for the exercise of governmental powers, either inherent or delegated. But I can find but little analogy between this exemption and the claim to be exempt from a penal forfeiture inflicted by a valid law enacted by a sovereign power having express power granted to it to make the law. In the present cases the state and the federal government are exercising authority within the same territorial limits, and their claims in these cases conflict in regard to a matter concerning which the state has transferred her sovereignty to the United States, and with regard to which she has agreed that the federal authority shall be supreme and exclusive. This granted power to enact the law implies the power to make the law effective, and to prescribe and enforce penalties for its infraction.

Although, therefore, there is great force in the argument that these vessels, being instrumentalities used by the state for the execution of its proper governmental powers, should be exempt from seizure, it is an argument more properly to be addressed to congress than to the court. It is based solely on a supposed public policy, and I can find no justification for the court declaring a rule of public policy with regard to a matter in respect to which congress has declared the law.

It is urged that it should be presumed, in favor of a sovereign state of the Union, that she will give to her steamers such inspection and attention as will render them safe for those she puts in charge of them, and nowise dangerous to persons or vessels engaged in commerce upon the navigable waters within the state. Congress may so declare. With regard to the public vessels of the United States, and the vessels of other countries, (except foreign vessels carrying passengers from any port of the United States,-act of February 28, 1871,) it has so declared. With regard to foreign vessels there would be no doubt difficulty in framing at law susceptible of execution, and perhaps congress may well rely upon the inspection generally provided by other nations with regard to their own steam-vessels as sufficient to secure the safety of general navigation. The provisions of the legislation of congress with regard to inspection of the hulls and boilers of steam-vessels are intended, not alone for the protection of those on board the vessel itself, but for the protection of all. other persons and property engaged in navigation, which might in any way be subject to damage from any accident which might happen for want of that attention to safety which the inspection enforces. It was said by the supreme court in the case of The Repauno, (Hartranft v. Du Pont, 118 U. S. 226, 6 Sup. Ct. Rep. 1188:)

"The law was passed also to protect the lives and property of persons in other boats and at the wharves. * * * The people in other boats, who passed her on the water, or those who stood on the docks where she landed, were entitled to the same protection which the law provided against the explosion of the boilers of larger craft.”

It is, of course, quite within the power of congress to exempt the vessels of the state of Maryland from inspection if they deem it wisest to do so; but I have not found it possible for the court to so construe the law, as it at present stands; and in considering the question of an exemption, because of the general rule of public policy in obedience to

which courts exempt instruments of government from seizure, it should be borne in mind that the same rule, so applied, would exempt the property and instruments used by cities and counties, such municipal corporations being themselves mere instrumentalities of the state for the convenient administration of local government. Meriwether v. Garrett,

102 U. S. 511; Klein v. New Orleans, 99 U. S. 149; The Fidelity, 16 Blatchf. 569; The Protector, 20 Fed. Rep. 207. The result of that rule, so applied, would therefore be that no penalty could be enforced for refusal to submit to inspection any of the numerous steam police boats, fire extinguishing steamers, relief-boats, ice-boats, and other steam-vessels used by the large seaboard cities; and they would ply among the vessels in crowded ports, and lie at the docks among other shipping, free from supervision of any kind prescribed by congressional enactments. The question of public policy would therefore not be so narrow a one as might seem upon first impression.

With regard to the alleged violations of the sections specially applicable to steamers carrying passengers or merchandise, I do not find that these steamers are liable. They never carry either passengers or merchandise for hire, and if persons or property, not required for the public service in which these vessels are intended to be employed, are by the allowance of those in charge of them sometimes carried, it is not by the authority of the state, and not for compensation, and not within the purpose for which they are maintained. The sections relating to carrying passengers and merchandise are applicable to a steam-vessel solely because of the use to which she is applied, and I do not find that these vessels are so used.

I will sign a decree for the penalties for failure to have the hulls and boilers inspected in the years 1885 and 1886.

LOWRY v. STORY and others.

(Circuit Court, W. D. North Carolina. May Term, 1887.)

1. FEDERAL COURTS-ENFORCING PENALTY IMPOSED BY STATE STATUTE-MARSHAL.

The federal court has no power to enforce against the United States marshal a penalty imposed on a sheriff by Code N. C. § 2079, which provides that every sheriff shall execute all process, to him legally directed, within his county, and make due return thereof, under penalty of forfeiting $100 for neglect, where such process shall have been delivered to him 20 days before the sitting of the court, etc.

2. SAME.

A federal court has no power to execute the penal laws of a state by enforcing penalties against federal officers for neglect of special duties imposed by state statutes on county officers.

3. SAME-SERVICE OF PROCESS-CONFORMING TO STATE PRACTICE.

A rule adopted by the federal court regulating the method of serving its process, while the practice of serving process by the state courts remains uncertain, is binding on the United States marshal, and is not in conflict with Rev. St. U. S. $ 914, which provides that the practice and mode of proceeding in civil actions, in the circuit and district courts, shall conform, as near as may be, to the practice and modes of proceeding in the courts of record of the state.

4. SAME REJECTING PROVISION OF STATE LAW.

While the federal courts will conform their modes of procedure in civil ac tions, as near as may be, to the statutes of the state, they will reject any subordinate provision of the state statutes which in their judgment will unwisely incumber the administration of law, or tend to defeat the ends of justice in their tribunals.

Motion to Enforce a Penalty of $100 against David Settle, marshal, for not duly executing process.

Moore & Cummings, for the motion.

R. M. Douglas, for the Marshal.

DICK, J. The affidavit upon which this motion is founded alleges that a writ of summons was placed in the hands of the marshal more than 20 days before the term of the court to which the same was returnable, together with his lawful fees for service, and the writ was not executed. Notice of motion was accepted by the marshal, and in his answer he admits the allegations of the affidavit; but insists, by way of explanation and defense, that he was not furnished by the plaintiff with copies of the summons to be delivered to the several defendants residing in different and distant localities, in accordance with the course and practice of the court, and the fees for preparing such copies were not paid or tendered.

The counsel of the plaintiff, in their argument and brief, insists that the manifest purpose of section 914, Rev. St. U. S., was to bring about uniformity in the law of procedure in the federal and state courts in the same locality, and requires the federal courts, in all common-law actions, to conform their proceedings, as near as may be, to the laws of the state in which they are held, any rule of court to the contrary notwithstanding. v.31F.no.13-49

Nudd v. Burrows, 91 U. S. 426. They further insist that rule 6 of the rules of practice of the United States circuit and district courts of North Carolina, adopted at June term, 1886, at Charlotte, is but a repetition of said statutory provision, except the words "any rule of court to the contrary notwithstanding" are omitted. They further insist that the service of a summons is one of the modes of proceeding contemplated in said statute and rule of court, and then, in support of their motion, they refer to section 2079, vol. 1, Code N. C., which provides that—

"Every sheriff * * * shall execute all writs and other process, to him legally issued and directed, within his county, * * * and make due return thereof, under the penalty of forfeiting one hundred dollars for such neglect, when such process shall be delivered to him twenty days before the sitting of the court to which the same is returnable, to be paid to the party aggrieved, by order of the court, upon motion and proof of such delivery," etc.

The motion before us is founded upon this law of the state imposing a penalty upon sheriffs who fail or neglect to execute process duly issued to and received by them. The motion cannot be allowed, as this court has no power to enforce against the marshal a penalty imposed by the law of this state upon a sheriff for neglect of duty. A federal court has no power to execute the penal laws of a state. Gwin v. Breedlove, 2 How. 29; affirmed in Gwin v. Barton, 6 How. 7. When this motion was made, one of the counsel of the plaintiff said that, although the action was delayed by the failure of the marshal to execute the summons, there was no intention to collect the amount of the penalty, but the primary purpose of the motion is to settle by judicial decision a question of practice about which there is some diversity of opinion among the attorneys of the court. The decision of this question is not necessary in disposing of the pending motion, but I think that I can properly express an opinion upon the subject, in considering the force and effect of the law of this state, and the extent of the application of the rules of practice adopted by this court as to the mode of serving process by the marshal in this district. I fully recognize the duty of this court to conform its mode of procedure in civil actions, as near as may be, to the mode of procedure provided by laws of the state to regulate the practice of state courts of record.

The Code of Civil Procedure in this state was adopted in 1868, and under its provisions there were three methods of bringing into court a party defendant in a civil action,-one by the service of a summons by the sheriff delivering a copy of the same to the defendant personally, and leaving it with him; one by the written admission of the party; and the other by publication of the summons. Bank v. Wilson, 80 N. C. 200. In 1876-77 an act of the legislature of this state was passed, with the provision—

"That the summons shall be served, in all cases where copies are now required by law to be delivered, by the sheriff, or other officer, reading the same to the party or parties named as defendants; and such reading of the same shall be a legal and sufficient service of the summons without delivering a copy of the same."

This statutory provision was so general in its terms that it seemed designed to dispense with the service of copies of the summons in cases against corporations, infants, and persons of unsound mind; and to repeal, by implication, a carefully prepared statute passed at the previous session of the legislature. The legal profession in this state were generally of the opinion that such was not the intent of the legislature; and the Code of the state adopted in 1883, in section 214, modified the act of 1876-77 as follows:

"The summons shall be served in all cases, except as hereinafter provided, by the sheriff or other officer reading the same to the party or parties named as defendants; and such reading shall be a legal and sufficient service."

While the law of this state was in a condition of uncertainty, a question arose in some matter of controversy in this court as to the proper mode of serving process in civil actions; and at the October term, 1882, at Greensboro, the court adopted a rule for the purpose of securing uniformity in the service of process, which required the marshal, in all civil actions, to deliver a copy of the summons to each one of the defendants. This rule was not entered of record in the court at Asheville, but is established by the practice and procedure of the court, and was well understood by the marshal and his deputies. This rule is still in force, as it is not in violation of section 914, Rev. St. U. S., as it includes the state mode of procedure, and more effectually secures personal service on defendants, which was the purpose of the state law. It is not inconsistent with rule 6 of the rules of practice adopted by this court at Charlotte, and is therefore not repealed. Rule 38.

In Indianapolis R. Co. v. Horst, 93 U. S. 291, Mr. Justice SWAYNE, in referring to section 914, Rev. St. U. S., said:

"The conformity is required to be as near as may be,'-not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose. It devolved upon the judges to be affected the duty of construing and deciding, and gave them power to reject, as congress doubtless expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely incumber the administration of the law, or tend to defeat the ends of justice, in their tribunals."

Under section 214 of the Code of the state, the reading of a summons to a defendant is "a legal and sufficient service," in certain cases, but the delivery of a copy of the summons is expressly required in actions against corporations, minors, and persons of unsound mind; and the acceptance of a summons by a defendant is still sufficient service to give jurisdiction to the courts of the state. The mode of service by reading the summons might save the plaintiff in an action the petty costs of a copy of the process; but service by the delivery of a copy to a defendant is more in accordance with the principles of justice, and the usual course and practice of courts of law and equity in hearing and determining the rights of parties, and it more effectually secures to a defendant all the benefits of personal service, as it furnishes him an authentic and definite notice of the commencement of the action, and the nature thereof, and tends to