·<UNITl1:D STATES t1. BAIB.. : ;
tract the virtues of the medicinal herbs employed, QIidhold the same' in solution, and that the quantity used is less than that contained in some ordinary tinctures. Thesecomptmnds, so far as the evidence discloses, are sold by the bottle by retail dealers, and are not sold over thecoun.. ter, like ordinary intoxicating beverages. On the facts stated I see no ground for dissenting from the ruling of the commissioner of internal revenue heretofore made, that these preparations, "Lemon Ginger" and "Empire Tonic Bitters," should be classed as medicin91 preparations, and hence that dealers in the same are not wholesale or retail liquor dealers, within the meaning of the law. The fact that men with a strong appetite for drink may occasionally buy one of these preparations, and by ail immoderate Use of the slltrie'becomedrunk, is not an adequate reason for classifying them 8S distilled spirits. It is sMe to assume thai alcohol enters into the' preparation of some 'other oompounds, that no one would think ofdassifying as distilled spirits; in stich quantity that! II; 'mafi might be made drunk by imbibing them too freely. The facti therefore, that. a mixture possesses SO much alcohol that persons may become intoxicated by drinking such a quantity as may be drunk without imperiling life, cannot be accepted as the sole test by which to determine if'the mixture should be·olassed as distilled 'spirits; and dealers therein 8.$ liquor dealers. If 'a preparation is not intended as sbaverage, but is put up ingood faithasa medical preparation,aIidisonly advertise4and sold as such,: and there are reas0nable groundll to believe' that it possesses curative qualities,and no more spirits are the preparation than are reasorrablyneoessary to extract and hold in solution the medicinal properties' of the various drugs employed, such preparationis'medicinal, and does not lose its character as such, although it: is into'Kicatit1gwhen used to excess. ,The defendants in·these CRSes will, diseh8rged.
November 25, 1889.
, ,',Rev. St.U.s. II 4596, proyilles certaiD, penalties for the de!lertion ot a !leamal1 has been lawfully engage4, Section. 5601 provides that all acts passeU after De: 'celnber 1; 11178, are 'to have full efteot as if passed after the' enactment of this !\Dd so far as th!i'Y .vary its pr?vWPlls. are to have ei!ect as subsequent statutes, and as repealIng any portiOn of the revision inconsistent therewitb, Act U; S. ,June 11,1874" (18 St. c. 260,) provide!! that none of provisions ?f act of JUD,e7.,1872, shall'applytp engagedln the coastWl86 trade, except the coasf;Wlse trade between the Atiantic and PlWific coasts,or in'the'lllke-going trade, tbllching:il.t fOFeigri pOl'tsor (j)ther.wise, .ete. Beld, tb$t tlJis re\>ealB 8l! muc}h of, Rev. ti,.. 53, iJlClll\ling 4596,88 .is composed of the JlrOviBlons of act .Tune 7,1872, 80 far 88 It applies to vesBela on.the Great Lakes. ' . ", ' ,. .' .
,. . ., I: ..
Inf<SrttJation for Desertion; against a Seamw Walker,U."S. Dist; Atty.'
,J.W., Weg1i6r, for defendatlt.,
J. An informlltionis lodged charging the defendant, a searoMl lawfully engaged to servi<le on board the schooner S. L. Watson, under. shipping articles duly signed, on a voyage from Sandusky, Oh,io, to,Milwaukee, Wis., and thence, via Escanaba, Mich., to an)' discharging port; 6nLake Erie, with desertion at the port of Milwaukee. The mation:il!l presented under Rev. S.L§4596, and contains all proper·ayer.., the matter"withiuthnt section, if the provisiol;lS. of title' &3:ofithe, Revised Statutes; entitled "Merchant Seamen," hasapplicatip1L kdemurter is interposed to the question. T!:lis title ofrthEt,revision is main composed oftheprovisions of the act of June 7, 1872, (17 St. c.322,) known as the "Shipping Commissioners' Act." The penaJtiesprescribed in Re". St. §4596, first appeadlilsection 51 of that act. By act of June 9,1874:, (18 St. c. 260,) it wllsenacted that none of the provisions of thE! act ofJune 7, 1872, "shallltpply to sailor steam vessels engaged in the coastwise trade, excepttbe coastwise trade between the Atlantic and cHiccoa8ts, orjJ:J,the lake-going:trade, touching at foreign ports or other.. wise, odn thettade between the United States and the British North Amel'ican poaseflSions, 'Or in- any casE! where ,the seamen are. by custom or agreement,eI)titled to ill the prpfits or r;.esult 91' a cruis\) or voyage.',' The:revision of.the stptlates was !\pproyedJtmB 20, 1874, but took-elfectall·QfDecember1;18!78;. , Section. 5601 provides that act!! subsequent tQ! that date are. to effect as subsequent; statutes, apd repealingany-. ptll;tion of the revision therewith. , It is clear, theref'6re, that the elfe,ot of the act of June 9, 1874, is torepea,l, all the provisions, ,of title 53 (including. t1w;pellal of': the revision, taken from the act of 1872, so far as they are tP vessels engaged as specified in the act of June 9, 1874. U. S. v. Bain, 5 Fed. Rep. 192; U. S. v. King, 23 Fed. Rep. 138; U. S. v. Buckley, 81 Fed. Rep. 804; U. S. v. Mason, 34 Fed. Rep. 129; U. S. v. The Grace Lothrop, 95 U. S. 532. '. , 1 " , .,.,' . . , It is suggested that the exception includes all subsequent parts of the act. Such cannot be maintained. .;rhat copf$truction would render altogether unnecessary and out of place the reference to seamen participating in the profits ofea yoyage, and would defeat the evidentiu.: tention of to exempt that class from the operation of the shiponly ping commissioners' act. Theex:cepti9n in the law has: to the coastwise trade between thaAtJantic .and Pacific coasts. The word cicoastwise,"ll8llsed in the statute, means along that part of the territory of the bQrdering upon,nnd washed by the sea. It does not c.omprehen<l'iqlalild navigation. This is apparent u'ponthe face of the .·. ;';V!tS intended applX to ocean.l)a'1gatron solely. SflIppmg commISSIOners were to be appolntel1 OI!1Y In ports of ocean navigation. 17 St. c. 322, § 1; Rev. St. § 4501. Written agreements with seamen were tQ.!bemade'befQre proceediI1g onli. voyagi;! fr:om a port in the United States to any pott, andfr9mapo:r;t,oilthe
UNITED STATES II. BROWN.
Atlantic to a port'on the Pacific, and vice ver80, (section 12 of the act;) and by a proviso it was expressly declared that the section should not apply to masters vessels that touch at foreign ports. This was inserted ex industria, lest that class of vessels might be supposed to be included in the phrAse, "on a voyage from a port in the United States to any foreign port." In U.8. v. The Grace Lothrop, 8Upra, the supreme court, speaking with respeyt to a vessel in the Qoastwisetrade,' declare that the act of 1874 is "an explicit declaration that never intended that the original act should apply to vessels engaged1n any part of the coasting trade, except that between the Atlantic and Pacific coasts;" It is quite as clear that congress never intended the act to apply to the lakegoing trade. ,The act had referenc.:e to ocean navigation alone. Within a year after the passage the act, congress abolished. the nece:sslty of ,shipping articles with respect to vessels engaged in trade betweenth'e United States and theJ3ritisn North American possessi.ons, the West islands, and the republic of Mexico. 17 St. c. 35, p.410. ' It b'annd"t ,that the power designed the restrictions as to va,ssels tradirigwith neighboring foreign ports,to'exempt vessels in 'the coastwise tradif(exceptbetween Atlantic and Paciticportg,') but not vessels in the lakelgding trade. The act waS iiuinifestly to extended ocean voyages. It is also to be that in the originlJI act the terms '''coastwise trade" and "lake-going t"i-ade"'are used incontradistinction. The act of 1874 clearly expresses the intention of to restrict the shipping commissioners' act to ocean navigation, excludirig all coastwise trade except that between Atlantic and Pacific ports. In Burdett v. Williams, 27 Fed. Rep. 113, 117, it was ruled that, sincethe act of 1874,none of the provisiollsof the act of 1872 apply tovesaels in the trade between'the United States and the British North American pOl;!sessions, or in any case where seamen are entitled to participate in' the results of a voyage. Like construction excludes vessels engaged in commerce on the Great Lakes. ,The demurrer is sustained, and the defendant discharged.
(Dtstrict Court, E. D. Sout1l. CaroZina. October '11, 1889.)
A sworn ,confession, made long anterior to trial, and nOt. prelimiuary t.hereto, 18 admissible In evidence. ,
SAM_DEFENDANT AS WITNEss-ImlEACHMENT.
Where a defendant in a criminal: case becomes a witness forhlmselfj under act Congo March 16, 1878, making him a "competent" witnes8, his credibility I!J.ay be impeached. '
It is a violatlonof.:Rev. St. U. S. 55485, which forbi<Js any agent or attorney or qther,person InstrumEintal in prosecuting any claim foi'pension directly or indirectly to' contract for, demand, ,receive, or retain any greater Compensation for his t.l1an t25, to eQntract such '1ervices for more than t25; to demand more than that sum for such services after rendering them without a contract;1iO
PENSION A:GENT8-lLLilGAL FEBS-REV. ST.
U. S. 55485.