The Vessel Abby Dodge v. United States

• Decision Date: 19 February 1912
• Docket Number: No. 41,41
• Citation: 56 L.Ed. 390,55 L.Ed. 390,223 U.S. 166,32 S.Ct. 310
• Parties: THE VESSEL 'ABBY DODGE,' A. Kalimeris, Claimant, Appt., v. UNITED STATES
• Court: U.S. Supreme Court

223 U.S. 166

32 S.Ct. 310

55 L.Ed. 390

56 L.Ed. 390

THE VESSEL 'ABBY DODGE,' A. Kalimeris, Claimant, Appt.,

v UNITED STATES.

No. 41.

Argued November 6 and 7, 1911.

Decided February 19, 1912.

Mr. Edward R. Gunby for appellant.

[Argument of Counsel from pages 167-169 intentionally omitted] Solicitor General Lehmann and Mr. Charles E. McNabb, Assistant Attorney, for appellee.

[Argument of Counsel from pages 169-172 intentionally omitted.]

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. at L. 313, chap. 3442, U. S. Comp. Stat. Supp. 1909, p. 1087, 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 1st 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 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 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 assumption that the act, when rightly construed, applies to sponges taken or gathered from land under water within the territorial limits of the state of Florida or other states, the repugnancy of the act to the Constitution would plainly be established by the decisions of this court. In McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248, the question for decision was whether the state of Virginia had such exclusive authority over the planting and gathering of oysters upon the soil in tide waters within the territorial limits of the state as not only to give the state the power to control that subject, but to confer the right to exclude the citizens of other states from participating. In upholding a statute exerting such powers the doctrine was declared to be as follows: 'The principle has long been settled in this court that each state owns the beds of all tide waters within its jurisdiction, unless they have been granted away. Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Smith v. Maryland, 18 How. 74, 15 L. ed. 270; Mumford v. Wardwell, 6 Wall. 436, 18 L. ed. 761; Weber v. State Harbor Comrs. 18 Wall. 66, 21 L. ed. 802. In like manner the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012. . . . The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship.' True it is that the rights which were thus held to exist in the states were declared to be 'subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States;' but with that dominant right we are not here concerned.

Again, in Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 559, in upholding a statute of the state of Massachusetts regulating the taking of menhaden in Buzzard's bay, the doctrine of the case just...