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e to them, as to other citizens, by the principles of constitutional liberty, which restrain all the agencies of government, state and national; their political rights are franchises which they hold as privileges in the legislative discretion of the congress of the United States. This doctrine was fully and forcibly declared by the chief justice, delivering the opinion of the court in National Bank v. County of Yankton, 101 U, S. 129. See, also, American Ins. Co. V. Canter, 1 Pet. 511; U. 8. v. Gratiot, 14 Pet. 526; Cross v. Harrison, 16 How. 164; Dred Scott v. Sandford, 19 How. 393. If we concede that this discretion in congress is limited by the obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the territories to become states in the Union, still the conclusion cannot be avoided that the act of congress here in question is clearly within that justification. For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

It remains to be considered whether, in the two cases in which Mary Ann M. Pratt and Mildred E. Randall and husband are respectively the plaintiffs, and in which the plaintiffs have shown a title to vote, the defendants, who were registration officers, are sufficiently charged with a legal liability. As we have pointed out, they were bound, by virtue of their appointment under the ninth section of the act of March 22, 1882, to perform their duties under the existing laws of the United States and of the territory. The law of the territory then in force, being “An act providing for the registration of voters, and to further regulate the manner of conducting elections in this territory," approved February 22, 1878, made it the duty of the registration officers and their deputies “to make careful inquiry as to any or all persons entitled to vote,” and ascertain in all cases upon what ground the person claims

be a voter; and it is provided that “he shall require each person entitled to vote and desiring to be registered to take and subscribe in substance the following oath,” etc. The form of the oath is then set out, containing a statement of all the particulars which, according to the laws then in force, were necessary to show the qualifications of a voter. It was then provided that, upon the receipt of such affidavit, the officer “shall place the name of such voter upon the register list of the voters of the county."

The act of March 22, 1882, created the additional disqualifications which have been mentioned, and which, of course, are not met by the oath as prescribed by the territorial act of 1878, and it is not consistent with the express provisions of the act of congress that every person willing to take the oath in the form prescribed by the territorial act shall be permitted to register as a voter. Either the oath itself must be regarded merely as a model, to be modified by the operation of the act of congress, so as to meet by appropriate denials the several new disqualifications created by it, and then to be taken with the prescribed effect of entitling the person subscribing it to register as a voter without other proof; or else the effect of the act of congress is to limit the class entitled to take the oath in the form prescribed by the territorial act, with the effect thereby given to it, to those who are not subject to the dig. qualifications which the act of congress imposes. The existing laws of the United States and of the territory, under which the election officers are bound to perform their duties, must include the act itself, which provides for their

appointment and defines their duties, and if they have not the right to exact an oath different from that, the form of which is given in the territorial act, they must otherwise satisfy themselves that persons offering to register are free from the disqualifications defined in the act of congress. In doing so, they are of course required to exercise diligence and good faith in their inquiries, and are responsible in damages for rejections made without reasonable cause, or maliciously.

In the two cases last referred to, the allegations of the complaint show, not only that the several plaintiffs were legally entitled to be registered as voters, but declare that the refusal of the registration officers to admit them to the list was wrongful and malicious. The demurrers admit the plaintiffs' case, as thus stated, and therefore ought to have been overruled. It follows that the judgments in the three cases in which Jessie J. Murphy, Ellen C. Clawson, and Hiram B. Clawson, her husband, and James M. Barlow are the respective plaintiffs, are affirmed as to all the defendants; in the two cases in which Mary Ann M. Pratt and Mildred E. Randall, and Alfred Randall, her husband, are the plaintiffs, respectively, the judgments in favor of the five defendants,

Alexander Ramsey, A. S. Paddock, G. L. Godfrey, A. B. Carleton, and J. R. Pettigrew are affirmed; and as to the defendants, E. D. Hoge, John S. Lindsay, and Harmel Pratt, the judgments are reversed, and as to them the cases are remanded, with instructions to overrule the demurrers, and for further proceedings. And it is so ordered.

(118 U. 8. 747)

UNITED STATES 0. STEEVER.

(March 16, 1885.) 1. PRIZE Act or JUNE 30, 1864-SHIP-TORPEDO STEAM-LAUNCH.

A torpedo steam-launch, attached to a division of a naval squadron, thongh not proved to have had any books, is a ship, within the meaning of the prize act of June 30, 1864, c. 174, 2, 10, rules 4 and 5; and her commander is entitled to one-tenth of prize money awarded to her, and cannot elect to take instead a share proportioned to his rate of pay; but her other officers and men are entitled to share in

proportion to their rates of pay. 2 SAME-DISTRIBUTION OF PRIZE MONEY.

The distribution of prize money among the subordinate officers and crew of a ship "in proportion to their respective rates of pay in the service," under the prize act of June 30, 1864, c. 174, & 10, rule 5, is to be made according to their pay at the time of the capture, and not according to the pay of grades to which they havo

since been promoted as of that time. 8. SAME-CLAIMS OF CAPTORS OF THE ALBEMARLE.

Under the act of August 8, 1882, c. 480, referring the claims of the captors of the ram Albemarle to the court of claims, each captor is entitled to recover such a sum as, together with the sum formerly paid him by the secretary of the navy un. der the prize decrees in the case of the Albemarle, will equal his lawful share of the prize money in that case. Appeal from the Court of Claims. Sol. Gen. Phillips, for appellant. James Fullerton, for appellee. GRAY, J. This is an appeal from a decree of the court of claims in favor of the appellee in a suit brought by him under the act of August 8, 1882, C. 480, to recover the amount necessary to make up his lawful share of the prize money awarded for the capture of the rebel ram Albemarle. The facts of the case, as appearing in the findings and judgment of the court of claims, are as follows:

The rebel iron-clad ram Albemarle was captured and sunk at Plymouth, in the Roanoke river, in the state of North Carolina, on the night of October 27, 1864, by the United States Picket Launch No. 1, an armed torpedo launch, propelled by*steam, attached to a division of the North Atlantic blockadinge squadron, and commanded by Lieut. William B. Cushing, of the United

States navy, and having on board six inferior officers (of whom the petitioner, a third assistant engineer, was one) and eight men. Lieut. Cushing had been, by order of the secretary of the navy, detached from the command of the United States ship Monticello, and directed to report for duty to Rear Admiral Porter, commanding that squadron; and had been assigned by the aimiral to the command of this launch. It does not appear that the launch had any books. The Albemarle was afterwards raised by the United States forces, and appropriated to the use of the United States, and was twice appraised by duly-appointed boards of naval officers: the first time, before she was so appropriated, at the sum of $79,944, which was forth with deposited by the secretary of the navy with the assistant treasurer of the United States at Washington; and the second time, under the act of April 1, 1872, c. 76, (17 St. 649,) at the sum of $282,856.90, which, less the sum already deposited, was likewise so deposited, pursuant to the act of January 8, 1873, c. 18, (17 St. 405.)

Upon successive prize proceedings in 1865 and 1873, in the district court of the United States for the District of Columbia, the Albemarle was condemned as prize of war, and it was adjudged and decreed that she was of superior force to the launch, and that her appraised value, deducting costs, and amounting to $273,135.09, be paid to the captors as follows: One-twentieth part to the admiral commanding the squadron at the time of the capture, onehundredth part to the fleet captain, and one-fiftieth part to the officer commanding the division to which the launch was attached, and the remainder distributed to the other persons doing duty on board the launch, in proportion to their respective rates of pay in the service. In all the prize proceedings there was no appearance by or in behalf of any of the captors except Cushing. Before either of those decrees was made, three of the officers of the launch were promoted: Lieut. Cushing, in February, 1865, to the rank of lieutenant commar der; and Acting Master's Mates William L. Howarth and Thomas S. Gay, in March, 1865, the one to the grade of acting master, and the other to the grade of acting ensign; and each promotion to date from October 27, 1864. The money so ordered to be distributed, amounted, after deducting the shares paid to the commander of the squadron, the fleet captain, and the division commander, to the sum of $251,284.29, which was distributed by the officers of the treasury department among all the officers and crew of the launch, or their legal representatives, in proportion to the respective rates of pay to which they were by law entitled on the day of the capture, except that Cushing, Howarth, and Gay were, by order of the secretary of the navy, paid in proportion to the rates of pay of the grades to which, after the capture, they had been promoted as aforesaid.

By the act of August 8, 1882, c. 480, congress referred the claims of the captors of the Albemarle to the court of claims, “with jurisdiction and au. thority to hear and determine the same, and all defenses thereto which are or may be open to the United States, and to render judgment thereon, with the right of appeal as in other cases;” and if the court should find that any of the captors had received their full and just share of the prize money awarded for the capture of the Albemarle, according to the proportions provided in the prize laws in force at the time of the capture, and that they were entitled to claim and recover the same, then to render judgment in favor of them, or their legal representatives, for such sums as, added to the amount already paid, should make up their lawful shares; and provided that no suit should be brought under the provisions of this act after one year from the date of its passage; and that any judgment rendered by the court of claims should be paid by the secretary of the treasury out of any money in the treasury applicable to the payment of prize to captors, and, failing such money, out of any money in the treasury not otherwise appropriated. 22 St. 738.

Within the time limited by this act all the officers and men of the launch, or their legal representatives, except Cushing. Howarth, and Gay, broughto suits under it in the court of claims, which held that, according to the prizes laws in force at the time of the capture, Lieut. Cushing was not entitled to* prize money in proportion to his rate of pay, but only as commander of a single ship to one-tenth of the prize money, and had, therefore, received $30,927.84 more than he was by law entitled to; and that Howarth and Gay were entitled to prize money only in proportion to their rate of pay as acting master's mates on the day of the capture, and not according to the pay of the grades to which they had since been promoted, and had, therefore, received, Howarth $18,979.02, and Gay $11,871.52, more than they were respectively entitled to; and that by the amount of these three sums, or $61,708.38, the other 12 captors had received less than they were entitled to; and gave judg. ment for each of them, or their representatives, accordingly. 19 Ct. Cl. 51.

The name, rank, and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize proceedings, the amount which each should have received in the opinion of the court of claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:

NAME AND RANK.

PAY.

PRIZE PRO-
CEEDINGS.

COURT OF
CLAIMS.

DUE

$14,691 30 11,301 00 11,301 00

William B. Cushing, lieutenant. ........

........... $1,875 Francis H. Swan, acting ass't paymaster 1,300 William Stotesbury, third ass't engineer 1,000 Charles L. Steever, third ass't engineer.. 1,000 Wm. L. Howarth, acting master's mate. 480 Thomas S. Gay, acting master's mate ... 480 John Woodman, acting master's mate - 480 Samuel Higgins, first-class fireman

360 Richard Hamilton, coal-heaver ............ 240 Edward J. Houghton, ordinary seaman 192 Bernard Hurley, ordinary seaman ........

192 William Smith, ordinary seaman ......... 192 Robert H. King, landsinan

168 Henry Wilkes, landsman....................

168 Lorenzo Deming, landsman..................

168

[blocks in formation]

5,424 48 4,068 35 2,712 23 2,16979 2,169 79 2,169 79 1,900 22 1,900 22 1,900 21

[blocks in formation]

The present suit is brought under the act of August 8, 1882, c. 480, by one of the subordinate officers of the launch who had not been promoted since the capture of the Albemarle. The question whether he has heretofore re-2 ceived less than his-lawful share of prize money depends upon the question whether larger shares than the prize act allowed have been awarded and paid to Lieut. Coinmander Cushing, and to Huwarth and Gay, who, at the time of the capture, were two of his acting master's mates. The prize court held that Cushing was entitled to share according to rate of pay with the other officers and men on board the launch. The court of claims held that he was entitled to one-tenth of the prize money as commander of a single ship. The question which of these views was correct depends upon the rules laid down in section 10 of the prize act of June 30, 1864, c. 174, (13 St. 306.) By those rules, all commanding officers have certain fractional parts of the prize money; and none of them have, or can elect to take, a share proportioned to their pay. By rule 4, there is to be paid “to the commander of a single ship one-tenth part of all the prize money awarded to the ship under his command,

162

if such ship at the time of the capture was under the command of the com. manding officer of a fleet or squadron, or a division, and three-twentieths it his ship was acting independently of such superior officer.” By rule 2, to the commanding officer of a division is to be paid one-fiftieth part of any prize money awarded to a vessel of his division, unless he elects to receive instead the share due to him as commander of a single ship making or assisting in a capture; that is to say, one-tenth. And by rule i the commanding otlicer of a fleet or squadron receives in all cases one-twentieth of all prize money awarded to vessels under his immediate command. So, by rule 3, the fleet captain receives one-hundredth part of prize money awarded to vessels of the fleet or squadron in which he is serving, with the single exception that when the capture is made by the vessel on board of which he is serving, he shares, in proportion to his pay, with the other officers and men on board. It is only "after the foregoing deductions” that rule 5 directs that “the resi. due shall be distributed and proportioned among all others doing duty on board, (including the fleet captain,) and borne upon the books of the ship, in proportion to their respective rates of pay in the service.” 13 St. 309, 310.

• Those rules would seem to have been framed upon the theory that in making general regulations for the distribution of prize money it is more just and equitable, and more suitable to the rank of commanding officers, to grant them a certain fractional part, than to determine their shares by their rates of pay, like subordinate officers and men; and upon the supposition that the fractional part awarded to the commander of a single ship will usually be more than equivalent to a share proportioned to his rate of pay. But, whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming within their terms, and are the only guides of all courts and officers charged with the duty of administer. ing the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying disabled in his berth; and the share of the ad. miral commanding the squadron is not increased if the capture is made by his flag-ship, nor diminished if it is made without his participation or knowledge by another ship belonging to his command. Lumley v. Sutton, 8 Term R. 224, 229; Pigot v. White, 4 Doug. 302; S. C. 1 H. Bl. 265, note; Dr. LUSHINGTON, in Banda & Kirwee Booty, L. R. 1 Adm. & Ecc. 109, 250; Decatur v. Chew, 1 Gall. 506; 11 Op. Attys. Gen. 9, 94. The courts cannot de part from the express law, because of the peculiar bravery or merit of the captors, or

any of them, in a particular case. The Atlanta, 3 Wall. 425, 433; Porter v. U. 8. 106 U. S. 607, 611; S. C. 1 SUP. Cr. REP. 539; The Joseph, 1 Gall. 545, 561; The Anglia, Blatchf. Prize Cas. 566.

We can have no doubt that the launch wbich took the Albemarle was "& single ship,” within the meaning of the rules of distribution in the prize act of 1864. In those rules, the words “single ship" are used in contradistino tion to the words “vessel or vessels,” which include more than one; and upon & view of the whole act, it is manifest that the word "ship,” in the fuw instances in which it occurs, has no restricted sense, implying three squarerigged masts, or any masts at all, but is synonymous with the generalwords "vessel of the navy,” or simply "vessel," as used throughout the act, and comes within the definition of section 32, by which in the term “vessels of the navy" are to be included, for the purposes of this act, all armed vessels officered and manned by the United States, and under the control of the department of the navy. 13 St. 315. In the re-enactment of the fourth rule in section 4631 of the Revised Statutes, the words “commander of a single vessel” are substituted for “commander of a single ship.”

Nor is it material that there was no affirmative proof that the launch had any books. The keeping of books is not made a condition of the right of any vessel to share in prize money. The books of a ship are but the usual evi.

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