to be entitled to land. Section 2 of the act provides that the commissioners "shall examine into the condition of passengers arriving in any ship or vessel; and, for that purpose, they are authorized to go on board and through any such ship or vessel; and if, on such examination, there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself 01' herself without becoming a public charge, they shall report Hie same in writing to the collector of such port, and such person shall not b6 permitted to land." The authority of congress to pass such reglllations has been repeatedly affirmed; and the validity of the act of 1882 was sustained by the supreme court in the case of Edye v. Robertson, 112 U. S. 580; S. C. 5 Sup. Ct. Rep. 247. The provisions above quoted manifestly impose upon the commissioners the duty of determining the facts upon which the refusal of the right to land depends. The general doctrine of the law in such cases is that where the determination of the facts is lodged in a particular officer or tribunal, the decision of that officer or tribunal is conclusive, and cannot be reviewed except as authorized by law. Foley v. Harrison, 15 How. 448; Dorsheimer v. U. S., 7 Wall. 166; Goodyear v. Providence Rubber Co., 2 Cliff. 351, 375, affirmed 9 Wall. 788,798; Martin v. Mott, 12 Wheat. 19; Clinkenbeard v. U. S., 21 \Yall. 65, 70; The Philadelphia, etc., v. Stimpson, 14 Pet. 448, 458. See U. S. v. Leng, ,18 Fed. Rep. 15-20, and cases there cited; U. S. v. llJcDowell, 21 Fed. Rep. 563. The statute of 1882 makes no provision for any review of the, decision of the commissioners upon the evidence before them. No such review can therefore be had upon a writ of habeas corpus. That subject was elaborately considered by BLATCHFORD, J., in the Cllse ofStupp, 12 £latchf. 501, 519, who had been held by a United States commis(lionel' for extradition under the treaty with Belgium. The rule deduced from an examination of the authorities, and of the statutes in reference to the powers of a federal court under a writ of hl/beas corpus, is that "the court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction of the matter, by conforming to the requirements of the treaty and the statute; whether he exceeded his jurisdiction; and whether he had any legal or competent evidence of facts before him on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insufficient to warrant his conclusion. lit '* · The proper inquiry is to be limited to ascertaining whether the commissioner had jurisdiction, and did not exceed his jurisdiction, and had before him legal and competent evidence of facts whereon to pass judgment as to the fact of criminality, and did not arbitrarily commit the accused for surrender without any legal evidence." This rule has been since repeatedly applied, and must govern the present case. .see In re Fowler, 18 Blatchf. 430, 443, S. C. 4 Fed. Rep. 303, and
IN RE DAY.
cases there cited; In re Wadge, 15 Fed. Rep. 864; In re Byron, 18 Fed. Rep. 722. The petition and the return show that the commissioners were acting within their jurisdiction. There was competent evidence before toe commissioners for making up a decision, though not all the evidence that has since been made known. The evident youth of the children; their own answers to inquiries; the absence of any person that had legal authority or control over them, or was under any legal responsibility for, their support,-were all important facts. Upon these facts it was for the commissioners alone to decide whether there were suitable guaranties against the likelihood that the children might become a public charge. That the commissioners seek to combine humanity with a faithful administration of their public duties is known to the court, and is beyond question. By the expression "unable to take care of themselves, without becoming a public charge," the law does not intend an inability having reference to the passenger's personal efforts alone. Such a construction would exclude every child from our shores, since no child, by his personal efforts alone, can take care of himself. All the means of care or support that are provided for the passenger, and are available for his benefit, must be taken into account. 1'he law intends those only that are likely to "become a public charge," because they can neither take care of themselves, nor are under the charge or protection of any other person who, by natural relation, or by assumed responsibility, furnishes reasonable assurance that they will not become a charge upon the public. 2. Under the provisions of the act of 1882 the commissioners, so long as they retain jurisdiction over the passengers, and at any time before the return of the passengers to whom landing is refused, may reconsider their decision. Under Section 4 of the act they are charged with its execution up to the time of the actual return of the passengers, and their jurisdiction of the matter continues until the order for return has been executed. In cases like the present, therefore, where the refusal to permit the landing of passengers is based entirely upon the absence of a sufficient guaranty for the proper care of young persons, it may often happen that further knowledge of the facts, or the subsequent furnishing of sufficient sponsors, or of addi" tional guaranties, would remove all reasonable objections. The report to the collector does not oust the commissioners of jurisdiction. That report is not for the purpose of a further hearing before a difThe passengers, by section 4, still remain ferent to the disposition of the commissioners; and there is no reason why any additional facts bearing on the case, that may become known at any time before the passengers are retnrned, should not be considered. The summary way in which such cases must be determined in the first instance makes such reconsideration in some cases necessary. The case here is much stronger than that of the appraisers
of merchandise, whom the supreme court, in the case of Bartlett v. Kane, 16 How. 263, held to be authorized, after their report to th6 collector, to make a re-examination, and to modify their report, even though an appeal had been already taken from their decision. See, also, Ia,sigi v. Collector, 1 Wall. 375, 383. evidence, and the pecuniary guaranties in behalf 3. The of the children, produced before me, must be submitted to the commissioners, and not passed upon by this court in the first instance. The court could not undertake to determine their sufficiency without substituting its own judgment upon the.facts in place of tlfe judgment of the commissioners, whose duty it is by law to determine the question, and who have never had presented to them the additional matter referred to. As the commissioners are acting clearly within their jurisdiction, and upon competent evidence, this court cannot review their determination upon. habeas corpus. The additional matter must be presented to them, and this writ dismissed.
(District Court, S. D. Mississippi. May 20,1886.)
OBSCENE PUBLICATIONS AND PRINTS-MAILlNG OBSCENE WRITlNG-SEALED LET' TER-SECTION 3893, REV. ST., CONSTRUED.
An obscene letter, sealed, is within the meaning of section 3893 of the Revised Statutes, which prohibits the mailing of every obscene writing, print, or other publication of an indecent character, etc. 1
Defendant was indicted for depositing in the mail a certain obscene writing, inclosed in a letter envelope. Motion was made to quash the indictment upon the ground that the statute did not embrace sealed writings. J. B. Harris, U. S. Atty., for the United States. J. S. Sexton, for the motion.
HILL, J. The indictment against the defendant in substance charges that the defendant did unlawfully and knowingly (on a day named) deposit in a post.office (naming it) a certain obscene, lewd, and lascivious writing, addressed to a female (naming her) at a certain other post-office, (naming it,) and which said writing was tllen and there inclosed in a letter envelope, contrary to the provisions of section 3893 of the Revised Statutes of the United States, as amended by the act of congress approved July 12,1876, and against the peace and dignity of the United States. Tbe obscenity of the writing is given as a reason for not setting out the writing in the indictment. The defendant moves to quash the indictment for the reason that
See note at end of cll8e.
it, being alleged that the writing was inclosed in a letter envelope, is not embraced in the act of congress alleged to have been violated, and that the indictment charges no criminal offense. Whether it does or not is the only question to be decided. Considering the purpose of the statute, which evidently is to prevent the United States mail from becoming a vehicle for the transmission of obscene and lewd books, pictures, and writings, I am satisfied that such a writing as the one described in the indictment is embraced in the statute, though inclosed in a letter envelope and mailed; and would so hold if the statute were now to be construed for the first time; but it has been passed upon a number of times by judges of high character, and long experience, and some diversity of opinion. The decision of Judge TURNER, of the Western district of Texas, in the case of U. S. v. Comerford, reported .in the Criminal Law Magazine, 465, S. C. 25 Fed. Rep. 902, is mainly relied upon to sus· tain the motion. This decision is in direct conflict with that made in the case of U. S. v. Gaylord, 17 Fed. Rep. 438. The opinion of Judge DRUMMOND in this case, to my mind, is unanswerable. This case arose in the Southern district court of Illinois. Judge TREAT of that court, one among the oldest, as well as ablest, of our district judges, held that the statute referred to embraced letters or writings inclosed in letter envelopes addressed in the usual way with other letters. On writ of error from the circuit court, this ruling was sustained by Judge DRUMMOND, the circuit judge, whose opinions on all questions command the highest respect from the profession throughout the United States, and in which Justice HARLAN of the supreme court, assigned to that circuit, concurs. If I had any doubt on the question, the concurrent opinion of three of such learned and eminent jurists ought to have more weight than that of a single judge, though of equal learning and experience; so that, in addition to my own convictions, I must hold that the weight of authority is in favor of the sufficiency of the indictment. Judge TURNER rests his conclusions on the supposition that the offense consists in its publication, and that the sending of a sealed writing is not a publication of its contents. Section 5480 of the Revised Statutes makes it an indictable offense to use the mails of the United States in furtherance of any scheme to defraud others. These communications are usually sent in sealed envelopes. As was held in the case of U. S. v. Jones, 10 Fed. Rep. 469: "The gist of the offense is the abuse of the mails. The mailing of the letter and the letter itself constitute the corpus delicti." Other decisions might be cited; but, in my opinion, both by reason and the decided weight of authority, the objection made to this indictment is not well taken; therefore the motion to quash the indictment will be overruled.
Written communications of a private, per;;olll),1 character, emanating from e. single person, and exhibiting no purpose of going beyond the one directly addressed, are not within the purview of section Sil93 of the Revised Statutes, as amended by section I, ofthe act of July 12,1876, (19 St. 90,) relating to the mailing of obscene letters. U. S. v. Williams, 3 Fed. Rep. 484. A sealed letter. deposited in the mail, addressed to some one, is not a writing or a pllbliration, within the purview of the first clause of section 38!J3 of the Revised Statutes. declaring obscene books, writings. etc., or "other publication of an indecent character." non-mailable. U. S. v. Loftis. 12 Fed. Rep. 671. A scaled letter is not within the prohibition of section 3893. however indecent or obscene in its contents; but if there IS any such delineation put upon the envelope containing it, it thereby becomes non-mailable, and the person depositing it in the mail thereby commits a crime. Id. The mailing in a sealed envelope of a letter which, in whole or in part, contains matter which would have a depraving, a demoralizing, or a corrupting influence on the person to whose hands it nllght come, is an oti(mse within the meaning of section 3898 of the Revised Statutes. U. S. v. Britton, 17 Fed. Rep. 731.
SAME V. FREEMAN.
(Cirt'uie Court, E. D. Pennsylvania. :May 18, 1886.)
PATENTS FOR INVENTIONS-REISSUE-NEW CLAIM-VALIDITY.
Where matter claimed in the reissue was embraced in the original patent, but not claimed therein, held not an enlargement of the invention, and may be secured by reissue. 1
2. SAME-LACHES-LIMIT FOR REISSUE.
Two years seem to have become the measure of reasonableness or limit of time within which, ordinarily, the application must be made.
SAME-JURISDICTION OF COMMISSIONER OF PATENTS.
Whether the omission occurred through "inadvertence. accident, or mistake" is (in proper cases for amendment) a question for the commissioner.
4. SAME-NEW CLAIMS.
Miller v. Brass Co., 104 U. S. 850, does not prohibit the introduction of new claims, under all circumstances. It simply applies the equitable doctrine of estoppel to a patentee who, after inexcusable delay, (during which others mal be presumed to have acted on the reasonable inference that all not claImed in the patent has been dedicated to the public,) sought, by means of a reissue, to enlarge the scope of his patent, so as to embrace and prohibit such acts.
The Combined Patenf8 Can Co. v. Lloyd, 11 Fed. Rep. 149, cited and approved. 6. SAME-INFRINGEMENT. . Differences in size, form, and degree not material.
Former decree by circuit judge is not tinal between others; but. involving . apparently same questions, is entitled to little, if any, less weight on that account; and in case' of difference of opinion between district and circuit judges, the former would not act without rehearing by latter.
SAME-REISSUE CONSTRUED. AND HELD VALID.
SAME-'-FoRMER ADJUDICATION, EFFECT OF.
Reisllue No. S,:W1,. dated November 24, 1868, given on origina11etters patent No. 70,447, granted November 5, 1867, to George Asmus, assignee of F. W. Lurmann, for blast-furnaces, considered valid.
See note at end of case.