designed tbtanexpress·purpose. The phrase 'c dabinets or' coins" imports a distinct idea; so does the phrase "collections of The latter impGrtsa of articles where both the antiqueness of the individual articles andthecircl.lffistance that theyiue assembled together intQa oollectionunite to ma.ke'them attractive or or valuable or otherwise desirable. We can [easily understa.nd why congress might re. strict the free-list to such cabinets and to suchc611eetioils. There is ho partiorill!-l'! reason why a wealthy individual here who wishesta buy a single pair: of. lace curtains,()f remote antiquity, to hang in his front Parlor; should be allowed to irilport them free; but there might be very good rells6nswhy any one who imported articles that had been brought together to illustrate an art,oran era, or anything ,else, the assemblage of which into a collection made them of value educationally or otherwise, might be allowed'to import them free, even though he imported A colleotion of that kind, if judiciously made', might be more readily salable as a collection than the individual components out of which His made. At any rate, whatever may have operated on the mind'of congress, onvhatever may have been their intention, they do in faot use the words "collection of antiquities." I do hot see thatl can hold that that phraseoorrectly describes two rugs, or that it covers, as is claimed in this other case,half a dozen bed-spreads and two lace curtains. Neither of these importations is a collection: gotten together for any partioularpurpose.' The articles in each entry are grouped together by the mere accident of enumeration upon the same invoice.. I am aware that'in reaching this conclusion 1 am not in accord with J udga BLODGE'l"r, of the circuit court of the northern district of Illinois, who seems to bye held that a>single picture painted by Raphael, or said'to have been painted by Raphael,was entitled to pasg free, as "an antiq. uity."u. S. v. One Oil Painting, 31 Fed. Rep. 881. The point raised here;however, does not seem to have been brought to his uttention. I fail see how a single antique article, or a mere chance aggregation ·of two or more antique articles, can fairly be held to be a "collection of antiquities," and for these reasons direct a verdict for the defendant.
UNITED STATES tI. TERRY.
(Dtstrf.ct Oourt, N. D. Oatifornia. March 24, 1890.) OBSTRUCTIl'l'G .JUSTICE-ExECUTION 011' ORAL ORDER.
Under Rev. St. U. s. S which makes it a criminal offense to resist the tion of "any mesne process or warrant orll.ny rule or order of any court of the United States " r.esisting a marshal in:his. execution of an oral Order.ofthecourt to i'e.mov.e .. fro:m h court-room a persoll who has disturbed the proceedlngs of the court is Ine dictable.
AtIAw. JQhn T. (Jareg, U.S. Atty., and Davi8 LouderbacTc j Special Asst. U. S. Atty. ::
Fll;DERAL ImpORTER,
vol. 41.
Patrick Reddy, W. W. Foote, and N. C. Coldwell, for defendant. Ross, J. The defendant, by the indictment in this case, is charged with resisting the United States marshal for this district in the execution of an order made by United States circuit, court, in open court, and in the presence of the defendant and of the marshal, directing that officer to remove the from the court-room by reason o[.her gross misbehavior therein, consisting of loud, boisterous, and insulting language by her addressed to the qircuit justice, then presiding in said court,and then engaged in the deterrninationof a then pending therein. In his opening !!tatement to the jury, the district attorney stated, what is the undoubted fact"tbat at the time of the alleged execution of the order, and of its alleged resistance by the defendant, it had not been put in writing, nor had, there been any entry of H in the minutes' of the court. Being an oral order, it is urged for the defendant that it is not embraced by section 5398 of the Revised: Statutes of the United States, upon which the indictment is founded; and therefore that, upon the statement of the district attorney, there can be no conviction under ,the indictment, and the court. should therefore now direct a verdict of not guilty. It is not denied by defendants'counsel that the alleged conduct of the defendant constituted a contempt oOhe court for whioh she could have been, and in fact was,' punished, and that the order for her removal from the valid order, which, the marshal wasbojlodto execute; but their clllimis that the section of the statute upon which the indictment is hased, does ,not make theresistanoe of any oral, order a crime. Xhe .follows: "Every per.8011;who knowingly anlt willfully obstructs, resists, or opposes any officer 'Of. States, in, serving, Qr attempting to ,serve or execute, any or warrant. or any ot,anycoqrtofthe United States, or any othe(legal or jUdiciaLwdt,or beats, or wOllnos. any ,officer or other person dUly authorized .or executing any writ,x:ule; order;·process. or warrant, shall imprisoned not more than twelve mOl1tbs, and fined not more than three hundred dollars." ,'",,_, L . ' , .. :' , .
The is not a one. It was originally April 30, 1790, (section 22, 1 St. at Large, 117,) and was in existence many years before there was any statute defining coritempts. It meant precisely the same thing, when carried into the Revised Statutes, that it meant when enacted in 1790. The first statute defining "contempts" was that of March 2, 1831, (4 U. S. St. at Large, 487 ,)which was, a restriction upon the power of !tlie courts to punish such offenses, and which provided "that the power of the several courts ofthe United States to issue attachments, and punishments for court, shall not be construed to extend to any cases except the misbehavior ofany personor persons' it!.i' the presence oithe said courts, or so near thereto 'as to obstruct the administration ofjustice, the misbehavior pf any of the officers of the said courts in their official transactions, and the disobedience or officer of the saia'courts, party, juror, witness, or any other person 'or persons, to any lawful writ, process, order, rule,
UNITED STATES fl. TERRY.
i73
cree, or command of the said courts." By the second section of the act of 1831 it was provided "that if any person or persons shall, corruptly', or by threats or force, endeavor to influence, intimidate, or impede any juror, witness. or officer in any court of the United States, in the discharge 'of his duty, or shall, corruptly, or by threats or force, obstruct or impede, or endeavor to obstruct or impede, the due administration of justice therein, every person or persons so offending shall be liable to prosecution therefor, by.indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonmentnotexceeding three months, or both, according to the nature and aggravation of the offense;" thus making the acts therein definedii crime. The ·first section of the act of 1831 was carried into the Revised Statutes aesection 725, and its second section was therein substantially embodied as section 5399. There are many acts that constitute a contempt of court, and also a crime, under the statute defining crimes. Two cases that recently arose at Los Angeles furnish very good examples,-Ex pa1ie Ouddyand Ex parte Savin, both of which are reported in 131 U. S. 280, 267, 9 Sup. Ct. Rep. 703, 699. In Cuddy's Case, for an attempt to tamper with a juror, he was cited to show cause why he should not be adjudged guilty of a contempt of court, and upon a hearing of the matter was adjudged guilty of contempt, and sentenced to imprisonment for SIX months. For precisely the same act he was subsequently indicted by the grand jury under that provision of the statute making it a crime to attempt .to tamper with a juror, was tried upon the indictment, and convicted and punished. Irr Savin's Chse, for an attempt to intimidate and then to bribe a witness, he was cited to show cause why he should not be adjudged guilty of contempt, and, upon a hearing of the matter,was adjudged guilty of contempt, and sentenced to imprisonment for one year. For precisely the same act he was subsequently indicted by the grand jury Undel" that provision of the statute making it a crime to at,.. tempt to intimidate or bribe a witness, and is yet to be tried upon the indictment. Wherever the statute makes an act that constitutes a contempt also a crime, the fact that the party has been adjudged guilty of contempt,and punished therefor, is no bar to a prosecution under the criminal statute, and is to be considered only in so far us it is just and proper to consider it in imposing punishment for the crime, in the event ofa conviction thereof. The sole question. therefore, now for decision, is whether the word "order," found in section 5398 of the Revised Statutes, and originally in the act of 1790, is to be limited to a written order. Undoubtedly, in judicial proceedings, an "order," as guished from a "judgment," is often defined as one reduced to ing, and entered in the records of the court; and such is the purport of many of the cases referred to by counsel for the defendant. But that is by no means saying that such only is an order. There must, in the nature of things, be an order of a court made before it iS,or can be,' written ()ut in the records of the court by the clerk. When written out, the writing becomes a record of the order, and is evidence of it. Orders are almost daily given to the marshal concerning matters to be per-
FJroIER:t\LrREPORTER,
.formed ' preSenoe ofthe court, :.and they are as oonstantly executed before, being: ,written out. 'fudeed" 'many of them.&Te·,qever redlicedto wl'itinga.taH. Yet there can be-:no doubt of their- \lalidity. Now:. the langU$gQ pfthestat.ute in question:iflrbroad enoughto.dnclude alLvalid oralonders.·,. The natural, otdinarY,meaning of the word includes written, fUl,weUa.S.tmwdtten,orders,·a:ndthere is no,reas0n)in the policy of thelli.W, ot iU!the patureof thingsi,J0lJ. excluding .. Indeed, l.he 'Co.utrl.U'Y' ,is true. iii ,just: as much re8ison' a.nd necessity for making, it. an offense· to.,rollistH'the;6±ecution .of a1awful unwritten order, brought'diatinctly and to the notice of the offending party, ,pij for 'making it aD ;:offense to resist theexooution of one in writing. Take the case' where adef'endant is allegedtQ 'have disturbed the oOhe court by .Joooand imnilting la.nguage addressed to the presi<iingjustice. Is it not, &sgreat an obstructiondo the adininistrationof justice; as grave an offenSe against the public peace; as serious a public :injury,-toviolentaYioosist the execution oLa,valid verbal order of. the court to remove: the: offending party from, the court-room, made in his presence and would betol'esist the execution of the same order after it is wr.itten:down by the clerki and a ·certified copy .placed. jnthe hands 0f the PlSllSaill? This question cannot reas()DablyneceiYll any other than., 8.m1dl,ffirmativeanswer. Why require written of such valid orden: of; which the party has actual, personal knowlidge? . In such a ease'; ,there. is no reason for .8uchrequirement, whereas,. in the suppositiousl cases put by oounsel l such, for instance, as an attempt to execute verbal order of which the par.ty affected had not such actual, personalknowledge, reasOowould be On the other side, and '.the order to be lexecuted· would be required to be in writing. ·As .has been said, the.language of the statute, in'its ordinary and usual signification, is broad, enough to include the order in question, which falls within the mischief intended to be provided against. There is nothing technical in' the lang\lage' of the statute, or' hi the sub. ject-matter. IUs true that other,wot!ds used in the statute, ex vi termini, import 8. writing, but this w&s:notenough to reach all the mischief intended to be guarded against, and tbeword "order," of larger import. ;vas, .ex industria, introduced.· A written order delivered to the marshal to execute, would becoveredbyot.her words found in the section, and therefore have been noneoessity for the Use of the word "order." Thewotd "order," in the last clause, has full effect, by refel'" ring it to the "mesne processor warrant," before usecJ, arid as embrac. ingfinal, as contl'adistinguished frommesne, That the order here in question is em braced 'by. the:policyihat dictated' the enactment of the law does not admit of any doubt, and for the oourt to exclude fwmits operation an order, merely:becanse it was not in: writing, would clearly be: to'inipoiTtdnto the statute ,.alimitation not found,and that,too, ilgainst,:theimanifest polioyofdhe law. ,The ca;se most. relied upon by. counsel for defendant in their argument,-tha,t ofU. S. arising un" der.thesamesection of the .statute,:did not involve the construction of
lNRE KIMMEt.,
the word "order" at all, norWllS the attention of the court in any ni'll' attracted to it. The ()'ft'etlse then under investigation was that of resistance to the marshal in the execution of Ii warrant in writing, and the langtlage of the judge must,";f course, be taken with reference 'fu the case befote the court. Thus considered, it is clear that that case involved. A case more like the present does not touch the point one, although not entirely 80, is that of U. B.v. Luhin8, 3 Wash. C. O. 335. There the defendant was indicted under this same statute for resisting the deputy-marshal in executing process issued by the judge, and not by the court. It. was contended that as the language of the statute is, "any mesne process," etc., "of the courts Of the United States," and'the process was not issued' by a court, but by a judge, there' was' no offense under the act. In reply to that contention for such limitation of the statutory language, Justice WASHINGTON said: , II If this is the right construction of the law, the counsel forth!s defen!lant is entitledtoallthe merit the discovery; for snch a construction never'before was given or contended for. If suoh a resistance is not an offense tor which a person can be prosecnted, it is better that all the criminallilw be struck out from the statute book, as it Is there only to show the, debility of thegel1eral government..'" "'. '" If no protection is given by the general government to. their,offioers, it will require. no prophet to show what will be the result of such an l\bandonment of all the rights of the United States. 'This is not the. language would be necessary to be." Id',837,888.
man-
After careful examination of the question, I am satisfied that the order involved in this case is embraced by the seotion upon which the indictment is founded, and therefore that the point made by counsel, whic? is, in;effect, t? a .vei'dict' of' acquittal upoP. opemng statement of the dIstrlCt attorney, should be, and therefore 1S, ovenuled.
In re CoNSTITUTIONAL
KIMMEL.
(Df.Btrlct Oourt, D. M1mnesota. March 28, 1soo.)
LAw-INTEBSTATE COMHEBCE-PEDDLERs-..LICENSE. Ordinance 116 of the city of Minn., requiring all persons engaged in going from house to house, and selling or taking orders for any merohandise not of their own . to take, out a license therefor, and providing penalty of fine or imprisoJ;lmetJ.t for its Violation, iu so far as it applies to persons in the state making sales and taking orders for persons residing within another state, is repugnant to ,tbe COJ;lstitution of tl;J.e United Stl,l.t6S, giving congress the sole power to regulate, interstate commerce. " ,
At.Law. Petition for writ of habeas corpus. H. P. edmden, for petitioner: ' John M· .Greenriw.n, for City of Austin.
NELSON,J. A petition for It writ of habeas Corpus is' presented by G. F. Kimmel. The petitioner prays the court to .inquire into the
