Ex parte Cooper

• Citation: 36 L.Ed. 232,143 U.S. 472,12 S.Ct. 453
• Parties: EX parte COOPER
• Decision Date: 29 February 1892
• Court: United States Supreme Court

143 U.S. 472

12 S.Ct. 453

36 L.Ed. 232

EX parte COOPER.

February 29, 1892.

[Syllabus from pages 472-474 intentionally omitted]

STATEMENT BY MR. CHIEF JUSTICE FULLER.

This is an application for a writ of prohibition to the district court of the United States for the district of Alaska, to restrain the enforcement of a sentence of forfeiture and condemnation entered in that court September 19, 1887, on a libel filed by the United States against the schooner W. P. Sayward, upon the ground that that court was without jurisdiction in the premises. The petitioner, Cooper, is the owner of the vessel, and with his petition a suggestion was presented by Sir John Thompson, K. C. M. G., her Britannic majesty's attorney general of Canada, with the knowledge and approval of the imperial government of Great Britain, requesting the aid of the court for the claimant, a subject of her Britannic majesty.

The motion for leave to file the application was made on the 12th of January, 1891, and leave was granted on the 2d day of February. The application having accordingly been filed, a rule was issued against the judge of the district court of Alaska to show cause why the writ should not go. The petition is set out in extenso in Re Cooper, 138 U. S. 404, 11 Sup. Ct. Rep. 289. The main averments are that the schooner W. P. Sayward, a British vessel, while lawfully sailing upon the high seas in latitude 44x 43' north and longitude 167x 51' west, and 59 miles from any land whatsoever, was forcibly seized by an armed revenue vessel of the United States, and forcibly carried into the port of Sitka, and there forcibly detained and delivered to the United States marshal, and by the attorney for the United States of the district of Alaska libeled in the district court, and by said court condemned for having killed fur seal at the place of seizure. It was further averred that the decree of forfeiture was made and entered September 19, 1887; that the petitioner, having been admitted as the actual owner of the said schooner as claimant, appealed to this court April 26, 1888, and docketed said appeal here October 30, 1888, but dismissed the same, (January 12, 1891,) because advised that an appeal would not lie, and that the decree was and is a nullity; and that all the matters of fact alleged in the petition, save those of which this court takes judicial notice, appear by the record and proceedings of the district court; and it was claimed in argument that the petitioner, having referred to the original record and proceedings of the district court, was entitled to have the same read and considered as part of his case in this court, and he accordingly filed a complete and authenticated transcript of the entire proceedings in the district court, as he alleged.

A return was made in due course by John S. Bugbee, judge of the court in question, stating that he was not such judge at the time the decree was entered, but was appointed and qualified on December 7, 1889; and he thereupon sets forth 'the final record of the cause in which said decree of forfeiture was made and entered, as prepared under section 750 of the Revised Statutes of the United States from the files, minutes, and journal of said district court of the United States, district of Alaska,' as follows:

The libel dated and filed September 13, 1887:

'The libel of information of M. D. Ball, attorney of the United States for the district of Alaska, who prosecutes on behalf of the said United States, in the name and on behalf of the said United States, alleges and informs as follows, to-wit:

'That L. G. Shepard, an officer in the revenue marine service of the United States, duly commissioned by the president of the United States, in command of the United States revenue-cutter Rush, and on special duty in the waters of the district of Alaska, heretofore, to-wit, on the 9th day of July, A. D. 1887, within the limits of Alaska territory and in the waters thereof, and within the civil and judicial district of Alaska, to-wit, within the waters of that portion of Behring sea belonging to the United States and said district, on waters navigable from the sea by vessels of ten or more tons burden, seized the schooner W. P. Sayward, of Victoria, B. C., her tackle, apparel, boats, cargo, and furniture, being the property of some person or persons unknown to said attorney.

'The property is more particularly described as follows, to-wit: Schooner W. P. Sayward, of Victoria, B. C., of 59 and 79-100 tons burden, as per register, standing and running rigging, sails, chronometer, and nautical instruments, clock, lamps, carpenter's tools, books, 2 anchors, casks, cooking and table utensils, provisions, and 477 fur-seal skins, and all other property found upon or appurtenant to said schooner.

'That L. G. Shepard was then and there duly commissioned and authorized by the proper department of the United States to make said seizure.

'That all said property was then and there seized as forfeited to the United States for the following causes:

'That the said vessel and her captain, officers, and crew were then and there found engaged in killing fur seals within the limits of Alaska territory, and in the said waters thereof, in violation of section 1956 of the Revised Statutes of the United States; that all the said property, after being seized as aforesaid, was brought into the port of Sitka, in said district, and turned over to the United States marshal of this district, with the exception of the 477 fur-seal skins, which latter were brought into the port of Oonalaska, in said territory, and delivered into the keeping of Isaac Anderson, a deputy United States marshal of this district, and all of said property is now within the judicial district of Alaska, United States of America; and said M. D. Ball, attorney as aforesaid, further informs and alleges that on the 9th day of July, A. D. 1887, Geo. R. Ferry and certain other persons whose names are to the said United States attorney unknown, who were then and there engaged on board of said schooner W. P. Sayward as seamen and seal hunters, did, under the directions and by the authority of Geo. R. Ferry, then and there master of said schooner, engage in killing and did kill, in the territory and district of Alaska and in the waters thereof, thirty fur seals, in ivolation of section 1956 of the Revised Statutes of the United States in such cases made and provided.

'That the said 477 fur-seal skins and other goods so seized on board the schooner W. P. Sayward constituted the cargo of said schooner at the time of the killing of said fur seals and at the time of said seizure.

'And said attorney saith that all and singular the premises were and are true, and within the admiralty and maritime jurisdiction of the United States and of this honorable court, and that by reason thereof, and by force of the statutes in such cases made and provided, the aforementioned schooner, being a vessel of 59.79 tons' burden, and her said apparel, tackle, boats, cargo, and furniture, became and are forfeited to the use of the United States.

'Wherefore the said attorney prays that the usual processand monition of this honorable court issue in this behalf against said schooner and all said hereinbefore described property to enforce the forfeiture thereof, and requiring notice to be given to alll persons to appear and show cause on the return-day of said process why said forfeiture should not be decreed, and that, after due proceedings are had, all said property be adjudged, decreed, and condemned as forfeited to the use of the United States, and for such other relief as may be proper in the premises.'

The monition dated September 15, 1887, and returned and filed September 19, 1887; and the return.

Order of court of September 15, 1887, granting leave to the proctor for claimants to file claim of master for owner and the claim; also order granting leave to proctor for claimants to file a demurrer to the libel; and the demurrer.

Order of court overruling the demurrer on the same day and leave granted to file answer; and the answer:

'And now comes George R. Ferry, master, as aforesaid, and for answer to the libel of information filed herein, says:

'(1) He admits that L. G. Shepard was an officer of the United States revenue marine service, duly commissioned, and that he was, at the time the property proceeded against herein was seized, in command of the United States revenuecutter Rush, and on official duty at the time the said seizure was made, and was then and there duly commissioned and authorized by the proper department of the United States to make said seizure, but denies that said seizure was made within the waters of Alaska territory, or within the civil and judicial district of Alaska, or in any portion of Behring sea belonging to the United States, or upon any other waters belonging to libelants navigable from the sea by vessels of ten tons or over.

'(2) Denies that said vessel, her captain, officers, and crew, were then and there found engaged in killing fur seals within the limits of Alaska territory, or in the waters thereof, or that they were then and there violating any law of the United States.

'(3) Denies that on the ninth day of July, A. D. 1887, any other person or persons did then and there, under the direction and authority of the said George R. Ferry, or any other person, or at all, kill any fur seal within the district of Alaska, or in the waters thereof.

'(4) Denies that the property proceeded against in this cause, or any portion thereof, ever became forfeited to the United States. Wherefore the said claimant prays that the libel of information filed herein may be dismissed, and for any other just and equitable relief as to this court may seem meet and proper.'

September 19, 1887, leave granted proctor for owners to file a waiver of the publication and posting of the notice of the libel and seizure of the property granted, and waiver...