UNITED STATES V. BOYER.
ceding that their main exc.eptions to the libel were not well taken, urge before this court certain exceptions to the sufficiency of the libel, which exceptions do not appear to have been ruled on in the court below. It is contended that the libel does not charge that the vessel was "fitted out and armed, or attempted to be fitted out and armed, with intent," etc., "within the limits of the United States." Treating the third and fourth articles of the libel as different .counts, each seeking to charge a full ground of forfeiture, counsel for appellees make a plausible argument in support of their exceptions. The third article does not in so many words charge that the Three Friends "was fitted out and armed," but, in lieu thereof, charges that the vessel was "heavily laden with supplies, rifles, cartridges, machetes, dynamite, and other munitions of war, including one large twelve-pound Hotchkiss gun or cannon. and a great quantity of shot, shell, and powder therefor, with intent," etc. The fourth article charges that, at the same time and place and by the same persons, the said vessel was "fitted out and armed by being heavily laden with supplies. rifles, cartridges," etc., "with intent," etc. The libel is certainly not drawn with such legal precision and conciseness as to justify its use as a precedent, but taking it as a whole, and considering that the objections urged were not passed upon in the lower court, and, if passed upon adversely to the govern· ment, the libel is plainly amendable, we are of opinion that the exceptions urged should not be allowed in this court. The decree of the district court is reversed, and the case remanded, with instructions to overrule the exceptIons to the libel, and thereafter proceed accord· ing to law.
UNITED STATES v. BOYER.
(DIstrict Court, W. D. Missouri, W. D.
February 28, 1898.)
CONSTITUTIONAL LAW-SLAUGHTER-HoUSE INSPECTION.
The nets of congress found In 1 Bupp. Rev. St. 937, and 2 Supp. Rev. St. 403, whereby the secretary of agriculture was empowered to have made a careful inspection of cattle, sheep, and hogs at slaughter houses located In the several states, which were about to be slaughtered, the products of which were Intended for sale in other states or foreign countries, were enacted without any constitutional warrant, and are therefore void. The rules and regulations made by the secretary of agriculture In pursuance to such statutes, whereby Inspectors are appointed and placed In packing
to be slaughtered, or their carcasses when slaughtered, and the products of
houses within the states, to Inspect cattle, sheep, and hogs which were about
which were Intended for sale in other states or foreign countries, having been made in pursuance of the acts of congress referred to supra, were likewise made without any constitutional warrant, and are therefore VOid.
The crime. of bribery cannot be predicated upon tlJe offer O'f a reward not to perform duties for the performance of which there was no legal or constl· tutlonal warrant.
INTERSTATE CO:UMERCE-PACKING·HoUSE OPERATIONS.
Packing houses engaged in slanghterlng cattle, sheep, and hogs intended for interstate and foreign markets are not In interstate commerce.
' · ,',',',' . " :Inter&tate IJOmmercll Is not deterw,lp.ed by the character At the commodity, : nQI,' b.iY\ the owner to, l;rllnsfer it to Ilnoth,ef state for sale, nor by hIs of IUor, transportation, but, rather, by Its actual delivery tQ 8> cbmt'Qdn. carrier for transportation, Or the actual commencement of Its transfer to another, state., '
pay the debts and, provide for the common defense· and general, pf tpe United States," found in section art. 1, of the const!· tution,do not' confer any distinct 'and substantial power' on congress to enact any:leg<lslation. The generally'received opinion is that they constitute a restriction upon the taxing power, contained ,in that section and article, con:ti.I:\Wg the:power to lay and collect taxes, duties, imposts, and excises for the pw:poses specified,. namelY, "to, pay' the debts and proV'lde for the common 'defense and general'w,elfal,'e of theUni'ted States."
Demurrer to an Indiethient llgainst Harry Boyer for Bribery. John R. Walker, Dist Atty., for the United States. ,Lathrop, Morrow, Fox & Moore, for defendant nQG'E:EtS, District. Ju!lge. The defendant, Harry Boyer, is indicted.' the crime of bribery, based on section 5451 of the Revised St'atutes.of the 'Uniteq States, which. is the general statute creating and punishing the crime of bribery, and reads as follo","s:
"ljJvery 'person who prOHl,iseB, otXers, or, gives, or causes or 'procures to be Prolllised,. offered, or given, any money or other thing of value, or makes or ten· del's ,any contract, undertiiking, obligation, gratuity, or security for the payment of 'money, or for the delivery or conveyance of. anything of .value, to any officer Of the:Up.lted States, or to' any person a,ctbjlg for 01.' on behalf of the United States In any official function, under or by authority of any department or office of the government thereof, or to any officer or person acting for or on behalf of either house of congress, or of 'any committee of either house, or both houses thereof, with Intent to influence his decision or action on any question, matter, cause, or proceeding m'ay at any time be pending, or which may by law be brought before him iIi his' official capa:eity, or in his place of trust or Ilroflt, or with Intent to Influence him to commit or aid In commlttlI!g, 9'1'. collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, ,shall be as prescribed In the preceding section."
The indictment is in three In the first count he is indict'M t,Q br,be Leslie J. Allen, an assistant inspector in: .the bureau of animal industry; and in the second count b,e is indicted for attempting to bribe Frederick William Hopkins, an assistant inspector in the bureau of industry; and in the indicted for attempting to bribe Don W. Patton, inspector in.thebureau ?f ani:mal industry. In other re'''Pe,ct$;Jhe counts are the :No notice, therefore, will be taken iofl,tbtHlecondl :01' third counts" as tberuling on the first will cover 'tll'tl'seclftld and third. The first· count in the' indictment is as follows:
"Wrprs of, the, United States of America,' dUly chosen, seleCted, 1m· ,to Inquire of and concerning crimes and offenses In'the Weste!-Jl division of the Western district of Missouri, on their oaths present and charge that at the Western dIvision of the Western district of Missouri, on 01; IiPpptthe21st,dayof'Apl'il,lSIJ7, the Jacob PolO. Packing Company was a cortl6bltlon duI:? J¢'t&atell' flnd existing according to law, and was engaged in the slaughtering' atIcl:' packing of cattle, sheep, and hogs, which were the sub-
UNITED,BTATES V. j30YER.
jeets of interstate commerce; that is to say, wel'e: engaged in slaughtering cat· tIe, sheep, and hogs, the carcasses and products of which were to be transported and sold for human consumption in other states and ,territories. ADd the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that on or about the 21st day of April, 1897, at the said Western division of the WE:stern district of Missouri,one Leslie J. Allen was an officer of the United States, and a person acting for and on behalf of the said United States; that is to say, was an assistant inspector in the bureau of animqJ industry, he, the said LeslieJ. Allen, having prior to that time been appointed by the then secre· tary of agl'iculture as such assistant inspector in the bureau of animal Industry, and he, the said Leslie J. Allen, as such assistant inspector, was on or about the said 21st day of April. 1897, at the said Western division of the Western district of Missouri, stationed at the packing house of tile said Jacob Dold Packing Company; and it became and was the duty of the said' Leslie J. Allen, as such assistant inspector and officer of the United States, and acting for and on behalf of the' United States, to make a post mortem examina:tionof the carcasses of all cattle, sheep, and hogs to be prepared for human consumption at the packing house of the said Jacob Dold Packing Company, as aforesaid, whlcn said carcasses of said cattle, sheep, and ho'gs were inten,ded to be transported and sold tor human consumption In other states and territories; and it became and was the duty of the said Leslie J. Allen, as such officer and inspector as aforesaid, on the said post p:1ortem'examination ,of the carcasses of cattle, sheep, and hogs, as aforesaid, if he .found any of said carcasses to be. diseased and tillfit f(lr human food, to p:1ark the said carcass 'With a yellow condemnation tag; and it became and was the duty of the silid uslie J. Allen, as such officer and Inspector, as aforesaid, to supervise the' removal of such condemned carcass or carcasses to a tank or tanks on the premises of said Jacob Dold Packing Company, and see said carcass or carcasses deposited in said tank or tanks and rendered in such manner,as to prevent its withdrawal as a food product. And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that at the said Western division of the Western district of Missouri, on or about the said '21st day of April, 1897, .there were certain carcasses of cattle at the.packing house of the said Jacob Dold Packing Company which had been condemned; and one Harry Boyer, well knowing the premises, and well knowing the. duty of the said Leslie .T. Allen as such Inspector and officer oLthe United States, as aforesaid, and person acting for and On behalf of the.said United States in the inspection and supervision of the removal and rendering of the carcasses of condemned animals as aforesaid, unlawfully,. wickedly, and corruptly devising, contriving, and intending to tempt, seduce, bribe, and corrupt the said Leslie J. Allen, so being an inspector and officer of the United States, ns aforesaid, and person acting, as aforesaid, for and on behalf of the said United States, to prostitute, abuse; and betray his trust and violate his duty as such inspector and officer, as. aforesaid, did unlawfully, Wickedly. feloniously, and corruptly offer to give a large sum of money to the said' Leslie J. Allen,' as such inspector and officer as aforesaid; that is to say, did unlawfully, wickediy, feloniously, and corruptly offer to pay to the said Leslie J. Allen, as such in· spector and officer as aforesaid, a stipUlated salary per month, In order thereby corruptly to influence, Induce, persuade, ;and him, the said Leslie J. Allen, as such inspector and officer, as aforesaid, in his capacity and character as such United States officer and inspector In the bureau of animal industry, and person acting for and on behalf of the said United States, to agree and consent that the condemned. carcasses of cattle intended for transportation, and. to be sold. as food in ather states and territories, might be made into sausage and other food products, contrary to the form of the statute in such case made and provided, and against t1le peace and dignity of the United States."
The defendant, Harry Boyer, interposed a demurrer, which is as follows:
"First.. For the reason that said first count does not state facts constituting a crime, or tAl' <;:onstitutioll, statutes, and laws' lIf the United States.' Second. Satd' defendant further demurs to said· first count for the teilson that the matterS and things therein set forth do not show or state that the carcasses or cattle therein 1Uentioned were the sUbje($ . of interstate
colllmerce, nor that the sald Leslie J. Allen, thereIn referred to, was an officer or j;he United States, or a perSon acting for or on behalf of the United States in any: official function, nor that there was any intent or effort made by this defendant to influence the decision or action.of the said Leslie J. Allen on any question, matter, cause, or proceeding which was at any time pending, or which was by law brought before him, in his official capacity, or in his place of trust; nor do said facts allege or show any intent on the part of this defendant to influence said Leslie J. Allen to commit or do, or to collude in or allow, any fraud, or make opportunity for the commission of any fraUd, on the United States, or to induce him to do or omIt to do any act in violation of his lawful duty."
The point to be decided is whether the indictment charges an offense against the .laws of the United States. Has congress the power,under the constitution, to send an inspector into a packing house, located within a state, and impose upon him the duties alleged in the indictment?· If it has not, is one guilty of bribery, under the United States statutes, who offers or gives such inspector money to induce him not to perform such alleged duties? The importance of the question is very great. The discussion of the demurreI'. evinced care, research, and earnest thought by counsel, and the court has given the subject the consideration it deserves. It is a matter of public history that foreign countries have complained of American exportations of diseased meats. To guaranty foreign countries against such products, to promote American commerce therein, and to secure, as far as wholesome food products, congress enacted the legislation· whereby the secretary of agriculture was empowered to have made a careful inspection of cattle, sheep, and hogs at houses, which were about to be slaught. ered, the products of which were intended for sale in other states or foreign countries. 1 Supp. Rev.. St. 937; 2 Supp. Rev. St. 403. And these inspections were to be made under rules and regulations prescribed by the secretary of agriculture. Id. The inspectors were appointed in pursuance of the statutes referred to supra, and the duties alleged in the indictment prescribed by rules and regulations made in pursuance thereot, The packing houses offered no opposition, if they did not in fact a.pprove and promote the legislation. They applied for the inspectors, presumably, because it enabled them to secure the indorsement of the United States that their goods were sound and wholesome food products. If, therefore, no indictment can be predicated, under the statute, upon the state of facts set forth in the indictment, it is because there was no power in congress to enact the statute; and the result follows that the inspectors ma,y be corrupted with impunity because their pres· ence in the slaughter houses, and the duties they were called upon to perform,were both without any legal warrant. in which event the United States have the alternl:/.tive left to afford the packing. houses tbe. desired indorsement through the medium of inspectors they never had any authority to appoint, or to withdraw them alto· gether, and leave the subject to state supervision. Narrowed down, the simple question is whether the. (futies alleged in the indictment, which the inspectors were required, nuder the rules and regula· tioBs of the secretary of agriculture, to, perform, were such duties as belonged 40 the state of Missouri or to the United States.
UNI'J:ED STATES V. BOYER.
In said:' ,
v. Maryland, 4 Wheat. 405, Chief Justice Marshall ,
"This government [of the United States] is acknowiedged by ail to be one or enumerated powers. The principie that it can exercise oniy the powers granted to it would 'seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the peopie, found it necessary to urge. The principie is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise as long as our system shall exist."
In Martin v. Hunter's Lessee, 1 Wheat. 326, the same learned jurist stated the same doctrine as follows:
"The government of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."
In the ela.borate discussion of the principles of the cl()nstitution, and the nature and character of the government of the United States, in the Legal Tender Cases, 12 Wall. 457, a good deal is said about the "nonenumerated powers" in the constitution. It is a significant fact, however, that in these cases the court thought it necessary to point out the clause of the constitution where the power to enact the legal-tender statutes was to be found. In these cases, too, as stated in the dissenting opinion of Mr. Justice Field (12 Wall.
to which It shall be referred; some placing It upon the power to borrow money.
"The advocates of the measure do not agree as to the power In the constitution
8Omeon coining power, and some on what is termed a 'resulting power' from the general purposes of the govermnent."
,That, however, which is most significant, I repeat, is that all the judges sought to find, and did designate, some power or powers to which the legislation shall be referred. However that may be, I do not think it can be fairly said that the court, even in the Legal Tender Cases (decided, as they were, under the strain of a great emergency), intended to go further than had Chief Justice Marshall in McCulloch v. Maryland and Martin v. Hunter's Lessee, supra; and I base this statement upon the following passage in the Legal Tender Cases (page 539):
"Said Chief Justice Marshall, in delivering the opinion of the court [in McCul· loch v. Maryland]: 'Let the end be legitimate; let it be within the scope of the constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited. but consist with the letter and spirit of the constitution. are constitutional.' The case [McCulloch v. :Uaryland] marks with admirabie precision the province of this court. It declares that 'when the law [enacted by congress] is not prohibited, and is really caiculated to ell'ect any bf the objects Intrusted to the government, to undertake here to Inquire into the degree of its necessity would be to pass the line which circumscribes the jUdicial department, and to tread on legislative ground. This court [it was said] disclaims all pretensions to such a power.' It is hardly necessary to say that these principles are received with universal assent."
I have qll,oted this extract from the Legal Tender Cases to show that, in those cases the court approved the principles announced in McCulloch v., Maryland. The question is in no sense involved in the case at bar as to whether the majority of the court in the Legal ''render Cases correctly applied the principles above quoted; but, if .r[ 'Yere, it would te'indelicate, if not altogether improper, for me to
85 FEDERAL REPORTER.
exp:reSEl an opinion iil regard thereto. My duty is to :bonform to the opinions of that great court, and, notJo criticise th,em. In the Legal Tender Oases the cout;t said, furtber:,
"A decent regard for a co-ordinate branch of the 'government,dWands that the judiciary should presume, until the contrary Is clearly shown;- that there has been no transgression of power by congress, all the members of ,which act under the obligation of an 'oath of fidelity to the constitution."
Such seems to be the settled canon of Oom. v. Smith, 4 Bin. 123; Fletcher v. Peck, 6 Cranch, 87; ![)artmouth 001lege v. Woodward, 4 Wheat. 625; LiVingstone v. Moore, 7 Ogden v. Saunders, 12 Wheat. 294; Knox v. Lee, 12 Wall. 531; Livingston 00. v. Darlington, 101 U. S. 410. By the tenth amendment to the, constitution it is provided that:
"The not delegated to the United States, by the constitution, nor prohibited by it to the states, are rellervedto the states respectively, pI' to .the peopie."
If reasons were, required for the principles supra" this amendment, it seemS, should We must therefol,'e,look to the constitution to find the power: for the authority of c'ongress to ena(jt any legislation. Nor will any degree of res;.pectf()r.tllat great legislative body supply the place of the,power if it isn9't to be found in the constitution. It need not be found in anyone power, but if "nonenumerated," or a "resulting, pow,er," flowing frOm the general purposes of the government, stilI it must be found somewhere in the constitution,or it does not exist and should not be claime(],:i Hence, , Ohief Justice Marshall said, in McCulloch v. Marvland, supra: .'
'''Should. theexecutlon of Its powers, adopt measures which are prohibited :by the constitution, or Should congress, under the pretext· of executing its powerll, pass laws for the accomplishment of objects not Intrusted to the government"lt would become the painful duty of this tribunal, shouid a case requiring such Ii decision come before It,tosay such an act was not the law of the land."" ' , "
Bearing in mind the principles announced, I proceed to consider the question at bar, viz.w4ether the duties alleged .in the indictment, which the inspectors were required, under the rulesandre'g-, ulations, of the secretary of .agriculture, to perform, were such as belonged to the United States, or to the state of Missouri. Under what clause or provision of the constitution didcongres1s enact the legislation autborizing the inspection of meats, or cattle, hogs, and sheep, .or tpeir carcasses, ,While or before being slaughtered in slaughter houses within a state? The learned counsel for the United States suggests, in argument, that the power may be found underwhat is commonly called the' "general welfare clause." 'T.he mention of the "general welfare" is first found 1,11 the preamble to the constitution, which may be properly referred to,fQr the purpose of correctly construing ;that. instrument; but Iventure the noadjQ.diGated ',be cited traces totbe the power toe,nact any · ,,',' " 0H' 462), Mr. Justice Story, says: , , ' 'I;
, "And here we must guard ourselves/l.galust an error ,is ino often. allowed to creep Into the discussions upon this subject. The preamble never can be
mUTED STATES V·. BOYER.
resorted to, to enlarge'the powers confided to the general government, or any of its departments. It cannot ciJnferany power per see . It can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source 'of any impIled power, when otherwise withdrawn from' the constitution. Its true office· ill to expound the ,nature and extent and application Qf the powel1li1 ac;:tu,ally conferred by the constitution, and not substantively to create 'For, example, the preamble declares one objeCt to be 'to provide for the common 'defense.' No Qne can doubt that this does not enlarge the powers of congress to pass any measures Which they may deem useful for the common defense. But suppose the terms of a given power admit of two con,structions,-the one more restrictive, the,. other more liberal,-and each of them is with the words, but is and ought to be governed by the intent, of the power; If one would promote, and the other defeat, the common defense, Qught not the former, upon the soundest principles of interpretation, to be adopted? Are we at llberty, upon any principles of reason or common sense, to adopt a restrictive meaning which will defeat an avowed ,object of the constitution, when another equally natural and more appropriate to the object is before us? Would not this be to destroy an Instrument by a measure of its words, which that Instrument itself repudiates?'
But, the "general welfare clause" to which the learned counsel 40ubtless referred is found in section 8, art. 1, of the constitution, and is as follows: '
"The congress shall have power: (1) To lay and collect taxes, duties, imposts, and exGises, to pay the debts and provide for the commOn defense and general weItare of the United States: but all duties, imposts, and excises, Shall be uniform throughout the United States."
908), says of this provision:
Mr. Justice Story, in the same elaborate work (sections 907 and
"Before proceeding to the nature and extent of the power conferred by . this dause, and the reasons on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true read· irig. Do the words 'to layalld collect taxes, duties, imposts, and excises' constttutea distinct, substantial power; and the words 'to pay the debts and provide; for, the common defense and general welfare of the United States' constitute another distinct. and subStantial power? Or are the latter words connected with the former, so as to constitute a qllallftcation upon them? This has been a topic of political controversy, and has furnished abundant materials for popu· lar declamation and alarm. If the former be the true IDterpretation, thenit:' Is obvious that, under color of the generality of the words 'and provide for the common 4efen!!e and general welfare,' the government of the United States is, In reality, Ii government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers. . If the latter be the true construction, then the .power of taxation only is given by the clause, and it is llmited to objects of.a,national character, .'to pay the debts and provide for the common defense and the general welfare.' The former opinion has been maintained by some minds of ingenuity and liberality of views. The latter has been the gep.eraliy receiVed sense of the nation, and seems supported by reasoning at once s'olldliDd impregnable. The reading, therefore, which will be maintained in these commentaries, is that which makes the latter words a qualification of the foriner; and this will be best illustrated by supplying the words which are to be understood In this interpretation. They will then stand 1;hus: 'The. congr,ess shall have power to lay and collect taxes, duties, imposts, and excises, In order to pay the debts, and to provide for the common defense and general welfare of the United States;' that is, for the purpose of paying the pub· lie debts, and providing for the common defense and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but It Is limited to specific objects,-the payment of thepribllc debts, and proViding for the common defense and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative lluthority."
85 FEDERAL REPORTER.
After a most elaborate and historical discussion of the subject, presenting the different views of the different political schools or parties, he concludes that the "general welfare" clause "contains no grant of power whatsoever, but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation." Id. § 911. I content myself with the fact that the former construction has never been sustained by any court, and the reverse has been held so often as not to require citations to support it; while the latter construction rests upon the theory that the "general welfare" clause contains no power of itself to enact any legislation, but, on the contrary, the words "and provide for the common defense and general welfare of the United States," according to the most liberal constructiollist, is a limitation on the taxing power of the United States, and that only. No case has been cited tracing the power to enact any statute to the welfare clause above quoted, and I do not believe any can. be. The learned counsel, in this has cited various acts of congress ofa nature quite similar to the one in question, but no number of statutes or infractions of the constitution, however numerous, can be permitted to import a power into the constitution which does not exist, or to furnish a construction not warranted. They, too, must stand or fall, when brought in question, by the same principles which are to be applied alike in all cases. It has been suggested that the "commerce clause" may warrant the enactment of the statute under consideration. Manifestly, I think, the statute was enacted upon the theory that such was the case. That such is not the case, I think, there is no reasonable doubt. That clause reads as follows: "The congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." What is commerce? Is it manufacturing? Is slaughtering cattle and sheep and hogs com· merce? If so, why is not farming, or stock raising, or manufacturing lumber, or mining? for all these enter into commerce, both domestic and foreign, and are intended for both. In Gibbons v. Ogden, 9 Wheat. 1, Chief JusticeMarshall said:
"Commerce, unrlo.ubtedly, Is traffic, but it Is something mote. It Is intercourse. It describes the commercial Intercourse between nations, and parts of nations, in all Its branches, and is regulated by prescribing rules for carrying on that Intercourse." .
But what commerce or intercourse is it that congress has the power to regulate? It is "commerce with foreign nations, among the several states, and with the Indian tribes." No power is here given to regulate, or prescribe rules for regulating, commerce or intercourse among the citizens of a state. Does the power, then, "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," embrace the power to send inspectors within a state to inspect animals being slaughtered, the product of which is intepded for foreign markets? Nobody contends that congress has any power to regulate commerce within a state. That it has not is universally admitted. When, then, does commerce
become interstate commerce? That question has gone before the supreme court of the United States many times, and in many forms. Kidd v. PearSQn, 128 U. S. 1, 9 Sup. C1. 6, is a case in which the state of Iowa passed a law prohibiting the manufacture or keeping of intoxicating liquors within that state except for mechanical, medicinal, culioory, and ,sacramental purposes. Kidd manufactured liquors not intended for the purposes stated, but exclusively for exportation to states in which the sales of liquors were not prohibited. He was indicted therefor, convicted, and the case was affirmed by the supreme court of Iowa. Writ of error was sued out to the supreme court of the United States, and the first question presented was whether the Iowa statute was in conflict with section 8, art. 1, of the oonstitution of the United States, by attempting to regulate commerce between the states. Mr. Justice Lamar delivered the opinion of the court, quoting approvingly from Gibbons v. Ogden, supra, and used these words:
"The genius and charactel' of the whole government seems to be that its action Is to be applied to all the external concerns of the nation, and to those Internal concerns which affect the states generally, but not to those which are completely within a particular state, and with which it Is not necessary to interfere for the purpose of executing some of the general powers of the government." 'The completely internal commerce of a state, then, may be considered as reserved for the state itself."
Continuing, Mr. Justice,Lamar said:
"No distinction is more popular to the common mind, or more clearly expressed In economic and political literature, than that between manufactures and commerce. Manufacture is transformation,-thefashioning of raw materials into a change of form for use. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce In the constitutional sense embraces the regulation, at least, of such, transportation. The legal definition of the term as given by this court in Connty of Mobile v. Kimball, 102 U. S. 691, 702, is as follows: 'Commerce with foreign nations and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.' If it be held that the term includes the regulation of all such manufactures as are intended to lie the subject of commercial transactions in the future, it is impossible to deny that It would also include all productive Industries that concemplate the same thing. The result would be that congress would be invested, to the exclusion of the states, with the power to regulate, not only manufacture, but also agriculture, horticulture, stock raising, domestic fisheries, mining,-in short, every branch of human Industry. For is there one of them that does not contemplate. more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest, and the cotton planter of the South. plant, cultivate, and harvest his crop ,with an eye on the prices at Liverpool, New York, and Chicago? '.rhe power being vested in congress, and denied to the states; it would follow as an Inevitable result that the duty would devolve on congress to regulate all of these delicate, multiform, and vital interests,-Interests which In their nature are, and must be, local in all the details of their successful management, It is not necessary to enlarge on, but only to suggest, the impracticability of such a scheme, when we regard the multitudinous affairs involved, and the almost Infinite variety of their minute details."
Justice Lamar, continuing, said:
"We have seen that whether a state, In the exercise of Its undisputed power of local administration, can enact a statute prohibiting within Its 85F.-28
!iD:litsthe . )nto;dcatJp'g :liquors" exceIl,t, tor purposes, IS not! any. longer an open question before this court. Is right to be ov'ertllrown by the fact that tbe, manufaCturer intends to the liquors wIlen made?" Does the statute,ln omitting- to except,'from its operation the manufacture of intoxicating' ·liquors within the limits of ,the state for exto eonport, cQnstitute an unau,thorized interference 'with the power gress to regulate commerce? , These questions are well answered .in the language'ofthe court in the License Tax Cases, 5 Wall. 462, 470: 'Over this commerce and trade [the Internal commerce and domestic trade of the states] eongress' has" no power of regulation, nor any direct control. Thispowcr exclusively to the states, I No ,interference by congress with the business, of citizens transacted within a, state is warranted by the,constltution, except sUch as is strictly incideI\tal' to the exercise of powers clearly granted to the legislature. The powerto authorize a business within a state is plainly repugnan'Lto the exclusive power of the state over the same subject.' The manufacture of intoxicating liquors in a state is none less a business within that state because the manufacturer intends, at his' convenience, to export SUCh llquors to foreign countries or to other states. 'I'his court has already' 'decided that the fact that an article was manufactured for export to another state does not of itself make it an article of interstate commerce, within the meaning, of secti!>n 8; art. 1, of the constitution, and that the Intent of the' manufa'cture', does not determine the tIII1e when the article or product passes from the control of the state and belongs to, commerce,"citing COe v. ])1'1'01, 116 517, 6 Sup. Ct. 475.
Coe v. Errol, Suprll, delivered by Mr. Justice Bradley, " ,
"'There must be a point of tirue .wben they cease t,o bE), gOverned exclusively by the domestic law, andbegirl to be governed and protected by the national law of commercial regulation;, and that moment seems to us to be a legitimate ,one for this purpose, in which they commence their final movement Ifor transportation from the state of their origin to that of their destination! ".
from The DanielBall, 10 WalL 557, he says:
.. 'Wlr'cIlever a commodity has begun to move as an article. of trade from one stateto another, commerce'lnthat commodity between the states has commencea.'But this, ro6vement does not begin until the articles have been shipped 'or 'started fortransportil.tioD from the one state to the 'other." 'i· . . . ·
In & C. Bridge Co. v. Kentucky, 154 U; 8. 210,14 Sup. et. 1087, Mr. Justice Brown said: ' ,
"Congress has no power to interfere with police regulations relating exclusivelyto the internal trade of the states (D. S. v. Dewitt, 9 Wall. 41; Patterson v. Kentucky, 97 D. S. 501); nor can it, by exacting a tax for carryIng on a certain' business, thereb;r authorize such _business to be carried on within the limits of a state (License Tax Cases, 5 WaU.462, '470. 471). The remarks of the chief justice in this case contain the substance of the whole doctrine: 'Over this [the Internal] commerce and trade, congress has no power of rregulation, nor any direct control. power' belongs, exclusively:fo: the states. No interference by congress ";viththe business, of 'citizens transacted within a state is warranted by the constitution, except such as is strictly inddental to· the exercise of· powers clearly granted' to' the legislature. The power to authorize a' business within a state Is plainly repugnant to the exclusive power of the state over the same subject,""
In U. 8.:Y.E. C. Knight Co., 156 U. S. 9, i5 Sup. Ct. 249, :Mr. Chief J llstice Fuller, delivering the opinion of the court, at page 14, 156 U. S., and pages 254,255, 15 SlIP· ct., quotes approvingly from Kidd v.. Pears(;m,supra, Gibbons v.Ogden, supra, and Brown Y. Maryland, 12 Wheat. 419, and says:
UNITED STATES V; BOYER.
"It Is' vitaf that independence of the commercial power and 01' the pollee power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed; for, while the one furnishes the bond of union, the other isessentia1 to the preservation oC the autonomy of the states as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne than the risk be run, In the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality."
Oases on this point might be multiplied almost indefinitely, and from them I cite License Tax Oases, 5 Wall. 470; U. S. v. Dewitt, 9 Wall. 41; Patterson v. Kentucky,! 97' U. S. 501; Oovington & O. Bridge 00. v. Kentucky, 154 U. S. 210, 14 Sup. Ot. 1087; 'rennessee v. Davis, 100 U. S. 300; Sands v. Improvement 00., 123 U. S. 295, 8SlfP. Ot 113; "Royall v. Virginia, 116 U. S. 577, 6 Sup. Ot. 510; The Daniel Ball, 10 Wall. 557; Kidd v. Pearson, 128 U. S. 23, 9 Sup.Ct. U.S.v. E. O. Knight 00.,' 156 U. S. 13, 15 Sup. Ot. 249; In'reQreene, 52 Fed. 104, 119; Slaughter-House' Cases, 16 Wall. 36; "O.S. v.Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct.'540. ' Prom these authorities it follows that:
"'When 'the [interstate] commerce begins Is determined, not by the character of thecOmmodltY,nor' by the Intention of the owner to tram;fer it to another state for sale, nor by his preparation of It for transportation, bun by! its' actual deliveliY' to l,l. common carrier for transportation, or the actual commencement of Its transfer to another state. At that time the power and regulating authority of the state ceases, and that of congress attaches and' continues, until It has: reached another state, and become mingled with the general mass of the property in the latter state. That neither theproduc, tion ot:manufacture of articles or commodities which constitute subjects of commdrce; and which are intended for trade and traffic with citizens of other states, nor the preparation for their transportation from the state Where prodUced or manufactured prior to the commencement of the actual transfer or transmissionthereof to another state, constitutes that interstate commerce which comes within the regulating power of congress." In re Greene, 52 Fed. 113.
The Jacob Dold Packing Oompany, therefore, while engaged in slanghtering and packing cattle, sheep, and hogs within the state of Missouri, the carClli'lses and producrs of which they intended to transport and sell for human consumption in other states and territories, Qr in foreign countries, were not in interstate commerce; and, not being engaged in interstate commerce, their business was in no sense subject to be t'egulared by congress under the interstate commerce clause of the constitution.' The cases which I have quoted sufficiently indicate that the regulations which the secretary of agriculture: under the act'of congress sought to exercise, WIld which are alleged in the indictment, are clearly and exclusively lodged: in the state of Missouri, and not in the government of the United States ; but what has been said may be supplemented by the of Chief Justice Marshall in the great case of Gibbons v. Ogden, supra, as follows:
"'ThafJ!nspection lam may 'have a remote and considerable Influence on commerce 'wi!lnot bedented;:but that a power to regulate comwer(Je)s the squr<;lli ,(rom, which the right, to pass them Is derived canllot be admitted. The object of inspection la,ws Is to Improve the qllil1lty of articles produced by the labor of 'the country; to fit them for exportation; or, it may be, for
domestic use. They act upon the subject before it an article of foreign commerce, or of commerce among the states, and prepare It for that, purpose. They form a portion ofthat Immense mal:lll,of legislation which surrendered to the embraces everything w:ithin the territory ofa state general government, all w:hichcan be most advantageously exercised by the states themselves. InSPeCtion laws, quarantine laws"pealth laws of every description, as well as laws for regulating the Internal commerce of a state, and those which respect turnpl.ke toads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, It must be for national purpOses. It must be where the power Is eJ!:pressly given for a special purpose, or is clearly Incidental to some power which is expressly given." Story, Const. § 1070.
It has not been suggested that the legislatian under discussion may be traced to any other power found in constitution, and hence I do not discuss any other power found therein. I think it clear from what has been said that congress has no power, even if it had done so by express legislation, to create the offices of inspectors, and impose upon them, or upon agents appointed in pursuance of law by the heads of departments, the duties alleged in the indictment. And the question now arises, if this be true, whether or not to offer a person a bribe not to do something which no valid law enjoip,s him to perform is an indictable offense, under the statute. In Re Greene, 5,2,Fed. 111, Mr. Justice ,Jackson, at circuit, made use of this· language:
"In the consideration of this indictment, it should be borne in mind that there are no common-law offenses against the United States; that the federal courts cannot resort to the common law as a source of criminal jurisdiction; that crimes and offenses cognizable under the authority of the United States are such, and only such, as are expressly designated by law; and that congress must define these crimes, fix their punishment, and confer the jurisdiction to try them. U. S. v. HUdson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415; U. S. v. Britton, 108 U. S. 199--206,2 Sup. Ct. 531."
In U. S. v. Gibson, 47 Fed. 833, it was held not to be a crime to offer a bribe to an internal revenue officer of the United' States with intent to cause him to enter and burn a distillery. The court quashed the indictment, saying:
"The bribe offered was for an act entirely outside the official function of the officer to whom it is claimed the bribe was offered. * * * The alleged offers cannot be said to have been made to induce the otIlcer to do, or omit to QO, any act in violation of his lawful duty."
In that case, had the internal revenue officer burned the distillery, it would have been no offense against the United States. No duty rested upon him to see that the distillery was not burned. Doubtless, if he had burned the distillery, ,he would have been guilty of arson under the state statutes, but of no offense whatever against the laws of the 'United States. In the case at bar, had the inspector received the bribe, it would have been no offense against the laws of the United States, for the reason that it was intended to him not to do a thing which no valid law of congress imposed upon him to qo. Itwo'!lldnot have, peen an infraction of the state law, because· no state law imposed upon him the duties alleged in. the
indictment; nor was bean officer of the state. I am unable to perceive, by any course of sound rea,soning, that the facts alleged in the indictment constitute an .offense against the United States; and hence the demurrer should be sustained to each of the three. sep· arate counts in the indictment, and the indictment dismissed. It is 80 ordered. .
TIEMAiNN v. KRAATZ et a1 (Circuit Court of Appeals. Eighth Circuit.
February 23, 1898.)
In a case used fOr the display of wreaths, crosses, emblems, etc., on graves, there is no invention in so fashioning the grooves or' slo1:8 in which the glass is secured as to form a tubular or semicircular gutter to catch and carry off water falling upon the glass, nor in providing metal clips or stops, flexible in character, at the bottom of the box, to hold the glass in place when the case is set at an angle. There is no invention in making the legs or stays of a case used for the display of decorative art on graves out of wire inserted in tin ears, so as to work pivotally, instead .of from any other metal, or hung with hinges, or to move up and down on a stationary rod, or other like known method, so as to make the legs capable of extension and contraction, or of being folded up. The Kraatz patent, .No. 392,038, for an improved case for exhibiting decorative art at graves, is void for, want of invention. 79 Fed. 322. reversed.
Appeal from the circuit court of the United States for the Eastern District of Missouri. This was a suit in equity by Henry W. Kraatz and Theodore L. Kraatz against Fritz Tiemann for alleged infringement of a patent. The circuit court sustained the patent, found that it was infringed by defendant, and entered a decree for an injunction and an accounting. 79 Fed. 322. The defendant has appealed. John W. Noble (F. & Ed, Gottschalk, on brief), for appellant. Frederick A. Wind, for appellees. Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge. PHILIPS, District Judge. This is a bill in equity for the infringement of patent No. 392,038, issued October 30, 1888, with a prayer for damages and an injunction. The answer put in issue the patentability of the structure. It also denied that the complainant was the originator and first inventor, and alleged that the same had been anticipated in its construction and use by one August Stiefel. The an,swer also pleaded laches on the part of the complainant. Tlle is for "a new and useful improvement in case for exhibition of decorative art," described in the patent attached to the bill of complaint as a "receptacle or CMe having legs or stays, provided with circular, tubular channels about its open face, having slots throughout tbelength of the channels; also, bearing flange and clips or stops to reeeive the removable glass cpver and itto the bearing flange,