The New York herald., 1922-10-24

in which its absence leaves the
plaintiffs.
There is a narrow limit to judicial
redrafting of statutes. Indeed, the
argument was not suggested at the bar
that passengers refreshment and
crews rations stood in different posi-
tions. Probably none was intended.
and / mention IL only against the pos
sibility that 1t might be taken later.
Cases like Brown VS.. Duchesna. su-
pra, Taylor VS.. u s., supra, and
Scharrenberg VS.. u. S.. SUPRA are all
indeed in point. They illustrate the
extent TO which seamen and ships are
regarded as enclaves from the munich
pal law.
But they were all judicial excep-
tions by implication out of the words
of "a statute, and they therefore de-
pended upon how far In the circurl-
stances of each case 1t was improbable
that ."the natural meaning of the
words expressed an altogether prob
able intent Were it not for the dec
laration of the Supreme Court in what
/ regard as far weaker circumstances
that the literal meaning accords with
the probable intent, they might en-
barass by conclusion. AS 1t Is, they do
not for in such matters each case Is
sui generis, and | have only TO follow
any decision which is apt to the stat
ute under consideration. For these
reasons / hold that the threatened ac-
ton of the defendants is legal and that
the bills must be dismissed.
1t is obvious that this ruling dis
poses Of the cases of the American
ships as we'll as of the foreign. The
American bills contain no allegations
that the defendants intend to prose-
cute them for the sale of liquors upon
the high seas, as, for example, on
westward voyages. 1t is true that
the prayers for relief do include so
much, but prayers without allega-
tions are ineffective. I do not. there
fore. find it necessary to consider the
Legality of any sales of liquor unoer
the American flag on the high seas,
assuming no liquor is brought within
our territorial limits. 1t was my
understanding at the argument thaf
the territoriafity of an American shir
at sea was discussed only against the
possibility that l should hold that IL
was not illegal merely to carry liquors
into and out of the port
/ suppose that the question or
temporary restraining order pending
sequence to the plaintiffs than any
thing may think about the law. The
power under the Seventy-fourth Rule
to grant such an order is undoubted,
Notwithstanding dismissal of the
bill, Merrimac River Savings Bank v.
City of Clay Center. 219 U. S. 527;
Staffords V. King, 30 Fed. r. 13b
&C. C"A.). Moreover. the whole thing
rests in. the discretion of the trial
Judge. The question is how far the
absence Of any protection to the losing
party will expose him to serious and
irreparab'e damage, II in the end. he
wins, without imposing an equal dam
age upon the other party, II he holds
his decree. Like all such matters. it
depends upon a balance between the
two. and l must now assume that the
chances of success are not equal.
On the one hand the plaintiffs are In,
unqu estionable embarrassment. They
must take off their stocks of liquor
now In port, and IL they bring any
westward with them they must calcu-
late with some nicely on the consun-
ing capacities of their passengers or
take the chances of seizure of the
residue in New York. Nevertheless.
so far as the loss OF the liquors them
selves Is CONCERNED the damage cannot
be said to Be irreparable. These must
be condemned before they can be for
feited. and in the present state of the
calendars the cases at bar will be
finally determined long before such
libels can be tried. If I am wrong.
the plaintiffs will get back their prop
erty after delay which cannot re.
gard as an irrepare BILE damage.
II ] am right 1t would be obviously
n vi, daf do ~ ~
allow the liquor to escape a seizure to
which the United States is entitled
under it's laws. With the conduct of
any such proceedings I have nothing
to do. 1t may be that the long ac-
quiescence of the authorities in tho
practices here in question will modcr-
ate the ultimate penalty Of conflsca-
ton I must assume that the plain
tiffs will receive such consideration as
the law permits. but ought no to pro-
tect them against proceedings to which
they by hypothesis would be legally
subject.
However,. ] do not understand that
they are so much concerned over the
possible loss OF existing stocks as over
the right meanwhile to carry them in
and out as a means of selling them
at sea and serving them as part of the
off. lin any case of the plain
tiffs will be in a serious dilemma
between two conflicting laws. The
others will probably have a good deal
of trouble and expense in securing
seamen who will sign on upon dry
ship. on the other hand, foreign
crews are scarcely within the domi-
nant purpose OF the Eighteenth
Amendment. 1t appears to me just on
fair balance of the relative advan-
tagas to stay the enforcement of the
law against stocks of wine and liquor
necessary for crews rations, II hon.
nestly kept and dispensed for that
purpose alone.
AS TO the maintenance OF passen-
gers stocks the case Is otherwise.
The plaintiffs are all upon the same
competitive footing inter SO and only
claim to fear the competition Of Cam
adian lines How serious that may
be no one can tell, but certainly II will
be felt much less during the next two
or three months than at another sea-
son. In any event, on the balance OF
advantage / ought not to allow It. II
is easy to say, IL one does not take
seriously the opinion behind the
Amendment, that the United States
will not suffer by the continuance OF
the status quo. But It Is impossible
to say so. If one does.
repeat what 1 said in Dryfoos V.
Edwards, filed October 10. 1919, on
similar occasion. The suspension of
law of the United States. especially a
law In execution of a constitutional