11 F. 663 -

UNITED STATES.. '11. SMITH.

663

Oharles S. Rice, John H. Kennard, W. W. Howe, and, S. S. Prenti8s,

for eomplainants. , W. S. Benedict, and George Denegre, for defeudants. BILLINGS, D. J. We think the principles of applicaUle to this case are correctly stated in the opinion by the circuit judge in Leathv. Aiken, 9 FED. REP. 679. The sole question in this cause into which we ean inquire is this: Viewing the lease as an ordina.nce simply fixing the rate of wharfage,ahdexcluding all imposition for the support of lights or police, is the rate of wharfage greater than a fair and compensation for the use of the city's wharves? The matter is full of intricate difficulties. We can deal with it only as a judicial question, presented by a ·case in court with reference to an imposition upon specific property. We cannot take it up and decide it upon the general consideration which would be proper in case the matoor was pending before a legislative body 8S tb permitting such a lease. The case must be heard and decided bt:us upon evidence; that evidence must come from the bill of complaint, exhibits, and affidavits; and to authorize the granting of the injunction must enable us to say, as a matter of fact, that a grea.ter charge is made against the particular vessels of the complainants therein than is a just .' . . We do not find that the evidence submitte'd to us u,poIl,;the hearing of this preliminary motion enables us to say this. The motion must, therefore, be refused. PARDEE, C. J., concurring.

UNITED

STATES v. SmTlI.

(Oircuit Oourt, D. Kentucky.

CRIMINAL LAW-MAILING INDIWENT MATTER.;f

The term" indecent" in section 3893 of the Rev:is.ed Statutes, in connection with the offence defined in said section ofmaihng any book, letter, envelope, postal card, etc.· containing any indecent, etc., delineations, epithets, etc., either written or printed, taken with the history of the upon subject, means immodest, impure; and language which is coarse or unbecoming, or even profane, is not within the inhibition of the act. '.

Criminal Information.

Oeo. M. ThomlU, U. S. the United States. Ba1'ret a: Brown, for defendaRt.· ,

664

FEDERAL REPORTER.

BARR, D. J. The information in this case a.lleges that the defendant, Smith, did knowingly deposit, for mailing and delivery in the mails of the United States, "a certain postal card, upon which indecent and obscene epithets, terms, and language" were written, to-wit: "Oct. 19, 1881. .. DR. SIR: Your P. C. this date rec'd & in reply having had olle business transaction with you which fully developed you to me as a d--n scoundrel and rascal, I beg that all in a business manner cease between us & that no further business relations ever to exist. . " Respectfully F. A. SMITIL"

This was directed to "F. M. Laswell, Esq., Glasgaw,Kenty." The defendant admits writi:pg, and depositing in the mail, this postal card, and the question .arises whether this is an offence wit4in the meaning of an act JtIlproved July 12, 1876, amending 3893 of the Revised Statutes, providing a penlj,lty for mailing obscene books, etc. That law enacts that aootion 3893 of the Revised Statutes shall be and is hereby amended so .as to read as follows: ,. Every obsCene, lewd, or lascivious book, pamphletJ; picture, paper,writlng, print, or ,other publication of an i,ndecent character, and every article or ,thing designed or intended for the prevent,ion of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circ'ular, book, pamp,plet, advertisement, or notice of any kind, giving information, directly or indi. rectly, where or how or of whom, or by what means, any of the hereinbefore mentioned matters, articles, or things may be obtained ormade; and every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any thing declared by this section to be non-mailable matter, ... ... * shall be deemed gUilty of a misdpmeanor, and shall for each and every offence be fined not less than oue hundred nor more than five thousand dollars, or imprisoned at hard labor not ress than one year nor more than ten years, or both, at the discretion of the court. .Supp. Rev. St. 229. The language of this postal card is not obscene, but it is insisted that it is indecent within the meaning of this law. A brief review of the legislation of congress upon this subject will aid in coming to a correct conclusion as to the meaning of the word "indecent" as used in this act. The first act upon this subject was approved March 3, 1865, and in that act the language was "no obscene books, etc., · · · or other publication of a vulgar. and indecent character." The next act was approved June 8, .1872, and provided that "no ob·

UNITED STATES V. SMITH.

665

scene book, etc., · · * or other publication of a vulgar or indecent character,or any letter, upon the envelope of which, or postal card upon which, scurrilous epithets may have been written or printed, or disloyal devices printed or engraved, shall be carried in the mail." The next act was March 3, 1873, and that provided "no obscene, lewd, or lascivious book, etc., - · * or other publication of an indecent character, - · - nor any written or printed card, circular, · · - upon which scurrilous epithets may be, * * ·. shall be carried in the mails," etc. The title of this act is "An act for the suppression of trade in and circulation of obscene literature and \ articles of immoral use." Section 8893 of the Revised Statutes provided that postal cards upon which "indecent or scurrilous epithets are written or printed should be non-mailable." It will be noticed, from this review of the legislation of congress,that the act of 1873 omitted the words "disloyal devices," which was in the act of 1872, but retained the word "scurrilous," which was used in the Revised Statutes; but that the act of 1876 omitted the word "scurrilous," and the law is now substantially as originally enacted in 1865. It is quite clear that the purpose of the act of 1865 was to prevent the mails from being used.to circulate obscene literature pictures, etc., and prevent their use for immoral purposes, such as would give information in regard to abortions, etc. The connection in which the word "indecent" is used, taken with the history of the legislation upon the subject, leads me to the conclusion that it means immodest, impnre, and that language which is. coarse or unbecoming, or even profane, is not within the inhibition of this act. This construction harmonizes with the other provisions of the act, and a broader definition of the word "indecent" would lead us beyond its spirit, and into an uncertain and boundless field of construction. The information should be quashed.

666'

FBDERAL REPORTER.

J'UPITER MINING CO. '11. BODIE CONSOLIDATED MINING CO.

(Circuit Oourt, D.Oalifornia.

March 12, 1881.)

1. LENGTH AND WIDTH OF LODE CLAIMS. , The adt of congress of May 10, 1872, authorizes a claim to be located 1,500' ,feet in lengt4 along theveiI\, and, in ,the absence of any local rule or custom" the .of such claim may extend 300 feet on each side of the middle of the veIn; but said act of congress, by implication, authorizes the miners to limit the width of such claimeto 25 feet on each side of the middle of the vein. 2. MINERs'RULEs MuST BE nit FOROE. To be ()f any a rule or custom of miners must not only be established. or enacted, but must be in forCIJ at the time and place of the location. It ceases to be operative whenever it falls into disuse, oris generally disregarded. 1$. MUST NOT OONFLICT. The rules,lindcustome of miners must not conflict With the laws of the United States, or the laws of the state in.which the claims are IQcated, 4. STILL IN FOROE. Section 748M the Code of Civil Procedure of California is still in force, ex· cept so far as it is limited by act of congress; and no distinction is made by this provision of the:state statute between a custom or usage proved by parol evidence,and a by a miners' meeting and recorded in writing. G. QUESTION OF FACT.' " Whether or not a mining law or custom is in force at any given time is a question of fact; but, when shown to have been in forcc, the presumption fa that it continues in force the contrary is proved. 6. Vom FOn ExCESS OF WIDTH. Where a, location, otherwise valid, exceeds the width allowed by law, it 11 void as to the excess, but valid as to the extent allowed by la.w. 7. 'DrSCOVERY OF A VEIN. No rig4ts can be acquired under the statute by location befon3 the discovery of a vein or lode within the limits of the claim located. 8. DEFINITION. OF ,VEIN OR LODE. A vein or lode authorized to be located is a seam or fissure in tlle earth's crust filled with qual'tzor some other kind of rock, in place, carrying gold, silver, ot other valuable mineral deposits named in the statute, It may be very thin, or many feet thick, or irregular in thickness; and it may be rich ()r poor, provided it contains flny of the metals named in the statute. But it must be more than detached pieces of quartz or mere bunches of quartz not in place. 9. DISCOVERY OF VEIN All'TER LOCATION. A location is made valid by the discovery of a vein or lode at any time after the location, provided that such discovery is made before any rights are acquired in the same claim by other persons, 10. FIRST DrscovE lmR. It is not neccRsary that the locator should be the first discoverer of tbe vein; but it must be known and claimed by him in order to give validit,Y to bis loca· tion. 11. OTHER VEINS THAN THOSE DISOOVERED. Where a valid location is made upon a vein or lode discovered, the locator is not only entitled to the vein G"scovered, but to every other vein and lode