covery froIJl any vessel. landing.sta \ffiarf owned by an lndividu.al or by "amuriicipal orothei-"h'orporationajust compensation for the use of such property. It is a doctrine too well settled, and.a. eracticetoo common and too essential toithe interests of commerce and navigation to admit of a doubt, that for the use of such structures, erected by individual enterprise, and recognized everywhere as property, a reasonable' compensa·tionoon be eXBcted.!X Packet eo.;iv.Keokuk, 95 U. S. 80, 85; Gannon v. New Oi-Zeam, 20,Wall.577; Racket eo. v. Aileen·, 16 Fed. Rep. 895. The !ltatutes ,ofFlorida authorize railroad companies to build and main,tain wharves as incidental to their business, and for the use and oonveniehceof passengers and freighttrarisportedover!their roads. If the defendant hasbliiJt and maintained a,wharf at Palatka or any other point 'on the ,St.; ,John's river, and such:wharf is eitherlli.private or public wharf),:has a to use it without the payment of ,8, neasonablecompensation ,therefor,without the consent ·of the defend'imt?" Ithinknot..At'least I am notl'l30 convinced that the charge of 'lwharfage by the defendant is such'as ,to,authorize me'to grantthe extttafor by the comphtinant. This is ·ordinary process ofinjunction my view of the case on the allegations of the bill{and when they are :considelled in connection, with the affidavit filed on. behalf of the defendant,: which states that the defelldaIit does not colleot such. wharfage aoywhere excaptat PalatIa}, .and not there for its owliuse and benefit, but as agent for the owner ofthe.wharf who'resides·in New York,,it seems clear to me that I should not grant the injunction. Now, .if the wharfage charged is extortionate it is for the state so to regulate it as to prevent·exwFtion. P,wrlcet:Oo.v. Aiken.,8l1JPTa. 'l:he application lOran injuqction is denied. ·,;, "1..."
nINI1sKOPF' £
, : t:
(CIrcuit
co'f.lfft, D. Indiana. November 92, 1889.) " i
;L . $
1;1nlj.er LmUan,a a mortgage I1f stock pf Inerchandis!!lls valid, where the mortgagor is allowed to remain hI POSSeSSiOn and sell in the ordinary course of business,.appJ,ying.the proceeds of sales t<l!t}te'paym!!lntof the debtS seoured.' CUDl10RIl.', ,', .: "... ..' :
P088ESuW."
.
·
'ltoI'8,":"aodepted by tlhe mot'tgligee with a knowledge of suoh fraudulent intent, he 1 i · ; . W'rticipating. v,qiii "'s oreditors. '. . , .",. , .' . . , , ", A proVision, In a'chattel'mortgage, 'Irlving the mortgagee possession it the prop( 1 arty is assigned, .is enforcea'6I.e. ' ,. J' " ,j,'
.' ' A mortgage exeouted WIth "the .fraudulent intent to oheat, hinder, or lj.elay ored-
," ' ./ Action to replevin a stock of merchal1Qise, ,under the prQyijlious of a ,chf!.ttel mortgage. , , . . ., ,,; MorriJI,· Otf,rtis, for. . . Afa.rk E·. $Qrkrwr, J·. ()" ,l1arnard, for defendants.
WpobSi J.,(cliarging jUry.), The essetitial questiortindisputehere,: gentlemen of the jury, is whether 'or'not' the mortgage made by Vaughan on the 6th day of July to plaintiffs iaa"vltlid mortgage. Its validity is questioned on the Jtlleged ground that it was made with intent to cheat; hinder, and delay the of Vaughan. The statute of Indiana provides---quoting it as nearly as I can from recollection-that any veyance or disposition of property made with the fraudulent intent to cheat, hinder, or delay creditors shall be void. It seems-and in rel ferring to the facts I shall, at present at .least, only refer to such as are undisputed-that, prior to the date of this mortgage, Mr. Vaughan had been in business at New Castle, in this state, as a retail merchant; that he had become laTgely indebted,his liabilities equaling 01' exceeding his assets, so that it may well be said that he was insolvent. Hewas Indebted to these plaintiffs in the sum of $7,200, or thereabout. ,On the day stated, (July 6th,) he made this Inortgage to secure that indebt-' edness, evidenced by neW notes' given upon that day, due at different times,-at stated periods duting five or six months from date.' ' In ad"" dition to the 87,200 of indebtedness existing at the time, about whicb there seems to be no question, $800 was advanced on that day by,plliin': tiffs to Vaughad,for the purpose of paying 'a debt that he specially desired to pay, and for the payment of· which he used that money im'; mediately; and that amount was secured ,by the mortgage, as weU as by additional aollaterals; On the same day, Mr. Vaughan disposed of other assets, by way ofsecul'ing other creditors,-that is,' on' the same'dny' and the following dlly, or in the early hours of the Mondlly following, the mortgage having been made on Saturday; and about 7' o'clock'Oll Monday evening an assignment under the state statute was made by Mr: Vaughan for the benefit of all creditofs;-Mr. Thompson, the defendant in this case, being the assignee 'named ,in that inStrument. The execution of this assignment, by reason of the terms of the mortgage,· created aright on the part of the mortgagees, if the mortgage is upheld as valid; to claim possession of the goods at once. It is provided in the mortgage that the mortgagor shall retain possession of the goods, selling them in the ordinary courSe of business, accounting for the proceeds from week to week to the plaintiffs,-tho mortgageesjand another clau8eofthe mortgage shows that the phrase "to account"-or whatever the exact phrase in that connection is-means "to pay' over the proceeds." 'fhe phrase "to account" might be ambiguous; but a subsequent expression in .the mortgage shows' that the parties meant that the proceeds of the goods should be paid ovei'. After the execution of the assignment to Mr. Thompson, plaintiffs had some negotiations with theassignee,lmd t these negotiations failing, they claimed possession of the goods; and f possession being refused,theybl'Ought this suit, anil, by virtue of the writ in the case, obtained possession of the goods, giving the bond ra-' quired by the law. Tbeythen advemsedthe goods for sale; made a sa:le, the regularity of which is not questioned, so far as the forms' of procedure,the noti<le, and so forth, arecoucerned. The'Mla was made' at public auction, the plaintiffs themselves, 'in effect, becoming the 'pur;.
896
FEDERAL REPORTER,
vol. 40.
becanse it is not to be disgnised, and, indeed, is not disputed by the plaintiffs' attorneys, that Mr. Bliss, who purchased at the sale, bought for them. There is nothing illegal in that. They had a right to have the goods bid in by a third person for their benefit, if they saw fit to do so. They are now in court before you, and the question is whether this mortgage is valid or not. If the mortgage was valid, they acquired a perfect title to the goods, and your verdict should be in their favor. If the mortgage was fraudulent,-that is, if it was made by Mr. Vaughan with the intent to cheat or fraudulently hinder or delay his creditors, and the plaintiffsaqcepted it with a knowledge of the fraud, participating in the intent,-the mortgage is void, and your verdict should be for the defendant. The exaGt issue, therefore, is whether the mortgage was made with a fraudulent intent on the part of Mr. Vaughan to cheat, der.o).' delay his creditors, and accepted by the plaintiffs with the knowledge of that design and with intent to promote its accomplishment. Now, issue has, by reason. of the development of the testimony before you, of the testimony and in been confused a little-both il1 the theargument--with other questions, which are not really in issue. There is testimony tending to, show, and it was argued before you, that the plaintiffs deceived Mr. Vaughan, in order to get him to execute the mortgage, by promising to sell him goods; holding out inducements to hl111; and thereby fraudulently obtained the mortgage. That is not the fraud in issue ,here. If tl;ley did by deceitful promises raise tions·in the .mind of Mr. Vaughan, and thereby procured his consent to execute the, mortgage, the frlJ,ud is immaterial, unless there was such an (lgl'eenWllt Or understanding produced in Mr. Vaughan's mind as tended to;the injury of creditors. Any secret understanding, any agreement or "nderstanding between Vaughan and the plaintiffs for Vaughan's benefit whioh tended to the injury of the creditors, would constitute the fraud chargedibut the mere procuring of Vaughan by deceitful ises him goods, or to keeP him on his feet or to keep him going by selling him goods, to execute the mortgage,would not be such a up-ud as would support this issue. ,"further, it has been argued that the plaintiffs promised Mr. Vaughan ,tpey would sell him goods, and that that promise entered into the !ilQ!j1lilideration of the mortgage, and that theplaintifls, having broken this 0011tract, are not entitled to enforce the mortgage. I instruct you that that is entirely immaterial, Such promises would not constitute a bind.. iplJ cQntract, if they were made; but, ,whether that would be so or not, whether they Qlight.have been so made as to oonstitute an element of tb,&coDsideration of the mortgage, and a binding covenant on the part oftbeplaintiffs·to furnish goods, that is not a matter that tends to es" taP)isha purpose to delraud creditors;< and such breach of contract is n9.t the fraud charged. ,; QQlAing, thep, to the question whether the mortgage wasmada with YQU will observe that it is not a question whether the. mQrtgage would d()layother creditors,'1""""that is,not the sale question, -:but,.the it was made with a fraudulent intent to
BINDSKOPF f1. VAUGHAN.
397
delay. Of course, as has been stated in argument, the mere placing of a mortgage upon a stock of goods, the debtor having no other assets, necessarily hinders the collection of other debts; and the rule of evidence is well known, that men are presumed to intend the natural and necessary consequences of their acts. But if, from the mere fact that hindrance and delay necessarily result from the execution of such a mortgage, it should be taken to be a fraudulent hindrance, then, of course, every chattel mortgage executed by one situated as Mr. Vaughan was-not having other property with which to pay his debts-would necessarily be fraudulent. Eut it is lawful for an embarrassed debtor to prefer one creditor over another. He has a right to pay one, and let another go unpaid. He has a right to secure one, and leave another unsecured; and such delay and hindrance as necessarily arise from such a preference of one creditor over another is not a fraudulent hindrance, in the sense of the law. And, if the parties intended no delay, no hindrance, to creditors, more than necessarily arose from the execution of the Illortgage on the goods, then it.was not such a fraudulent intent, within the statute, as to make the mortgage void. But iUhe parties intended, beyond securing the plaintiffs' debt or demand, .th4t the mortgage should be used as a qevice or means for baffling creditors; the intention·. was fraudulent, and the mortgllge invalid. In thefaeeofthe mortgage, there is nothing which the court can say is unlawful. It is given to secure notes that are made to become due within a short time. The mortgagor is allowed to remain in possession of the goods;:but he is required to and pay over the proceeds, less"the expenses of the keep strict business, to the creditor. And, if the parties intended no more than results from the terms of the instrument, and the delays and troubles to other creditors that would result from a fair enforcement of it according to its terms, the court cannot say to you that there was anything fraUdulent in it. But I repeat that, if it was meant to be used aea device for accomplishing more than that, it was fraudulent. Npw, how has it been suggested, or how does the evidence show, if at all, that there was any purpose to use the mortgage otherwise than as a security for the inthatthere debtednesswhichit purports to secure? The suggestion is is no specific description of thegoodsin the mortgage; simply described as goods in a certain store-room, on premises dllseribed; and it is suggested that, if the business went on, necessarily other goods must have been brought into the establishment, and when other creditors should haveeoII\e to seek their rights Jihey would have been unable to determine what was covered by the mortgage and what was not covered; that this was necessarily the intention ofthe parties, and that it was a fraudulent intention. If the parties did intend that,-did intend by this general def$cription of the goods to hold it over the stock, and to bring in other goods and thf:lreby deprive other creditors of the fair, opportunity to reach goods not really covered by the mortgage,-it was a fraudulent intention. Do you necessarily infer that that was the intention of the parties, from the terms of the mortgage? As a matteroflaw, you cannot do so. It is a question offact for you, under aU the circumstanctlS
FE1)ERAL'REPORTER,
"and'proof,to determine whether there was 'any' fraudulent intent. ' It is ,nianifest'that the mortgage might. have ,been used in the way suggested; 'bn,tit.is not an uncommon thing; I think. to desctibestocks of goods in that way, and to leave the mortgall;or in possession with theprivilege of going 'on, selling the goods, and accounting for the proceeds. Whether or not it was intended to be used iii that way would depend largely on the subsequent conduct of the parties, ,'Of course. it would have been easy to confuse the goods, arid it would be easy to prevent confusion. It could have been' prevented by taking an inventory of the goods on hand, or by keepingia careful inventory of the Dew goods brought in; so marking 1hemthat they could be distinguished from the goods that were there at :tbe time the mortgage was made. You have no right to infer a fraudulent intent without proof; and the rule is that fraud is not to be presumed upon slight circumstances. You are not to surmise fraud, or prellume it without proof, either direct or circumstantial, of so convincing a degree as to produce a firm conviction in your minds of the fact that it existed. It is not required that it shall be proved beyond areasonabledoubtj but it must be proved clearly and Mtisfactorily. Then, 1 AAy,whether the parties meant to use the mortgage to 'cover up new goods that should be brough[ into the establishment is a question of fact for you. The mortgage itself furnishes no proof of such intent, because it is perfectly evident that by honest conduct under the mortgage DO such result would necessarily follow; and it -is to be observedthllt"as a matter of fact, business was not continued under the mortgage at: all. But, of course, if, ,when the mortgage .was made, they intended to do that, and . the intention to· make an· assignment was formed afterwards;. the making of the assignment would not nffect the purpollewith which the mortgage was made. The argument of counsel-the last counsel who presented the case for thedefense-'-is that thore was a. sudden change of intention, and that both intentions were irauduleni,-the originl11 intention being to improperly use thernortgage· in the way of cat1'Ying on thebusinessj the second purpose, as claimed by counsel. baing that the plaintiffs should ostensibly and formally foreclose the mortl!;age, advertise and sell the goods, buy them in themselves,ahd then turn them over to Mr. Vaughan, and he become ';'hdebted to them again, ..... practically reinstating· the original StatU8. Ofcourse, if this had been the originaVintention 'when the mortgage was made, it would. have been fraudulent; certainly, if the goods were 'worth more than the rtlortgage, aDd probably so e\'en if the were "'Qrth only the amount :ofthe debt. ;'.And upon this phase of fhe case the value of the goods cuts a co11si'derable figure; because if the mortgage debt was equal to the value of the goods, 011Ce they were mortgaged IUld'pledged for that debt, it would be Immaterial to creditors what Was don;e,with themafterwarc}s,because there would:be nothing in them for creditors, no matter hoW' the· mortgage was handled. But if there Wt\ll a: probable valuable margin :in· the' godds,· over'atidabovethe mortgage debt,and the 'objeotwasj'through the mortgage, to transfer: the title Mr. back,either:dirootlyto Mr.
;,'
fEX PARTE KIEFFER.
,399
'Vaughan
he that margin, Pf.'¢9Qtse that would have ,afraudr It would have heena fraudulent use of the mortgage, and,if-thathad'been the intention when the mortgage was made, of course it would invalidate the mortgage; and, ifit was substituted for a prior fraudulent intent, the mortgage is none the less invalid on accountofthe ohangeof'purpose. Then this question of fraud, gentlemen, as I think, lies ,right here: Did Mr. Vaughan and these plaintiffs intend originally to use the mortgage to ,cover 'l1 p goods and keep oreditors, off, delaying them more, than the D;lere fact oUbemortgage, as 8onhon8st security, wou.ld do? It is not claimed ,that was any purpose to finally cheat;. but it i/ilinsisted that was a pu:r;pose to improperly and unnecessarily delay other creditors. If .that WalJW, tbe invalid. If,there was no such fraudulent intent, then the mortgage is not invalid, and your verdict "., ' , 1 AnQther,qu,estion"'"':'7:1 have indicated its importanQe as bearing ,UPOA ,tpe question .,of the value of. the you must ,state jnjiyour Yerdict, j£ You :find for the defend,ant. ;. I believe it is ,not W be stated, if Your verdict be for Thevalue'of ;tbe'goods is whatthey wOllld fairly sell for in the.conditjon they were in, taking of the market as' it was. YO\11 havehenrd allthe testi·DilonY,bearing on that ,subject, and will, detennine for you.rselves wl;lat f Of course, proof of whllt was made by the sale ,of the !lot retail,tbough, it may aid YO\1 in determining what the ..wholeaalevalue was, does not ,()f itself determine thatvalp43. In other worqs, tlwretail proceeds are not, of course"t9 .be treated f!8 the value, ,althol,lgh furnish you'matel'ial assistimce what the value was.,! lshaUnot review the evidence. The, qUl:lSat have be..,n fully and ably by counsel. on both :with the knowledge,pf affairs which you doubtless, have, you the force of th,e evidence upontbEl ,points in 11J . . ,j
or into the haJlds ,oh third person, for his benefit, so
1'4' parte. ·KIEFFER. : . 619. and 620 of the city of Topeka, In reg8.rd. to' meatlnspectloli, providing' tha.t the 'animal' must be Inspected before' tIlaultht'erln!'; and must· be . one'mlle city llmltB, etcect ofll'hlchls to exclude drellsed meat brought from a distance. Me unconstitutional, as interfering .with , between the states.l ',! !: ., ·1I.BA'B1IA11' 0)" COURT. '!; : " '.' . ·. ohppeal beiJ!g;. an illadllquate protection, l:l:y 1'!la,sqn:\>( I,ts delll,Y"t!) me , and the nolatlOn such ordlnancer' .i
. (tJtr.euit 1. OO:NSrjllJ;'tl;rI\'ll;\fAL ,'.:'
Coim. D. KfJnItJ3.November'28; 1.889:)'
LAW.,-INTERS'rATE COl(MEBCE-'-MF1AT INSPECTION.!
aB to ,the'constl.t'iZtionality
i ,:;!';rt
llUlat\ inspection:lalV.Me .!;L
'400
FEDERAL RlllPORTER,
and as their enforcement would stop the traffic in dressed meat with citizens of other states, the federal court, in the exerci.seof its discretion·.may properly hold that 8uch person has a right to a habeas corpus in order to a speedy determmation ot the oODstitutionality of such ordlnanoes. .
,Petition for Writ of Habeas 00ry;u8. Goo. W. McCrary and Herald <fe. Pierce, for petitioner. Hazen <fe lBen.hart, for the City CifTopeka.
J. In the Kieffer, the factearethese: ThepetitiCitlerwas' prosecuted in the police court of this city for violating the wasfound guilty, and sentenced. He meat inspection ordiliances.·· sues out this writ Of habeas coryus, claiming that these are in conflict with the donstitutioh·of theUiiited 'States, and therefore his iniprisonment illegaL' " ,:; At the outset we are met by this question: Is this a casein which the writ of. habeas cor,pi£8 be :allowed, even though these'ordinances ibe The cases· of Exparte RoyaU;1l7U.S. 241,6,8up. Ct.:Rep: 784, and Ex parte Fondd,117 U.S. 516,6 Ct. Rep. 848. affirnt that there 'is a disoretion'in the federal courts in the matter of haMat! corpus, both' before and after trial 'and judgInentih the state court; iti cases in which the act under which the prosecution is had is challenged as in conflict with the "The court, in one both-of'these opinions declares that it is not to be assumed that the state courts will hot administer the law correctly, and accord tl> the 'party all the rights guarantied to him by the federal constitution. Therefol'e it is often the proper way to decline to allow the writ, leaving the party to enforce his right'; int'he state courts. So it is argued that, if it be -true that these ordinances are in conflict with 'the federal constitiltion,' petitioner has his remedy, He cali appeal his case from thepalicetei-thedistrictcourt; frornthereto the supreme cOllrtof the state; and 6upreme 'coi.Irt of the United States. While that is true, )'et he has no relief in that way. He is now under sentence, and he cannot appealwithout bond. He will be subjected to trial in the district court, possihlyto iiliinquiry in the supreme court of the state, and finally in the supreme court of the United States. He must bear the expense, and suffer ths"c4Jlay. This is not a case prior to trial and judgment. . It is a case after trial alid after judgment. He has exap.,djt,has, him. While perimented he has, of course, the right of appeal, yet this is a burden, and personto sat: "You ally, t9,.h.f ll1 , it is and go through that channel to th!3suprerne. court pf,the United States. ,t But tl.l'fit is not the only consideration. Ifthee6 ordinances are valid; they are invalid because oCiui attempt to with commerce, and prevent the free exchange of, commodities between the citizens ofanthose of-iliia city.. stand the expense of litigation running through that chaimel to the supreme cotirt. Lehgth .of time would. pass before the judgment .of that· court CQuid be obtained. In the mean time, if these ordinances are enforced,-notonly against. ,BREWER,
He
, EX PARTE KIEFtEB.
401
this petitioner, but against whoever may see fit to 'engage in this businessi-there is an interference with the exchange of commodities between the citizens of other states and those of this city; and the result will be to stop such traffic. Now, when that would be the natural result, when that is declared to be the intended purpose of this legislation, this court may, in the exercise of its discretion, properly hold, afrer a case has passed to judgment in the state court, that the party has a right to a speedy inquiry and determination in the federal court as to whether such ordinances are inconflict with the constitution of the United States. The public, as well as the individual, are interested in a speedy settlement of this matter. There are two ordinances, Nos. 619 and 620, hy which inspection i& provided. That a municipality has power to provide for the inspection of articles of food is not open to question; and, if the sole purpose and these ordinances was inspection, there would be no federal question.i;But the court is not limited to any section, or even to any particularordinance; for, if there be two ordinances, or two statutes, passed at the; same or different times, bearing upon the' same subject-matter, they are, to be construed as but one act. And the court may even look beyond the letter of the statute, to the purpose which lies behind as in the ordinances passed in San Francisco, which provided for shaving the heads of all city prisoners. This was apparently a mere ordinance for the health and cleanliness of the prisoners; but the court, looking at it, saw that it was aimed at the Ghinese, and intended to humiliate them by shaving off that which to them is sacred, and declnred the ordinance void. So in the Mugler Case, 8 Sup. Ct. Rep. 273, that went up from this state; where the prohibitory law was sought to be declared unconstitutional, the proposition was submitted to the court in argument, that possibly, under the guise of police"regulation, interference ll),ightbe ,had with legitimate business, or the exchange of legitimate commodities; and the court said: ' DOt. limited to the letter of the statute. We can look beyond that. , ' .. and see what is the spirit and meaning of the law, and dt'termine whether, under,theg'uise of pOlice regulation, rights guara.ntied by the federal constitution a.re infringed." ', , _ And 80 here. When you look at this statute, it is not inspection solely. The animal must be inspected before slaughtAring, as well as and the slaughtering must be within one the meat after mile of the city,lihlits. In other words, if that ordinance be in force, no meat can Le brought here from a distance. The animal must be brought here to be slaughtered, and must be slaughtered here. This putS an end' for this city to what has become a recognized industry in this country,.....theshipping of dressed beef; and it is not open to doubt that one of the objects of these ordinances is to protect the local butchering business, and prevent competition from those large establishments in other states,-and thus it is an interference with the free commerce between the states, and of course, in conflict with the commerce clause of the-federal constitution. I shall not attempt to enter into a discussion ...40F.no.8-26
I'EDERALREl'OltTER,
-oHllait' quesHon;' Itthas"been before two or three federal courts; and. two or three state courts, and the same prinCiple has been enunciated ·in the supreme court of the United States in several cases; and, there·is :really to be said. Themomimt you find any act of!theJegislature, or any ordinance of a city, 'which prevents the free exchange of lawful articles of-commerce between the states, you find an act or ordinance which contravenes the cornmerceclause of the United' States constitiltion. It was urged that a partof these ordinances might stand,that part which simply provided'forinspection. Of course, iUs true, sometitnes, that a part of a statute may be void, imd another part valid; but when they are interlocked, so that one depends upon the other, there cCanbe no SepSirntiOn. Both musUsll. It, may be that in many cases thErinspection OHMd would be desirable,'and the food would be refused because it wasunwholeaome; buHtis. alSo clear, under these ordinances I that it cannot be approved,if1 itwasshliughtered more than a mile from ·thiljl city. It is a matter in which, this case, at least, the court canhot take the ordinance to pieces, and'saythereare,certain sections which shall stand. Theditrerent partsofthe ordinance or ordinances are in,. terlocked, and are .dependentone·u.pon the other; I have no, question but that they arain violatioDdf'the rights guarantied by the federal constitutioq, and especially its comrilerceclause. The petitioner will be discharged. ..j I; " !,.
,'
;
(ctrcUu Court, Jl). D. · · . ,_
,-,
"""
..' . .
November '. 1889.) . . · ",.. .1
·<:lObTITOTtONJ.LLAw-LBGISU'rIVB POWBltS-PaOTBCTING IM1'ROVEMBNT!I ON MIBSIBoBIPPI.
Aot C011g. AU':' 11, 113138, § 5,(25 St.. tbe seoretary of war to m.ake "lIucll 1'11168 Ibid regUlations aamay 1Hi necessary to' proteot improvenients on tbe MiSSiBBiPPi1aiui. providing tbatant.,'viOla.tion of SUOh. rules Sh.all eon stitute. amisde. , meanOr, etc., is, not invalid as conter.ring 1I3gislative authoriT\l", on the secretary, as he is only authoriZed to make tbe ruleS, and It is the aot of ooniI'ess. WhiCh c1eo1are. the violation to be a misdemeanor. . .. ' . '
:'
" C/w.s;Par14nge, ,Dist. Atty.
; ,
andE. W. Huntington, for defendant. Justice, and P ARD;JilE, J.
Justice. The question now .lor deciSIon arises upon defend. ant's ,demurrer to the indictment.against him, which,in-substance, al:leges that, under the 'provisions' of. section 5 of the act of congress, ap;proved Augua111,1888, (25 St. 424,) the secretary of war' was author. jzed to make such rules and regulations as might be necessary to protect the im.provements then being made on:the South pass of the Mississippi .river, and to,preventaay obstructions in said pass or injury to the work