MARINE V. PACKHAM.
581
mentioned in that paragraph when "filled," and that the words "preceding paragraph," in the proviso, are used to avoid the necessity of re· peating all the articles enumerated in paragraph 103, which it is claimed are never subject to an ad valorem rate of duty. It is conceded that the words "preceding paragraph," when they are used in the first part of paragraph 104, refer to. paragraph 103, but it is insisted that the same words when used in the proviso to paragraph 104 allude to that paragraph, and have no application to 103. We do not think this contention can be sustained. It seems impossible to confine the effect of this proviso to the paragraph in which it is found. Paragraph 103 imposes a duty on bottles holding more than one pint, and on demijohns and carboys, and other glassware, not especially provided for, of 1 cent per pound; on bottles holding not more than one pint, and not less than one quarter of a pint, of H cents per pound; if holding less than one fourth of a pint, 50 cents per gross. This duty is imposed on such articles when they are imported empty. Paragraph 104 provides that all articles of glassware enumerated in paragraph 103, if filled, should the contents be subject to an ad valorem rate of duty. that the value of such articles shall be added to the value of the contents, in order to find the dutiable value of the importation, and that the duty shall then be paid on the value so found, according to the rate imposed on such contents. But if the articles are filled, and the contents are not subject to an ad valorem rate of duty, or are free of duty, then such articles, in ad. dition to such duty as may be payable on the contents, shallplly the rate rluty prescribed in paragraph 103. It then provides that "no article manufactured from glass, described in paragraph 103, shall pay a less rate of duty than forty per centum ad valorem." The two 103 and 104, must evidently be considered together. The words ceding paragraph," in the first line of paragraph 104, and also where they are used therein immediately before the word "provided,"mqst refer to paragraph 103, and the same words in the proviso to paragraph 104 are intended to apply to paragraph 103, and not to any part of the paragraph in they are found. We think the intention of congrefls was to impose a duty on the articles mentioned in paragraph 103. that would produce a revenue amounting to at least 40 per centum admlorem. If the rates imposed by that paragraph produce a sum equal to or exceeding in amouht that arising from a duty of 40 per centum ad valorem on the articles imported, then the provisions of the paragraph are to apply. But if those rates do not produce a duty equal in amount to 40 per centum ad valorem on such articles, then that amount of duty is to be imposed thereon, and the rates mentioned in paragraph 103 are not to apply. We do not think that congress used the words "preceding paragraph" in the proviso of paragraph 104 as meaning "this paragraph," nor do we see that the word "paragraph," where so used, is intended to convey the same meaning as the word "sentence," when we find it so frequently used in the act mentioned as identical with the word section." For the reason given, we find that there is error in the decree of the circuit court passed on the 9th day of January, 1892, affirming the de(J
582
FEDERAL REPORTER,
vol. 52.
b'6ard of appraisers made on the 9th of February,'189l!" the of Packham, ina, Witt & Co. against' the collectorbfcustoms at the port of Baltimore, as to the rate'a,rid ainount of duties'chargeable on certain demijohns and glass bottles" hHported December 6; 1890, and it" follows that the decree must be reversed, an.d the cause remanded to the circuit court for the district, 'of for furtherpl'oGeedings in' abcordance with this opinion. ",' , , SmoNToN,District Judge, (dissenting.) I am unable to concur in the conclusion reached 'by the court. The question is, do the words of the concluding proviso Of 104 relate back to and control the terms of paragra:ph 103? The words "preceding paragraph" in that proviso mean paragraph 103. This paragraph 103 distinctly 'states the duty to be paid t>ncertain' descriptions of glassware when they are imported empty. Hint,ended to hold more than a pint, 1 cent per pound; if a pint, or not less than a quarter of a pint, H centaper pound; smaller vessels 50 cents per gross. This is definite, easily computed, has the element of certainty, and seems to be c9mplete and final. So much for empty vessels. The next succeeding paragraph deals with the same class of glassware if brought in filled,atid fixes the' duty to be paid on it in that condition. The rule prescribed for fhingthe dutyin paragraph 103 is abandoned, and a new method is adopted. If the contents of such vessels are subject to an ail vi.zlorem duty, or to a rate of duty based upon value, the vessels pay the same rate of duty as their contents. If the'iconteptsare not subject to an ad valorem duty, or to a duty based upon vallle, thentlie filled vessels pay, in addition to the duty on their contents,tM rates prescribed in paragraph 103; in no case, however, less than 40 "per cent. ad valorem. Perhaps 103 is referred to in this connection in order to show the kinds of glassware upon which 104 fixes the duty if they are brought in filled. Paragraph 103 deals exclusively with and settles the duty to be paid on glass vessels described in that paragraph when they are brought in empty. Paragraph 104 deals with the same class of glass vessels, but only when they come in filled. Any other construction would radically change paragraph 103, and would substitute for its plain provisions, easily understood and applied, another mode of ascertaining duty on empty glass vessels, fluctuating and uncertain. ' , I am of the opinion,th"erefore, that the proviso at the end of paragraph 104 qualifies the of that paragraph only, and that it does not relate back to or affect paragraph 103, and that the circuit decree sbould be affirmed.
IN BB SANBOU.
683
In re
SANDOU.
Court, N. D. Oa1lif0'l"Tl4a.
Beptember 911, 1891.)'
No. 10,4lIO. OItUm'lL LAw-Fnms' AND IMl'lnSONMENT-lMPBIsOlnnlNT J'oBDBB'I'.
ReV. St. U. S. § 990, providing that "no person shall be imprisoned for debt in any state, on process issuing from a court of the United States when,by the laws of 'llUchstate, imprisonment for debt has been or shall be abollshed," applies only to civil cases, and a fine imposed for a violation of federal laws punishing crimes and misdemeano1'8 is not such a debt as is within the scope of the provisions of the constitution of California abolishing imprIsonment for debt.
Coryus. Petition by C. Sanborn to be released from imprisonment, on the ground that his further confinement is in violation of Rev. St. § 990, and the constitution of California relating to imprisonment for debt. Petitioner remanded. Wm. Hoff Cook, for petitioner. OharlesA. Garter, U. S.,Atty. MORROW, District Judge. The petitioner was convictedfn this court on the 5th day of May, A. D. 1890, upon three indictments fora violation of $ection 5480 of the Revised Statutes of the United States in using the post office of the United States in carrying out a scheme to defraud. He was thereupon sentenced upon the first indictment to pay a fine of $250, and to be imprisoned for the term of 18 months, and, in default of payment of the fine, to be further imprisoned until the fine is paid. Upon the second indictment he was sentenced to pay a fine of 8250, and to be imprisoned for the term of12 months, and, in default of payment of the fine, to be further imprisoned until the fine is paid. Upon the third indictment he was sentenced to pay a fine of $250, and to be imprisoned for the term of six months, and, in default of payment of the fine, to be further imprisoned until the fine is paid. The aggregate term of imprisonment was therefore 36 months, and the fines amounted to 8750. In the petition for the writ of habeas corpus it is alleged, in substance, that,allowing the petitioner such deductions and credits as are provided by law, his term of imprisonment h8.ll expired, and that he isnow held in custody solely for the collection of a debt, to wit. the fines imposed by the court. From the return of the warden of the state prison it appears that, deducting the credits allowed by law, the petitioner has served his timeof 36 months' imprisonment, and that he is now held in custody by reason of the nonpayment of the fines imposed as part of the sentence in each case. The petitioner alleges that he is being imprisoned for a debt, and that he is entitled to his discharge, on the ground'that such imprisonment is illegal. Section 990 of the Revised Statutes provides as follows:
"No person shall be imprisoned for debt in any state, on iSSUing from a court of the United States', where, by the laws of such state,imprisonment for debt has been or shall 'bt' abolished. And all modiflcations,conditions, l&Dd restrictions upon imprisonment for debt provided by the laws ot
:>84
FEDER!cL
any state shall be applicable to the process issuing from the courts of Untted States to be executed therein. and the same COll rse of proceedi ngs :>hall be adopted therein as may be adopted in the courts of such state." The constitutiollof this state provides, (article 1, § "No person shall be imprisoned for debt in any civil action or mesne or final process unless in cases of fraud; nor in civil action3 for torts, except in cases of willful injury to persons or property; and 110 person shall be imprisQnllCl,for a militia jlne in time of peace." ,'Itisclaimed that under this provision of the constitution imprisonment has been abolished, but it will be observed that the constitutiona] provision relates only to civil actions, and even as to those imprisonment may still be imposed in cases of fraud and in civil actions for tart, Where there has been willful injury to person or property. It is urged,however, that under this constitutional provision a modification, .condition, or restriction has been placed upon imprisonment by the laws of this state, which, under section 990 of the Revised Statutes, is made applicable to process issuing from the courts Of the United States in criminal cases. This modification, condition, or restriction is claimed tobe contained,in section 1205 of the Penal Code of this. state, as follows: . ":Ajudgmenttbat the defendant pay a fine may also direct that he be impi'i'soned until the'flne be satisfied, specifying the extent of the imprisonment, whieh must not exceed One day for every dollar of the fine,"
, ,1p)C:); pnrteRo8enhe'im,83 Cal. 388, 23 Pac. Rep. 372, the supreme of this state held that under this section there could be no further a nonpayment of a fine, where the fine was coupled with' a sent!lnce of imprisonilleDt; but that decision turned upon the ,*Wding of se¢tion 1205 ..of the Pellal Code, and not upon the conprovision abolishing imprisonment for debt. " The court simheld tha.tthis section did not l1-.pply to cases in which the judgm.e!)t is for: .afine coupled with aSeI)tence for imprisonwent. It ifl expressly stated in the opinion of the couitthat the legtsl!iture might, if it fit todosp, 'provide for the collection by imprisonIiJent of all fines, wh,ether the be one of fine alone or one of b()th fine and imbiltit was held that the legislature had not so provided, and thereforetlle lud.giI)ent of the court in .that case, imposing imprisonment the fine.. satisfied, was void. ," How the. absence of legislation qp. the part of the providing for imprisonment in default of payment of a fine can be made applicable to a case arising under a law of the United States is not very clear. It is that counsel for the petitioner urges with great earnestness that a tine is It debt, and that, as there is now no law in this state for imposing imprisonment until a fine is paid, therefore this absence of law is a modification or rest,dction upon imprisonment for debt. This argument is ingenious, bqtitis not sound, for the reason that it is not based upon a cQrrectjnterptetationof section 990 of .the Revised Statutes. Can it be supposed that congress intended to give to the states the power to regulate and control the measure of punishments to be inflicted by the courts : ,':. '. ( ,!.. · . . :,' ;.: .' . ' . ,
Wy.
IN BE SANBORN.
58.5
of the United States in the execution of the criminal laws of the national jurisdiction? The construction contended for on behalf of the petitioner would largely involve this result, and make the punishment in many cases depend, not upon the judgment of the court, or the laws of its jmisdiction, but the diverse statutes of the different states. Take, for instance, a statute of the United States imposing a fine and imprisonment. In one state imprisonment would be continued until the fine is paid; in another state the fine would be discharged by imprisonment, at a C6):'tain rate per day; while in another state the fine would be abolished altogether. It does not seem possible that such consequences would have been left to discovery by a process of verbal construction. It would be more consistent with the rules established for the construction of United States statutes to say that if congress had intended to so modify its criminallaw8 it would have done so by express and unequivocal language; But it is conceding too much to say that congress has omitted to express its will with respect to a limitation upon imprisonment for a fine. Inthe act of June 1, 1872, (17 St. at Large, pp. 196-198,) it is provided, in tion 14, (sections 1042 and 5296, Rev. St.,) that a poor convict, sentenced to be imprisoned and to pay a fine or fine and costs, and having been imprisoned 30 days solely for the nonpayment of such fine or fine and costs, may be discharged on application to a commissioner of a Uniteq States court for the district where he is imprisoned, upon showing that he is unable to pay such fine or fine and costs, and that he has not any property exceeding $20 in value, except such as is by law exempt from being taken on execution for debt. Having legislated upon the subject so as to provide for the discharge of the poor convict, upon certain conditions, after a service of 30 days for the nonpayment of the fine, hdw can it be said with reason that the discharge of the convict worth more than $20 has been left to be regulated by the laws of the state. when the conditions might be such as to discharge such a convict without any service whatever for the nonpayment of the fine? Such an ir!terlacing of national and state authority in the execution of the criminal laws of the general government would only be tolerated where the ptocedure has been clearly established. Returning now to section 990 of the Revised Statutes, it appears clear, in the light of these consideratiuns, that it was intended to apply to civil cases only, and such has been the construction placed upon it by the courts. In U. S. v. Hewes, Crabbe, 307, the court went so far as to hold that the statute did not even affect the United States as a party to a civil action. This decision, however, has not been followed by the courts of the United States, and in U. S. v. Teaow, 2 Low. 159, the ex" emption has been expressly denied. In U. S. v. Wal8h, Deady, 281, the United States brought a civil action in the district court of Oregon against the defendant to recover certain penalties for making, preparing, and selling matches without the same being stamped as required by the internal revenue laws. The court made an order for the arrest of the defendant, and, upon being arrested, he gave bail, whereupon his attorney filed a motion to vacate the order, on the ground that it was
586
FEDERAL 'REPORTER,
improperly: allowed. It was clahned 'that; as the constitution of Oregon proviidM' that' there should heena imprisonment for rlebtin that state eJtcept in cB.se;of fraud or absconding debtors, the United Stales was not' entitled to arrest a defendant in an action for a penalty. The court; in denying the motioll, said: "Tlieword 'debt' is of very general use, and bas many shades <'If meaning. Looking, totbe origin and progress of the change in publicopioion, which finll.lI:r led ,to the abolition of for debt, it is reasollable to prethis provision in the state constitution was intended to prevent the useles!5!Mld, often cruel imprison,I;Jient of persons who. having honestly beoollleJndeU,ted to another, are unable to pay as they undertook and promised. Inthiil'view of the matter, the clause in question should be construed as if it read: ·There shall be no imprisonment for debt arising upon contract, ex. press, or :implied, except,' etc. Such is Bubstantially the language employed in of most of the for debt, find there .can babut little doubt was the end which the framers of the constitutio,n had, in view, as well as the popular understanding of the the instrument was adopted at the polls. " In lAw v.Durfee,5 Fed. Rep. 256, Judge LOWELL, in the circuit court of Massachusetts, held that' "The inillntof Rev. 990, that in civU .actions· for debt the defendant shall be subject to'imprisqnlIlent, and be released therefrom precisely as he would be under the law of the state." In McC'{)ol.v. State, 23 Ind .. 127, the defelldant was sentenced to pay a fine of five, dpllars and costs, 8Qd stand committed until the fine and costs were paid.. It was claimed that the court erred in a(;ljudging that the be comm,ftted for the payment orcosts, for the son thattb,e CO$ts were due to private parties, officers,' etc., and, as the constitution' prohibited for debt except in cases of fraud, the impris()llrnent,of the defendant until the costs were paid was in conflict with of the state. The court of this claim in the language: ' .. '" . "',rhe cOllts aTe but an incident of,the fine assessed, resulting from the same act;and;altliough "theyare due to the officers of the conrt witnesses for services tendetell in the coutse of the prosecution, they are adjudged against the defendant because of his criminal act, and may be fairly regarded as a part onlle punishment. The fine, when assessed, becomes a lixed liability to pa}' the state, a definite amount of money. The costs are taxed. and are due to the otJicers an(l\yitnesses; and weare at a Joss to perceive upon what principle the Jatt",r js a debt, within the Uleaning of the section of,the constitution referred. tlkwhlle the former is not. The fact that the one is payable to the state andtfiii iudi viduals,' we think furnishes nO ground for sllch a distinetion, In oriropinion, neitherofthem 'is a debt, within ,the meaning of the constitutional provision l'eferred to, and the judgment of the court below was the,refote correct." It is clear that a .fine for the violation of laws for the punishmentor {irimesfuid, misdemeanors ,is not such a debt as is within the scope (jf,provisions of the constitutibnabolishingimprisonment for debt, and 'sectiOn 990' of the Statutes is therefore not applicable to a crimhi111'dalle.' ··"Fhe petitioner is remanded to the custody oithe warden ofthe state !prisoh'·· . .
HAMMOND BUCKLE 00. V. GOODYEAR RUBBER 00. HAMMOND BUCKLE CO. 11.
687
GOODYEAR RUBBER CO. et ale
(Circuit Court, D. Connecticut. November 5, 1892.)
No. 700. L PATl!INTS POR INVENTIONS-ANTICIPATION-SHOE BUCKLBS.
Claim 1 of letters patent No; 301,884 issued July 15, 1884, to Theodore E. King and Joseph Hammond, Jr., for an overshoe clll8p, consisting in the of a catch plate, a tongue pivoted directly to the tongue plate, and the tongue plate extending rearward of the pivot, and in cohtact with the catch plate, when the parts are engaged, was not anticipated by either .the Hartzhorn patent of 1849, No. U.786, or the Budd patent of 1871, No·.120,323. The said claim is infringed bya buokle made under letters patent No. 4,18,924" issued January 7,1890, to John Nase, which shows a rearward extension of the upper plate, altbough it differs from the King' and Hammond buckle in certain other respects.
2.
SAME-lNPRINGEMENT.
In Equity. Bill by the Hammond Buckle Company against the Goodyear Rubber Company and others for infringement ofletterspatent No. 301,884, issued July 15, 1884, to Theodore E. King and Hammond, Jr., for an overshoe clasp. The alleged infringing buckle was made by defendants under letters patent No. 418,924, issued January 7, 1890, to John Nase.· A motion for preliminary injunction was heretofore denied. 49 Fed. Rep. 274. The case is now heard on the merits. Decree for complainant. George H. Hey, for complainant. C. H. Duell, for defendants. TOWNSEND, District Judge. This is a bill in equity for the alleged infringement of letters patent No. 301,884, dated July 15, 1884, for overshoe fastenings, with prayer for an injunction and an accounting. The first claim of said patent is the only .one involved in this suit, and is as follows: "(1) In combination, the catch plate, the tongue pivoted directly totbe tongue plate, and the tongue plate extending rearward of the pivot, and in contact with the catch plate when the parts are engaged, all substantially as described. " The defenses are anticipation, lack of patentable invention, and noninfringement. The question of validity has been twice argued in this court, and decided in favor of the patent in Buckle 00. v. Hathaway,' 48 Fed. Rep. 305, 834. In the opinions of the court therein said first claim of the patent in suit was fully explained and construed. Upon the question of validity, I shall therefore confine myself to a consideration of the new matter presented by defendants. The defendants have introduced as additional evidence of anticipation a number of patents and exhibits which were not before the court upon the former hearings. Several of the patents are for articles such as corkscrews and button hooks,so pivoted to a handle as to be carried in the pocket. They do not suggest the invention embodied in the first