He is charged in the indictment with a violation of Act Aug. 2, 1886, c. 840, § 13, 24 Stat. 211 [U. S. Comp. St. 1901, p. 2232], commonly known as the "Oleomargarine Act," which provides that:

"Whenever any stamped package containing oleomargarine is emptied, it shall be the duty of the person in whose hands the same is to destroy utterly the stamps thereof, and any person who willfully neglects or refuses so to do shall, for each offense, be fined," etc.

The act above referred to divides dealers in oleomargarine into two classes: First, the manufacturer or wholesaler. His establishment is under the immediate supervision of officers of the Internal Revenue Department in substantially the same manner as a distillery in which spirituous liquors are manufactured. He is required to put up his commodity in packages containing not less than 10 pounds and to pay the duty thereon provided by law, which is evidenced by a stamp affixed to the package, which is otherwise branded by the officers of the revenue in accordance with the statute and regulations adopted to carry it into effect. All taxes upon the commodity are thus paid by the wholesaler or manufacturer. The second class consists of retail dealers. They are required to sell from original stamped packages only, but are not permitted to sell in such packages; that is, they are not permitted to sell wholesale packages entire. They are required to pack the oleomargarine in smaller quantities, wrapped in suitable wooden or paper packages, stamped conspicuously with the word "Oleomargarine" and with the quantity of the package in pounds. In actual trade wholesalers are accustomed to put up the commodity in 50-pound tubs, and retailers in 1-pound packages, wrapped in oil paper so as to resemble, both in form and size, the packages in which creamery butter is now usually prepared.

Retail dealers experienced a serious difficulty in conforming to these requirements. They were required to sell only from original packages, and were at the same time required to sell only in quantities not exceeding 10 pounds, and to wrap their packages in suitable wooden or paper wrappers, and stamp and brand the same as above specified. It was found impracticable for them to wait until their customers applied for the oleomargarine, and then take it from the original stamped package and put it up in retail packages to conform to the statute. To meet this difficulty, and by way of a practical construction of the act. the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, made the following regulation:

"Retail dealers are permitted to take oleomargarine from the original stamped packages in advance of sales, and put it up in retail packages, marked and branded as the law and these regulations prescribe, and offer the same for sale, provided such prepared retail packages remain in the manufacturer's original package, or, at most, stacked up upon the outside thereof or upon the lid undetached from the package, until the contents have been bargained for and sold; provided that, in so doing, none of the marks, brands, stamps. and notices required upon the package are concealed. But should the dealer remove his prepared packages from the original package, and sell them separated from and independently of the manufacturer's stamped package, he involves himself in liability to a fine of $1,000. The oleomargarine must remain in or upon the original stamped package until sold therefrom."

The decision of this case must turn upon the effect of this regulation. When is an original stamped package empty, within the meaning of

section 13 of the oleomargarine act? Does this occur when the contents are removed and put up in retail packages, as permitted by the regulation, or only when such packages have been all sold, providing they are kept either in or upon the original stamped package?

By a comparison of sections 6 and 13 of the oleomargarine act, in connection with the regulation above quoted, it will be seen that the retail dealer is placed between two fires. On the one hand, it is made' a crime for him to sell oleomargarine except from the original stamped package. Under this provision he must retain the original stamped package, with the stamp uncanceled, as a protection for his sales, until the entire contents of the package have been disposed of. If he fails to do so, any retail packages that are found in his hands are subject to seizure. Or, if he sells them, he exposes himself to severe penalties under other provisions of the act. On the other hand, under section 13, whenever the original stamped package is emptied, the dealer must promptly destroy the stamp thereon.

Under the regulation above quoted, the retailer, having been permitted to remove the contents of the original package for the purpose of putting it up in retail packages, provided he keeps them in or upon the original package, I think it necessarily follows that the original package is not empty, within the meaning of the law, so as to require the cancellation of the stamp, so long as any retail package remains. The language of the regulation and other provisions of the statute above pointed out render this construction unavoidable. If a pound of the oleomargarine were still in the tub unpacked, no one would say that the tub was empty. But, putting the contents in retail packages, being authorized by the regulation, oleomargarine in that state is as much entitled to the protection of the stamp as it would be if it were in the original state.

The evidence and admissions in this case show that, at the time the original stamped packages that are the basis of this prosecution were seized by the revenue officer upon the premises of the defendant, each of these packages contained a one-pound package or print of oleomargarine, and it is admitted that this one pound was in each case a part of the original contents of the original stamped package in which it was found. Under these facts the defendant was not required to destroy the stamp.

I am aware that this construction exposes the revenue to serious abuses, but I do not see how the danger can be avoided and a practical effect be given to the statute. There are two kinds of oleomargarinepure, or white, which is subject to a tax of one-quarter cent a pound, and colored, so as to resemble butter, which is subject to a tax of 10 cents a pound; and in the retail trade this tax is added to the price of the article. It is plain, however, from the evidence in this case, that it is a simple and cheap process to transform pure or white oleomargarine into colored oleomargarine. These are the circumstances which make it easy for a dishonest retailer to carry on a profitable trade by defrauding the He may buy a certain number of packages of colored oleomargarine, bearing the stamp required by law, and at the same time buy a certain number of packages of uncolored oleomargarine. He puts up retail packages of one pound each from the original stamped

packages containing the colored oleomargarine, and sells them until he has substantially exhausted the contents of the package. He may then convert the pure oleomargarine, by the use of a little coloring matter, into colored oleomargarine, and thus continue selling colored oleomargarine of his own manufacture, and, whenever his dealing is called into question, he may claim that the substance which he has sold was taken from the original stamped package of colored oleomargarine, and, as a general rule, it would be impossible for the government to prove the contrary.

The revenue officers state that honorable grocers are accustomed to put up their oleomargarine in retail packages in accordance with the regulation, and then sell the same upon telephone orders or otherwise in accordance with the usual retail grocery business. When the orders are received, the grocer ships the oleomargarine for delivery throughout the city, the same as he does butter. For the purpose of delivery, the retail packages are separated from the original stamped package, and, of course, that affords another opportunity for fraud, because, as soon as the retail package is once separated from its original package, there is no telling whether it came from the 10-cent package or was manufactured by the retailer from the 4-cent package by the use of coloring

matter.

The evidence here shows that the defendant's establishment is of a somewhat suspicious order. It is situated in a room adjoining a livery stable. At the same time the seizure was made, a large quantity of empty packages were found on the premises bearing stamps showing that they originally contained pure uncolored oleomargarine. The packages upon which this prosecution is based had originally contained colored oleomargarine, and were stamped accordingly. It was the practice of the defendant to fill orders by delivering the retail packages of oleomargarine to various homes and restaurants in the city upon orders previously solicited. Under such circumstances, it is quite manifest that it would be possible to violate the law, and that the government would be powerless to refute the oral statements of the retail dealer. Experience, however, shows that internal revenue transactions in which the government is wholly dependent upon the oral statements of the dealer are sure to lead to fraud upon the revenue.

The difficulties above indicated cannot be remedied by the court. Their correction lies with the Legislature. It would seem that the only way to shield the government from such frauds would be to require the original manufacturer to put up oleomargarine in packages suitable for the retail trade and affix to each of such packages the proper stamp. according to the quantity and the quality of its contents.

I am convinced that it is my duty in this case to advise the jury to return a verdict of acquittal.

THE WESTERN STATES.

(District Court, W. D. New York. March 18, 1907.)

1. ADMIRALTY-PROCEDURE-JURY TRIAL.

Under Rev. St. § 566 [U. S. Comp. St. 1901, p. 461], which provides that, in admiralty or maritime causes relating to contracts or torts arising on the Great Lakes, "the trial of issues of fact shall be by jury when either party requires it," the verdict of the jury is merely advisory.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Admiralty, § 595.]

2. SHIPPING-INJURY OF PASSENGER-LIABILITY OF VESSEL.

It is the duty of a vessel to protect a passenger from harm or injury through the acts of employés or other passengers, and a failure to do so renders it liable for the resulting damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 541, 542.

Duty of carrier to protect passenger from injury by fellow passenger, see note to Meyer v. St. Louis, I. M. & S. Ry. Co., 4 C. C. A. 231.]

3. SAME AGGRAVATION OF DAMAGES-DISRESPECTFUL TREATMENT BY OFFI

CERS.

It is the duty of a vessel to accord to a passenger respectful treatment by its officers and servants, and disrespectful treatment by a master of a woman passenger, on her making complaint that she had been assaulted and robbed in her stateroom, may properly be considered in aggravation of the damages.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 541. 542.]

4. DAMAGES PERSONAL INJURY-EXCESSIVE AWARD.

An award by a jury of $15,000 damages against a vessel for an assault made on a woman passenger in her stateroom by an unknown assailant, and subsequent acts of aggravation by the officers, held excessive under the evidence, and the amount reduced to $5,000.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 357, 367.]

In Admiralty. Libel in rem. Trial with jury under Rev. St. § 566 [U. S. Comp. St. 1901, p. 461].

Bushnell & Metcalf (J. H. Metcalf and Patrick F. King, of counsel), for libelant.

Rogers, Locke & Babcock (Louis L. Babcock and Evan Hollister, of counsel), for respondent.

HAZEL, District Judge. Three questions of fact were submitted to the jury: The first, whether the steamer Western States was negligent in failing to provide a bolt, lock, or other device to the stateroom door to enable the libelant to securely fasten such door and prevent intrusion; second, whether the respondent maintained a proper and sufficient watch or patrol to protect the libelant, a passenger; and. third, whether, after the assault upon the libelant by an employé of the ship, she was treated discourteously by the master of the vessel, by the special watchman, or both such master and watchman, to whom she complained of the assault. The verdict of the jury was general, but, from the amount of damages awarded ($15,000), the presumption that the jury found against the vessel, upon all the questions submitted to them, may be indulged in.

151 F.-59

Since the verdict was rendered, some confusion has arisen as to whether the verdict is binding upon the court as in a common-law action or merely advisory. The proctors for the libelant, after the verdict was announced by the jury, moved the court for a decree thereon, and, the motion being held in abeyance, they, on a subsequent day, requested leave to withdraw the same on the ground that the court was bound by the conclusions of the jury, and the libelant had the legal right to enter the decree in accordance therewith without application to the court. The court, however, being of the opinion that the verdict was simply advisory, denied the motion of the libelant; to which ruling she duly excepted. Under the interpretation by Judge Brown, in The Empire (D. C.) 19 Fed. 558, of the statute authorizing trials by jury in admiralty where the matters relating to contract or tort arose on the Great Lakes, the verdict of the jury is merely advisory, and may be disregarded by the court. This has been my uniform rule in other admiralty trials with jury. In this connection it may be interesting to note that trials in admiralty with jury, even where the tort arose on the high seas, though long since fallen into disuse, appear not to have been formerly wholly unknown. In 1 Abbott on Shipping, p. 284, it is stated: "It appears, from the Black Book of the Admiralty, that jurors were formerly summoned to the admiralty."

I do not deem it necessary to restate the facts of the case, and will briefly indicate my affirmance or disaffirmance of the, conclusions of the jury. I concur in the evident conclusion that the steamer did not have a sufficient watch or patrol to adequately protect the libelant at night while asleep in her state room. It was the vessel's contract to carry the libelant, a passenger, for hire, from Buffalo to Detroit safely and without harm coming to her from passengers or employés of the vessel. Upon this proposition the authorities abound, and the citation of a few only is necessary. Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas.. No. 2,575; Steamboat v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1019; The City of Panama, 101 U. S. 462, 25 L. Ed. 1061; Flint v. Norwich, etc., Fed. Cas. No. 4,873; The Yankee, Fed. Cas. No. 18,124; Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503, and cases cited.

The vessel did not fail in her duty to the libelant in not providing a bolt or inside lock to the door. The evidence showed that the lock attached to the stateroom door was the usual and ordinary lock upon lake passenger steamers, and, though its use was criticised by libelant, it was not claimed to be defective or insufficient for the purpose intended.

The law is unquestionably well settled that the carrier, in addition to the obligations above mentioned which it owes to the passengers, must also use the utmost care to accord to a passenger respectful treatment by its officers and servants. Upon the facts elicited, the jury was warranted in finding that after the assault the libelant, who made report thereof to the master of the vessel and to the special watchman, was treated disrespectfully. The skeptical manner in which her complaint that she had been chloroformed, assaulted, and robbed was