1JmTED STATES tI.FORD·
.voices,l1nder section 13. of 'the act of Jl1ne 10, 1890, it was not within the power of .the board of general appraisers to order. a reappraisement of the merchandise, which would be necessary to determine the value of the separated parts, and that for the purpose of such reappraisement the board of general appraisers was only an appellate tribunal. It was further argued that the importer having filed in the circuit court nO statement of errors against the decision of the board of general appraisers, under section 15 of the above-mentioned act of June 10, 1890, the only matter before the circuit court was the determination of the question raised by the collector's appeal, which was only that the board erred in ordering the values of the separated parts of the robes to be segregated for the purposes of duty. Edward MitcheU, U. S. Atty., and Jama T. Van Ren8Belaer, Asst. U. S. Atty. Durie, Smith &: Mackie,. for importer. LACOMBE, Circuit Judge. The decision of the board of appraisers is affirmed, and the court declines to go into the question as to whether they correctly determined that the silk embroidery made the article upon which it was placed dutiable as if it had been embroidered in wool, for the reason that there has been no statement of any error of law or fact complained of, touching such decision, filed in this court, or any application for review thereof in that particular.
UNITED STATES tI. FORD. (Dtstrrct Oourt., E. D. Muaoun, E. D. L OLEOMARGARIn ACT-VIOLATION.
lIa1 8, 189l1.) ,
Act Congo Aug. 2, 1886, I 6, requires retail dealen to sell oleomargarlne 0111, from the original stamped packages, "and to pack it in suitable packages marked and branded lIB the commissioner of Internal revenue, with the approval of the secretary of the trellBury, shall prescribe," and imposes a specific penalty for its violation. .Held that, the required approval of the deparOOlent being merely as to the kind of marks to be used, an indictment may be had for neglect to oonform therewith. U. S. v. Eaton, 12 Bup. Ct.. Rep. 7tl4, distinguished.
.. 8.lJd'B-INDIOTJIIElilT.
In Indictments under section 6 for neglect to properly mark the package of 01.mar/{arine, the regulation covering marks and brands made by the OOmm1BSIOD01' of Internal revenue shOUld be pleaded in aUbstaIlco.
At Law. Prosecution of Anderson F. Ford for neglect to properly mark packages of oleomargarine. On demurrer to the indictment. Overruled. George D. Reynolds, U. S. Atty. D. P. Dyer, for defendant.
THAYER, Distrid Judge, (qrally.) In this CMe the indictment Is under the sixth section oftha oleomargarine act against Anderson F. Ford,. a retail in oleomargarine, for selling oleuwargarine iQ packages with..
FEDERAL REPOl\TER,
vol. 50·
. packages with the word "Oleomargarine;'" A ?has·beel1'filed, .and the questionatises under' the recent decisi<mdt the supreme court of the United States in U. S.v. Eaton, 12 Stip. Ct. Rep. 764, (No. 291, October term,1891,) the indictment is valid or invalid. In the case of U. B. v. Eaton it appears from the dech;ionthat the defendant, who was a wholesale dealer in oleomargarine, had failed to keep a book showing the oleomargarine received by him, and from whom and to whom the same was sold and delivered. For this he was indicted under section 18 of the act of August 2, 1886, (24 St. p. '212,) for neglecting, omitting, and refusing to do a thing required bylaw to be done. The court held that the act of August 2, 1886, did not require a wholesale dE:Jaler in oleomargarine to keep such a book as the indictment in that case described, or to keep any book in fact; that the duty of keeping the book was a duty that had been imposed solely by a regulation of the commissioner of internal revenue, and that a pernot be criminally for failing to discharge a duty so impol;le'd. The decisiol1in effect holds that congress liad not declared tbeparticular act complained of to be an offense; tha:t it was an offense created', ifat all, by a' reg'lilation of the commissionerofinternal revenue, and that the regulation was 'an exercise oflegislativepowers, not vested in the commissioner.. In .the case at bar the facts are quite different. By section 6'oftheact of August 2, 1886, congress specifically provided that all oleomargarine shauld be packed by manufacturers in firkins, tubs, or other wooden packages not before used, each containing not less than 10 pounds, the same to be marked, stamped, and branded "ad the commissioner of internal revenue, with the approval of the secretary of the treasury, sAllll prescribe." Retail dealers were required to sell only from the original stamped packages in quantities not exceeding 10 pounds, and to pack the same in suitable wooden oi-paper packages, marked and branded "as the commissioner of internal revenue, with the the secretary.o! the treasury, shallpl'escribe."The very saine section of the lawiimposed a specific penalty for selling oleomargarineip. any other form in wooden or packages as above described.·. This section of the law, therefore, fully and completely describes a criminal offense. It requires packages of oleomargarine to be packed in a given way, and to be branded and marked beiore they are as the 'commissioner of internal revenue shall prescribe. ]J also imposes a: specific penalty if they are not 80 marked and branded when sold. The decision in the case of U. S. v. Eaton does not gC) to theextentOf holding that because congress left it to the commissioner of internal revenue to prescribe the kind of marks and brands to be used, which was a mere matter of detail, therefore dealers minnot be punished for selling oleomargfidnewithout\such marks and brands. The difficulty in the Eaton Case was thatc6ngress had' not created .anJ' l,3uch offense as for whichth e indicted. The commissioner had in fact iissumed to amend the law. But in the case at bar there is no such difficulty. The offense charged in the indictlnent is ,one ftlllydesciibed in the sixth section of the act. The marks
UNITED STATES t1. GREENHU'l'.
469
and brands prescribed by the commissioner are such 8S he was specially authodzed to prescribe. In the case at bar, the indictment states an offense against the laws of the United States, unless the decision in U. S. T. Eaton is understood to mean that no regulation of the commissioner of internal revenue can have the force and effect of law. My opinion is, in view of numerous decisions of the supreme court in prior cases, that that is not the meaning which the court intended to convey. Another question arises in this case, and that is whether the regulation made by the commissioner of internal revenue concerning marks and brands is pleaded. I think such regulations should be pleaded in substance in indictments, but I am of the opinion that the regulation of the commissioner is sufficiently set out in this indictment. The demur. rer is therefore overruled.
UNITED STATES 'l1.' GREENHUT (Df.Btrict Oourt, D. Massach.u,etts. ILLEGAL TRtrsTS AND MONOPOLIEB-INDICTMEN'l'.
et aI.
May 16, 1899.)
Act Congo July 2, 1890, (26 St. p. 209,) "to protect trade ,and commerce agatu' unlawful restramts and monopolies," provides, in section 2. that "every person who shall monopolize, or attempt to monopolize, or combine' or conspire with any other person or persons to monol?olize, any part of the tra,de orccmm.erce among the several states, or with foreIgn nations, shall be deemed guilty of a misdemeanor, "etc. Held, that an indictment thereunder which fails to allege that defendants monopolized, or c.onspired to monopolize, trade and comm.erce among the several states, or with foreign nations, fails to state an offense, even though it does allege that they did certain acts with intent to monopolize the tramc in distilled spirits among the several states, and that they have destroyed free competition in such traffic in one of the states, and increased the price of dlstilled spirits therein·
. At Law. Prosecution of Joseph B. Greenhut and others for violation of the law against monopolies. Indictment quashed. Frank D. Allen, U. S. Atty. Elihu Root, RiA;hard Olney, Simps(Y/l, Thacher Barnum, (JJw.rltl·.A. Prince, and Bordrnan HaU, for defendants. NELSON, District Judge. This is an indictment under the second section of the act of congress approved July 2, 1890, entitled" An act to protect trade and commerce against unlawful restraints and monopolies." 26 St. p. 209. The indictment sets forth that the defendants are the officers of the Distilling and Cattle FeedingCompany, a corpo:ration chartered by the laws of the state of Illinois, and hl!-ving its principal place of business in Peoria, in that state; that, as such offi<;ers, they purchased or leased seventy-eight theretofore competingdistillElries within the United States; and, within certain dates specified, used, managed, and operated said distilleries, and manufactured sixty,six million gallons of distilled spirits, and sold the product within the of it in the district of Massachusetts, llotprices. United