Is it reasonable to suppose that, if Congress intended to reserve the power to prevent the introduction of intoxicating drinks into the Indian Territory, the state of Oklahoma would have been admitted with the power to introduce, manufacture, and sell liquors in other parts of the state of Oklahoma than the Indian Territory and the Indian reservations referred to in that enabling act, and to control the introduction of intoxicants from other parts of Oklahoma into the Indian Territory? The logic of an affirmative answer to this question may be illustrated in this way: The Indian Territory is bounded by Oklahoma, Texas, Arkansas, and Missouri. Undoubtedly Congress had, by its power to regulate intercourse with the Indian tribes, under repeated decisions, to control absolutely the introduction of intoxicants into the Indian Territory, from the adjoining states and from other parts of Oklahoma as well (U. S. v. Sutton, 215 U. S. 296, 30 Sup. Ct. 116, 54 L. Ed.; Matter of Heff, supra; U. S. v. Holliday, 3 Wall. 40%, 18 L. Ed. 182); but by the Oklahoma enabling act the state of Oklahoma is left with jurisdiction over the introduction of intoxicants from Oklahoma into the Indian Territory through its own courts as well as the sales and disposals of intoxicants therein; but, if the act of January 30, 1897, is in force in the Indian Territory, the United States District Court for the Eastern District of Oklahoma has exclusive cognizance of the introduction of intoxicants from the other named states. This is an anomaly in legislation, and it occurs to me approaches the reductio ad absurdum. We should have two courts, foreign to each other, created by separate and distinct sovereignties, exercising cognizance over exactly the same offenses, each in the same place and at the same time, and the jurisdiction of the court made to depend on the state from which the liquor was introduced. In the Heff Case, supra, Mr. Justice Brewer said:

"There is in these police matters no such thing as a divided sovereignty. Jurisdiction is vested in either the state or the nation and not divided between the two."

For the reason stated I do not think the Sutton Case applicable to the facts of this case, and hence not controlling. In U. S. v. McBratney, 104 U. S. 623, 26 L. Ed. 869, approved in the case of Draper v. U. S., 164 U. S., at page 243, 17 Sup. Ct., at page 108 (41 L. Ed. 419), where the Supreme Court said:

"The act of March 3, 1875, c. 139 (the enabling act which provided for the admission of the state of Colorado), necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith. The Cherokee Tobacco, 11 Wall. 616 [20 L. Ed. 227]. Whenever, upon the admission of a state into the Union, Congress has intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. The Kansas Indians, 5 Wall. 737 [18 L. Ed. 667]; United States v. Ward, Woolw. 17 [Fed. Cas. No. 16,639]. The state of Colorado, by its admission into the Union by Congress, upon an equal footing with the original states in all respects whatever, without any such exception as had been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States. The courts of the United States have, therefore, no juris

diction to punish crimes within that reservation, unless so far as may be necessary to carry out such provisions of the treaty with the Ute Indians as remain in force. But that treaty contains no stipulation for the punishment of offenses committed by white men against white men."

The precise question now under consideration is more nearly presented in the case of United States v. Hall (D. C.) 171 Fed. 214. The facts in that case are very similar to those in the case at bar. The question was raised differently, but in effect is the same. The opinion is marked by careful research, reviewing the decisions applicable, down to and including the Heff Case, supra. It is clear and strong in its reasoning, and I think controls this case. Hall was an Oneida Indian, the members of which tribe had become allottees, holding trust patents. A large part of the Oneida reservation was held by white men who had obtained titles from the heirs at law of deceased allottees under existing laws. The Oneida reservation had been organized and divided into two townships, and was situate in Wisconsin, with provisions for local government. Under these conditions Hall was indicted in the United States District Court for the Eastern District of Wisconsin, under the act of January 30, 1897, for introducing liquor into the Oneida reservation. The principle of law in the case at bar would not be different if a Choctaw Indian were indicted in the United States District Court for the Eastern District of Oklahoma for introducing intoxicating liquors from Arkansas into the Indian Territory, for if the act of January 30, 1897, is in force as applicable to the Indian Territory, the District Court for the Eastern District of Oklahoma would, in that event, have jurisdiction, and if the same act is in force no mandamus could go in this case. Manifestly no mandamus could go from this court to compel the doing of an act which, when done, is indictable under the laws of the United States in the Eastern District of Oklahoma. The Hall Case must be read to get the full force of it. A demurrer was sustained to the indictment in that case for want of jurisdiction.

The substantial facts in the Hall Case are strikingly similar to those in the case at bar, and it seems to me it is conclusive of this case. It is to be hoped this case will be carried to the appellate court, and a controlling decision had. If the decision is sound, the common carriers should not be harrassed by vexatious litigation so long as their shipments remain interstate commerce, nor should carriers be subjected to indictment in the United States courts for discharging their duties under the interstate commerce laws. On the other hand, if the decision is erroneous, the Indians are entitled to the protection contemplated by the act of January 30, 1897, and that statute should be enforced by the United States courts. As throwing light upon this subject, see Crescent Liquor Company v. Platt (C. C.) 148 Fed. 894. The demurrer is overruled.

Let the writ of mandamus go.

HITRITZ V. BROWN.

(Circuit Court, D. Connecticut. June 1, 1910.)

No. 725.

1. Master and Servant (§ 265*)—INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE-ASSUMED RISK-BURDEN OF PROOF.

Where by the pleadings defendant made the issues of assumed risk and contributory negligence substantive defenses, the burden was on him to establish them by a preponderance of the evidence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 907, 908; Dec. Dig. § 265.*]

2. MASTER AND Servant (§ 280*)—INJURIES TO SERVANT-ASSUMED RISK.

Plaintiff, while clearing away wet "broke" from an alleyway, slipped and got his hand caught and badly injured in the rollers of a machine. On being asked if he did not know at the time of the accident that if he fell while in the alleyway, so that his hand or arm came in contact with the rollers, he would be likely to get caught and hurt, he answered "that he never thought about it," that he knew if he put his hand between the rollers it would be drawn in, because he had seen paper drawn in between the rolls, but denied that his mind carried him any further in that direction at that time. Held insufficient to show that plaintiff appreciated the danger and assumed the risk as a matter of law.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. $280.*

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

At Law. Action by Albert Hitritz against Howard C. Brown. On motion in arrest of judgment and for a new trial. Denied.

Hyde, Joslyn, Gilman & Hungerford, for plaintiff.

Seymour C. Loomis and William A. Arnold, for defendant.

PLATT, District Judge. The first ground upon which the motion proceeds is that the complaint should have contained allegations that the plaintiff was ignorant of the danger and did not have equal means with the defendant of knowing about it at the time of the accident. I do not so understand the law. By the pleadings the defendant made the issues of assumption of the risk and contributory negligence substantive defenses, which he was bound to establish by a preponderance of the testimony.

The other question raised by the motion is the only one which is worthy of a moment's serious consideration. With the pleadings and testimony as both existed at the close of the plaintiff's case, was the evidence such as to warrant a submission of the case to the jury upon the issues of defendant's negligence and plaintiff's assumption of the risk? As the case stood, was it an open question whether the plaintiff knew or ought to have known of the danger attending the clearing away of wet "broke" from the alleyway? Was the answer a foregone

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

conclusion, or could reasonable minds reach differing results upon the evidence?

When the motion for a direction of verdict for the defendant was made, the plaintiff was, in a certain sense, himself an exhibit before. the jury. They saw him on the witness stand for several hours, and had ample opportunity to study him and make up their minds as to the extent of his intelligence and capacity for reasoning. Counsel for defendant knew the turning point of his case, and pursued the plaintiff vigorously about it. He asked him if he did not know at the time of the accident that, if he fell while in the alleyway and his hand or arm came in contact with the rollers, he would be likely to get caught and be hurt. Plaintiff answered that he never thought about it. Counsel asked him if he did not know that, if he put his hand between the rolls, it would be drawn in. He said that he did know that, because he had seen the paper drawn in between the rolls. He denied that his mind carried him any further in that direction at that time. It is a far cry from knowing that if his hand went between the rollers it would be drawn in, and that the alleyway was slippery, to a knowledge that, while working in there, a combination of circumstances might arise which would produce the situation which resulted in such severe injury to the plaintiff. In other words, he told the jury that at the time of the accident his intelligence had not reached the point where he realized that he might slip on the wet "broke," and that in slipping his hand might get between the rolls, and that he might be so drawn in between them as to be badly hurt.

When I refused to direct a verdict, the testimony had so impressed me that I should have felt bound to find as a fact that he did not know, or realize, or appreciate the danger before he was hurt. Whether he ought to have known, realized, and appreciated it is another question. When the case was over, it is probable that I should have reached the opposite conclusion from the one reached by the jury; but I thought then, as I more strongly think now, that it was an open question, on which honest and intelligent minds might differ. Upon reflection and a fairly exhaustive examination of the testimony, I am not willing to say that I am convinced that my conclusion would have been any better than theirs.

On the whole, this case is an interesting example of the practical workings of our jury system. As long as the system prevails I shall not, of my own free will and accord, arrogate to myself the final decision of such a state of facts as was here presented.

Let the motion be denied, and judgment entered on the verdict.

WAKEM & MCLAUGHLIN v. UNITED STATES.

(Circuit Court, N. D. Illinois. May 27, 1910.)
No. 27,205.

CUSTOMS DUTIES (8 44*)-CLASSIFICATION-"BOK ALE"-SIMILITUDE TO BEER. "Bok ale" or barley brew base, which is an unfinished nonalcoholic beverage, but which is produced by processes and from materials similar to those employed in the manufacture of beer, is dutiable by similitude at the same rate of duty as beer, under Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 297, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1655).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 44.*]

On Application for Review of a Decision by the Board of United States General Appraisers.

The decision below, which is reported as G. A. 5,633 (T. D. 25,172), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of General Appraisers reads as follows:

McClelland, General Appraiser. The merchandise covered by this protest is described in the invoice as "bok ale, nonalcoholic." It was returned for duty under Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 297, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1655), as assimilating to beer in casks, and was assessed for duty at 20 cents per gallon. It is claimed by the protestants that the merchandise is nonalcoholic, unmalted, and an unenumerated manufactured article, subject to a duty of 20 per cent. ad valorem under section 6 of the said act, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1627).

It appears from the record that this so-called bok ale is only partially manufactured and is imported in an unfinished state. To fit it for consumption there must be added water and carbonic acid gas, with such other ingredients as may be required by individual tastes as to flavor. It is imported in casks, but it is to be bottled when thus fitted for use. The finished article is used as a nonalcoholic beverage; but in the condition in which it is imported the merchandise could not be used as a beverage. Its composition is described by one of the witnesses for the importer as follows: "The chief ingredient is starchy sugar, the intermediate product between starch and glucose; and these starchy sugars that are used contain a small amount of fermentable matter. The amount of sugar used in the liquor is calculated so that when the whole of the fermentable matter is converted into alcohol it will not exceed 2 per cent. In addition to that, hops are used and a few other flavors." The paragraph under which the merchandise was classified, in so far as it applies, reads: "Ale, porter, and beer, in bottles or jugs, forty cents per gallon; otherwise than in bottles or jugs, twenty cents per gallon." Duty was assessed under this provision by virtue of the similitude clause in section 7 of said act. 30 Stat. 152 (U. S. Comp. St. 1901, p. 1627): “That each and every article, not enumerated in this act, which is similar either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this act as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned."

*

In Stuart v. Maxwell, 16 How. 160, 14 L. Ed. 883, the United States Supreme Court defined the object of the similitude clause to be "to afford rules to guide those employed in the collection of the revenue, in certain cases likely to occur, not within the letter but within the real intent and meaning of the laws imposing duties." To sustain the collector's classification of this merchandise, it is only necessary to find that it is similar to ale, porter, or beer, as mentioned in said paragraph 297, either in material, quality, texture, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes