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FEDERAl, REPORTER.
killing is not within a condition forfeiting a policy for suicide, 01' taking one's own life, whether such death results from taking poison by mistake, supposing it a wholesome medicine, or from an act done in frenzy or delirium, as by leaping from a window, tearing off a bandage from an artery, or from an act done under the stress of overpowering force. In this all the authorities agree, whatever may be the opinion of particular courts as to whether or not a voluntary selfdestruction resulting from insanity is within the condition. Id. 489; Edwards v. Travelers' Life Ins. Go., 20 Fed. Rep. 661; Pierce v. IlIsuranee Co., 34 Wis. 389. If it were intended by this policy to include death by accident, it was easy enough to sa.y so. The insurers frame their own contracts, and to suit themselves. They may, if they choose, insert express stipulations against accident. "If they prefer, for the purpose of getting custom, to omit such a stipulation, and to leave the matter in doubt, the doubt ought to be resolved against them." 3. With regard to the verdict. The facts were within the province of the jury. There was evidep.ce to support the verdict. I see no reason for setting it aside on this ground. The motioI;l Jor a new trial is dismissed. Let the plaintiff enter his judgment in conformity with the verdict.
UNITED SUT1!JS
v.
NELSON. ;
(Diatrict ,
(JO'Urt,
D. Alaska. 1886.) ,
'
1.
CONSTlTUT,IONAL LAW-POWERS Oil', CONGRESS-PRoamITORY LIQUOR LAW IN
ALASKA;
Congress has power to eno.et that intoxicating llquors sha1l not be manufactured or aold as 0. beverage in Alaska,and to authorize the president of the United States to make such regulations as may be necessary to carry out the provisions of the law.
9.
ORIMINAL LAW-'INDiCTMENT-EXOlllPTIONS IN STATUTE.
When the enacting clause Qf a statute descrioes the offense, with certain exceptions, It is necessary to state In the Indictment all the circumstances, and to negative the exceptions; but, if the exceptions are contained In sepafate clauses of the statute, they may be omitted In the indictment, and the accused must show that his cllse comes within them to avail himself of their benefit.' ,
8.
INToXICATING LIQUORS, SALE Oll'-INDICTMENT-DEFENSE-LICENSE.
When the non-existence of a llcense is not averred hi an indictment for an nnlawfulsale of llquor, and the llcense Is particularly within the knowledge of the accused, the burden is on him to produce such license, and rely on it 88 0. defense.
Demurrer to Indictment for Selling Distilled Liquors in Sitka, Alaska. DAWSON, J'. Defendant was indicted at the May term, 1886, of the court for selling distilled liquors in the town of Sitka, in
UNITED STATES '11. NELSON.
203
the district of Alaska, contrary to the statutes of the United States made and provided against, etc.. To this indictment defendant has demurred upon two grounds: (1) That the statute of the United States whioh it is alleged was violated, is unconstitutional and void; (2) that the indiotment does not state faots sufficient to constitute an offense against the statute. The question presented is, has oongress the constitutional power to prohibit the importation, manufaoture, and sale of distilled spirits in the district' of Alaska? It is earnestly and ably argued by defendant's oounsel that the aot of oongress of July, 1868, (Gen. St. § 1955,) is violative of the fundamental prinoiples of free government, and therefore void; for the reason alleged in the argument that congress, in its peculiar relation to Alaska, and with the restrioted power it possesses in regard thereto, has no oonstitutional right to enact a prohibitory liquor law for this territory. ' It has been judioially held (see Kie v. U. S., 27 Fed. Rep. 351) that Alaska has been since 1867, and now is, a district of our oountry under the exclusive jurisdiotion of the United States, but I know of no case in which it has been decided that Alaska is in no sense "Indian country." It was held by this court in the Slave Case, in April last, that only as to the prohibited commerce mentioned in the sections referred to, being seotion 1955 of the act of Jul)', 1868, and seotions 20 ahd 21 of the intercourse act of 1834, and section 14 of the aot of May, 1884, could Alaska be regarded as Indian country. That oonclusion was based upon the Opinions of Attorneys General, vol. 14, p. 290, and vol. 16, p. 141, and I am unable to find anything in the opinion of Justice DEADY in the Kie Case in oonflict with the oonclusion there reached; for the learned judge says: "As it rests with congress to say whether a district of country shall be considered · Indian country,' so far as the intercourse between the abOrIgines thereof Rnd other persons is concerned, this lpgislation, in my judgment, by at least III reasonable, if not a necessary, implication, is eqnivalent to a declaration tl13t Alaska is not to be considered ·Indian country' only so far as concerns the introductIOn and disposition of spirituons liquors therein."
It may well be said that Alaska is not "Indian oountry," in the conventional sense of the word; but it does not follow that it is not "Indian oountry," so far as congress may choose to make it suoh. True, the government has never treated with the Indians of Alaska; but in the third artiole of the treaty of March 3, 1867, there is express and speoific reservation of power to the United States to make laws and regulations in relation to the aboriginal tribes. Congress being the only law-making power of the government under the oonstitution, that instrument has sharply defined the subjeots upon which congress may legislate, and specifically presoribed the duties of the legislative branch of the government. Section 3 of artiole 4 of the constitution, one of the seotions olassifying the subjects upon which
204
FEDERAL REPORTER·
. congress m,ay legislate, says: "The congress shall have power to dispose of and make all needful rules .and regulations respecting the territory or other property of the United States." It will be observed from this section that the territory or unpatented lands then within the territorial boundaries of the United States, and which did not belong to the original individual states, was intended to be, and upon the ratification and adoption of the constitution did become, the absolute property of the United States, subject only to the right of occupancy by the Indians. But the United States possessed the right to extinguish the Indian title of occupancy either by conquest or purchase. See 1 Kent, Comm. lect. 12. The treatymaking power of the government is vested by section 2 of article 2 of the constitution in the president, by and with the advice and consent of the senate. This power necessarily implies the right to purchase new territory; and when the power has been exercised, and territory purchased, the title, immediately upon an exchange of ratification, vested in the United States. American Ins. Co. v. Canter, 1 Pet. 511. . Such was the recognized doctrine in the treaty of peace with Great Britain, and by subsequent ·cessions from France and Spain, and by cessions from the individual states. But an effort was made to restrict and limit the powers of the government over the territories of Louisiana and Florida. The reason for the strenuous efforts to limit and restrict the powers of the government in relation to those territories is a matter of history, but the institution about which that controversy arose has passed away, and is no longer a question of contention, either in the political or juridical affairs of the government. Counsel refers to and quotes the following from the opinion of the court in the case of American Ins. Co. v. Canter, 1 Pet. 511: "In the mean time Florida continues to be a territory of the United States government by that clause of the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state, acquired the meaus of may result necessarily from the facts. that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable."
It is then argued that because the source of the power to make all needful rules and regulations respecting the territory or other property of the United States was not decided in that case, that the power exists only as the consequence of the right to acquire territory; and the celebrated Dred Scott Casc, 19 How. 393, is cited and relied upon by counsel. But the conclusion reached by the majority of the court in that case, holding that the power to make all needful rules and regulations existed only as the inevitable consequence of the right to acquire territory, and that section 3 of article
UNITED STATES V. NELSON.
205
4 of the constitution ha.d reference only to the then territory of the United States, has never met with the united approval of the American bench and bar. Two reasons may be assigned for the lack of approval of the doctrine of that case: First, the decision was by a divided bench, BOme of the ablest jurists then on the bench, in exhaustive opinions, dissenting from the conclusions reached by the majority; secondly, the case involved a vital political question, upon which the American people were unmistakably and radically divided in sentiment. Article 1 of the treaty by which Alaska was ceded to the United States is as follows: "His majesty, the emperor of aU the Russias, agrees to cede to the United States, by this convention, immediately upon the exchange of the ratifications thereof, all the territory and dominion now possessed by his said majesty on the continent of America, and in adjacent islands; the same being contained within the geographical limits herein set forth." See Pub. Treaties U. S. 671.
O
Upon the ratification by the president of the United States, by and with the advice and consent of the senate, on the one part, and on the other by his majesty, the emperor of all the Russias, and an exchange of those ratifications within three months from the date of the treaty, the title to the soil in Alaska vested in the United States, and remains in the United States by virtue of the treaty with Russia. Judge Story, in his Commentaries on the Constitution, in examining the section now under consideration, has deduced the following conclusion from the very case referred to and quoted from by counsel, in 1 Pet.: " As the general government possesses the right to acquire territory either by conquest or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern what it has so acquired, The territory does not, when so acquired, become entitled to self-government, and it is not subJect to the jurisdiction of any state. It must consequently be undlel' the dominion and jurisdiction of the Union, or it would be without any government at all. * * * In cases of confirmation or cession by treaty, the acquisition becomes firm and stable. and the ceded territory becomes a part oof the nation to which it is annexed, either on terms stipulated in the treaty, or on such as.its new masters may impose." Story, Const. par. 1324. There can, I think, be no question as to the authority of congress to enact such forms of territorial government within the territories of the United States as they may choose or deem best, and not in conflict with the constitution and laws of the United States. Possessing the power to erect a territorial government for Alaska, they could confer upon it such powers, judicial and executive, as they deem most suitable to the necessities of the inhabitants. It was unquestionably within the constitutional power of congress to withhold from the inhaqitants of Alaska the power to legislate and make laws. In the absence, then, 'of any law-making powel' in the territory, to what Bource must the people look for the laws by which they are to be
206
,
FEDERAL REPORTER.
governed? This question !Jan admit of but one answer. Congress is the only law-making power for Alaska. The next question to be determined is, what laws are applicable to Alaska in relation to the importation and sale of ardent spirits? In .March, 1878, sections 20 and 21 of the intercourse laws of 1834 were extended to and over aU the main-land, islands, and waters of Alaska. In the act of congress of July 27, 1868, the president is authorized to restrict, regulate, or prohibit the importation 'and use of fire-arms, ammunition, and distilled liquors into and within the teuitory of Alaska. Section 1955, Rev. St. Section 14 of the act of May, 1884, establishing a civil government for Alaska, (28 St. 28,) is as follows: "Sec. 14. That the provisions of chapter 3, tit. 23, of the Revised Statutes of the United states. relating to the unorganized territory of .Alaska, shall remain in full force. except as herein specially otherwise provided; and the importation. manufacture, and sale of intoxicating liquors in said district, except for medicinal, mechanical, and scientific purposes, is hereby prohibited, under the penalties which are prOVided in section 1955 of the Revised Statutes for the wrongful importation of distilled spirits. .And the president of the United States shall make such reglllations as are necessary to carry out the provisions of this section."
It will be observed that fire-arms and ammunition, as prohibited commerce in section 1955 of the act Of 1868, are omitted in section 14 of the act 'of May, 1884; thus, by clear implication, repealing section 1955 so far only as prohibiting the importation and use of firearms and ammunition. !tis well se.ttled that in the construction of statutes a subsequent statute which is repugnant to a prior one, or that if it can be reasonably inferred that the intention was that the subsequent statute should presQribe the only rule that should govern in the case, it is to be regarded as a substitute for, and as repealing, such prior act. Sedg. St. &' Const. Law, 104; U. S. v. Sevelojf, 2 Sawy.811. A statute is repealed by the enactment of anotherrepugnant to it, or one covering the whole subject of the former. U. S. v. Barr, 4 Sawy. 254. ' Applying this rule, we may rea:sonably conclude that section 14 of the act of May, 1884, was intended to cover the whole of the subject embraced in sections 20 and 21 of the intercourse laws of 1834, as extended to and made applicable to Alaska; and that section 1955, with the omission of the words "fire-arms" and "ammunition," with the act of May 14, 1884, and the regulations made by the president on the twenty-sixth day of :February, 1885, taken together, are the only laws now in force in relation to this question in Alaska. , .To enforce this law the following rules have been prescribed: "No intoxicating liquors shall be landed at any port or place in said territory without a J)f'rmit from the chief oilieer of the customs at such port or place, to be issued upon evidence satisfactory to such officer that the liquors are imported, and are to be used, solely for medicinal. mechanical, and scientific purposes. No person shall manufacture or sell intoxicating liquors
207
within the territory of Alaska without first having obtained a license from the governor of saill territory, to be issued upon evidence satisfactory to that officer that the making and sale of such liquor will be conducted strictly in accordance with the requirements of the statute. Any intoxicating liquors imported, manufactured, or sold within the limits of said territory in violation of these regulations, and the persons engaged in such violation, will be dealt with in the manner prescribed in section 1955 of the Revised Statutes; and the governor of Alaska, and the officers of the customs at any port or place in the United States from which intoxicating liquors may be shipped to that territory, as well as officers of the United States within that territory, are hereby authorized, respectively, to exact, in their discretion, a bond of tho character mentioned in section 1955, Rev. St., from the master or mate of any vessel, and from such persons in such territory to whom liquors may be sent. The penalty prescribed by section 1955, Rev. St., for violation of the law, is a fine not exceeding 8500, or imprisonment not more than six months, and the forfeiture of the vessel bringing the merchandise and her cargo, together with her tackle, apparel. and furniture, where the value of the merchandise exceeds $400. Where the value of the merchandise does not exceed $400, the penalty is forfeiture of the merchandise. The proper officers within the territory are charged with the execution of the law and these regulations. Intoxicating'liquors forfeited under the provisions of this act will be subject to sale under the same provisions of law as govern the sale of other goods that may have become liable to forfeiture, but will only be delivered for removal beyond theUmits of the territory. H. MCCULLOCH, Secretary· .. Approved: CHESTER A. ARTHUR."
laws, as amended, then, are the only laws now applicable to Alaska in relation to the importation and sale of distilled liquor. Congress unquestionably had the constitutional power to authorize the president to regulate or prohibit the introduction of distilled spirits into the district of Alaska, and when the president, in pursuance of that power, made regulations, those regulations became a part of the law upon the subject. The Louisa Simp,on, 2 Sawy. 57. It should be borne in mind -that the various acts of congress in relation to the subject now under consideration are in pari materia, all relating to the same subject-maHer, and are to be taken and examined together, in order to ascertaitl the legislative intent. Sedg. St. & Const.Lf,l,w, 247. What was the object of the legislation? What was the evil sought to be remedied? By the treaty of March, 1867, more than 500,000 square miles had been added to the territory of the United States. This vast region was then populated principally by Indian creoles and Russians, with a few whites scattered here and there. . By the third article of .that treaty the United States guarantied the Russians who chose to remain in tbe ceded territory the equal protection of the laws. The evils resulting from the use of intmdcating liquors are so appalling, prolific of so much mischief and disorder, tbat at· an early period in the history of our government strenuous efforts were inaugurated to prevent their introduction among the .Indians. This policy has been scrupulously adhered to by the governmentthrough all the years of its existence. The court cannot presume that in a matter of such vital importance to the material and moral well-being .of the Indians, and to the protection, pelloce, and
208
safety of other residents in Alaska, that congress intended to depart from the long-established policy of the government in relation to this question. The evident intention of congress was that distilled spirits shall not be imported, sold, and used in Alaska as a beverage; but that, under the regulations of the president, they may be imported and sold for the purposes only mentioned in section 14 of the act of May, 1884. But it is {lontended that the law is unwise, impolitic, and discriminative. With these questions the court has nothing to do. It is not for the court to decide the wisdom or inconveniences of a la w. Is it It law? Is it within the scope of legislative power to enact? If so, it belongs to the legislative branch of the government to correct its oppressive features, if they exist. Neither can policy have any influence in construing a law. The policy of one age may not suit the wishes of another; the law is not subject to such fluctuations. Story, Confl. Laws. It may be well to remark that distilled spirits per se, but the business can only become ,are not lawful legitimate by those engaging in it complying with the internal revenue laws of the United States. Section 3232, c. 3, Rev. St., says: "No person shall be engaged in or carryon any trade or business hereinafter mentioned until he has paid a special tax therefor, in a manner hereinafter. provided." Then follows an enumeration of the.!1rticles, and the amount of license taxes, including distilled spirits. See section 8244. It is also unlawful for any person to retail distilled spirits in Alaska. without having complied with the regulations prescribed by the president, by procuring a license from the governor as therein prescribed. Upon this branch of the case I have no doubt about the constitutionality of the laws now in force in relation to Alaska, even though they amount to prohibition. Many instances might be pointed out in which congress has imposed like duties upon the president, Itnd I know of no case in which the power to do so has been seriously questioned. .Alaska being under the complete dominion of the United States government, and its inhabitants subject to the jurisdiction of its courts, it follows, as a necessary sequence, that the government, by virtue of its sovereignty, may restrict or prohibit the manufacture, importation, and sale of distilled spirits as a beverage in the territory as it may do in any other district under the exclusive jurisdiction and control of the United States. This legislation by congress is analogous to prohibitory legislation by the states. Prohibitory laws have been sustained by state courts where the question of conflict with state constitutions, or with general fundamental principles, has been raised. Such laws are regarded by the court as police regulations, established by the lawmaking power for the abatement and prevention of intemperance, and the consequent and intolerable train of evils which invariably follow in its wake. See People v. Hawley, 8 Mich. 360; Reynolds v.
UNITED STATES tI. NEJ.SON.
209
Geary. 26 Conn. 179; Com. v. Kendall, 12 Cush. 414; Com. v. Clapp, 5 Gray, 97; Com. v. Howe, 13 Gray, 26; State v. Robinson, 33 Me. 568. The second point raised by defendant's counsel is that the indict. ment is defective in that it does not negative the exceptions in the statute. Section 1955, Rev. St., contains no exceptions whatever, but confers upon the president power to restrict and regulate, or pro· hibit, .etc. The first act of congress containing any exceptions is sec· tion 14 of the act of May 17, 1884, in which it is declared that the importation, manufacture, and sale of intoxicating liquors in said district, except for medicinal, mechanical, and scientific purposes, is hereby prohibited. Chapter 3 of title 23 of the Revised Statutes, which congress declares in the act of May 17, 1884, shall remain in full force, except as therein otherwise provided, was enacted and became a law nearly 16 years prior to the act of May, 1884, in which the words "fire-arms and ammunition" were omitted, and the words "except for mechanical, medicinal, and scientific purposes," were introduced. The omission of the words "fire·arms and ammunition," and specifications of the uses for which distilled spirits may be manufactured, imported, and sold, we must infer is what was embraced in the language, "except as herein specially otherwise provided" in section 14 of the act of May, 1884. Then follows the regulations by the president dated February 26, 1885. Can it now be said that the exceptions are contained in the enacting clause of the statute so as to invoke an application of the rule contended for by defendant? When the enacting clause of a statute describes the offense with certain exceptions, it is necessary to state all the circumstances that constitute the offense, and to negative the exceptions; but, if the exceptions are contained in separate clauses of the statute, they may be omitted in the indictment, and the defendant must !!how that his case comes within them to avail himself of their benefit. Kline v. State, 44 Miss. 817. Where provisos or exceptions are contained in distinct and independent clauses of the statute upon which an indict· ment is founded, it is unnecessary to..allege in the indictmE;lnt that the party indicted is not within the exceptions. State v. Cassady, 52 N. H. 500. The allegation in the indictment is that the defendant did sell certain distilled liquors, therein described, contrary to the statutes of the United States. Now, before there could be legal sale of liquors, the law requires that the party selling must have procured a license from the governor of the territory, issued upon evidence satisfactory to that officer that the sale of such liquor would be strictly in accordance with the requirement of the statute, as provided for and reo quired in the president's regulations. Prof. Wharton says, (Crim. Ev. § 342:) "When the. non-existence of the license is not averred in the indictment, and when the license is particUlarly within the knowledge of the party holdv.29F.no.5-14
210
ing it, the burden is on him to produce such license in all cases in which the existence of the license is in question." If this defendant has complied with the law, and procured a license from the governor, surely he knows it; and I am clearly of opinion that this is one of that class of cases in which the burden is shifted on the defendant, and, upon the general allegation that he sold contrary to the statute, he must show that he is within the exceptions of the statute. As to any other defect in the indictment, if any exists, it is cured by section 1025, Rev. St.; which is that "no indictment found and presented by a grand jury, in any district or circuit or other court of the United States, shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." Upon a careful consideration of the questions presented, I am of opinion that the law is constitutional; that the indictment, while probably inartificially drawn, is substantially good; and that the demurrershould be overruled; and it is so ordered.
LAMSON CASH
Rv.
Co.
OSGOOD CASH CAR
Co. and others.
(Oirouit Oowrt, D. Maalachuaet!8. November 24, 1886.)
In a suit for infringement' of a patent, the defense being that defendant was the first inventor, the fact that soon after the time of his alleged invention he applied for a patent relating to the same subject, which he based on an entirely different principle, overcomes his and his witness' testimony, that he was th,efirst inventor. 2. SAME-HAYDEN PATENT OF MAY B, 1881, No. 241.008. The Hayden patent of May-a, 1881, No. 241.008, describing, among other things, an extensible holder, attached to a frame supported on wheels. the specification of which is as follows: "One of the principal difficulties, in construct· ing a carrier of this character has been to adapt it to retain both large and small articles lis well as articles of irregular shape,-a difficulty which I have overcome by connecting the holder. C, flexibly to the frame. I have adopted va· rious modes of securing a flexible connection. For instance, I have used a crate or frame or basket, in connection with elastic straps, suspending it from the frame, A, or I have used a holder made of elastic straps. In either case the article, whether large or small, is pressed up' against the frame by the elasticity of the holder, "7includes a holder extenslbly connected to the frame as well as a holder extensible in itself.
PATENTS FOB lNvENTIONS-mll'lUNGEMEN'I.'- PRIOR INVENTION-SUFFICIENCY OF EVIDENCE-PATENT No. 295,172, FOB blPROVEMENT IN CASH AND PARCEL CARRYING SYSTEM.
In Equity. B. F. Thurston, M. B.Philipp, and E. a. Gilman, for complainant. J. L. 8. Robe?ts and Rodney Lund, for defendants.
