*243

276, chap. 322, U. S. Comp. Stat. 1901, p. 3082. It afterwards became, in the revision of 1874, § 4536 of the Revised Statutes. This section appears to have been copied from 233 of 17 and 18 Victoria, chap. 104, which act provides:

"No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of such wages, or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of such wages, or of salvage, made prior to the accruing thereof, shall bind the party making the same, and no power of attorney or authority for the receipt of any such wages or salvage shall be irrevocable."

express statutes or ordinances. The learned justice conceded that a determination of that question was not necessary to the decision then made, because the court held that the trustee in foreign attachment, having been compelled by process from the admiralty court to pay the amount of wages, could not be charged again for the same sum. In the subsequent case of White v. Dunn, 134 Mass. 271, the question was directly presented, and the former opinion of Mr. Justice Gray, in 132 Mass. 56, was approved; and it was held that the wages of seamen engaged in the coastwise trade (the act of 1874, 18 Stat. at L. 64, chap. 260, U. S. Comp. Stat. 1901, p. 3064, being construed to exempt coastwise-trading vessels from the provisions of the act of 1872, which included what is now § 4536) are subWe have been unable to discover any ject to attachment by the trustee process. English case construing this statute, and The court expressed regret at its inability none has been called to our attention. In to agree with the district court of the UnitMaclachlan on Merchant Shipping, 4th ed., ed States for the southern district of New 231, that author states the effect of the stat- | York, evidently referring to Judge Beneute to be to except seaman's wages from liability to attachment by a judgment creditor, as payment of such wages is valid, notwithstanding any previous sale or assignment thereof, or any attachment, encumbrance, or arrestment thereon. In this country the cases, state and Federal, in which this statute has been under consideration, are not in accord. In Telles v. Lynde, 47 Fed. 912, and The Queen, 93 Fed. 834, the district court in the ninth circuit reached the conclusion that the statute did not prevent the seizure of seamen's wages after judgment upon proceedings in aid of execution, although the seamen's wages were not liable to attachment in advance of judg. ment.

dict's opinion above cited, and expressed the opinion that no practical injustice would grow out of the conflict, as the supreme judicial court of Massachusetts had recently held, in Eddy v. O'Hara, supra, that where the wages of seamen had been obliged to be paid by a decree in admiralty, a party could not again be charged under attachment proceedings, and the court expressed the opinion that, as the wages were paid upon the judg ment upon which trustee process had issued a court of admiralty of the United States would not compel the owners to pay a second time.

In the case of The City of New Bedford, 20 Fed. 57, Judge Brown, sitting in admiralty in the southern district of New The question was very fully considered by | York, adhered to the views expressed by Judge Benedict in the case of McCarty v. The City of New Bedford, 4 Fed. 818. In that case Judge Benedict held the view that the statute of Victoria 17 and 18, above cited, was but declaratory of the law of England as it theretofore existed, and that, in view of the remedies given in the United States courts in admiralty, and the provisions of the Federal statutes enacted in reference to the recovery and protection of the wages of seamen, there was no jurisdiction in the state courts to garnishee the wages of seamen at the instance of a creditor.

· With Judge Benedict's opinion before him, Mr. Justice Gray, then of the supreme judicial court of Massachusetts, in the case of Eddy v. O'Hara, 132 Mass. 56, said that the court, although recognizing the elaborate and forcible argument of Judge Benedict, had not been able to satisfy itself that such an exemption from attachment had even been recognized, except as created or limited by

Judge Benedict in McCarty v. The City of New Bedford, supra, notwithstanding the decision in Eddy v. O'Hara, supra, but held that a compulsory payment under garnishee process in Massachusetts, under principles of comity, should be recognized in the admiralty court. In Ross v. Bourne, 14 Fed. 858, Judge Nelson, sitting in the United States district court in Massachusetts, held that a suit at law against a seaman, wherein his wages had been attached by a trustee process, but not yet paid, would not bar the seaman's recovery of the whole wages by a suit in admiralty. Upon appeal to the circuit court of the same case (17 Fed. 703), Judge Lowell said that "he did not dissent" from the learned opinion of Mr. Justice Gray, in Eddy v. O'Hara, supra, but held that such an attachment proceeding should be respected out of comity only, and that comity did not require actions in favor of seamen in admiralty to be hung up to wait

the dilatory proceedings of an attachment | It bears a general resemblance to foreign suit at common law. attachment by the custom of London."

Neither of the words used in the statute, "attachment" or "arrestment," considered literally, has reference to executions or proceedings in aid of execution to subject property to the payment of judgments, but refers, as we have seen, to the process of hold

we are of opinion that this statute is not to be too narrowly construed, but rather to be liberally interpreted with a view to effecting the protection intended to be extended to a class of persons whose improvidence and prodigality have led to legislative provisions in their favor, and which has made them, as Mr. Justice Story declared, "the wards of the admiralty." Harden v. Gordon, 2 Mason, 541, Fed. Cas. No. 6,047.

From this conflict of views upon the subject we turn to the consideration of the section (4536) itself. We may premise that no contention was made in the supreme court of Hawaii, or in the assignments of error or argument in this court, that § 4536 was inapplicable because the steamship coming property to abide the judgment. But pany was engaged wholly in the coastwise trade. This removes any question on that subject from the case and renders it unnecessary to decide whether the act of 1874, 18 Stat. at L. 64, chap. 260, U. S. Comp. Stat. 1901, p. 3064, had the effect to repeal § 4536, so far as vessels thus engaged are concerned. In the first clause of § 4536 it is provided that no wages due or accruing to any seaman shall be subject to attachment or arrestment from any court; and it We think, too, that the section is to be is the contention of the plaintiff in error construed in the light of and in connection that the words "attachment" or "arrest- with the other provisions of the title of ment" only forbid such proceedings before which it is a part. And we may notice that, judgment, but do not protect such wages after providing against attachment or arrestfrom proceedings in attachment after judgment of wages, this very section goes on to ment. Undoubtedly the word "attachment," enact that payment of wages to seamen as ordinarily understood in American law, has reference to a writ the object of which is to hold property to abide the order of the court for the payment of a judgment in the event the debt shall be established. And as Mr. Justice Alvey says, in delivering the opinion of the supreme court of Maryland (Thomson v. Baltimore & S. Steam Co. 33 Md. 318):

"An attachment has but few of the attributes of an execution; the execution contemplated by the statute being the judicial process for obtaining the debt or damages recovered by judgment, and final in its character, while the attachment is but mesne process, liable at any time to be dissolved, and the judgment upon which may or may not affect the property seized.

"Arrestment," a word derived from the English statute, is a word of Scotch origin, and derived from the Scottish law, and thus defined by Bouvier:

"The order of a judge, by which he who is debtor in a movable obligation to the arrestor's debtor is prohibited to make payment or delivery till the debt due to the arrestor be paid or secured. Erskine, Inst. 3, 6, 1; 1, 2, 12. Where arrestment proceeds on a depending action it may be loosed by the common debtor's giving security to the arrestor for his debt, in the event it shall be found due."

And in the Century dictionary it is defined to be:

"A process by which a creditor may attach money or movable property which a third person holds for behoof of his debtor.

shall be valid, notwithstanding any previous sale or assignment, or any attachment, encumbrance, or arrestment thereon; and that no assignment or sale of wages made prior to the accruing thereof shall bind the party making the same, except such advance securities as are authorized by this statute. When we look to the provisions of the title we see that the field of "advanced securities" for which assignment is authorized is very narrow indeed. U. S. Comp. Stat. 1901, pp. 3079 et seq. It is made unlawful to pay any seaman his wages in advance, and an allotment of his wages is permitted only to grandparents, parents, wives, or children, or, under regulations of the Commissioner of Navigation, made with the approval of the Secretary of the Treasury, not to exceed one month's wages to a creditor in liquidation of a just debt for board or clothing. And it is provided that no allotment note shall be valid unless signed and approved by the shipping commissioner. This statute has been held a valid enactment (Patterson v. The Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821) as to

advancements.

Section 4536 therefore has the effect of

not only securing the wages of the seaman

from direct attachment or arrestment, but further prevents the assignment or sale of his wages, except in the limited cases we have mentioned, and makes the payment of such wages valid notwithstanding any "attachment, encumbrance, or arrestment thereon."

It seems to be clearly inferable from these provisions that wages which have thus been

$248

wages, not only by writs of attachment issued before judgment, but extends the like protection from proceedings in aid of execution, or writs of attachments, such as are authorized by the Hawaiian statutes, after judgment.

Finding no error in the decision of the Supreme Court of Hawaii, the same is af firmed.

V.

(211 U. S. 249)

carefully conserved to the seaman were not | title, prevents the seizure of the seaman's intended to be subject to seizure by attachment, either before or after judgment. Furthermore, there are other sections in the title which *strongly support the conclusion that it was not intended that seamen's wages should be seized upon execution or attachment to collect judgments rendered at common law. Section 4535 provides that no seaman shall forfeit his lien upon the ship or be deprived of any remedy for the recovery of his wages by an agreement other than is provided for by this title. U. S. JAMES RUDOLPH GARFIELD, SecreComp. Stat. 1901, p. 3082. Section 4530 tary of the Interior, Plff. in Err., provides for the payment of seamen's wages, UNITED STATES OF AMERICA one half at every port where such vessel RELATIONE JOHN E. GOLDSBY. shall load or deliver its cargo, and when the voyage is ended the remainder of his INDIANS (8 13*)-LANDS. wages, as provided in § 4529. Section 4546 provides for the summons of the master when wages are unpaid within ten days to show cause why process should not issue against the vessel according to the rules of courts of admiralty. Section 4547 provides for process against a vessel in case a seaman's wages are not paid, or the master does not show that the same are otherwise "satisfied or forfeited," and all the seamen having like cause of complaint may be joined as complainants in a single action.

EX

1. The fact that the legal title to allottable Indian lands is still in the government does not defeat the jurisdiction of a court over a suit to compel the Secretary ranted and unauthorized by law, his action of the Interior to undo, as wholly unwarin summarily erasing from the approved rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate and is in possession of the land.

[Ed. Note.-For other cases, see Indians, Dec. Dig. § 13.]

MANDAMUS (8 85*)-To CONTROL EXECU-
TIVE ACTION.

2. Mandamus is the proper remedy where
the Secretary of the Interior, wholly with-
out authority of law, has summarily erased
from the approved rolls of citizenship in
the Choctaw and Chickasaw Nations the
name of one who has received an allotment
certificate and is in possession of the land.
Cent. Dig. 88 184, 187; Dec. Dig. 85.*]
[Ed. Note. For other cases, see Mandamus,
INDIANS (§ 13*) — SUMMARILY ERASING
NAME FROM CITIZENSHIP ROLL.

We think that these provisions, read in connection with § 4536, necessitate the conclusion that it was intended not only to prevent the seaman from disposing of his wages by assignments or otherwise, but to preclude the right to compel a forced assignment, by garnishee or other similar process, which would interfere with the remedy in admiralty for the recovery of his wages by condemnation of the ship. These provisions would be defeated if the seaman's wages, to be recovered at the end of the voyage, could be at once seized by an execution or attachment after judgment in an action at law. The evident purpose of the Federal statutes, that the seaman shall have his remedy in admiralty, would be defeated, and the seaman, in many cases, be turned ashore with nothing in his pocket, because of judgments seizing his wages, rendered, it may be, upon improvident contracts, from which it was the design and very purpose of the admiralty law to afford him protec-marily striking from the approved rolls of

tion.

"Ordinarily," says Judge Nelson, in Ross v. Bourne, 14*Fed. supra, "the sailor's only means of subsistence on shore are his wages earned at sea. If these may be stopped by an attachment suit the instant his ship is moored to the wharf, a new hardship is added to a vocation already subject to its full

share of the ills of life."

We think that § 4536, construed in the light of the other provisions of the same

3. The Secretary of the Interior is without authority to erase from the approved rolls of citizenship in the Choctaw and Chickasaw Nations, without notice or hear. allotment certificate and is in possession ing, the name of one who has received an of the land.

[Ed. Note.-For other cases, see Indians, Dec.

Dig. § 13.]

MANDAMUS (8 85*)-To CONTROL EXECU-
TIVE ACTION.

the Interior to undo his action in sum-
4. Mandamus to compel the Secretary of

citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate and is in possession of the land will not be refused on the theory that his case comes within the provisions of the act of July 1, 1902 (32 Stat. at L. 641, chap. 1362), establishing a citizenship court, as one of the claimants whose judgment in the court of the Indian ter ritory was annulled by the subsequent procedure in the citizenship court, leaving him the remedy of appealing to that court, and

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

255

that, having failed to appeal, he lost all right to enrolment, where it does not appear whether or not his name was on the original or other tribal rolls.

(Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 184, 187; Dec. Dig.

[No. 248.]

85.*]

Argued October 15, 16, 1908. Decided

I

vember 30, 1908.

thereafter the petitioner secured an allotment of 320 acres of the allottable lands of the Chickasaw Nation, and an allotment certificate was issued to him by the Commission to the Five Civilized Tribes for the lands thus selected, and the same are now held by him. The petition then goes on to aver, in substance, that relator's name was No-stricken from the rolls on March 4, 1907. And it is averred that this action was un

N ERROR to the Court of Appeals of the authorized, was beyond the power of the District of Columbia to review a judg. Secretary, and deprived the relator of valument which affirmed a judgment of the Su-able rights in the lands and funds of the preme Court of the District, granting a writ Choctaw and Chickasaw Nations without of mandamus to compel the Secretary of the due process of law.

Interior to undo his action in summarily The supreme court of the District of Coerasing from the approved rolls of citizen-lumbia issued an order to show cause and ship in the Choctaw and Chickasaw Na- the Secretary appeared and answered. The tions the name of one who had received an allotment certificate and was in possession

of the land. Affirmed.

See same case below, 30 App. D. C. 177. The facts are stated in the opinion. Assistant Attorney General Fowler, Attorney General Bonaparte, and Mr. William R. Harr for plaintiff in error.

Messrs. Charles H. Merillat, Charles J. Kappler, and James K. Jones for defendant in error.

answer, we think, may be fairly construed to contain a denial of the allegation, if the petition might be construed to make the claim, that the relator was an enrolled member of the Chickasaw Nation, but it does admit that he had been enrolled by the Commission to the Five Civilized Tribes; that the list had been approved by the First Assistant Secretary of the Interior, and averred that, before the time fixed by Congress for the completion of the rolls of members of the nation, the then Secretary of

Mr. Justice Day delivered the opinion the Interior had disapproved the enrolment of the court:

This action was brought in the supreme court of the District of Columbia for a writ of mandamus against the Secretary of the Interior in his official capacity, to require him to erase certain marks and notations theretofore made by his predecessor in office upon the rolls, striking therefrom the name of the relator, Golbsby, as an approved member of the Chickasaw Nation, and to restore him to enrolment as a member of the nation.

Goldsby, in his petition, claimed that he was a recognized citizen of the Chickasaw Nation and entitled to an equal, undivided interest in the lands of the Choctaw and Chickasaw Nations; that he was an owner of an allotment of land which had been made to him as hereinafter stated, and that he was entitled to an equal, undivided, distributive share of the funds and other lands of the nation. The petition for the writ recites at length the acts of Congress supposed to bear upon the subject, and avers that the Secretary of the Interior, on October 6, 1905, affirmed a decision of the Commission to the Five Civilized Tribes, holding that the petitioner and his children were entitled to enrolment, and that relator's name was placed on the final roll of citizenship by blood of the Chickasaw Nation, and that the list was approved by the Secretary of the Interior on November 27, 1905, and that

of the petitioner and stricken his name from the rolls. The answer admits that the certificate of allotment had been issued to petitioner by the Commission to the Five Civilized Tribes for lands selected by petitioner; and further avers that the Secretary of the Interior had not approved of such allotment, and no patent had been issued therefor.

The answer also admits that it had been the practice of Secretaries of the Interior to give notice before striking names from the approved lists of the Five Civilized Tribes, and avers that, owing to the limited time before the expiration of the time fixed by Congress for the completion of the rolls, March 4, 1907, it was impossible to give notice and opportunity to be heard to relator and a large number of other persons. The answer avers that the respondent's predecessor, the then Secretary of the Interior, had no jurisdiction or authority to enroll the petitioner. It also avers that the allotment of lands in severalty of the Chickasaw Nation was delegated exclusively to the Secretary of the Interior. That, by the acts of Congress, exclusive jurisdiction in matters involving the making of rolls of citizenship of the Five Civilized Tribes was conferred upon the Secretary of the Interior, and the determination of such matters was within his exclusive judgment and discretion. A general demurrer was filed to the an

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

*258

swer, with a note thereto stating that one in aid of the purpose of Congress to exmatter to be argued on demurrer is that the tinguish the tribal titles to Indian lands answer sets forth no sufficient reason in law and to allot the same among the members for the cancelation of relator's enrolment thereof with a view of creating a state or by the Secretary of the Interior without no-states which should embrace these lands. tice or hearing. In the supreme court of the The act of June 10, 1896 (29 Stat. at District of Columbia the demurrer to the L. 339, chap. 398), empowered the Dawes answer was sustained upon that ground. Commission to hear and determine applicaThe respondent elected to stand upon his tions for citizenship, and gave an appeal to answer. Judgment was entered, requiring the United States court in the Indian terthe Secretary to erase from the rolls the ritory from the decisions of the commisstatements placed thereon derogatory to the sion; made the judgment of that court final, relator's rights in said tribe, and to recog- and required the commission to complete its nize relator as an enrolled member of the roll of citizens of the several tribes, and to nation. Upon appeal to the court of ap- include therein the names of citizens, in acpeals of the District of Columbia this judg-cordance with the requirements of the act. ment was affirmed (30 App. D. C. 177), and And the commission was required to file the the case comes here. list of members as they finally approved them, with the Commissioner of Indian Affairs.