, 1882-09-22
Opinion of Judge Greene.
As TO SHIPPING COMMISSIONER.

here. J. G. Horr, Special Agent of the U.
$. Treasury, lodged information with the
L, 5. Attorney, raising question as to
,he authority of the editor hereof to
transact the business Of Shipping Com
missioner. Judge Greene took the mat
ter under advisement, and today filed the
opinion printed below, which opinion
covers the entire matter and etTectualiy
settles all possible cavil:
TERRITORY OF WASHINGToN, !
THIRD JUDICIAL DIsrRICr. '''
In the District Court, holding terms at
Port Townsend.
September Term, 1882.
THE UNITED STATES
ALLEN WEIR.
OPINION.
Comes now the United States attorney,
and asks leave to file an information
against one Allen Weir. From an in
spection OF the paper proposed to be
filed. it il seen to be alleged therein, that
Mr.. A. w. Bash is Collector of Customs
for the port of Port Townsend, which is
n port OF entry of the United States and
n mort of ocean navagation and that the
defendant is neither collector nor depu-
ty collector of customs, but has been
Reforming the duties of shipping COM
missioner and still claims the right to
perform them, by virtue of an appoint.
ment of him by the collector to he the
clerk or deputy of the collector in the
latter's capacity of acting shipping COM
missioner. Wherefore the information
prays that Mr. Weir be ousted from the
Office he claims to hold and exercise.
Mr. Wcr's authority to act in the prem
ises depends upon two questions:
First. Whether the collector has the
right to act as shipping commissioner.
Second. Whether, if the collector has
the ught so to act, he has also the right
and act for him, in that behalf
That there is, and can be, no regularly
appointed shipping commissioner at Port
Townsend is Il matter of which this Court
takes judicial notice. No way to appoin
one is provided by statute. The power
to appoint is, by S 450l of the Revised
Statutes, devolved upon the Circuit
Courts Of the United States. For this
judicial district, and for some purposes,
this Court fills the place Of a United
States Circuit Court. But it is not in fact
such court, nor has it all the powers
tof such court. 1t is simply District
Court of the Territory. As District
Court, it has, by force of 5 1911 of the
Revised Statutes, the same jurisdiction,
in all cases arising under the Constitu-
ton and laws OF the United States, AS is
vested in the Circuit Courts of the Unit
ed States. Authority to take cognizance
Of causes presented to it for adjudication
and to adjudicate those causes the same
as Circuit Court, is thus given. There
the grant ends The power giveni is pure
ly judicial But the Circuit Courts pos
Sess, in addition, powers not judicial
Power of appointment to office is not, in
essence, judicial function. 1t is
one OF those administrative powers of
government, which one would naturally
classify as pertaining to the executive,
but which may, with greater or less pro-
priety, according as public convenience
and welfare may dictate, be deposited
with either the Legislative, executive or
judicial department The particular
power to appoint shipping commissioners
has been lodged with the Circuit Courts,
rather than with the President or his
subordinates, because those courts, being
the highest admiralty tribunals in their
respective circuits, are supposed to be
peculiarly conversant with the shipping
interests and necessities of the various
ports of entry, and peculiarly accessible
and trustworthy repositories of the pow
er. But Congress has not seen fit to
grant the power to the District Courts
OF the Territories. Consequently, in this
district, where there is no Circuit Court,
there cannot be any shipping commits
sioner, appointed pursuant to s 450l.
But by s 1903, it is provided, that in
any port i'll which no shipping commits
sloner shall have been appointed, the
whole or any part of the business of
such officer shall be conducted by the
collector or deputy collector OF such port;
and that, IN respect of such business, the
custom house shall be deemed q shipping
once, and the collector or deputy cOllec-
t0r shall for all purposes, be deemed u
MiPp'ng commissioner This section,
ialrly and fully, answers our first ques-
uoh There being no shipping commits
sloner appointed for Port Townsend, and
mr. Bash being the collector of the port,
he IS manifest y, in function, il not in
name, the shipping commissioner ut that
point
The second question can now be very
nriehy solved. Referring to the section
iast mentioned, we see that it amply en-
ao|s the collector with all powers that
Delong to shipping commissioner and
winch are necessary or useful to him for
me transaction of his business. Among
these powers there is the power to en-.
gage clerks and make them his deputies.
~ Is contained in 5 1905 OF the Revised
Statutes, which reads as follows: ANY
shipping commissioner may engage clerks
70 assist him in the transaction of the
business OF the shipping office, at his
own proper cost, aud may, in case of nee.
esslty, depute such clerks to act for him
u his official capacity; but the shipping
commissioner shall be held responsible
.or the acts Of every such clerk or depu.
W and will be personally liable for any
penalties such clerk or deputy may incur