Milliken v. Stone
| Decision Date | 13 July 1925 |
| Parties | MILLIKEN et al. v. STONE, U. S. Atty. Gen., et al. |
| Court | U.S. District Court — Southern District of New York |
Silas B. Axtell, of New York City (Charles A. Ellis, of New York City, of counsel), for complainants.
Lord, Day & Lord, of New York City (Lucius H. Beers and Allen Evarts Foster, both of New York City, of counsel), for some defendants.
William Hayward, U. S. Atty., of New York City, for other defendants.
The bill of complaint is brought by a shipowner of vessels of American registry, an American master, and an association of American masters, against the United States Attorney General, the United States District Attorney, the United States Commissioner of Internal Revenue, the United States Collector of Internal Revenue, the Cunard Steamship Company, Limited, and a number of masters of vessels of this company. In substance it charges that the treaty with Great Britain, ratified May 22, 1924 (43 Stat. 1761, art. 3), or at least so much thereof as provides that no penalty or forfeiture shall attach to alcoholic liquors or to vessels by reason of the carriage of such liquors, when such liquors are listed as sea stores, on board British vessels voyaging to or from ports of the United States or passing through the territorial waters thereof, provided such liquors be kept under seal continuously while within the territorial waters, is invalid as contrary both to the Eighteenth Amendment of the Constitution and to the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.); that the defendant steamship company and the defendants masters of its vessels are violating the prohibition law and creating a nuisance, both statutory and common law, in having intoxicating liquors on board the vessel and within the territorial waters of the United States; that the defendant government officials, despite the unconstitutionality of the treaty, give it full credence in connection with the enforcement of the Eighteenth Amendment and the National Prohibition Act, neglect and refuse to enforce the amendment and the act, and intend to continue so to do, despite the alleged nuisance thereby created and the misdemeanor thereby committed by the defendant steamship company and its masters.
The wrong to plaintiffs is charged to be that, by reason of the recognition of the alleged unconstitutional treaty and the consequent failure to enforce the prohibition constitutional amendment and the act passed pursuant thereto, American registered vessels are discriminated against in favor of British vessels; that the privileges thus accorded induce passengers to favor the British vessels; that the consequent loss to American shipping is damaging the plaintiff shipowner as a shipowner and the plaintiff master and the members of plaintiff association, by diminishing their prospects of earning a livelihood.
The relief prayed for is that the treaty be declared to violate the Constitution; that the defendants steamship company and masters be enjoined, "by reason of the apparent force of said treaty," from transporting liquors prohibited by the Constitution and Prohibition Act; that the defendants the government...
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Ringwood Fact Finding Committee, In re
...compel a prosecutor to bring a complaint. The remedy lies with the executive branch and, ultimately, with the people. Milliken v. Stone, 7 F.2d 397 (S.D.N.Y.1925), aff'd, 16 F.2d 981 (2 Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (......
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...of his duty lies, not with the courts, but, with the executive branch of our government and ultimately with the people. Milliken v. Stone, D.C.S.D.N.Y.1925, 7 F.2d 397, affirmed 2 Cir., 16 F.2d 981, certiorari denied 1927, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331. See United States v. Wood......
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...1977) (the U.S. Attorney "possesses an absolute and unreviewable discretion as to what [federal] crimes to prosecute"); Milliken v. Stone, 7 F.2d 397, 399 (S.D.N.Y. 1925) ("federal courts are without power to compel the prosecuting officers to enforce the penal laws, whatever the grounds of......
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