223 U.S. 166 (1912), 41, The Abby Dodge

• Docket Nº: No. 41
• Citation: 223 U.S. 166, 32 S.Ct. 310, 56 L.Ed. 390
• Party Name: The Abby Dodge *
• Case Date: February 19, 1912
• Court: United States Supreme Court

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223 U.S. 166 (1912)

32 S.Ct. 310, 56 L.Ed. 390

The Abby Dodge *

No. 41

United States Supreme Court

February 19, 1912

Argued November 6, 7, 1911

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF FLORIDA

Syllabus

Each state owns the beds of all tidewaters within its jurisdiction unless they have been granted away; also the tidewaters themselves and the fish in them so far as they are capable of ownership while running. McCready v. Virginia, 94 U.S. 391.

Congress has no control over sponges growing on the land beneath tidewater within the jurisdiction of a state.

Where two interpretations of a statute are admissible, one of which makes the statute constitutional and the other unconstitutional, the former must be adopted. United States v. Delaware & Hudson Co., 213 U.S. 366,407.

The Act of June 20, 1906, 34 Stat. 313, c. 3442, regulating the landing of sponges at ports of the United States, relates only to sponges taken outside of the territory of any state.

The power of Congress over foreign commerce is complete; no one has a vested right to carry on foreign commerce with the United States. Buttfield v. Stranahan, 192 U.S. 470.

Congress can, by exertion of its power to regulate foreign commerce,

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forbid the importation of sponges gathered under conditions expressed in the Act of June 20, 1906.

Where the Act of Congress under which forfeiture is sought does not apply to territorial waters, the libel must aver that he act were done outside of the territorial limits of any state. When Congress, under its power to regulate foreign commerce, prohibits the importation of certain merchandise, it may cast on the one seeking to bring merchandise in the burden of establishing that it is exempt from the operation of the statute. Under the circumstances of this case, it is proper to allow the Government to amend the libel to present a case within the statute as construed in this opinion. The Mary Ann, 8 Wheat. 389.

The facts, which involve the constitutionality and construction of the Act of Congress of June 20, 1906, relating to landing of sponges in ports of the United States, are stated in the opinion.

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WHITE, J., lead opinion

MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.

By libel of the vessel Abby Dodge, either her forfeiture or the enforcement of a money penalty was sought because of an alleged violation of the Act of June 20, 1906, 34 Stat. 313, c. 3442, entitled, "An Act to Regulate the Landing, Delivery, Cure, and Sale of Sponges." The specific violation alleged was

that there was at the port of Tarpon Springs, within the Southern District of Florida, on the 28th day of September, A.D. 1908, landed from the said vessel, Abby Dodge, 1,229 bunches of sponges, taken by means of diving and apparatus from the waters of the Gulf of Mexico and the Straits of Florida, . . . at a time other than between October 1st and May 1st of any year, and at a time subsequent to May 1st, A.D.1907.

The owner of the vessel appeared and filed exceptions which, although urged in various forms, were all, as stated by counsel, "directed to and based upon the alleged unconstitutionality of the said Act of June 20, 1906." The exceptions were overruled, and, the claimant declining further to plead, a decree was entered assessing a fine of $100 against the vessel. This appeal was then taken.

For the purposes of the questions upon which this case turns, we need only consider the first section of the Act of June 20, 1906, which is as follows:

That from and after May first, anno Domini nineteen hundred and seven, it shall be unlawful to land, deliver, cure, or offer for sale at any port or place in the United States any sponges taken by means of diving or diving

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apparatus from the waters of the Gulf of Mexico or Straits of Florida: Provided, That sponges taken or gathered by such process between October first and May first of each year in a greater depth of water than fifty feet shall not be subject to the provisions of this act: And provided further, That no sponges taken from said waters shall be landed, delivered, cured, or offered for sale at any port or place in the United States of a smaller size than four inches in diameter.

Broadly, the act, it is insisted, is repugnant to the Constitution because, in one aspect, it deals with a matter exclusively within the authority of the states, and in another because, irrespective of the question of state authority, the statute regulates a subject not within the national grasp, and hence not embraced within the legislative power of Congress. The first proceeds upon the assumption that the act regulates the taking or gathering of sponges attached to the land under water, within the territorial [32 S.Ct. 312] limits of the State of Florida, and it may be of other states bordering on the Gulf of Mexico, prohibits internal commerce in sponges so taken or gathered, and is therefore plainly an unauthorized exercise of power by Congress. The second is based on the theory that, even if the act be construed as concerned only with sponges taken or gathered from land under water outside of the jurisdiction of any state, then its provisions are in excess of the power of Congress, because, under such hypothesis, the act can only apply to sponges taken from the bed of the ocean, which the national government has no power to deal with.

We briefly consider the two propositions. If the premise upon which the first rests be correct -- that is to say, the...