for two
June. The check on which payment was stopped was testified 1 Edwards' handwriting, and was given upon information as to vices of Peterson furnished by Edwards. This makes it unble to suppose that within a few days afterwards payment pped upon the check upon information also furnished by Edto the effect that he had already paid $75 of the wages reprey the check, and that at an interview between Edwards, Peteri William Garner, agent for the owner, Peterson should sign t admitting that fact, after attempting to collect the amount eck which had been stopped. William Garner is afflicted with , and is apparently unable to see, except close at hand, and jects are held at an angle to his line of vision. Peterson in the trial that script writing in English was not read by him ch facility, and it would appear that, if any deception was
it was connected with the action of the missing Edwards. of Peterson as given on the stand is sufficient to entitle him · wages for the month of May at the rate of $100 per month, ash advanced, and $5 paid in the month of June, making the t of $85, together with $3.33, for one day's service in june. ase of Evje, who was hired at the rate of $100 per month, arged upon the 14th of June, a serious issue of fact arises ircumstances of his discharge, and the condition in which
boilers of the boat. It may be that the owner of the boat erious damage resulting from the acts of Evje, but no m to offset the claim for wages has been filed. On the f Moore v. Neafie (D. C.) 3 Fed. 650, The Pacific (D. C.) 3, and The Belle of the Coast (D. C.) 56 Fed. 251, it would
Evje is entitled to his wages for the 14 days of June, even ed because of fault on his part. The testimony of Evje nesses as to his discharge does not bear scrutiny; while the ffered on the part of the claimant seems to the court to contention that Evje left the vessel in the manner alleged nant. In the absence of any proof as to the value of his
services, except as to the hiring of Evje at $100 a month, his claim will be disallowed beyond the sum of 14 days' pay, at $3.33 per day.
Under the Peterson libel, the claimant shows reasonable grounds for disputing the claim, even if not able to make out a defense sufficient to prevent any recovery on the part of the libelant; and therefore the additional penal damages provided for in section 4529 will not be allowed.
A decree may be entered allowing the libelant Peterson $88.33, and the libelant Evje $46.67, with one bill of costs.
UNITED STATES v. DOMINGO et al.
(District Court, D. Idaho, C. D. March 14, 1907.)
No. 443. 1. WOODS AND FORESTS-FOREST RESERVATIONS_VALIDITY OF REGULATIONS EXCLUDING STOCK.
That portion of rule 72 promulgated by the Secretary of the Interior which forbids the grazing upon or driving across a forest reservation of any live stock without a permit, except as otherwise allowed by reghilation, and declares that such acts shall "constitute trespass, punishable by fine and imprisonment," so far as relates to the prohibition, is within the authority conferred on the Secretary by Act June 4, 1897, c. 2, § 1, 30 Stat. 35 TU. S. Comp. St. 1901, p. 1540), which provides that he “may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; and any violations of the provisions of this act, or of such rules and regulations, shall be punished as is provided for in” Act June 4, 1888. Such rule is not a law, and for that reason an exercise of power which Congress could not delegate, but merely a regulation proper for making the law of Congress effective; and, while the part prescribing the punishment is beyond the authority conferred, it may be treated as surplusage, and does not invalidate the remaining portion, for a violation of which the
offender may be prosecuted and punished as provided by the statute. 2. SAME-PENALTY FOR VIOLATION.
The fact that the statute defines the penalty for its violation as the same prescribed by another statute does not require that the offenses
should be the same to render the penalty applicable.
BEATTY, District Judge. The indictment is for trespass upon a forest reserve by driving and grazing sheep thereon without a permit. To this indictment the defendants have demurred. By Act June 4, 1897, c. 2, § 1, 30 Stat. 34-36 (U. S. Comp. St. 1901, p. 1540), in modification of a prior act for the creation of forest reserves, it is, among other provisions, enacted, that: “The Secretary of the Interior
may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; and any violations of the provisions of this act,
es and regulations, shall be punished as is provided for in the act ch, eighteen hundred and eighty-eight." act provides as follows: rson who unlawfully cuts, or aids or is employed in unlawfully wantonly destroys, or procures to be wantonly destroyed, any ling upon the land of the United States
shall pay a more than five hundred dollars or be imprisoned no more than Chs, or both, in the discretion of the court." on of such statutes the Secretary promulgated certain rules tions, a part of No. 72 of which, is that: owing acts are hereby forbidden and declared to constitute treshable by fine and imprisonment: (a) Grazing upon or driving rest reserve any live stock without a permit, except as otherwise
regulation. endants claim that the Secretary is not authorized by Congress he above rule, and that, if it intended to grant such authority,
attempt to delegate legislative power, which is ultra vires. well settled to admit any doubt that Congress cannot delegate her body or person any authority to legislate; but it is also ettled that it may authorize an executive officer to formulate i regulations for the full and explicit enforcement of the law and according to its full intent and spirit. To discuss either questions would be a wasteful use of time. Very many of the Congress contain such delegation of authority. Had it not the o do so, many of its statutes would be largely nugatory; for ossible for it to anticipate the various questions that may arise nforcement of its laws and to provide for them. The objection
this case to the rule is the same that is usually made to other es. The solution of the question must in each case be reached rmining whether the rule is an attempt to create a law, or simply ation or means of enforcing a law already enacted. If the , it is void; if the latter, it is as valid as the law itself. e is no doubt as to the rule of decision; but in some instances stion is so close that it is difficult to conclude how the rule should strued. In this instance the statute says that the Secretary make such rules and regulations and establish such service as will the objects of such reservation.” But it does not leave him to hine what such objects are. It states them: First, "to regulate occupancy and use”; and, second, "to preserve the forests thereom destruction.” Clearly Congress contemplated that these re
should be occupied and used, but in what manner, by whom, and -hat purposes it leaves the Secretary to regulate by rules. Rules event any occupation or use would be contrary to the statute, but
simply to regulate such occupation and use are what the statute essly authorizes, and are valid. While the provision of the stator the preservation of the forests from destruction probably refers we wanton destruction of the timber, yet the occupancy has an imant effect upon such preservation. If the occupation by animals therwise is such as to destroy the growing, tender trees, the final rioration and destruction of the forest must follow. ly conclusion is that, in so far as this regulation 72 forbids any
grazing or driving of live stock upon on or across the reservation without a permit, it is not legislation, but is only a rule, within the authority of Congress to regulate the occupation and use, and is valid. But the rule goes further, and directs a fine and imprisonment for such unpermitted acts. It must be doubted that the Secretary can direct any punishment that is not directly provided for or distinctly implied by the act. The most that can be held against this portion of the regulation is that it is surplusage, but which does not invalidate the balance of the rule. If no punishment were provided by the act, he could not direct any; if the act does provide a punishment, he cannot modify it. The act does, however, provide a punishment by applying to the offenses in this act—the penalty provided for offenses named in the act of June 4, 1888. By this latter act a punishment of not over $500 fine, or imprisonment of not over 12 months, or both, is provided. But the regulation, in directing fine and imprisonment, is obnoxious to the statute, which provides for fine or imprisonment. This statute of 1897 distinctly defines the penalty as the same prescribed by the statute of 1888.
But defendants' counsel argues that as the penalty provided by the act of 1888 is for the cutting of timber and other offenses therein named, and does not provide for the offense charged in this indictment, it follows that there is no penalty provided for this offense. Careful examination of the statute cannot lead to such conclusion. Itthe act of 1897--says that "any violation of the provisions of this act, or such rules and regulations, shall be punished as provided for in the act of June 4, 1888.” This is not a statement that the penalty prescribed by the former act can be applied only to the class of offenses therein named, but it is a direction that such penalty shall be applied also to the offenses described in the later act. Congress very often, in defining an offense, applies to it the same penalty provided for some other offense, described in some other act. Clearly that is all that is done in this case.
My conclusion, then, is that the Secretary in making the rule referred to was duly authorized, and that the statute itself has prescribed the penalty for its violation.
The demurrer is overruled.
NOTE. Since preparing the above, counsel have called attention to the telegraphic report of a decision by the appellate court, which may determine the questions here involved. The authority to modify this is reserved, should it later be found that it is not in harmony with such appellate court decision.
UNITED STATES v. DEGUIRRO et al.
(District Court, N. D. California. October 2, 1906.) WOODS AND FORESTS-FOREST RESERVATIONS-VIOLATION OF REGULATIONS.
The violation of the rule of the Secretary of the Interior forbidding the pasturing of live stock on a forest reservation without a permit is punIsbable criminally, under Act June 4, 1897, 30 Stat. 35 (U. S. Comp. st.