mestic vessels, and that such liens will be | Ben. 21, Fed. Cas. No. 13,270; The Marenforced by the courts of admiralty under quette, Brown, Adm. 354, Fed. Cas. No. their general jurisdiction over the subject 9,101.

of necessaries. The General Smith, 4 The injustice of permitting such claims Wheat. 438, 4 L. ed. 609; Peyroux v. How to be set up is plainly apparent. The masard, 7 Pet. 324, 8 L. ed. 700; The St. Law-ter is the agent of the vessel and its owner rence, 1 Black, 522, sub nom. Meyer v. Tupper, 17 L. ed. 180; The Lottawanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654; The Belfast, 7 Wall. 624, sub nom. The Belfast v. Boon, 19 L. ed. 266; The J. E. Rumbell, 148 U. S. 1, 12, 37 L. ed. 345, 347, 13 Sup. Ct. Rep. 498. The right to extend these liens to foreign vessels in any case is open to grave doubt. The Chusan, 2 Story, 455, Fed. Cas. No. 2,717; The Lyndhurst, 48 Fed. 839.

case

in more than the ordinary sense. During the voyage he is in fact the alter ego of his principal. He is intrusted with an uncontrolled authority to provide for the crew, and for the preservation and repair of the ship. He engages the cargoes, receives the freight, hires and pays his crew, and is intrusted, perhaps for years, with the command and disposition of the vessel. With full authority to bind the vessel, his position is such that it is almost impossible for him to acquaint himself with the laws of each individual state he may visit, and he has a right to suppose that the general maritime law applies to him and his ship, wherever she may go, unhampered by laws which are mainly intended for local appli

The question involved in this case, how
ever, is whether the states may create such
liens as against foreign vessels (vessels
owned in other states or countries), and un-
der such circumstances as would not au-
thorize a lien under the general maritime
law. The question is one of very consider-cation, or for domestic vessels. Local laws,
able importance, as it involves the power
of each state, which a vessel may visit in
the course of a long voyage, to impose liens
under wholly different circumstances and
upon wholly different conditions. In the
under consideration the vessel was
owned by an Illinois corporation, enjoying
a high credit, and maintaining agencies at
Seattle and at other places in Alaska and
Canada. The Roanoke was an ocean-going
vessel, registered at Chicago under the navi
gation laws of the United States, with the
name "Chicago" painted on her stern, al-
though she was engaged in trade upon the
Pacific coast between Seattle and the mouth
of the Yukon in summer, and between San
Francisco and southern ports in winter.
Neither the owner nor master nor other offi-
cers of the vessel had given an order for
the material and labor set forth in the li-
bel, which were furnished upon the order of
[105]a contractor, who, before the filing of the
libel and without any knowledge by the
owner of these unpaid claims, had been
paid in full for these claims.

such as the one under consideration, ordi-
narily protect the ship by requiring notice
of the claim to be filed in some public office,
limiting the time to a few weeks or months
within which the laborer or subcontractor
may proceed against her, requiring notice
to be given of the claim, before the con-
tractor himself has been paid, and limiting
his recovery to the amount remaining un-[196]
paid at the time such notice is received.
The statute of Washington, however, pro-
vides for an absolute lien upon the ship for
work done or material furnished at the re-
quest of the contractor or subcontractor,
and makes no provision for the protection
of the owner in case the contractor has
been paid the full amount of his bill before
notice of the claim of the subcontractor is
received. The finding in this case is that
the contractor, who had agreed, in conso-
nance with the usual course of business, to
make the repairs upon this vessel, had been
paid in full by the claimant. The injus-
tice of holding the ship under the circum-
stances is plainly manifest.

an agent of the owner, but it establishes a new order of priority in payment of liens, abolishes the ancient and equitable rule regarding "stale claims," and permits the assertion of a lien at any time within three years, regardless of the fact that the vessel may have been sold to a bona fide purchaser, not only without notice of the claim, but without the possibility of informing himself by a resort to the public records. It also gives, or at least creates the presumption of, a lien, though the materials be furnished upon the order of the owner in person.

Although this court has never directly Not only is the statute in question obdecided whether materials and labor fur- noxious to the general maritime law in denished by workmen or subcontractors con-claring every contractor and subcontractor stitute a lien upon a vessel, in other words, whether the contractor can be regarded as an agent of the vessel in the purchase of such labor and materials, there is a general consensus of opinion in the state courts and in the inferior Federal courts that labor and materials furnished to a contractor do not constitute a lien upon the vessel, unless at least notice be given to the owner of such claim before the contractor has received the sum stipulated by his contract. Smith v. The Eastern Railroad, 1 Curt. C. C. 253, Fed. Cas. No. 13,039; Southwick v. The Clyde, 6 Blackf. 148; Hubbell v. Denison, 20 Wend. 181; Burst No opinion upon this subject can afford v. Jackson, 10 Barb. 219; The Whitaker, 1 to ignore the admirable discussion of Mr. Sprague, 229, 282, Fed. Cas. Nos. 17,524, Justice Story in the case of The Chusan, 2 17,525; Harper v. The New Brig, Gilpin, Story, 455, Fed. Cas. No. 2,717, in which he 536, Fed. Cas. No. 6,090; Ames v. Swett, | refused to apply to a Massachusetts vessel 33 Me. 479; Squire v. 100 Tons of Iron, 2 a law of the state of New York, requiring

a lien for supplies to be enforced before the
vessel left the state:

this principle it was held that a law of
Louisiana excluding colored passengers
from the cabin set apart for the use of[198]
whites during the passage of steamboats
down the Mississippi, was a regulation of
interstate commerce, and therefore uncon-
stitutional. To the same effect is Sinnot v.
Davenport, 22 How. 227, 16 L. ed. 243. In
the subsequent cases of Louisville, N. O. &
T. R. Co. v. Mississippi, 133 U. S. 587, 33
L. ed. 784, 2 Inters. Com. Rep. 801, 10 Sup.
Ct. Rep. 348, and Plessy v. Ferguson, 163
U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep.
1138, state laws requiring separate railway
carriages for the white and colored races
were sustained upon the ground that they
applied only between places in the same
state.

In the very recent case of Easton v. Iowa,
188 U. S. 220, ante, 452, 23 Sup. Ct. Rep.
288, it was held that a state law punishing
presidents of banks receiving deposits of
money at a time when the bank was insol-
vent, and when such insolvency was known
to them, was unconstitutional as applied to
national banks whose operations were gov
erned exclusively by acts of Congress. Said
Mr. Justice Shiras: "But we are unable
to perceive that Congress intended to leave
the field open for the states to attempt to
promote the welfare and stability of nation-
al banks by direct legislation. If they had
such power it would have to be exercised
and limited by their own discretion, and
confusion would necessarily result from
control, possessed and exercised by two in-
dependent authorities." See also Farmers'
& M. Nat. Bank v. Dearing, 91 U. S. 29, 23
L. ed. 196; M'Culloch
Wheat. 425, 4 L. ed. 606.
v. Maryland, 4

"This statute is, as I conceive, perfectly constitutional, as applied to cases of repairs of domestic ships, that is, of ships belonging to the ports of that state. But in cases of foreign ships and supplies furnished to them the jurisdiction of the courts of the United States is governed by the Constitution and laws of the United States, and is in no sense governed, controlled, or limited by the local legislation. For myself, I can only say that during the whole of my judicial life I have never up to the present hour heard a single doubt breathed upon the subject." To the same effect is The Lyndhurst, 48 Fed. 839. [197] *While no case involving this precise question seems to have arisen in this court, we have several times had occasion to hold that where Congress has dealt with a subject within its exclusive power, or where such exclusive power is given to the Federal courts, as in cases of admiralty and maritime jurisdiction, it is not competent for states to invade that domain of legislation, and enact laws which in any way trench upon the power of the Federal government. Cases arising in other branches of the law furnish apt analogies. The principle is stated in a nutshell by Chief Justice Marshall in Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. ed. 529, 548: "But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the states has not been expressly prohibit ed. The confusion resulting from such a practice would be endless. That whenever the terms in which a power is granted to Congress, or the nature of the The following cases are also to the same power, required that it should be exercised general effect: Degant v. Michael, 2 Ind. exclusively by Congress, the subject is as 396; State v. Pike, 15 N. H. 83; Lynch v. completely taken from the state legislatures Clarke, 1 Sandf. Ch. 583, 644; Jack v. Maras if they had been expressly forbidden to tin, 12 Wend. 311; Ex parte Hill, 38 Ala. act on it." This was said of a bankrupt 429, 450; People v. Fonda, 62 Mich. 401, 29 law of New York which assumed to dis-N. W. 26. Although it is equally true that charge the debtor from all liability for debts previously contracted, notwithstand-ercised it but incidentally, and obviously where Congress, having the power, has exing the Constitution had vested the power with no intention of covering the subject, in Congress of establishing uniform laws on the subject of bankruptcy. It was held that the states may supplement its legislation the states had a right to pass bankrupt by regulations of their own not inconsistent laws until the power had been acted upon with it. Reid v. Colorado, 187 U. S. 137, by Congress, though the law of New York ante, 108, 23 Sup. Ct. Rep. 92. discharging the debtor from liability was held to be void as impairing the obligation of prior contracts within the meaning of

the Constitution.

In Hall v. DeCuir, 95 U. S. 485, 498, 24 L. ed. 547, 551, it was said that, inasmuch as interstate commerce is regulated very largely by congressional legislation, it followed that such legislation must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it, except in cases where the legislation of Congress manifests an intention to leave some particular matter to be regulated by the several states, as, for instance, in the case of pilotage. Cooley v. Philadelphia Port Wardens, 12 How. 299, 13 L. ed. 996. Upon

Bearing in mind that exclusive jurisdiction of all admiralty and maritime cases is vested by the Constitution in the Federal courts, which are thereby made judges of the scope of such jurisdiction, subject, of course, to congressional legislation, the statute of the state of Washington, in so far as it attempts to *control the administration of [199] the maritime law by creating and superadding conditions for the benefit of a particular class of creditors, and thereby depriving the owners of vessels of defenses to which they would otherwise have been entitled, is an unlawful interference with that jurisdie tion, and to that extent is unconstitutional and void.

The decree of the District Court is there

fore reversed, and the case remanded to that | United States marshal for a portion of the court with directions to dismiss the libels. fees claimed by him in his petition. Reversed and remanded for further proceed

Mr. Justice Harlan concurred in the re-ings. sult.

1. A United States marshal is not entitled to
mileage for the distance traveled in serving
warrants of arrest, in excess of the usually
traveled route between the place of receiving
the writs and the place of service, however
great the necessity of pursuing a circuitous
route, in view of U. S. Rev. Stat. § 829 (U.ceiving writs.
S. Comp. Stat. 1901, p. 636), which directs
such mileage to be computed "from the place
where the process is returned to the place of

Those accounts were submitted to the United 5. The expense of transporting a prisoner un- States district court for Oklahoma under the der a warrant of commitment cannot be al- provisions of the act of February 22, 1875 (18 lowed a United States marshal, where such Stat. at L. chap. 95, 333), and the said acprisoner escaped from the custody of his dep-counts, including this item, as above charged, uty before he could be delivered to the penitentiary, and there is no finding of due diligence on the part of the officer to prevent the

Messrs. Franklin H. Mackey and Frank B. Crosthwaite, submitted the cause for Nix:

The approval of the marshal's accounts is prima facie evidence of its correctness, and, in the absence of clear and unequivocal proof to the contrary, it should be conclusive.

Mr. Felix Brannigan and Assistant At- | rants of arrest, at 6 cents per mile, $69.18," torney General Pradt submitted the causes involves the question whether travel in exfor the United States. cess of the distance from the place of service to the place of receiving the writs can be allowed, in view of the fee bill for marshals. Rev. Stat. § 829 (U. S. Comp. Stat. 1901, p. 636), provides "for travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpœna in civil or criminal cases, 6 cents a mile, to be computed, from the place where the process is returned to the place of service." This has always been interpreted to mean by the usual traveled route (Hitch v. United States, 66 Fed. 937), the length of which is not given in the finding. The excuse for not pursuing the route in this case is that it was a new and unsettled Indian country; that defendants were moving about from place to place to avoid arrest, and it was necessary to travel a circuitous route; and that, in the absence of bridges, the deputies had to find fordable places to cross the river to locate the defendants.

United States v. Jones, 134 U. S. 483, 488, 33 L. ed. 1007, 1008, 10 Sup. Ct. Rep. 615; United States v. Poinier, 140 U. S. 163, 35 L. ed. 395, 11 Sup. Ct. Rep. 752; United States v. Barber, 140 U. S. 179, 35 L. ed. 399, 11 Sup. Ct. Rep. 751; United States V. Harmon, 147 U. S. 268, 37 L. ed. 164, 13 Sup. Ct. Rep. 327.

Specific and general statutory provisions may subsist together, the former qualifying the latter.

Magone v. King, 2 C. C. A. 363, 1 U. S. App. 267, 51 Fed. 525, 526; State ex rel. Fosdick v. Perrysburg, 14 Ohio St. 480; *However equitable the charge may have[202] Churchill v. Crease, 5 Bing. 177; State v. been in this particular case, there is no auClarke, 25 N. J. L. 54. See also State, Bart-thority of law for its allowance. There is, lett, Prosecutor, v. Trenton, 38 N. J. L. 64, to same effect; Noy, Maxims; Townsend v. Little, 109 U. S. 504, 27 L. ed. 1012, 3 Sup. Ct. Rep. 357; London, C. & D. R. Co. v. Wandsworth Dist. Bd. of Works, L. R. 8 C. P. 185; Bishop, Written Laws, § 112a.

Mr. Justice Brown delivered the opinion of the court:

however, a special provision in the last clause of § 829 (U. S. Comp. Stat. 1901, p. 636) by which "in all cases where mileage is allowed to the marshal he may elect to receive the same or his actual traveling expenses, to be proved on his oath to the satisfaction of the court." This seems to contemplate the very contingency which arose in this case, of a number of miles actually and necessarily traveled in excess of the di

Item 2 of the third finding, namely, [201]"traveling 1,153 miles *in going to serve war-rect route from the place where the process

claimant's deposition was taken in respect to this item, and he proved that, of his own knowledge, 11,433 miles were traveled in the transportation of said prisoners, deputies, and guards. As to the remainder of the travel, he could not testify of his own knowledge, because that travel had been performed by certain of his deputies who were not then in the territory, and who, he supposed, were in Alaska or the Philippine islands. The depositions of those deputies were not taken. No other evidence was offered by the claimant to establish the number of miles actually traveled than the approval of the district court for Oklahoma and his own deposition subsequently taken, as above stated. If the approval of his account by said district court is competent evidence to establish the number of miles actually traveled, this court finds the ultimate fact that he traveled 51,355 miles. If such approval of the district court is incompetent to establish the number of miles actually traveled, this court finds that the number of miles so traveled was 11,433 in the transportation of prisoners, deputies, and guards, as before set forth.

Item 16. For service of a caplas and transportation (mileage) of a deputy, prisoner, and guard. The capias was issued by the clerk of the United States district court at Topeka, Kansas, on an indictment found by the grand jury at Topeka. The capias was received by the claimant in Oklahoma city and was executed by arresting the prisoner named in the capias, who was transported to the United States district court at Wichita, Kansas.

The claimant charged 6 cents a mile for going 62 miles, from Oklahoma city to Perry, to

serve the writ, $2 for the service of the writ, and 10 cents per mile each for the deputy, prisoner, and guard for 111 miles, $33.30, from Perry, Oklahoma, to Wichita, Kansas, and one meal for the prisoner, 75 cents, making a total of $39.77.

Item 24. For actual expenses for transporting a prisoner from Springfield, Ohio, to the penitentiary at Brooklyn, New York, under a warrant of commitment. The warrant of commitment was issued at Oklahoma, and the marshal transported the prisoner on that warrant to Springfield, Ohio, where the prisoner was temporarily detained as a witness for the United States in a counterfeiting case. The prisoner having been discharged as a witness in that case at Springfield, the marshal continued his transportation from Springfield to New York city on the original warrant of commitment. The prisoner, with a deputy and guard, arrived in New York city too late for the prisoner to be received at the Brooklyn penltentiary on the day of arrival in New York, and he escaped from the custody of the deputy on the night of the same day while they were going to supper in the hotel where they were stopping. The marshal made every effort to retake the prisoner, and failed. $90.50.

Conclusion of Law.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment of and from the United States in the sum of one hundred and eight dollars and nipety-five cents ($108.95) on items 2 and 16 of finding 3.

All other items disallowed.

was returned to the place of service. It reimburses the marshal his expenses, but denies him a profit upon them. This item must be disallowed.

(2) Item 10. "For attendance of the marshal at court by deputy, 20 days at $5 per day, $100." The fact that it did not appear whether business was transacted in court on these days, or whether the judge was present in court, was immaterial, in [203]*view of the fact that the court was opened for business by order of the judge. United States v. Finnell, 185 U. S. 236, 46 L. ed. 890, 22 Sup. Ct. Rep. 633; McMullen v. United States, 146 U. S. 360, 36 L. ed. 1007, 13 Sup. Ct. Rep. 127. For aught that ap pears, the attendance may have been under the circumstances in which a similar charge was allowed in United States v. Pitman, 147 U. S. 669, 37 L. ed. 324, 13 Sup. Ct. Rep. 425. Where the court is opened for business by order of the judge, it is the duty of the marshal to attend, and there is no reason why he should not receive his per diem therefor as if the judge were actually present. This claim is not contested by the government, and should be allowed.

that this act was repealed by a general act of August 18, 1894 (28 Stat. at L. 372, chap. 301), making appropriations for sundry civil expenses for the year 1895, one of the clauses of which, under the head of "Judicial," provides that "it shall be the duty of the marshal, his deputy or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest circuit court commissioner, or the nearest judicial officer, having jurisdiction under existing laws, for a hearing, commitment, or taking bail for trial; and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, . . and no mileage shall be allowed any officer violating the provisions hereof."

n-[205]

Oklahoma, and that in all cases, whether the crime was committed against the territory or the general government, the accused shall be taken before a commissioner whose office is nearest to the place where the offense or crime was committed.

The object of this statute was manifestly to amend Rev. Stat. § 829, which provided that the mileage of the marshal for transportation of prisoners should be computed from the place where the process was served to the place where it was returned. This statute provides that he shall be taken to the circuit court commissioner nearest the place of arrest, regardless of the fact by (3) Item 12, for the transportation of whom the warrant was issued. Inasmuch prisoners arrested under warrants issued as the later act is a general one, applicable by United States commissioners, involves to marshals generally throughout the countwo questions: First, whether travel try, we do not think it was intended to reshould have been charged from the place of peal or interfere with the former act, proarrest to the nearest circuit court commis-viding specially for persons charged with sioner, or to the office of the commissioner any offense or crime in the territory of nearest to the place where the crimes with which the prisoners were charged were committed; second, whether, assuming the position of the claimant in this particular to be correct, as matter of law, there was sufficient evidence of the number of miles traveled to entitle him to the charge of $5,135.50. By "An Act to Provide a Temporary Government for the Territory of Oklahoma" (26 Stat. at L. 81, chap. 182), a certain portion of the Indian territory was set off [204]as a territorial government under the *name of Oklahoma. By 9 the judicial power of the territory was vested in certain courts, and the usual executive and judicial offices created. By § 10, "persons charged with any offense or crime in the territory of Oklahoma, and for whose arrest a warrant has been issued, may be arrested by the United States marshal or any of his deputies, wherever found in said territory, but in all cases the accused shall be taken, for preliminary examination, before a United States commissioner, or a justice of the peace of the county, whose office is nearest to the place where the offense or crime was committed. All offenses committed in said territory, if committed within any organized county, shall be prosecuted and tried within said county." By § 28, "the Constitution and all the laws of the United States not locally inapplicable shall, except so far as modified by this act, have the same force and effect as elsewhere within the United States."

This is the act upon which the claimant relies for his right to travel, while, upon the other hand, the government contends 189 U. S. U. S., Book 47.

49

The rule of statutory construction is well settled that a general act is not to be construed as applying to cases covered by a prior special act upon the same subject. On this principle we held in Townsend v. Little, 109 U. S. 504, 27 L. ed. 1012, 3 Sup. Ct. Rep. 357, that special and general statutory provisions may suosist together, the former qualifying the latter. See also Churchill v. Crease, 5 Bing. 177; Magone v. King, 2 C. C. A. 383, 1 U. S. App. 267, 51 Fed. 525, and cases cited; State v. Clarke, 25 N. J. L. 54.

It would seem that this construction works no particular hardship upon the government, since in all cases where the criminal is unable to give bail he is required to be ultimately transported for trial to the county wherein the crime was committed.

The second question connected with this item is whether the marshal produced sufficient evidence of the number of miles traveled. His claim was for 51,350 miles at 10 cents per mile. He was unable to prove, of his own knowledge, more than 11,433 miles. As to the remainder he could not testify of his own knowledge, because that travel had been performed by certain of his deputies who were not then in the territory, and who, he supposed, were in Alaska or the Philippine islands. The depositions of those deputies were not taken. He showed,

777