UNITED STATES V. AMES.
guns which '11ad been taken from them in violation of the injunction. Up to the present time the court is not advised that any effort has been made to do so, or that a single gun has been returned. In other words, these defendants who engaged in that business apparently adhere to and justify what they have done, and I have made their punishment severer than I otherwise would have done, had they complied with the suggestion of the court, and repaired the injury they had committed. The defendants Will Welchell, Lingo, Bunch, Tallemene, and Morgan Morton were all guilty of arresting the employesof the company, and assisting in the guarding of them; and Bunch, especially, was violent, aggressive, and incendiary in his ef· forts to inflict harm or punishment upon the plaintiff's colored employes. The court will therefore inflict upon Bunch imprisonment in the said jail for the period of eight months, and upon Will Welchell, Tallemene, and Morton each imprisonment for the period of six months. There is less testimony against the defendant Kell than against any other one of these defendants. He may have been' equally culpable, but, so far as the proof shows, his acts were less criminal. The court therefore inflicts upon him imprisonment in the said jail for the period of five months. The duty I have discharged is a painful one. As said by Mr. Justice Brewer in U. So v. Kane:
"Courts are organized for the protection of persons and property, and while, in the discharge of their duties, there are oftentimes unpleasant burdens cast upon them, yet no man is fit to occupy a position as a judge, especially in a court which, like this, has such vast powers and such solemn responsibilities, who can hesitate, whenever a wrong is brought to his attention, to treat it as a wrong, and punish accordingly."
This I have done, in the hope that it will be a lesson to these de· fendants and all other persons.
UNITED STATES ex reI. CHAMPION v. AMES. (Circuit Court, N. D. Illinois. 1. March 31, 1899.)
HABEAS CORPUS-QUESTIONS ARISING ON HEARING-CONSTITUTIONALITY OF ACT OF CONGRESS.
A circuit court of the United States, on the hearing upon writ of habeas corpus, will not hold an act of congress unconstitutional.
LOTTERIES-CARRYING TICKETS FROM ONE STATE TO ANOTHER-CONSTRUCTION OF STATUTE.
In Act March 2, 1895 (28 Stat. 963), which makes it an offense to cause lottery tickets to be carried or transferred "from one state to another," the word "state" must be held to have been used in a constitutional sense, which does not include a territory of the United States; hence a complaint charging a person with having caused lottery tickets to be carried and transported from a state to a territory does I)ot charge an offense within a statute.
Hearing on a Writ of Habeas Corpus. Joseph B. David, for petitioner, S. H. Bethea, for defendant.
JENKlNS,;(:liilcuit Judge'(ollally')i. upon :the petition ofO. F. Ohampion, a "\\;rit '().(1:ha'beltsoot·pus was issu(!'d, to the 'marshal of ,the Northern districto1! lUino.is 'to l!>ol'ing up the ,body of the petitioner, then in his custodY,i ithat the'collr't might inquire into' the ,cause of arrest and iUponreturn to the writ, it appeaIts: that a certified copy of a complaint, made''to,3;"Conttnissioner in the Northern district of Texas,; wasfi:led with a , United :States ,commissioner in this district, who a 'warrant 'for the arrest of the petitioner. That complaint charged Champion with c(inspiracy, with certain other pa,rties named,tocommit 'an:offense" against the United States, the overt actaHegedbeing the transportation of certain lottery tickets in the 'of Paraguay; :The petitioner, having beeli"u,rrestediIpOII that complaint, was brought before the commissioner;' whel'eupon an amended coniplaintwas filed with the commissioner, made by Mr. Richard iHudson. That amended com(llailit aband<med the theory of conspiracy, and charged that Champion, outhe 15th of February, 1899, at:Dallas, in the No,l'tbern district of Texas(did cause to be carried and transported by'the WellsFargo ExpressCompailY, from the state of Texas to the territory of New Mexico, divers tickets of a drawing in, and advertisement of, a lottery. Ali 'examinati()nwas had upon that complaint, and the prisoner was committed to be transferred tQ Thxais to meet the charge. Upon the of thi!,! petition. a number of questions have been raised touching the proceedings before the commissioner, including the constitutionality ofthe act of congl'essby which this ofi;ense In the dispositiOIl of the 'matter; I find it necessary to refer to but two of the questions presented. I shall not undertake to say to what extent a court, upon the hearing on a writ of haberts corpus;1naY:.' go into the evidence before the commissioner, but, as I announced upon the'heari'ng,if there is a sufficient charge here,-if there is an offense set forth within the act of congress,-I am f'atisfiedthat there was shown probable cause to believe that such offense was committed by the petitioner. In considering tbeconstitutionality of this act of congress, I have read the opinion in,the cited (l<"rance v. U.8., 1(;4. U. S. (;76, 17 8up. Ct. 219), in 'which the .supreme court declined to pass upon its constitutionality. I have. carefully considered the matter, .and I think it fairly a debatable and doubtful question whether the act will be held to be cQnstituti'?nal.' 'BtU, it being dOllbtful, it. is not for this court, npon the hearing of. a petition upon a' writ· of habeas corpus, to hold the law unconstittitional. I conceive it to be the duty of a subordinate court, when an act of congress is of doubtful validity, to hold the law valid for the purposes of the case, leaving the question of 'the cOllstitutionali(r to be dealt with by theultimate tribunal., Therefore, for the of this hearing, I shall hold the act of congress tQ be coustitutional. This act (28 Stat. %3) provides:
'''l'!lilt any person who shall cause' to .bebrought within the United States from ahroad for the purpose of disposing of the same. or deposited in or carried by the mails of the United States, or cnt'ried from one state to another in the Unitell States, any paper, certitic:ate or instrument, purporting to be (Jr
1'2]Jrcsent a tieket, cbance, sbare or interest in 01' depenrlent upon the event of a lottery, so-called gift concert, or similar enterllrise offering; prizes ent upon lot or chance, or shall cause any ad\'ertisement of such lottery, socalled gift concert, or similar enterprise offering prizes dependent upon lot or ebance, to be brought into the United States, or deposited in or carried by the mails of the United States, or transferred from OIle state to another, shall be punishable in the first offense by imprisonment," etc.
lt will be perceived that the offense declared here is the causing to be carried these lottery tickets by any means of transportation from one state to any other in the United States. lt is claimed that lottery tickets-lotteries being generally prohibited by the laws of the various states-cannot constitute "commerce," as it is known and as the term is employed in the constitution of the United States. I am not prepared to say that that contention is well founded, for a prohibited thing may yet be a matter of commerce, and it may be that in the regulation of commerce between the states, under the power conferred by the constitution, congress has the right to exclude that which it deems prejudicial to public morals, especially when commerce in such matters is already prohibited by the law of the states. The serious difficulty which I have encountered, so far as it is my duty to pass upon the questions presented Mre, arises upon the complaint itself. I take it that upon the hearing of this petition the court has the undoubted right to look into the complaint, at least so far as to ascertain if an offense is charged; for, if none is charged, the commissioner bas no· jurisdiction to issue his warrant or to proceed with the matter. 'l'he complaint charges that the defendant caused to be carried gnd transferred by the WellsFargo Express Company, from the state of Texas to 'the territory of New Mexico, certain lotterv tickets. The act designates the offense to be' the carrying or transferring of such matter froin one state to' another in the United States. The question to be decided, therefore, is in what sense the word "state" is· employed in the act in question. Does it include a territor)' of the TJnited States? At a very early day the question came before the supreme court of the United States (Hepburn v, Ellzey, 2 Cranch, 445), in regard to the jurisdiction of the fedel'ill courts; the act conferring jurisdiction providing that in order to confer jurisdiction upon the federal court, there must be a controversy between a citizen of one state and a citizen of another state, or between an alien and a citizen. The question arose whether an inhabitant of a tenitory of the "United States, who was a eitizen of the United States, could maintain a suit in the federal comt, and upon that question we have the decision of the supreme court, speaking by Mr. Chief Justice Marshall, than whom no greater intellect ever adorned the· bench of the supreme court of the United States. 'l'his decision was made in what might be termed the "formative period" in the construction of the constitution, at a time when many of its framers were living, and it might be termed a "contemporaneous construction" of the constitution. I have also read with great interest and care the several decisions of the district court of Oregon to which the court here was' referred upon the hearing, and the reasoning of those cases has greatly im-
tll'eFed me: fa:, there can be no sortor reason why a cit; .1 of the rnited States who happens to bean inhabitant of a territory should not, be allowed accesl'\ to the federal (;ourts of his country when an alien has that right, and it has seemed to me that the statute should have been so construed that the word "state" should apply to a territory of the United Statel!'which is under its government and subject to its laws. But the same argument and the. same rea· soning which induced Judge Deady to hold that the word "state" includes "territory" was presented to, and passed upon by, the supreme court at that early 'date in the construction of the cOnstitution, and the chief justice remarked: "The act of congress obviously used the word 'state' in reference to the term as used in the constitution;" and therefore it becomes necessary to ascertain in what sense the word is employed in the constitution, and "the result of that examinaConfederacy tion is a conviction that the members of the only are the states contemplated in the constitution., The house of representatives is to be composed of members chosen by the people of the several states, and each state llhaU have at least one representative. The senate of the United States shaH be composed of two senators from each state. Each,State .shall appoint, for the election of an executive, a number of electors equal to its whole number of and representatives. Those clauses show," says the chief justice, "that the word 'state' is used in the constitution as designat· iug a member of the Union, and exdudes from the term the signification attached to it by writers on the laws of nations." It was claimed before that court that other passages from the constitution showed that the term "state" was usedin a more enlarged sense, but the court observed, on examining the passages quoted, that they did not prove what was attempted to be shown by them. "It is says the chief justice, "that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them" when they are citizens and inhabitants of a territory. "But this is a subject for legislative, not for judicial, I feel bound QY the decision of the. supreme court to which! have referred,and which has been upheld and adhered to continuously from that time to the present. Hooe v. Jamieson, 166 U. S. 395, 17 Sup. Ct. 596. It is the law of the land to-day, with respect to the jurisdiction· of the federal courts, that the inhabitants of a territory cannot seek justice witbin the portals of a federal court. Here is an act creating an offense unknown to the common law. n is a cardinal canon in the construction of criminal statutes that they should be construed strictly; that the courts have no right to extend their meaning beyond the scope of the terms employed; ilPd we must seek for the intent of the lawmaking power in the language which .MS been used in the act itself. W:\J.en congress, knowing, as we ip:l,ust presume it did, that the word "state," as used in the constitution, means simply.state, and not territory, and knowing, also, that the act, if it could be upheld at all, could only be sustained under the power given to congress ;to regulate commerce between the states, employed that term; we must assume that it was in the con·
FISH BROS. WAGON CO. V. FISH BROS. MFG. CO.
stitutional sense, as interpreted and declared by the supreme court of the United States.. It may be said-it may occur to anyone to say-that the transportation of lottery tickets into a territory which was under the absolute control of congress was as much within the mischief intended to be prevented as the transportatioh of such tickets from one state to another; but it is no more true than was the powerful argument presented to the supreme court that it was not intended to prohibit to citizens of the United States, becaUSe they happened to be domiciled in a territory, the protection of the courts of the United States, and it was as easy a matter in the one case as in the other, as suggested by the chief justice, to apply the remedy. If congress desired to prohibit the transportation of lottery tickets into a territory of the United States, it should have said so. We may not enlarge the scope of a criminal statute to declare an offense which congress has not created, because we see that the mischief is the like mischief that congress has sought to prevent in respect to other geographical divisions of the Union. I have come reluctantly to the conclusion that it would be judicial legislation for the court to hold, in view of the decisions of the supreme court, that the word "state," as used in this act, includes the territories of the United States. It follows, therefore, that this complaint presented to the commissioner charges no offense against this petitioner, and that he must be discharged from imprisonment.
FISH BROS. WAGON CO. v. FISH BROS.
(Circuit Court of Appeals, Eighth Circuit. June 19, 1899.)
JUDGMENT AS ADJUDICATION-MATTERS CONCLUDED.
In an action between the same parties, or those in privity with them, upon the same claim or demand, the prior judgment or decree upon the merits Is conclusive of every matter that was or might have been litigated in the earlier suit.
ASSIGNMENT-RIGHT TO USE TRADE NAME OR DEVICE.
A rIght of Individuals to use certain trade names and devices in connection with the manufacture and sale of an article, established 1:)y a judicial decree, is not personal, in such sense that it cannot be sold and assigned to another, in a different locality, in connection with a transfer of the good will of their business. 1
Appeal from the Circuit Court of the United States for the Northern District of Iowa. Charles Quarles, for appellant. W. J. Turner (Charles W. Chase and Halleck W. Seaman, on the brief), for appellee. Before CALDWELL, SANBORN, and THAYER" Circuit Judges.
lAs to right to assign trade-name generally, see note to R. W. Rogera Oo.V. Wm.Rogers MfS. 00.,170. O. A. 579.