United States v. Tyndale

• Decision Date: 18 June 1902
• Docket Number: 417.
• Citation: 116 F. 820
• Parties: UNITED STATES v. TYNDALE et al.
• Court: U.S. Court of Appeals — First Circuit

116 F. 820

UNITED STATES v. TYNDALE et al.

No. 417.

United States Court of Appeals, First Circuit.

June 18, 1902

Appeal from the District Court of the United States for the District of Massachusetts.

Henry P. Moulton, U.S. Atty., and William H. Garland, Asst. U.S Atty.

Theodore H. Tyndale, pro se.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

The essential facts relating to this appeal can be briefly stated. They concern a claim, on the one side, by the United States of America, and, on the other, by the public administrator appointed under the statutes of Massachusetts by the probate court for the county of Suffolk, to the undisposed of balance of certain personal property found on the body of a deceased person floating on the high seas, out of the territorial jurisdiction of any particular state and of the United States. The only thing which might lead to identification was a scrap of paper on the body, bearing the name 'H. Selrahc.' The property was brought into Gloucester by the salvors, and libeled by them for salvage in the district court for the district of Massachusetts, and the amount now in dispute is the balance remaining in the registry of that court after the claim of the salvors was disposed of. The owner of the property is as yet unknown, and on this appeal the only claimants are the United States and the public administrator. Both intervened by leave of the district court, and on October 25, 1901, that court entered a final decree as follows:

'And now this cause having come on to be heard, and all the parties claimant having been fully heard therein, and after due consideration, it is ordered, adjudged, and decreed that the sum now remaining in the registry of this court to wit, the sum of four hundred eleven and 31/100 dollars (less five and 30/100 dollars, the amount to be paid to the clerk for clerk's fees), be paid and delivered to Theodore H. Tyndale, public administrator, one of the claimants in said cause; all rights, if any, to make claim to said sum, or any part thereof, on the part of the United States and of the original petitioners, William H. Gardner and William Parsons, to be reserved while said sum is in the hands of the public administrator or in the treasury of the commonwealth of Massachusetts.'

Thereupon, the United States appealed.

The only propositions before us are: First, that the United States have a superior right to the possession of the fund; and, second, that the statutes of Massachusetts do not justify administration in Suffolk county. As to the first, we are of the opinion that it would have been appropriate, and within its constitutional powers, for congress to have taken control of this fund; but it has not done so. There is neither any statute nor any settled practice which requires the treasurer of the United States to receive it, or authorizes us to direct that it shall be received by him. More especially there is no provision of law by which, if the fund be paid into the federal treasury, it can be recovered by whosoever may appear and prove title to it. On the other hand, if the fund goes into the hands of Mr. Tyndale as public administrator, it will be held for a series of years for the benefit of whomsoever it may concern. The statutes of Massachusetts controlling this matter direct that, when an estate has been fully administered by the public administrator, he shall deposit the balance of it with the treasurer of the state, 'who shall receive and hold it for the benefit of those who may have legal claims thereon. ' They also provide that at any time within six years after the fund is so paid to the treasurer, any person, legally entitled, may obtain administration, and thereupon may receive the money thus deposited, 'to be administered in like manner as the estates of other deceased persons. ' Rev. Laws, c. 138, Secs. 12, 14, 15. Presumably, after the expiration of the six years named in the statute, the moneys could not be drawn from the treasury without legislative action; but, if the fund now in question should be paid into the treasury of the United States, there is nothing in the laws of congress to impress it with a trust in behalf of the owners for any period whatsoever, and it could not be withdrawn without congressional action, the difficulty of obtaining which is a notorious factor. Meanwhile the right of the United States to establish a claim to this and other like funds will not be in any way impaired, and it will be in season to consider such a claim when congress authorizes it to be made, whether by general or special legislation.

Like matters of pilotage (Cooley v. Board, 12 How. 299, 13 L.Ed. 996), and sea-coast fisheries (Manchester v. Com., 139 U.S. 240, 266, 11 Sup.Ct. 559, 35 L.Ed. 159,) and the establishment of quarantine at sea ports, the jurisdiction with reference to properties of the character here involved is of a mixed nature, as to which the state may act until and except so far as the United States intervene. Congress has intervened only to a very limited extent. Rev. St. Secs. 4238, 4239, 5358. The resolution of June 21, 1870, (16 Stat. 380), now section 3755 of the Revised Statutes, relates, apparently, to property which ought equitably to go to the United States, and not to wreckage of any kind. While these provisions spring out of the constitutional powers of congress, which authorize it to legislate more broadly, yet the very fact that they are narrow is a special caution to the federal courts to withdraw their hand from any attempt to outline rules of their own making.

Of like limited effect are various provisions in treaties between the United States and foreign countries. Some of them, in the absence of legislation by congress with reference thereto seem to require a disposition of this fund such as was made of it by the district court. Among others we may cite the treaty with Prussia of June 16, 1852 (Treaties and Conventions between the United States and Other Powers (Ed. 1889) p. 920), which, in article 14, after directing what substantial rights the representatives of deceased citizens or subjects of either country shall receive in the other, adds: 'And in case of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native, in like case, until the lawful owner may take measures for receiving them. ' For aught that appears, the unfortunate man from whose person the property salved was taken may have been a subject of the emperor of German, who succeeded, so far as this treaty is concerned, the king of Prussia (Terlinden v. Ames, 184 U.S. 270, 22 Sup.Ct. 484, 46 L.Ed. 534),...