UNITED STATES v. THE HUNTER, 26 F. Cas. 439

WASHINGTON, Circuit Justice. The second objection is conclusive, and therefore it will not be necessary to consider the others. The question under it is, whether a vessel, from a foreign port destined to the United States, is liable to forfeiture for unlading any part of her cargo, after she has arrived within the limits of the United States, but before she has reached her port of discharge, without a permit from the proper officer? This is the offence laid in the libel. The 27th

section provides for this very case, and ■punishes the master or other officer who un-lades the cargo, but does not forfeit the vessel. The 50th

section subjects such a vessel to forfeiture, if after her arrival within the United States, she unlades any part of her cargo without a permit. Does this 50th

section meet the case laid in the libel, or refer to a vessel after her arrival at her port of discharge? The words are certainly-general and broad enough, because it is stated that the Hunter had arrived within the United States. But ought not the law to be so restrained íd its construction as to apply only to vessels in port? If it be not restrained, then there are two sections of the same law, on the same subject, giving double penalties for the same offence, viz: 1,000 dollars under the 27th section, and .400 dollars under the 50th section.

The legislature may certainly do this if they please, but it is very improbable that such should be their intention. The law is then open to construction. The whole of this law previous to the 30th section, relates to vessels before their arrival in port, and it is clear that the 27th

section applies to them only in that situation. The 30th

section considers them as arrived, and from that to the 49th section, the act regulates the conduct of the master, and the officers of government, as to the steps preliminary to the last act to be done, viz; the permit to land the cargo. The 49th

section states, that the duties being paid or secured, the proper officer is authorised to grant a permit to land the cargo, which had before been reported or entered. Immediately after and in its proper place follows the 50th section, inflicting a penalty on the master, and a forfeiture of the goods unladed, without such permit or a special license. Now this permit cannot be granted unless a vessel is arrived at her port, nor until the previous steps required by law have been taken. In a case of a landing from necessity under the 27th section, no license or permit is necessary, or can be granted. The 50th

section then, which constitutes the crime of landing without a permit, must necessarily be confined to a landing after the vessel has reached her port of discharge, because to obtain a permit she must be in port. The object of the libel being to forfeit the vessel, and it not stating a cause within the 50th but within the 27th section, the sentence of condemnation must be reversed. The decree of the district court reversed.