636
FEDERAL REPORTER,
vol. 40.
this, incurred while the property was in this transition state. Now, it is true that we are not enforcing that indemnity at all,nor concerned with it as such; but the fact shuws that these two owners were in joint possession and control at the moment of the accident, each according to his interest, whether as agents for each other or otherwise is immaterial herejfor as to thi!! plaintiff both are joint trespassers, and both or either are liable to him. and they can, inter sese, arrange to pay the judgment according to their contract, whichever satisfies it as to him. Why should\!lJ.e new company stipulate to indemnify the trustees against claims like this if they were not in control in fact? It is a fact showing that the beneficial ownership and management was with the new company, although the trnstees remained in nominal possession, and this peculiarity of the situation can but make both or either of them liable to the plaintiff. Under our Tennessee Code the court and ry have statutory power to mould the verdict and judgment in just such cases according to the right of the case. Mill. & V. Code, §§ 3687, 3688; Knott v. Ounnin,qham, 2 Sneed. 204; Pa'l'1"iJJ v. Brown, 5 Yerg.267. There is no difficulty under this practice in rendering a. verdict against both, to bes/ltisfied by either, and such is the judgment in this case. Overrule the motion.
UNITED STATES ". HUGGETT. SAME'll. DARKEBS.
(01.Tcmt Oourt, N. D. OMo. July 1, 1889.)
L
CRIMI1UL LAW-OBSCENB PUBLICATIONS-LETTBRS.
PI'ior to the recent aots of congress, letters were not included in the inhibitions of Rev. St. § 881lS, against the use of obscene language in matter deposited in the IDaUs. . ' OJ'STATUTEB-REABOlIfABLE DOUBT'-PENAL ACTS.
9.
'rhe rule of reasonable Cloubt, in the construction of 8tatutes, does not apply to di8charge the accused, but the courts enforce a 8tI'ict con.!ltruction of penal statutes, confine theID within the clearly expressed or necessarily iIDplied IDeaning of the language used, and will not enlarge theID to include conduct equally obnoxious because it is Within the IDischief to be reIDedied. FEDERAL COURTS-STARE DECtSIs-RANK 01/ JUDGES.
8.
'Q"pon distinctively federal questions, the decisions of thE! supreIDe court only arE! technically binding as authority on the infeI'ior courts, and the relative rank of the judges sitting in the circuit courts does not add to the authority of the decisions ]]lade, but the value of the rule of stare d.eclsis depends upon all alike yielding to the force of the first precedent established on the circuits. Until all the judges pay strict regard to this rule, uniforIDity under the existing systeID is iIDpossible.·
On Demurl'er to Indictment. Defendants were each indicted for sending through the mails letters which were 'sealed, but contained language confessedly indecent and ot>;. scene. There were demurrers upon the ground that the sending of such letters was not prohibited at the time of the mailing of these particular letters" which was before the passage by congress of the acts of June 18
UNITED STATES II. HUGGETT.
637
and September 26, 1888, on that subject. The cases were heard to. gether. RobertS. Shields, Dist. Atty., and Lee k Brown, for Huggett. A. Farquharson, for Darkess. HAMMOND, J. These demurrers present the disputed question whether or not a message or communication in writing from one person to another, of the ordinary and ron.ventional form and style known in common speech as "a letter." deposited in the mails, is within the inhibition of the Revised Statutes, § 3893, if it use language that is obscene within the meaning of that statute. The adjudicated cases being divided, the expressions of opinion are very conflicting, and a case is thought to be now pending in the supreme court requiring its decision of the question. The cases cited in the affirmative of the proposition, and sustaining the indictment, are U. S. v. Gaylord, 17 Fed. Rep. 438; U. S. v. Hanovm-, Id. 444; U. S. v. B1'itton, Id. 731; U. S. v. A-forriB, 18 Fed. Rep. 900; and U. S. v. Tlwmas, 27 Fed. Rep. 682. Those in the negative, and against the indictment, are U. S. v. Williams. 3 Fed. Rep. 484; U. S. v. Loftis, 12 Fed. Rep. 671; U. S. v. Comerford, 25 Fed. Rep. 902; and U. S. v. Mathias, 36 Fed. Rep. 892. No opinion was expressed in U. S. v. Chase, 27 Fed. Rep. 807, certified to the supreme court; and in U. S. v. Foote. 13 Blatchf. 418, the judgment proceeded upon a proper construction of the word" notice," as used in this section as it stood prior to the amendment of 1876, and as it may be found in the original edition of the Revised Statutes or the italic print of the second edition. It was there held that under that clause of the statute it was quite immaterial whether the "notice" mailed should be in the form of a letter or some other form. Any "notice" was especially interdicted. Standing so upon the authorities, it may well be held, as it plainly is, at least very doubtful how this disputed question should be decided; and the defendants first insist that, where there is a reasonable doubt, the construction should be in their favor. I am not quite prepared to hold that this rule of reasonable doubt, by analogy to the well-known principle which governs a jury in trying the facts, should exempt the defendants from 'that penalty which they have incurred if the statute be against them, for this would be to abrogate by judicial action every dubious or doubtful enactment; and the elasticity of language is such, and the carelessness of legislation is so fruitful of ambiguity in drawing statutes, that it would bea dangerous doctrine to establish by that broad expression of it. Nor' do I find that the supreme court of the United States has so expressed it in the cases cited for it in U. S. v. Whittier, 5 Dill. 35; U. S. v. Clay. ton, 2 Dill. 219, 226, 12 Myer, Fed. Dec. § 345; and U. S. v. Comer· ford, ErWpTa. That court has undoubtedly enforced the rule of a strict, though reasonable, construction of penal statutes, confines them within the clearly expressed or necessarily implied meaning of the language used. and refuses to enlarge the words 1'0 include other conduct of like, equal, or greater atrocity, simply because it may be within the same mischief to be remedied, when it is not fairly included in the language
688
FJl:DERAL .REPOR1'llJR,
of the act; but 1 do·notbbserve that it lays down any rule that a doubt as to the interpretation of a statute is to be resolved. in . favor of theaccllsed.. U. S. v. Sheldon, 2 Wheat. 119 jU. S. v. Wiltberger, 5 Wheat. 76, 95; U. S. v. Morris, 14 Pet. 464, 475; U. S.. v. Hartwell, 6 Wall. 385; U. S. v. Reese, 92 U. S. 214. Such a formulary ofa rule for expoundipg statutes may be found elsewhere, perhaps, but not in these decisions, I think; and nowhere, it seems to me,can the Interp. St. §§ 329, 330. doctrine mean more than they express. Hence it becomes necessary to resolve the doubta:ccording to the proper construction of the statute, however much the court might be inclined to mitigate the punishment, or withhold it altogether, perhaps, because of the ambiguous or misleading character of the language used; but the defendants cannot claim to be discharged because of a reasonable doubt about that construction. But I am of the opinion that the adjudications which have affirmed the validity Of these indictments do fall into the very latitude of construction which was condemned by the supreme court of the United States in the cases; and that upon the some. what gratuitous assumption that congress intended to purge the mails of all impurity whatever, and that,because, forsooth, the use of obscene language in private letters is as impure therells elsewhere, is as offensive, to the addressee, and as much deserves punishment. they have too eagerly held that letters were included in the act. I say upon a gratuitous assumption, because the history of the legislation shows quite clearlYi it seems to me, that, until the recent acts of congress, that body has never come up to the elevated plane of moral action suggested by these decisions, and to be implied from putting this restriction upon the absolute freedom of that form of correspondence, but has especially refused to do that thing. Acts 1888, c. 394, p. 187; ld. c. 1039, p. 496. And this reluctance to interfere with the freedom of private correspondence is readily explainable by the suggestion of Mr. Justice FIELD that congress felt the difficulty of accomplishing its purpose to protect the morals of ,the people by a wise use of its power over the postal establishment, "consistently with rights reserved to the people, of far greater importance than the transportation of the mail." Ex parte Jackson, 96 U. S. 727, 732. Free speech, and particularly free speech in private intercourse, and the aversion 6f our race of freemen to interference with it, stood somewhat in the way ofthis legislation, at least in the popular estimation; and this popular sensitiveness upon the subject found its expression in the reluctance of congress to place letters upon the list of expurgated mailable matter. It was akin to the action of a .state, having larger jurisdiction and opportunities to protect morals, inhibiting the use of obscene or indecent language in private conversation or speech; and it was this sentiment that protected letters at first, and until congress concluded .to take the advRllcedstep. It may be that congress was oversensitive .and overcln'eful; but that the legislation has gone through this process of development is an importartt consideration in the interpretation of this section of the Revised Statutes. As originally conceived, it was a mere trade regulation for the territory within the exclusive jurisdiction
U!illTED STATES ". ilUI1GETT. .
oftheUnitMStates, and exclusion (rom the mails was merely a method of aiding in its enforcement. The notion that the intention ever was or is now to protect the mails and purify them, or to guard the postal officials from contamination, is, in my judgment, a barren sentimentality that deserves no place in the serious:consideration of this statute. Postal officials are not supposed to examine or to appropriate to themselves:the ind ulgences of reading that which goes into the mails in a.ny form, but their duty is to handle and distribute it without doing that. They violate their duty when they so use any mail matter whatsoever; except for the purposes of such official illspection as may be authorized. Therefore it is that this sentiment seems a useless one. Butthe purpose was, as we have the authority of the supreme court for saying, to refuse the facilities of the postaIestablishment for the distribution of matter deemed injurious to the pablic morals. 'Ex parle Jack8on, 811pra· . At first. traders were not allowed to use the mails as an instrumentality for administering to depraved tastes, and now the prohibition has been likewise extended to include a purpose of refusing carriage of any message, even in a private letter, which in its language violites the commonsense of decency. Also, I think that in the discussion of this· subject too much stress has been laid upon the sanotity of that sealing of mail matter, especially letters, which the postal laws guard so sedulously, as a guide to' the proper interpretationbf the statute. Judge DRUMMOND effectually disposes of that argument in his opinion by showing that the sealing and paying of letter postage on those articles confessedly inhibited does not remove the inhibition or' protect the culprit. It may delay detection, but it does not make the matter mailable; but it does not follow from this that a letter sealed or unsealed is within this statute. No doubt that from the time when postal facilities were first provided in the world, and the governments were first charged with the duty of establishing them, this sealing of letters and documents carried in the mails was pi'()oo tected as a right of·the highest importance, without which the postal establishments would become mElre freighters; but the consideration of that matter in its relation to the subject we have in hand is fully covered by the suggestion already referred to, of a reluctance on the part of congress to restrict freedom of speech in private correspondence by letters; and except $() fat as this sanctity of the seal is included in that principle of freedom of private speech I do not deem it of much importance in interpreting this statute, and ,think it should not be exaggerated, as there is some danger of doing. . It might not bean impossible construction of the statute, in my view of it, that a letter, or, as I prefer to express the idea,a written or printed message or communication in the form·of epistolary private correspondence, containing obscene thoughts in language whi0hhappens to be expressed upon It sheet of paper displaying some obscene "pictures,"--no matter in what style of the art ofmaking pictures, the "letter" and the "picture" having no bearing one upon the other orany,<>ther relation, near or remote, except the bare juxtaPQoo sition of the twot-I say it might not be impossible thatsuch a "letter, tJ
REPORTER, vol. 40.
oeing sealed and mailed, would be in violation of this statute as to the "picture," and y.et not as to the "letter," unless, indeed, the whole would be excluded frolll the denunciations of the statute by a necessary 5mplication upon the words of the act that it is only "every letter upon the envelope of which" the "picture" or other offending matter appears that is comprehended within the statute. And to satisfy hypercriticism "envelope" might be conceded to mean the outside surface of a letter not inclosed in a jacket or like covering known as "envelopes." Once more, in this process of limiting, if not some of the seemingly misleading arguments which have gathered about this question, and that may be somewhat beside it, there appears to me at least to be but little of importance in the notion that the grievance of the addressee, sense of indignation is aroused, and whose feelings are injured, by such letters, is to be redressed by this statute. Perhaps it is not within the competency of congress to redress such grievances, but certainly I think it was not its intention to redress them even by these latest acts that do inclurle letters within the prohibitions of the legislation. It may be that, until congress, exercising its power of postal regulation, takes another step in advance, and authorizes seals of letters to be brok!lll, and contents inspected at the will or upon the suspicion of postal officials, this Krievance of the addressee furnishes the only method of detection, accusation, and punishment, and the only guaranty for the enforcement of the statute; but non oonstat that congress intended by this legislation to provide a redress for such grievances, or that we should so view this statute in construing it. The simple question is: What, upon a proper legal construction of this section, has been denied carriage in the mails; the denial being enforced by a penalty for the non-observance of the postal regulation? Or, more ,nearly to this case: Has this letter been excluded by the language of the act? A latitudinarian construction that shall include it because it is as hurtful to other things that are excluded is denied to us by the supreme court, as already shown. The conclusive fact against including it is that from the beginning of the legislation to the recent acts, which do specifically include "letters," they have never been melltioned as such in the list of prohibited mail matter, nor referred to in the statute,except in a. phrase which by fair implication8hows that they were designedly left out of that list when congress says that there shall be included "every letter upon the envelope of which"-and it may be conceded this means upon the outside surface of which-the obscene language,etc., appears. Now, from the earliest appearance in out civil. ization of postal carriage, whether by private .or public establishment, the "letters" have been that class of "mail matter" with which and about which there has been most concern; so much so, that the idea of "a letter" and postal cnrriage are quite iuseparable, when we have in mind the postal service and its regulation. It has become, in that'relation, flo technical word, a superior word, a word to represent a class of mail matter that is in every possible sense of so high a grade that all else becomes inferior in classification and in enumerlltion to it. It stands first in pos-
STATES ". HUGGETT.
641
tal concerns, and nothing is even equal to it. Historically, in practical operation, and in popular knowledge and esteem, this is so, and the general rule of construction is that in legislative enumeration the inferior does does not include the superior. .End. Interp.. St. § 412, p. 579. I have taken the trouble to examine with care the legislation concerning our postal affairs, and do not find a single instance where congress has ever used any other word to include "letters" than that word itself, except such expressions as "the mail," "mail-matter," "bag or mail of letters," etc. It is sometimes generically to describe mail matter of. other classes than" letters," as when the statutes speak of" letter-carriers, ", "letter-boxes," etc.; but whenever the legislation in hand requires specific classification or enumeration, I find no word ever substituted for "letters," to express that which is commonly known as letters in relation, to the postal service. We have" letter and newspaper envelopes," "letter oorrespondence,"" registered letters," "unclaimed letters," "dead letters," "request letters," "non-delivered letters," "all letters and Qther milil matter," "foreign letters." "letters or packets," "letters and packetfl," "letter postage," "letter mail," "letter and other mail matter," and such like, almost innumerably; and these I have taken quite at. random from the, Revised Statutes. Can it be possible that congress, then, wishing to: include "letters" in any particular and accurate enumeration. shall drop that word so imbedded in .our postal laws and that of our ancestors. beyond the sea, and adopt some unfamiliar, inferior, and in every sense ambiguous term to express the idea? It does violence to the intelligence of congress to think so. Ifletters were intended to be included in this statute, why resort to any enumeration at all such as it contains, when the generic term "mail matter," which has grown up intnodern legisla.· tion as a substitute for the old-fashioned "letters and packets,"was at b,and to include everything? The truth is that our postal establishment has been So enormously extended in the pirection of becoming a common. carrier of goods and merchandise, and those articles or contrivances used to advertise, sell, and distribute them, particularly those of a literary character, that when congress goes to deal with such articles permitted in the mails it must adopt .enumerationshitherto unknown to postal terminology; but the word "letters" always appears when it deals. with the ordinary postal article by that name. Its omillsion pnder such' oircumstances means its exclusion. Moreover, there are other statutee of a like character ana purpose with this which do not omit spe,cific ref. erences to "letters" in dealing with the prohibitions enforced, and why should they be omitted from this act, unless it were intended not. to inelude them by such omission? For example, the very next section of the Revised Statutes to that which we are considering relates to a prolotteries and gift enterprises, and forcibly illustrates hibition the argument we are attempting here by beginning its inhibition with the phrase" nq letter or circular, etc., shall be carried in the mail ;" registered letters are to be stamped "fraudulent," and returned whEll1 they concern these enterprises, (Rev. St. § 3929;) and money orders relating to them are to be .refusedpayment, and remitted, but the officials are v.40F.no.11-41
FlilDERAL REPORTER,
vol. 40;
Iiotto any letter, (Rev; St. § 4041.) Again, in protecting the peoplea.gainsf the use of the mails as an itlstrumentality for working'schemes i'hteIldedfor the purposes of fraud, congress uses the words" place any letter on packet," ere.., and follows it with a genera] prohibition against the post-office establishment," and its "abuse" for such purposes. ,Rev. St. § 5480. And, in regulating the carriage of "letters .and otheJ:mailable matter'l by foreign vPossels from the ports of the United States, the officials,nndercertain restrictions, may open and inspect any packages'8upposed to contain mailable matter, etc., but not "the letters" and detain ·them for postage; and" all letters or other mail· able matter," exoept such "'sealed letters,"relating to the vessel or cargo, Elto. ,shall'be delivered by the master to the post-office, etc. j and these regulations letters or any letters intended to be conveyed,"'etc.j are enforced by criminal penalties and punishments. Rev. St.'§§4015, Section 3994 prefers the "letter mail" to "other mail matter" in the regulation of its carriage j and, in a word, scarcely anyp6sfa.1 statute 'or reguJationconcerning the post-office establishment fails to exhibit; this sedulous care for "letters" and the "letter mail" in fiVery direetJi:onpossiblejand it is quite inconceivable that congress should in I the act we are construing have departed from this legislative habit, and undertaken ·toregulate so important a matter as it concerns by the mere iuseofthe nondescript and uncertain word "writing," when in the V'ery statute itself and aU other statutes the words" all letters, packeta, and other mail matter," so constantly appear in this or some equivalent {atm. The word "letter" isfoUIirl defined, as we define it here, 'b.ymany adjudicated cases cited in the books and by the lexicogtechnical bearing in the language of the postal service ie self-evident,and 'appears everywhere that conversation occurs among the themnils/' Diet. tit. "Letterj" Lawson, Cone. tit. "Lettarj"i Stim. Amer. St. Law, § 4074, p. 447; U. S.v. Bromley, 12 Row. Oase, Chase, Dec. 531j Ohouteau v. The St. Anthony, 11 Mo. 227jDwight v. 1 Pick. 50. It is undoubtedly true that ina . certain iletter,"even in the techniCtt1 meaning of the term, as above' described,' iti' a:,cwriting," and also it is true that a "book," or "pamphlet," or "priIitl'ia in a certainsen'se a "writing," and itis not impossibleitha:V'a picture"might beheld to be. Webst. Dict.j Bouv. Diet. tit. "Writingj" tit. Henshaw v. Foster, 9Pick;S12, Where there iean extensive discussion of the word" written," in a staw"constitutiofi', and it was held to include "printed" words. And by the statutory enactment of many states it is declared to include "printing/'I'engMving," "Jithography," etc. Stim.Amer. St. Law, § 1023, p.140. 'By the rule of noscitur a sociis it might be so limited here in this statute. Leg. Max. 588, 651jEnd. Interp. St. §396 et seq.; ld. 400. But this 'l'ule,likeall others, yields to the general intention clearly expressea,and'ie;not always strictly enforced. ld.; U. S. v. Lawrence, 13 BIatchf. 211j WilkinsDnv;' Leland, 2 Pet. 628, 662; U. S. v. Hartwell, 6 Wall. 385;Oates v. Bank, 100 U. S. 239. Hence it may have a larger meaning than its associated words in thisstlltute may imply, but not neces-
,UNITED STATES t1. HUGGETT.:
sarily,its}firgesh'neaning;:,and for the reasons alreauystated should hot include in such a statute as this the technical and always naturabword "letters;" when used to express the kind of "writing" ;we ,have involved ill the case at bar. ltmay include any other "writings," perhilips, not those known by a niore familiar, natural, and, in postal rules and regulations, technical, term as ','letters," unless, indeed, the statutory in.. tentionto so include them' is far more clearly manifested, than it can reasonably be said to be in this statute. It is conceded that they were not included in the original act, but it is contended that the insertion oft.hiS dubious word "writing" was intended to apply it to them by the amelld. ment of1876. The factof insertion by amendment perceptibly increases the force of the rule ofassociationj but it may be conceded that theintention was to include such writings,for example,as manuscripts going to the publisher or returning from him, pleadings or records in legal proceedings, documents of any kind in written .form, or partly in writing and partly in print, and ali the innumerable forms of conveying informa.tion or ideas that are obscene and indecent through the mails, whether sealed or unsealed, and yet"not to include letters, whether sealed or un· sealed. I have not thought that the word "pUblication," as used in this statute, had the least reference to that term as. we -use it in legal parlance, in the law of slander and libel" .for instance, or when we say a deposition is to be ."published" or the like, but solely in the sense we use it :when we speak of" publishing" books, pamphlets, circulars, papers, etc. And the insertion of the word "writing" by the amendment of 187640es not necessarily apply the term" other publication" so as to limit the class of "writings" to those in some sense "pUblished," as already intimated; but while this may be conceded, we need not concede, and I do not think it should be admitted as a proper construction, that the term" writing" should be extended to include all writings of every kind, including private letters, sealed or unsealed. Dubious words ought to betaken most strongly against the law-makers. U. S. v. Heth, 3 Cranch, 399. 413. One has only to examine the legislative proceedings attend:; ing the passage of the recent acts of congress to see that that body 'did not considerletters within the former statute. The act of June 18,1888, c. 394, did not include them, while obviously prohibiting the display of offensive matter upon the envelopes and wrappers, including injUrious reflections upon one's character, instigated as we all know by the use of the mails by money collecting agencies to compel by fluch threats, designs, and offensive epithets delinquent debtors to pay their delayed deqts;' It was not until September 26,1888, (chapter 1039,) that congress reached the state of mind necessary to place within this legislation private letters. So considered, the existence of these recent acts shows that congress had .not interpreted the former acts to incluc:le letters. U. S. v. Freeman, 3 How. 556. The district attorney, in his brief, refers to the fact that somecQf. the to have been approve¢[ by opinions are by circuit judges) and are circuit justices, though they have no reported decisions on the
644
I
and that these should bavemore influence as authority. Strictly and technically none of the decisions by any of the judges are of authority, and on the circuit I take it all the judges stand alike in this matter, supposed distinctions in rank not adding anything to the authoritative of judgment or opinions. Whichever judge holds the circuit court, it is the judgment of the court, and can be no more or less authoritative because of these distinctions. It would be intolerable if it were otherwise. Unfortunately, owing to our very absurd judicial system, it seems quite im:possible to introduce into it the rule of 8tare deciBiB, as between the different circuits and in the courts inferior to· the supreme court; the decisions of that tribunal alone being binding as authority upon all. If the first judicial decision of this question had been followed as a precedent, there woUld have been noconflict of authority, and "letters" would have beenexcluded from the operation of this act. But Judge DEADy'scar&l ful judgment was by him all too graciously, perhaps, made to yield to mere statements that other judges in his circuit thought differently, and without any published opinions from them. Other courts felt at liberty to disregard the first precedent, and so we have thAm all acting independently in judgment. This may be deplorable, but it is inevitable, unless all will yield to the first careful and intelligent decision as a precedent, strictly considered. On tbisclass of questions, altogether and absolutely within the federal jurisdiction, such a rule of judgment would be valuable, and I consider that in this case, substantially, weare following that rule, and that this judgment is fairly in the line of precedent. Demurrer sustained.
WATSON 'l1. WILSON
et ale Aprll 27, 1888.)
Court, PATENT'],oR
E. D. PennsyZva:n(q..
The combination set forth in the first three claims of patent No. 298,200 is infringed bya machine in which the table is heldllP against the iron by the pressure of the operator, and returned,upon the lowering of the foot-lever by a spring, operated by the lowering of the lever by the operator, when the table has reached the extent of its motion. The'combination set forth in the fourth and fifth claims is anticipated by a machine haWing the neck-clamp and tail-clamps unconnected, and the latter consisting of a and not an Qxtellsible J:1lechanism, a.nd not operating automatically, 8sshown in bosom-ironer No. S, of the Troy Laundry-Machine Company. ,
S.
BAlIIE'-,A.NTIOIPATION.
.
In Equity. ,Hearing upon bill, answer" lind proofs. Bill S. Watson against Edgar Wilson and John William, lUnder, tra&ing as Watson & Binder, for infringement of plaintiff's shirt· irpning machine, patented February 12, 1884, No. 293,290. The olaims involved were 'the following: (1) In 'lin an iron and an ironing-table, in combination iWitb'ttltlohanil!m substantially as described, operatlOg to move the table for-