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States, 185 U. S. 83, 87, 22 S. Ct. 582, 46 L. Ed. 816; Gowen v. Harley (C. C. A.) 56 F. 973, 978 et seq.

Without laying emphasis expressly upon this point, the same was recognized and acted upon in South Carolina ex rel. Wagner v. Stoll, 17 Wall. 425, 431, 21 L. Ed. 650.

Strictly, and perhaps, technically, speaking, a special act is one which, by the terms thereof, is limited arbitrarily to particular persons, places or things, when legislation of the same character might be made to operate generally on all persons, places and things of the class to which those covered by the act respectively belong. Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. Law, 183, 58 A. 571; Dundee Mortgage, etc., Co. v. School District (C. C.) 21 F. 151, 158; State v. Cooley, 56 Minn. 540, 548, 549, 58 Ν. W. 150; State v. Rogers, 93 Minn. 55, 100 N. W. 659.

With reference to such legislation the rule is that "privileges granted by a special act or charter are not affected by general legislation on the same subject, but the special charter and general laws must stand together; the one as the law of the particular case, and the other as the general law of the land." Gowen v. Harley (C. C. A.) 56 F. 973, 979. See, also, Petri v. Creelman Lbr. Co., 199 U. S. 487, 497, 26 S. Ct. 133, 50 L. Ed. 281.

It is otherwise stated that "the fact that the one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general." Rodgers v. United States, 185 U. S. 83, 87, 88, 22 S. Ct. 582, 583 (46 L. Ed. 816). See, also, Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012.

Chief Justice White has stated the rule to be "that a special and particular statutory provision affording a remedy for particular and specific cases is not repealed by a general law unless the repeal be express or the implication to that end be irresistible." Ex parte United States, 226 U. S. 420, 424, 33 S. Ct. 170, 172 (57 L. Ed. 281).

The reasons for the rule last stated are set forth in the Rodgers Case above cited at pages 88 and 89 thereof (22 S. Ct. 583) as follows:

"The Legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from

its own act when it makes no special mention of its intention so to do."

And again:

"The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all."

It is clear that this reasoning goes quite beyond cases where the prior special legislation is a technically true special act as above defined. The above excerpts are taken from a case where there was no such special act. There is, however, a broader and not less accurate sense in which the term "special" as applied to legislation is often used. "The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application." Missouri Pacific R. R. Co. v. Mackey, 127 U. S. 205, 209, 8 S. Ct. 1161, 1163 (32 L. Ed. 107).

The reference to special legislation as such in the authorities is not of controlling importance, but is illustrative of the broader general rule against repeals by implication and of the probable lack of intent on the part of legislators to disturb existing conditions or effect a repeal where no such intent is expressed. The application of the rule made against repeals by implication as between earlier special legislation so called and a later general act has come to this: That where it is apparent that in the earlier act the lawmaking body has dealt deliberately with new or special conditions, or particular situations therein specified, and has inaugurated or declared a definite policy with reference thereto, or in connection therewith has provided a remedy or has conferred rights or privileges, such act is to be regarded as special within the meaning of the rule and will not be superseded by a later general act in the absence of express words of repeal. Such prior act deals with specific facts, conditions, situations or circumstances in such outstanding way as to justify the application of the term "special legislation" within the broader meaning of that term in reference thereto, and so also as to make fully applicable the reasons quoted supra from the Rodgers Case.

The test in such cases is not whether the earlier statute is a special act within any par

21 F.(2d) 226

ticular definition of that term but whether the statute deals deliberately with specific situations to which the reasons above quoted from the Rodgers Case apply. This is clear from a consideration of many cases involving the question of implied repeals where both acts involved have been general laws, and where the holding has been against a repeal for reasons, so far as expressed, substantially as set forth in the Rodgers Case. Rodgers v. United States, 185 U. S. 83, 88, 89, 22 S. Ct. 582, 46 L. Ed. 816; Ex parte United States, 226 U. S. 420, 33 S. Ct. 170, 57 L. Ed. 281; United States v. Greathouse, 166 U. S. 601, 17 S. Ct. 701, 41 L. Ed. 1130; United States v. Healey, 160 U. S. 136, 146 et seq., 16 S. Ct. 247, 40 L. Ed. 369; Townsend v. Little, 109 U. S. 504, 3 S. Ct. 357, 27 L. Ed. 1012; Ex parte Crow Dog, 109 U. S. 556, 570, 3 S. Ct. 396, 27 L. Ed. 1030; Magruder v. State, 40 Ala. 347, 349.

In cases of the character here involved courts have become accustomed to speak of "special provisions," or of "special and particular statutory provision" in a general act, as in Ex parte United States, 226 U. S. 420, 424, 33 S. Ct. 170, 57 L. Ed. 281, supra; or of "specific provisions" in a general act, as in Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012; or of "particular provisions" as in Magruder v. State, 40 Ala. 347; or of the "express letter" of a certain act, as in Ex parte Crow Dog, 109 U. S. 556, 570, 3 S. Ct. 396, 27 L. Ed. 1030. The matter is clarified and the law in this circuit is declared in a long line of cases, most of the opinions therein being written by Judge Walter H. Sanborn. In some of these cases the earlier of the two statutes involved has been a special act, strictly so called. Gowen v. Harley (C. C. A.) 56 F. 973, where the earlier statute granted a special charter to a certain railway company, is an example of this class. In other of the cases both the statutes have been general acts. A statute does not become a special act in a technical sense because it deals with or relates to some particular class or subject. If it did thereby become a special act, very many acts would be classified as special, because large numbers of statutory enactments deal with a single subject or with a single class. Laws which deal with all persons or things within a certain class, where there is reasonable basis for the classification are usually general laws. It is when a class is broken up and one or more selections are arbitrarily made therefrom, that a law thereby becomes truly a special act. But, as before stated, in a very

proper sense, any law which deals explicitly with a specific subject or class may be, and often is spoken of as embodying special provisions, or as the special law applicable thereto. This is especially so where, as here, the question arises with respect to two statutes where it is claimed that one is impliedly repealed by the other. The understanding of the courts is that specific legislation with reference to a class or a subject, for the purpose here in mind, is to be considered and spoken of as special legislation. Whether special laws, or not, they are, at least, special provisions in general laws. This clearly appears from the opinion in the Rodgers Case and from other cases hereinbefore cited from the United States Supreme Court, as well as from various cases in this circuit.

In Anchor Oil Co. v. Gray (C. C. A.) 257 F. 277, 283, is found the following statement of the law:

"It is a cardinal rule of the construction of statutes that specific legislation in relation to a particular class or subject is not affected by general legislation in regard to many classes or subjects, of which that covered by the specific legislation is one, unless it clearly appears that the general legislation is so repugnant to the special legislation that the legislators must be presumed to have intended thereby to modify or repeal it; but the special and the general legislation must stand together, the former as the law of the particular class or subject, and the latter as the general law upon other subjects or classes within its terms."

In Great Northern Railway Co. v. United States (C. C. A.) 155 F. 945, 960, 961, is the following statement of the law:

"To establish a supersession or repeal of a statute by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of a prior one, employs language broad enough to cover some part or all of it; for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the prior statute expresses a settled policy in legislation."

This opinion was written by Justice Van DeVanter when sitting as United States Cir cuit Judge.

The foregoing rules apply quite as fully and freely where the earlier statute is general, as where it is in technical strictness a special law. They are constantly being invoked in such cases, as the citations will

1

show. Indeed, referring to the language last quoted, it could be only a general law which would express "a settled policy in legislation." In that case the earlier enactment is spoken of throughout as a general law, and the court makes it clear that regardless of how the earlier enactment may be denominated, whether general or special, "a statute couched in clear and explicit terms is not overthrown by possible, but not necessary, implications flowing from after legislation." Page 961. See, also, Stoneberg v. Morgan (C. C. A.) 246 F. 98, 100, 101; Harris v. Bell (C. C. A.) 250 F. 209, 216; ChristieStreet Commission Co. v. United States (C. C. A.) 136 F. 326, 333.

words, "any officer of the courts of the United States for or on account of any act done under color of his office, or in the performance of his duties as such officer," so that thereafter the right of removal in similar cases extended to the officers last mentioned. Receivers, common carriers, receivers of common carriers, or the federal Employers' Liability Act were not referred to.

General words in a later act may be so precise, persuasive, and all-inclusive as to take a particular case out of the general rule, and compel the conclusion that it was the intent of the lawmakers to abolish the line of policy specifically announced in the earlier statute, and to inaugurate a new and uniform policy with reference to the matter in hand, which should apply to the circumstances and conditions contemplated and embraced in the earlier act. So here, if the amendment of 1916, to section 33 of the Judicial Code, had, in effect, provided that actions thereafter brought under the federal Employers' Liability Act so called, against receivers of common carriers appointed by a court of the United States, should be removable to the proper United States District Court for trial, there would then have been an irreconcilable conflict between the earlier and the later enactment. Of necessity the earlier enactment would fall. Under such language, giving effect to the same according to its terms, it would not be possible to say that the earlier enactment might stand as the law in the specific case covered by it, and that it should operate as an exception to the later provision. Such is not the situation here. We here in question there is no difficulty in plac

If we pass directly to a consideration of the enactments here in question, we find that both are general laws and that the earlier statute, the Act of 1908 (35 Stat. 65, с. 149), as amended by the Act of 1910 (36 Stat. 291, c. 143), is "couched in clear and explicit terms." Great Northern Ry. Co. v. United States (C. C. A.) 155 F. 945, 961. When first enacted, its provisions covered a new field in federal legislation and expressed a new and "settled policy" with reference thereto. The provisions here particularly in question were unusual and specific in their character and were evidently the deliberate action of the lawmaking body. They were a conspicuous and important feature in the new legislation. They expressly declared that in this new field plaintiffs should have the option of trying their cases in either a state or federal court and that actions instituted in state courts under the provisions of that act should not be removed to any have no such language. With the language court of the United States. By the terms of the act, such provisions also apply to receiving this case in the same category with the

ers of common carriers, as well as to common carriers themselves. These provisions are all clearly special within the meaning of the authorities hereinbefore referred to, and the language quoted from Rodgers v. United States, 185 U. S. 83, at pages 88, 89, 22 S. Ct. 582, 583 (46 L. Ed. 816) fully applies. The statute which is relied on as repealing the provisions last mentioned (section 33 of the Judicial Code, as amended by the Act of 1916 [39 Stat. 532, c. 399]), is most general in its terms. Before the amendment of 1916, such statute had provided that certain civil actions and criminal prosecutions instituted against persons acting under the authority of the laws of the United States, might be removed to the proper District Court of the United States for trial and disposition. The amendment of 1916 merely inserted the

many others which have been cited, and which
hold that the earlier act is the law in the par-
ticular cases covered by it, and that the later
act is the general law applicable in other
cases which fall within its terms. The earlier
act, according to its terms, controls as to re-
ceivers who are defendants in actions under
that act; the later act governs as to all oth-
ers.
In conclusion the following statements are
added:

1. That at the time of passing the later acts here in question, Congress is presumed to have known of existing legislation on the same general subject. Gaston v. Merriam, 33 Minn. 271, 283, 22 N. W. 614; State v. Klasen, 123 Minn. 382, 385, 143 N. W. 984, 49 L. R. A. (N. S.) 597.

2. That in ascertaining the legislative in

21 F.(2d) 231

tent of Congress in adopting the amendment of 1916-and this is the important question here "the legal presumption is that the legislative body expressed its intention in the statute, that it intended what it expressed, and that it intended nothing more." Soliss v. General Electric Co. (C. C. A.) 213 F. 204,

207.

3. That the burden is on those claiming the repeal to establish that claim. In the absence of express words of repeal, which would have been the usual course if a repeal had been intended, we must be led clearly to the conclusion that such intent has been otherwise made out. "Such an interpretation should not be adopted unless

it be inevitable, and any reasonable construction of the later act which offers an escape from it is more likely to be in consonance with the real intention." State v. Archibald, 43 Minn. 328, 330, 45 N. W. 606, 607.

4. That instead of its clearly appearing that a repeal was intended in this case, reason and authority and the strong probability as to the facts are quite against such a conclu

sion.

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1. Maritime liens 3-Vessel capable of being navigated by its own power or towing, and whose use requires it to be navigated from one place to another, is subject to maritime liens.

If a vessel, though not engaged in navigation or the carriage of passengers or freight. is capable of being navigated, by its own power or by towing, and its business or use requires it to be navigated from one place to another, it is within the admiralty jurisdiction, and is subject to maritime liens.

2. Maritime liens 3-Wharves 18-Barge used for dancing pavilion held subject to maritime liens for supplies and wharfage.

A 600-ton barge, from which the motive

machinery had been removed, and which was

used as a dancing pavilion, but within six months had been moved and moored to three different wharves, held subject to maritime liens for repairs, wages, supplies, and wharfage.

In Admiralty. Suit by John Doussouy and others against the pleasure boat Pirate Ship, or City of Marietta. On exceptions to libel. Overruled.

J. L. Warren Woodville, of New Orleans, La., for libelants. Eugene S. Hayford, of New Orleans, La.,

for respondent.

Arthur B. Hammond, of New Orleans, La., for interveners..

BURNS, District Judge. Libelants claim wages of the pleasure boat Pirate Ship, or City of Marietta, which was seized as she lay in the Mississippi river in the port of New Orleans. Libelant John V. Nielsen claims wages as a sailor; libelant W. H. Dyer, as a painter; John Doussouy, as engineer; Jesse Smith, as pipe fitter; Ted Graham and Louis Malhiot, as deck hands; intervener Thomas Moore, as painter, for balance due for painting the vessel; intervener E. R. Chivers, for electric fittings installed on the vessel; interveners Weixel and Jansen, for oils furnished the vessel; and the board of commissioners for the port of New Orleans, an agency of the state of Louisiana, administering the wharves and port facilities, intervenes for wharfage, alleging that the vessel, which is of 600 gross tons, occupied the wharf at the foot of Canal street, in New Orleans, to which she is moored, and for which dockage or wharfage, on a tonnage basis, according to the public tariff authorized by state law, she owes a total of $210, and certain towage amounting up to $80 by a tug owned by the said board, which is itemized as follows:

May, 1927. For services of tug Samson in moving the Marietta, as follows:

April 24, 1927, from Canal street to lower

end of Julia street wharf......

April 30, 1927, from Julia street to St.
Andrew street wharf

$40.00

40.00

[1] The owner and claimant, Eugene S. Hayford, a lawyer by profession, appearing in his own behalf, filed an exception to the jurisdiction of this court ratione materiæ, on the ground that "the former U. S. steamer Marietta is now, and has for the past six months been, permanently secured to the Canal street docks, as a dancing platform or barge, all machinery intended for use of motor power has long since been removed, and the barge has not been, and is not intended

for use in transportation of freight, passengers, or use of any nature or kind whatsoèver in maritime trade or commerce."

In support of this exception, the decision of the Supreme Court in Cope v. Vallette Dry Dock, 119 U. S. 625, 7 S. Ct. 336, 30 L. Ed. 501, The Hendrick Hudson, Fed. Cas. No. 6,355, and Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co. et al., 271 U. S. 19, 46 S. Ct. 379, 70 L. Ed. 805, are cited. These are to the effect that a fixed structure, such as a dry dock, not used for the purpose of navigation, is not the subject of salvage service, because the mere fact that such a structure floats does not make it a ship, because it is not used in navigation.

The libelants and interveners rely on the City of Pittsburg (D. C.) 45 F. 699; The Floating Elevator Hezekiah Baldwin, 12 Fed. Cas. 93, No. 6,449; Woodruff v. One Covered Scow (D. C.) 30 F. 269; The Public Bath No. 13 (D. C.) 61 F. 692; The Steam Tug M. R. Brazos, 17 Fed. Cas. 951, No. 9,898; The W. F. Brown (D. C.) 46 F. 290; The Old Natchez (D. C.) 9 F. 476; Braisted v. Denton (D. C.) 115 F. 428; Charles Barnes Co. v. One Dredge Boat et al. (D. C.) 169 F. 895; Winslow v. Floating Steam Pump, 30 Fed. Cas. 308, No. 17,880; The Raithmoor (D. C.) 186 F. 849; Lawrence v. Flatboat (D. C.) 84 F. 200.

An examination of these cases reveals the test applied generally by the admiralty courts, and it is much more broad and liberal than that contended for by exceptor here, who insists that the Pirate Ship, or Marietta, is beyond the reach of admiralty process, because he is not engaged in navigation, carrying freight or passengers. The courts in the cases cited have held variously that flatboats, pile drivers, pumpboats, scows, and other and various kinds of water craft, are vessels with in the admiralty jurisdiction, though not engaged in navigation, or as carriers of passengers or freight; the general test being whether the craft was capable of being navigated, by its own power or by towing, and

whether its business required it to be navigated from one place to another. If it was capable of being navigated, and its business or use required it, then it was within the admiralty jurisdiction, and subject to process for maritime liens. If not-that is to say, if by its disposition or lodgment or connection with the shore the craft was not capable of navigation, nor required by its use or business to be navigated from one place to another then it might be held not to be in commerce and navigation in such a sense as to be subject to a libel in rem in admiralty. [2] Upon the facts of the record here, under the recognized test, the Pirate Ship, or Marietta, is plainly a vessel engaged in commerce and navigation upon navigable waters, and subject to maritime liens for wages, supplies, necessaries, dockage, wharfage, of the kind and character here presented. Moreover, it is distinctly shown by the original libel and the interveners' libels that she was not fastened permanently to the wharf for six months, as recited in the exception of claimant. She was moved and moored to at least two points in the harbor, by the tug Samson, other than that at which the claimant's exception sets forth. She was, in fact, moored at three different wharves within that period, precisely as any other vessel, ship, barge, scow, or other marine craft might be. She is, in fact, a 600-ton ship, even though her motive power or machinery be dismantled and removed. She has no connection whatever with the land, such as would make her a structure upon land.

In my opinion, the salvage cases to which exceptor refers are beside the point. There is no salvage claim presented here. The creditors here are suing upon maritime liens for wages, supplies, and necessaries, for which, if due, they have maritime liens, and the vessel is properly the subject of admiralty process.

Accordingly the exception will be overruled. Respondent will be allowed 10 days in which to answer.

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