the funds" above mentioned, *"to be expended in the preparation and display of a scout exhibit at the Louisiana Purchase Exposition, as set forth in said resolution." These are all the facts that are supposed to constitute the plaintiff in error a public official within the Philippine Penal Code, although, it should be added, that in signing the false document he added, after his name, "Maj. 1st Infantry, D. O.;" the last letters meaning, it may be presumed, disbursing officer. pines, but of the United States. If the Philippine legislation attempted to add to the immediate responsibilities of the soldier in the course and performance of his duty under the paramount authority from which that legislation derives its right to be, we should have to inquire whether we could gather from any act of Congress the inten reason to believe that the Philippine Penal Code, art. 300, purports or attempts to reach a case like that of the plaintiff in error. The provision in art. 401, that, for this purpose, everyone shall be considered a public official who, by popular election, or appointment by competent authority, takes part in the exercise of public functions, does not help art. 300. That also seems to contemplate an office having some degree of permanence. But however that may be, the plaintiff in error was performing no At this time the plaintiff in error was an public function of the civil government of officer of the Army on the active list, de- the Philippines; he was performing militached to command a battalion of Philippine tary functions to which the civil governscouts, admitted to be a part of the military ment contributed a little money. As & establishment of the United States. Leav-soldier he was not an official of the Philiping names on one side, what happened was that he received $3,500 from civil sources, to be used by him in connection with his military command, in the performance of duties incident to that command. On the face of it the proposition is extravagant that the receipt of a small sum to be spent and done with forthwith in this way made him an officer of the civil government, notwithstand-tion to permit what might become the ining the source from which it came, or the strument of dangerous attacks upon its fact that he sent his accounts to the same power. It is a wholly different question quarter. An office commonly requires some- from that where a soldier, not in the perthing more permanent than a single transi-formance of his duty, commits an ordinary tory act or transaction to call it into be- crime. But we do not understand the ing. The letter of Governor Taft which Penal Code to have the suggested scope. designated Major Carrington to receive the Judgment reversed. fund says nothing about appointing him a civil or any kind of officer, nor did he qualify as one in any way. He was addressed by Governor Taft, and he acted, in his military capacity and under his military responsibility. He has been held to that responsibility by a court-martial. The only color for an additional liability is in the words quoted from the resolution of the civil commission, authorizing the civil governor to designate Major Carrington as disbursing officer,-words which the governor wisely did not adopt,-and in the fact that the plaintiff in error gave himself that name. It is unnecessary to inquire whether he could have made himself a civil officer if he had tried, in view of the act of Congress absolutely prohibiting it. Act of March 3, 1883, chap. 134, 22 Stat. at L. 567. No one dreamed that he was attempting it, and if he could have succeeded at the expense of his place in the Army, under Rev. Stat. § 1222, U. S. Comp. Stat. 1901, p. 860, no one supposed that he had done so, but he continued in his military command undis- Argued December 9, 1907. Decided Janturbed. We think it entirely plain that the acceptance of the duty of spending and accounting for this small fund did not amount to holding a civil office within the statutes of the United States. We see no sufficient The same judgment will be entered in Nos. 224 and 225, which were to abide the result of this case. ANHEUSER-BUSCH (207 U. S. 556) BREWING ASSO CIATION, Appt., V. UNITED STATES. Duties drawback imported corks used in exporting bottled beer. Imported corks used in bottling beer for export are not articles manufactured from imported materials within the meaning of the act of October 1, 1890 (26 Stat. at L. 617, chap. 1244), § 25, allowing a drawback of duties on such articles when exported, alcial treatment after importation to make though such corks were subjected to a spethem fit for the purpose intended. A [No. 60.] uary 6, 1908. PPEAL from the Court of Claims to review a judgment refusing to allow a drawback on imported corks used in bottling beer for export which were subjected to a spe cial treatment after their importation to | against the contention and dismissed the pemake them fit for the purpose intended. Af- tition. 41 Ct. Cl. 389. firmed. See same case below, 41 Ct. Cl. 389. ley for appellant. The treatment to which the corks were subjected is detailed in finding 3, inserted in the margin.t †3. That while said acts of October 1, Assistant Attorney General Van Orsdel August 27, 1894 [28 Stat. at L. 509, chap. 1890 (26 Stat. at L. 567, chap. 1244), and for appellee. *Mr. Justice McKenna delivered the opinion of the court: 349], and July 24, 1897 [30 Stat. at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626], were in force and operation, the claimant herein, being engaged in the regular, ordi This is an action for $27,000 for draw-nary, and usual course of its business aforebacks on corks imported from Spain and used by claimant in bottling its beer, and entered for the benefit of drawback upon exportation under 25 of the act of Congress entitled "An Act to Reduce the Revenue and Equalize Duties on Imports and for Other Purposes," * approved October 1, 1890. The section reads as follows: said, exported from the United States a large quantity of beer brewed and manufactured by it, which exportation thereof was in bottles duly corked by it with corks so as to preserve the beer; that such corks so used by it in the bottles in which such beer was exported were imported from Spain, a foreign country (and on which corks duty had been paid to the United States, according to law, at the rate of 15 cents per pound, under the provisions of paragraph 416 of the act of Congress apthree fourths of an inch in diameter, measproved July 24, 1897), they being corks over ured at the larger end. The corks so imported from Spain were subjected to treatment by claimant. The corks so used by the claimant in the making and shipment of its export beer were corks imported into this country from Spain, where they were cut by hand, without steaming. After these corks were received by claimant in its brewery in St. Louis, and while in the same state in which they were examined and all that were not fit for use in the export trade were rejected. The good ones were then selected and assorted according to sizes, and were branded with the date, the name of the brewer, the name of the beer, firm the cork came from. All this was done and a special private mark to show what by unskilled labor. "That where imported materials on which duties have been paid are used in the manufacture of articles manufactured or produced in the United States, there shall be allowed on the exportation of such articles a drawback equal in amount to the duties paid on the materials used, less one per centum of such duties. Provided, that when the articles exported are made in part from domestic materials, the imported materials, or the parts of the articles made from such materials, shall so appear in the completed articles that the quantity or measure there of may be ascertained. And provided fur-imported from Spain, they were carefully ther, that the drawback on any article allowed under existing law shall be continued at the rate herein provided. That the imported materials used in the manufacture or production of articles entitled to drawback of custom duties when exported shall, in all cases where drawback of duties paid on such materials is claimed, be identified, the quan- The selected corks were put into a matity of such materials used and the amount chine, or air fan, the unpatented invention of duties paid thereon shall be ascertained, of a man in the employ of the claimant, and the facts of the manufacture or production all dust, meal, bugs, and worms were reof such articles in the United States and moved therefrom. They were then thoroughtheir exportation therefrom shall be deter-ly cleansed by washing and steaming, remined, and the drawback due thereon shall be paid to the manufacturer, producer, or exporter, to the agent of either, or to the person to whom such manufacturer, producer, exporter, or agent shall in writing order such drawback paid, under such regulations as the Secretary of the Treasury shall prescribe." [26 Stat. at L. 617, chap. 1244.] The corks in question were, after their importation, subject to a special treatment, which, it is contended, caused them to be articles manufactured in the United States of "imported materials" within the meaning of 25. The court of claims decided moving the tannin and germs and making *562 •561 560 206 28 SUPREME COURT REPORTER. OCT. TERM, *In opposition to the judgmet of the court, at definition. Their first sense as used is of claims counsel have submitted many defi- fabrication or composition,-a new article is nitions of "manufacture,” both as a noun and produced of which the imported material a verb, which, however applicable to the constitutes an ingredient or part. When we cases in which they were used, would be, go further than this in explanation we are we think, extended too far if made to cover involved in refinements and in impracticable the treatment detailed in finding 3 or to the niceties. Manufacture implies a change, but corks after the treatment. The words of the every change is not manufacture, and yet statute are indeed so familiar in use and of every change in an article is the result of meaning that they are confused by attempts treatment, labor, and manipulation. which would have injured the market for it. The whole process took from one day to three days, the longest part of it being the drying after the chemical bath. But from the wood that has been steamed first, thus depriving them of much of their elasticity. Because the Spanish hand-cut corks are cut without having been steamed in the first instance, they are far safer and better corks to be made for and used in bottling export beer than corks cut in the United States after being steamed. The bath made it easier to put the cork into the bottle and take it out. The pores and apertures of the cork were thoroughly closed by the bath, and thus the escape of the gases contained in the beer was pre-ough treatment of corks, beer cannot with vented. The steaming of the corks, or pasteurizing them, destroyed all the germs in them that would damage or spoil the beer, if they were not pasteurized. This pasteurizing also destroyed the yeast that might have been in the beer. If the corks had but little or no elasticity, and did not fit the bottles perfectly, the gas would escape while the beer was yet in the brewery, or in transportation, or in the place of market, and the beer would be flat, stale, worthless, and unmarketable. Without the careful selection and thor safety be exported from the United States to foreign countries. When the corkwood reaches the United States it is steamed in order to get an increase volume out of it. The steaming of the corkwood makes it open something like a sponge. The steaming swells the cork, and those who do the steaming get more corks out of it, but how much more does not appear. But the steaming takes away its elasticity, and the cork cut after steaming is not so good or so perfect as one cut from the dry wood in the first place. Corks cut after steaming will shrink, and that fact makes them inferior corks. Cork dealers in the United States also put it through various treatments, such as polish When the corks had been dried, they were soft, elastic, and pliable, free from all for eign substances and germs, perfectly airtight, and fitted for use in bottling beer for export. They were next taken to the building it and using chemicals to make it look ing in claimant's brewery which was used for bottling purposes, where they were again soaked or wetted by steaming them for a short time, so they would fit snugly and easily in the bottles. The bathing, or treatment by the bath, and the washing and steaming of the corks, were all done by skilled labor. After the beer had been put in the bottles and they had been corked, the filled bottles were put in a large vat, where they were pasteurized by heating to the right temperature for a sufficient length of time and cooled again. If the corks had not been treated as above described, the carbonicacid gas would have escaped in the heating or pasteurizing process, because there was a powerful gas pressure toward the cork during all that process. If that gas had escaped, the beer would have become flat. The corks, so treated by this process and put in the bottles of beer, could only be removed therefrom by means of a corkscrew or other instrument of force, which removal would damage or destroy the cork so it could not be used afterwards for the same purpose. The hand-cut corks which come from Spain have all been cut out of the wood without steaming it beforehand. The corks that are cut in the United States are cut bright and have a good color. They do not attempt to close up the pores in the cork, nor run it through machinery to shake or wash the dust or impurities out of it. They put the cork on the market as the machine cuts it after it has been steamed. Corks so cut and treated in the United States would not be fit for use in the exportation of beer, for they would damage the beer through contact, and much stale beer would result from the escape of the carbonic-acid gas by reason of the imperfect corking, and the beer would not be marketable. In the manufacture of beer for export to other countries it was necessary to destroy the yeast in the beer to prevent second fermentation and the consequent ruin of the beer. In order to destroy the germs of yeast the finished beer was steamed to the degree necessary to destroy the germs, and for that purpose the beer was inclosed securely in a vessel to prevent the escape of the carbonicacid gas, and of all such vessels a bottle made of glass was and is the one best adapted to the purpose aforesaid. And such steaming was also necessary to the perfect manufacture of beer for bottling, and to the perfect corking thereof it was essential and necessary that the cork as treated should be used as herein described. drawback. This phase of the case—indeed (207 U. S. 564) HENRY WINTERS, John W. Acker, Chris V. UNITED STATES. Appeal necessary parties. fendants. * Appeal - necessary parties — defaulting defendants. something more is necessary, as set forth beer, and therefore not articles exported and illustrated in Hartranft v. Wiegmann, within the meaning of 25, entitled to a 121 U. S. 609, 30 L. ed. 1012, 7 Sup. Ct. Rep. | 1240. There must be transformation; a new and different article must emerge, "having a distinctive name, character, or use." This cannot be said of the corks in question. A cork put through the claimant's process is still a cork. The process is the preparation of the encasement of the beer, and assimilates this case to Joseph Schlitz Brewing Co. v. United States, 181 U. S. 584, 45 L. ed. 1013, 21 Sup. Ct. Rep. 740. There it was contended that bottles and corks in which beer is bottled and exported were "imported materials used in the manufacture" of such beer, within the meaning of § 25. And it was pointed out-found by the court of claims that the process of manufacturing beer for exportation was different from the process of manufacturing beer for domestic use, and the materials selected with greater care, in order that the bottled product might preserve purity under the conditions of transportation and change of climate. The process was detailed at length. It was decided, however, that such special process and treatment did not make the bottles and corks component parts of the beer when exported, as it was insisted they were. It is true that it was not contended in that case, as it is in this, that the corks or the bottles were articles manufactured in the United States of imported materials by reason of the special treatment to which they had been subjected, making them better or necessary for their purpose. That such a contention was possible under the statute did not occur to the brewing company. It does not appear in the statement of the case that the corks were subjected to any treatment, and appellant denies the application of the case by saying that "the corks were not put through any process of manufacture whatever." And yet it must have been necessary then, as the court of claims has found it to be, that, without the careful selection and thorough treatment of corks, beer cannot with safety be exported from the United States to foreign countries." Of course the 4. The reservation of the waters of Milk views of a litigant of his rights under a river for irrigation purposes, implied in fastatute are not an absolute test of the vor of the Indians on the Fort Belknap Resviews of a litigant in another case, but the ervation from the agreement of May 1, 1888, Schlitz Brewing Case was one which may in which the Indians ceded to the United be supposed to have brought to consideration States all their lands except a small tract every practicable and legal problem under set apart as such reservation, was not rethe statute, and if a cork by special treat-pealed by the admission of Montana into 2. Those defendants in a suit to enjoin the diversion of water who have defaulted, and against whom a decree pro confesso has been entered, are not necessary parties to an appeal from a decree granting a permanent injunction taken by the answering defendants, who justified by counter rights and submitted those rights for judgment. Indians cession of lands to the United States reservation of irrigation rights. 3. A reservation of the waters of Milk river for irrigation purposes in favor of the Indians on the Fort Belknap Reservation will be implied from the agreement of May 1, 1888 (25 Stat. at L. 113, chap. 213), by which the Indians, having the right to occupy and use a large tract of arid lands, ceded to the United States all those lands except a small tract set apart as such reser vation. reservation of irrigation rights in cession to United States admission of state as repeal. the Union by the act of February 22, 1889, ment ceases to be a cork and becomes an [No. 158.] Decided January 6, 1908. Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1796-1805. *565 A non PPEAL from the United States Circuit | boundary of the reservation, is Court of Appeals for the Ninth Circuit navigable stream. Large portions of the to review a decree which affirmed a decree lands embraced within the reservation are of the Circuit Court for the District of Mon- well fitted and adapted for pasturage and tana, enjoining a diversion of the waters of the feeding and grazing of stock, and since Milk river. Affirmed. the establishment of the reservation the See same case below, 78 C. C. A. 546, 148 | United States and the Indians have had Fed. 684. Statement by Mr. Justice McKenna: *This suit was brought by the United States to restrain appellants and others from constructing or maintaining dams or reservoirs on the Milk river in the state of Montana, or in any manner preventing the water of the river or its tributaries from flowing to the Fort Belknap Indian Reservation. An interlocutory order was granted, enjoining the defendants in the suit from interfering in any manner with the use by the reservation of 5,000 inches of the water of the river. The order was affirmed by the circuit court of appeals. 74 C. C. A. 666, 143 Fed. 740. Upon the return of the case to the circuit court, an order was taken pro confesso against five of the defendants. The appellants filed a joint and several answer, upon which and the bill a decree was entered making the preliminary injunction permanent. The decree was affirmed by the circuit court of appeals. 78 C. C. A. 546, 148 Fed. 684. and have large herds of cattle and large numbers of horses grazing upon the land within the reservation, "being and situate along and bordering upon said Milk river.” Other portions of the reservation are "adapted for and susceptible of farming and cultivation and the pursuit of agriculture, and productive in the raising thereon of grass, grain, and vegetables," but such portions are of dry and arid character, and, in order to make them productive, require large quantities of water for the purpose of irrigating them. In 1889 the United States constructed houses and buildings upon the reservation for the occupancy and residence of the officers in charge of it, and such officers depend entirely for their domestic, culinary, and irrigation purposes upon the water of the river. In the year 1889, and long prior to the acts of the defendants complained of, the United States, through its officers and agents at the reservation, appropriated and took from the river a flow of 1,000 miners' inches, and conducted it to the buildings and premises, used the same for domestic purposes and also for the The allegations of the bill, so far as nec-irrigation of land adjacent to the buildings essary to state them, are as follows: On and premises, and by the use thereof raised the 1st day of May. 1888, a tract of land, crops of grain, grass, and vegetables. Afterthe property of the United States, was re-wards, but long prior to the acts of the deserved and set apart "as an Indian reservation as and for a permanent home and abiding place of the Gros Ventre and Assiniboine bands or tribes of Indians in the state (then territory) of Montana, designated and known as the Fort Belknap Indian Reservation." The tract has ever since been used as an Indian reservation and as the home and abiding place of the Indians. Its boundaries were fixed and defined as follows: "Beginning at a point in the middle of the main channel of Milk river, opposite the mouth of Snake creek; thence due south to a point due west of the western extremity of the Little Rocky mountains; thence due east to the crest of said mountains at their western extremity, and thence following the southern crest of said mountains to the eastern extremity thereof; thence in a northerly direction in a direct line to a point in the middle of the main channel of Milk river opposite the mouth of People's creek; thence up Milk river, in the middle of the main channel thereof, to the place of beginning." fendants complained of, to wit, on the 5th of July, 1898, the Indians residing on the reservation diverted from the river for the purpose of irrigation a flow of 10,000 miners' inches of water to and upon divers and extensive tracts of land, aggregating in amount about 30,000 acres, and raised upon said lands crops of grain, grass, and vegetables. And ever since 1889 and July, 1898, the United States and the Indians have diverted and used the waters of the river in the manner and for the purposes mentioned, and the United States "has been enabled by means thereof to train, encourage, and accustom large numbers of Indians residing upon the said *reservation to habits of industry and to promote their civilization and improvement." It is alleged with detail that all of the waters of the river are necessary for all those purposes and the purposes for which the reservation was created, and that in furthering and advancing the civilization and improvement of the Indians, and to encourage habits of industry and thrift among them, it is essential and necessary that all of the waters of the river flow Milk river, designated as the northern 'down the channel uninterruptedly and un *566 |