Congress or the Constitution, except to the extent of certain limitations of power. The District of Columbia is different, because there the body of private rights is created and controlled by Congress and not by a legislature of the District. But for the Territory of Hawaii it is enough to refer to the organic act. Act of April 30, 1900, c. 339, §§ 6, 55; 31 Stat. 141, 142, 150; Coffield v. Hawaii, 13 Hawaii, 478. See further Territory of Wisconsin v. Doty, 1 Pinney, 396, 405; Langford v. King, 1 Montana, 33; Fisk v. Cuthbert, 2 Montana, 593, 598.

However it might be in a different case, when the inability to join all parties and to sell all the land is due to a conveyance by the mortgagor directly or indirectly to the Territory the court is not thereby deprived of ability to proceed.

MR. JUSTICE HARLAN concurs in the result.

Decree affirmed.

THE WINNEBAGO.1

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

Nos. 218, 219. Argued February 28, 1907.-Decided April 8, 1907.

A state law will not be held unconstitutional in a suit coming from a state court at the instance of one whose constitutional rights are not invaded, because as against a class making no complaint it might be held unconstitutional.

Whether a state lien statute, otherwise constitutional, applies to vessels not to be used in the waters of the State; on whose credit the supplies were furnished; whether the lien was properly filed as to time and place; and what the effect thereof is as to bona fide purchasers without notice, are not Federal questions, but the judgment of the state court is final and conclusive on this court.

Whether a state lien statute is unconstitutional as permitting the seizure and sale of a vessel and the distribution of the proceeds in conflict with

1 Docket titles: 218, Iroquois Transportation Company, Claimant of the Steamer "Winnebago," v. De Laney Forge and Iron Company; 219, Same v. Edwards.

the exclusive jurisdiction in admiralty of the Federal courts will not be determined in a suit from the state courts where no holder of a maritime lien is present contesting the unconstitutionality of the statute.

A contract to build a vessel is not a maritime contract enforceable only in admiralty, but the remedy is within the jurisdiction of the state court, and this rule applies to items furnished the vessel after she has been launched, but which are really part of her original construction. 142 Michigan, 84, affirmed.

THESE cases may be considered together. They are writs of error to the judgments of the Supreme Court of Michigan affirming the decrees of the Circuit Court of Wayne County, Michigan, enforcing liens for the De Laney Forge and Iron Company, defendant in error, in 218, and George W. Edwards and others, defendants in error in 219, and intervenors in the original case.

The Winnebago, a steel steamer of 1,091 tons burthen, was built by the Columbia Iron works, at St. Clair, Michigan. The contract price was $95,000; date of contract, March 8, 1902; between the Columbia Iron Works and John J. Boland and Thomas J. Prindeville. It was understood that these persons should organize a corporation to be known as the Iroquois Transportation Company. The contract price was to be paid, $31,000 in cash, from time to time; for the balance the transportation company was to execute its notes to the amount of $16,000, to issue bonds for $48,000, to be secured by mortgage upon its property. On April 5, 1902, Boland and Prindeville assigned the contract to the Iroquois Transportation Company. Payments were made on the contract as follows: $7,500, at date of signing contract; $7,500, April 3, 1902; $4,000, April 14, 1902; $4,000, June 15, 1902; $4,000, July 15, 1902.

An additional $4,000 was paid on October 3, 1902, and two negotiable notes of $4,000 given, maturing respectively November 1, 1903, and November 1, 1904.

The steamer was launched March 21, 1903. After she was in the water the work on the contract continued. On July 18, 1903, she was inspected, measured, enrolled and licensed to

be employed in domestic and foreign trade. This license was issued in the name of the Columbia Iron Works as owner.

On July 19, 1903, the Iroquois Transportation Company received a bill of sale of the steamer and delivered to the Columbia Iron Works ninety-six negotiable bonds of $500 each, secured by mortgage on the steamer, and paid the balance of the purchase money, which was to be paid in cash, then amounting to between $400 and $500.

The agreement recited that possession was given to the Iroquois Transportation Company for the purpose of completing and finishing up those things still remaining undone on the steamer and required to be done by the iron works by the terms of the contract for the construction of the steamer, "it being the sole intent and purpose of this agreement to enable the Iroquois Transportation Company to obtain immediate possession of the steamer, and without intending either to limit the extent of the obligation of said Columbia Iron Works under the original specifications."

The steamer left St. Clair for Lorain, Ohio, July 19, 1903. At that time she was not completed, and workmen remained on her and went with her to St. Clair, where additional work was done upon her. She was afterwards engaged in carrying cargoes between points on Lake Erie and Lake Superior.

On July 30, 1903, the Columbia Iron Works made an assignment for the benefit of creditors. On August 25, 1903, the De Laney Forge and Iron Company served notice on the Iroquois Transportation Company that it made a claim of lien against the steamer for forging and material furnished; and on October 6, 1903, complaint was filed in the Circuit Court of Wayne County, Michigan, and shortly thereafter Edwards and others intervened in the case, claiming a lien. The Iroquois Company gave a bond under the statute for the release of the vessel. Decrees were rendered in favor of the claimants and intervenors in the Circuit Court of Wayne County, and upon appeal they were affirmed in the Supreme Court of Michigan. 142 Michigan, 84.

205 U.S.

Argument for Plaintiff in Error.

Mr. Charles E. Kremer, with whom Mr. William T. Gray was on the brief, for plaintiff in error:

The Winnebago was, at the time of her seizure, not used or intended to be used in navigating the waters and canals of this State. Sauter v. The Sea Witch, 1 California, 162; Tucker v. Sacramento, 1 California, 403; Ray v. Henry Harbeck, 1 California, 451; Haytien Republic, 65 Fed. Rep. 120.

A proceeding under the statutes of Michigan against a vessel which has already been enrolled and licensed under the laws of the United States, and at the time of the seizure was actually engaged in interstate commerce, is unconstitutional and void because in conflict with the Constitution and laws of the United States. The Glide, 167 U. S. 606; Johnson v. Elevator Company, 119 U. S. 397; White's Bank v. Smith, 7 Wall. 646; The Menominee, 36 Fed. Rep. 197; Perry v. Haynes, 191 U. S. 17; The Edith, Fed. Case 4283; S. C., 11 Blatchf. 451; The Edith, 94 U. S. 519; Moir v. The Dubuque, Fed. Case 9696; The Roanoke, 189 U. S. 185.

The Winnebago, engaged in interstate commerce, was not subject to seizure while passing from port to port through the waters within the jurisdiction of the courts of the State of Michigan. Mich. C. R. Co. v. Chicago M. L. S. Co., 1 Ill. App. 339; Wall v. Norfolk & W. R. Co., 52 W. Va. 485; Connery v. Quincy O. & K. C. R. Co., 99 N. W. Rep. 365.

The contract to build a ship is a maritime contract and therefore there is a lien for material and labor furnished which can be enforced in a court of admiralty, there being a lien under the state law. People's Ferry Co. v. Beers, 20 How. 383; Roach v. Chapman, 22 How. 129; J. E. Rumbell, 148 U. S. 1; Davis v. New Brig, Fed. Cas. 3643; Read v. Hull of a New Brig, Fed. Cas. 11,609; The Calisto, Fed. Cas. 2316; The Hull of a New Ship, Fed. Cas. 6859; Van Pelt v. The Ohio, Fed. Cas. 16,870; The Abbie Whitman, Fed. Cas. 15; Sewall v. The Hull of a New Ship, Fed. Cas. 12,682; Purington v. The Hull of a New Ship, Fed. Cas. 11,478; The Richard Busteed, Fed. Cas. 11,764; Drew v. The Hull of a New Ship, Fed. Cas. 4078; The

Argument for Defendant in Error.

205 U.S.

Chas. Mears, Fed. Cas. 10,766; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 378; Benedict's Admiralty, 2d ed., § 264; De Lovio v. Boit, 2 Gall. 475; Insurance Co. v. Dunham, 11 Wall. 10; 2 Parsons on Ship. and Adm. 327; Dupont De Nemours v. Vance, 19 How. 162; The Grape Shot, 9 Wall. 129; The Guy, 9 Wall. 758; The Lulu, 10 Wall. 192; The General Custer, 10 Wall. 204; The Patapsco, 13 Wall. 329; The Robert Parsons, 191 U. S. 17; The Blackheath, 195 U. S. 361; The Magnolia, 20 How. 296, 307.

Mr. Herbert K. Oakes, with whom Mr. John C. Shaw, Mr. Charles B. Warren, Mr. William B. Cady, Mr. Joseph G. Hamblen, Jr., and Mr. Hugh Shepherd were on the brief, for defendant in error:

The proceeding here does not trench upon the exclusive jurisdiction of the Federal courts in admiralty cases. The Glide, 167 U. S. 606 and Perry v. Haynes (The Robert W. Parsons), 191 U. S. 17, distinguished.

Even if the Michigan statute is unconstitutional in some respects, it is constitutional and valid, insofar as it relates to the claims in controversy here, and the part being dealt with in this controversy is not so related in substance, and the provisions are not so interdependent that one cannot operate without the other. Under such circumstances, the part that is constitutional will, under all the authorities, stand. 6 Am. & Eng. Ency. of Law, 2d ed., p. 1088, and cases cited; Keokuk Co. v. Keokuk, 95 U. S. 80; Unity v. Burrage, 103 U. S. 447-459.

So long as the materials furnished were to be used as part of the original construction of the ship, the admiralty will not take cognizance of them. The Iosco, Bro. Adm. 495; S. C., Fed. Cas. 7060; The Victorian, 24 Oregon, 121, 132–135.

Even if there had been seizure in this case, and if it were shown that the Winnebago was engaged in interstate commerce at the time appearance was asked or service accepted, the whole trend of judicial authority, as evidenced by the references