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purposes, against the peace of the United States and their dignity, and contrary to the form of the statute,” etc.

The third count charges that the defendant, without having given bond, etc., "did engage in the manufacture of opium for smoking purposes, in and by employing and using a process by means of which a high-grade smoking opium is dissolved in water in any receptacle or container; and yen shee, which is the product of the partial combustion of smoking, or prepared, opium remaining when the smoker has used such smoking, or prepared, opium for smoking purposes, is in like manner dissolved in water, in any receptacle or container, and the said aqueous solution of yen shee is strained and purified so that all substances contained therein which are foreign to the opium content in the said solution, and to the water therein contained, are removed, and which said substances so removed consist of the product produced as the result of the partial combustion of prepared, or smoking, opium in the course of its use by the smoker for smoking purposes; and the said process is, further, that the said aqueous solution of yen shee thus strained and purified is mixed with the aforesaid solution of high-grade smoking, or prepared, opium, and the two solutions thus mixed and combined are heated and cooked in any receptacle or vessel over a slow fire until a product is produced by such heating and cooking and by the evaporation of a part of the aqueous content of the said combined solution, which has the consistency and appearance of thick molasses, and which said product is known as smoking, or prepared, opium, and which said product is opium prepared for smoking purposes; against," etc.

This indictment seems to have been framed with the object of indirectly reviewing Shelley v. United States, 198 Fed. Rep. 88, where the Circuit Court of Appeals for the Second Circuit reversed a conviction that had been had in the District Court under a previous indictment, upon VOL. CCXXIX-16

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grounds succinctly expressed in the opinion, as follows (p. 89): "It appears that, when smoking opium has been produced, it may be smoked more than once. That is to say, the residuum left after a first smoking may be simply heated and smoked again. If to this residuum (known as yen shee) some additional smoking opium is added, each time it is reheated, the process of resmoking may be continued longer. We are of the opinion that the mere mixing of smoking opium with the residue of opium that has been smoked, and heating the same is not a 'manufacture of opium for smoking purposes' within the meaning of the statute. The manufacture which the statute contemplates is complete when from the crude opium there has been produced the smoking opium, with which alone, as defendant contended, he operated, in its unsmoked and smoked condition. We think there was error in the refusal to charge that, if the jury found that defendant only mixed smoking opium with the residue which remains after smoking, his act was not a manufacture of opium for smoking purposes within the meaning of the statute."

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It appears that the primary manufacture of opium for smoking purposes is done by treating crude opium in such manner as to convert it into a different form, thus rendering it fit for smoking. It is conceded that this manufacture is subject to the tax prescribed by § 36 of the act of 1890. And see Marks v. United States, 196 Fed. Rep. 476. The counts now under consideration describe two processes by which the residuum of opium remaining after smoking (yen shee), may be reconverted into a form fit for smoking, in the one case by dissolving it in water, straining and purifying the solution so as to remove foreign matter, and then heating and cooking the refined solution, and thereby producing an inferior grade of smoking opium; the other process differs in that an admixture of smoking opium of a high grade is employed together with the yen shee.

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In the argument counsel discussed the proper definition of the term "manufacturing," citing Kidd v. Pearson, 128 U. S. 1, 20; and United States v. E. C. Knight Co., 156 U. S. 1, 14; to which may be added Anheuser-Busch Assoc. v. United States, 207 U. S. 556, 559, which had to do with the drawback provision of the McKinley law (26 Stat. 567, 617, c. 1244, § 25).

But, aside from the general principle that criminal statutes ought not to be extended by construction, we have here the additional consideration that this statute was primarily designed as a taxing act. Section 36 must be read in connection with the accompanying administrative provisions, which render it clear that the tax was designed to yield substantial revenue, and not merely or primarily to prohibit the manufacture of smoking opium. It may easily be believed that if (irrespective of constitutional limitations upon its power) Congress were undertaking to stamp out the practice of opium smoking, it might prohibit such processes of reclaiming as were charged against the defendant in the second and third counts of this indictment. But it is not so easy to believe, in the absence of clear language requiring such a construction, that in prescribing a revenue tax upon the manufacture of opium for smoking purposes, it intended to subject the same substance more than once to the tax, or to require surveillance over opium-smoking resorts-in which, it would seem, such treatment of the residuum might most readily be conducted the same as over a factory or other establishment where the primary conversion of crude opium into smoking opium is conducted.

Of course the prohibition is not more extensive than the taxing clause; and so we are satisfied that the offences charged in the second and third counts of this indictment are not within the denunciation of § 36 of the act.

Judgment affirmed.

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UNITED STATES v. BALTIMORE & OHIO RAILROAD COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF WEST VIRGINIA.

No. 118. Argued October 19, 20, 1911.-Decided June 10, 1913.

A judgment dismissing, on the merits, an equity action brought by the Secretary of War against a railroad company to declare a bridge over a navigable stream to be an unreasonable obstruction and to require its removal under the act of March 3, 1899, on the ground that the provisions of the act did not apply, held, in a criminal trial on an indictment charging the same party with violating the penal provisions of the said act, to be res judicata and decisive of the question. Quære, how far if at all a statutory grant to erect a bridge over navigable waters of the United States on specified terms in an act of Congress without reservation of the right to alter or amend, operates to limit Congress to directly legislate as to removal or alteration of such bridge.

Quare what the effect is on subsequent action by Congress of a decree of a court in an action determining that a bridge was properly erected over a navigable stream pursuant to grant in an earlier act of Congress.

THE facts, which involve the construction of provisions of the act of March 3, 1899, in regard to the authority of the Secretary of War to require alteration of bridges over navigable waters of the United States, are stated in the opinion.

Mr. Assistant Attorney General Harr for the United States.

Mr. B. M. Ambler, with whom Mr. W. W. Van Winkle and Mr. M. G. Ambler were on the brief, for defendant in

error.

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MR. CHIEF JUSTICE WHITE delivered the opinion of the

court.

This writ of error seeks the reversal of a judgment discharging the defendant in error here from further prosecution under an indictment which alleged a violation of the act of March 3, 1899, 30 Stat. 1151, c. 425, in refusing to alter, as directed by the Secretary of War, a bridge across the Ohio River, connecting Parkersburg, West Virginia, and Belpre, Ohio. The case was tried to a jury, and at the close of the evidence, by direction of the court, a verdict of not guilty was returned, whereupon the judgment was entered which is under review.

The facts established by the evidence, so far as material to be stated, may thus be summarized.

The bridge in question was completed in the year 1871, in full compliance with an act of Congress approved July 14, 1862, 12 Stat. c. 167, p. 569, which prescribed the height, width of span and other requirements for bridges erected above the Kentucky line (mouth of Big Sandy River) and in § 5 it was provided: that "any bridge or bridges erected under the provisions of this act shall be lawful structures, and shall be recognized and known as post-routes and that officers and crews of all vessels, boats, or rafts navigating the said Ohio River are required to regulate the use of said vessels and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation, construction or use of any of the bridges erected or legalized under the provisions of this act." The act contained no express reservation of right to alter or amend it in any respect.

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On October 29, 1904, the United States Attorney for the Northern District of West Virginia, by direction of the Attorney General, filed in the Circuit Court of the United States for the Northern District of West Virginia a bill of complaint on behalf of the United States against the

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