time of the commission of the offense, which
duty is evaded by the guilty act, it follows
that the offense is not committed by an act
done before the obligation to pay or account
for the duties arises, although such act may
indicate a tuture purpose to evade when the
period of paying or securing the payment of
duties has been reached. It follows from
this that if, as is the custom upon the arrival
of trans-Atlantic steamers, a passenger's
baggage is landed upon the wharf, and the
trunks are filled with goods clandestinely
imported, the owner cannot be convicted of
smuggling them under this statute, since the
obligation to pay the duties upon them does
not arise until an attempt is made to carry
them off the wharf. In my view the act of[463]
smuggling is complete when the goods are
brought within the waters of a certain port,
with intent to land them without payment
of duties. Whether, if the duties be sub-
sequently paid, such payment would be a
condonation of the offerse is a question upon

and defraud the King of his customs on the seacoast by running of goods and merchanuise." In Brown's Law Dictionary (Eng. 1874), smuggling is defined as "importing goods which are liable to duty so as to evade payment of duty;" and in McClain's Criminal Law (§ 1351), as importing dutiable goods without payment. There are similar definitions in the Encyclopædic and also in the Imperial Dictionary. In the Encyclopædia Britannica, "smuggling" is said to denote "a breach of the revenue laws, either by the importation or the exportation of prohibited goods, or by the evasion of customs duties on goods liable to duty;" and Stephen, in his Summary of the Criminal Law, page 89, defines smuggling as the "importing or exporting of goods without paying the duties imposed thereon by the laws of customs and excise, or of which the importation or exportation is prohibited." Similar definitions are given by Lord Hume in his Commentaries on the Laws of Scotland, as well as in Bell's Dictionary of Scottish Law, page 225. In which it is unnecessary to express an opinion. Tomlin's Law Dictionary, where smuggling It might depend upon the motives which inis defined as "the offense of importing or ex-duced the importer to pay the duties. If they porting goods without paying the duties im- were paid after detection, it might not be posed thereon by the custom or excise laws," considered sufficient; if before detection it a list of some thirty or forty acts connected would be strong evidence of a change of purwith the unlawful and fraudulent importation of goods is given, but in none of them pose. If the testimony of the captain in this case is to be believed, he brought the package is the word "smuggle" mentioned as an of- of diamonds into port wholly ignorant of the fense. In the sixth edition of his work on fact that it contained dutiable articles. DeCrimes, Sir William Russell gives as his au- fendant himself was not on board the steamthority for the definition Hawkins, Bacon, er, but took passage on another ship to arand Blackstone, the last of whom is against rive later at another port, thus putting it him, and also sets forth a large number of out of his power to pay or account for the [462]acts "for the prevention of smuggling," duty. The guilty intent with which the passed during the present reign, none of package was delivered in Antwerp to an inwhich mention the word "smuggle" as a dis-nocent party for transportation to this countinct crime. Indeed, the word seems to be a popular summing up of a large number of of-try must be held to have continued, since defendant had deliberately deprived himself of fenses connected with the clandestine introany locus penitentia by handing the package duction of goods from foreign ports. to the captain for transportation and delivery. But conceding all that is claimed as to the But we think it is unnecessary to look belaw of England in that particular, the ques-yond the language of the statute itself to detion is not, what was the law of England termine what is meant by the word "smugduring the last century, nor what it is today, but what was the law of the United gle," since it is there defined as the clandes tine introduction into the United States of States in 1842, when this act was passed, and in 1877, when it was incorporated in the Revised Statutes? If we are to rely for a definition upon our lexicographers and legal grammarians, there can be no doubt upon the subject, as by Webster, Worcester, the Century, and the Standard Dictionaries, and in all the law lexicons, the offense is defined in somewhat varied phraseology as the clandestine importation of goods without the payment of duties. I know of no American au

thority, except the dictum of Judge Lowell
in United States v. Jordan, 2 Low. Dec. 537,
to the contrary.

"any goods, wares, or merchandise subject
to duty by law, and which should have been
the duty." If the words "clandestinely in-
invoiced, without paying or accounting for
troduce" are not intended as a definition of
the prior word "smuggle," they are intend-
ed as a separate offense, and in either case
the defendant would be liable if he clandes-
tinely introduced the goods without paying
or accounting for the duty thereon. What,
then, is meant by a clandestine introduction?
In at least two cases in this court (United
States v. Vowell, 5 Cranch, 368, [3: 128];
Arnold v. United States, 9 Cranch, 104,
[3: 671]) an "importation" to which the
government's right to duty attaches was de-
fined to be an arrival within the limits of
some port of entry. Or, as stated by Mr.
Justice Curtis in United States v. Ten Thou-
sand Cigars, 2 Curt. C. C. 436, an importa
tion is complete when the goods are *brought[464]
within the limits of a port of entry, with
the intention of unlading them there." A

It would seem from that case and from certain expressions in the opinion of the court in the case under consideration, that the offense is not complete even when the goods are unladen and put upon the shore, and that a failure to pay duty upon them is a necessary element to justify an indictment, or that, as the words "without paying or accounting for the duty” imply the existence of the obligation to pay or account at the

similar definition of an importation is given | lieving that they include an importation of in the following cases: Harrison v. Vose, goods with an intent to evade the duties, 9 How. 372, 381 [13: 179, 183]; United the right to which has already attached; States v. Lyman, 1 Mason, 499; McLean v. and I am at a loss to understand why an Hager, 31 Fed. Rep. 602, 606; The Schooner obsolete definition of the English law should Mary, 1 Gall. 206, wherein it was said by be rehabilitated to defeat the manifest intenMr. Justice Story that "an importation is a tion of Congress. voluntary arrival within some port, with intent to unlade the cargo."

Such being the meaning of the word "import," a clandestine importation would be the bringing of goods into a port of entry with design to evade the duties. Should a narrower meaning be given to the words "clandestinely introduce?" I think not. The word "introduce" would strike me as entitled to an even broader meaning than the word "import." To introduce goods into the United States is to fetch them within the jurisdiction of the United States, or at least within some port of entry, and the requirement that they should be unladen or brought on shore is to import a feature which the ordinary use of language and the object of the act does not demand. If the construction of the words "clandestinely introduce" adopted by the court be the correct one, it would follow that a vessel loaded Argued December 16, 1898. Decided Janwith goods, which the owner designed to import without payment of duty, leaving a European port, might be navigated up the

[No. 91.]

uary 9, 1899.

St. Lawrence and through the chain of Great Lakes to Chicago (a voyage by no means unknown), or up the Mississippi to St. Louis, and be moored to a dock, and yet the goods be not introduced into the United States, because not actually unladen upon the wharf.

State of Maryland to review a decree of Court of of the that court affirming a decree of the Circuit Court No. 2 of Baltimore City sustaining a demurrer to the bill of the plaintiff, the Chappell Chemical & Fertilizer Company, and to review a decree of that court affirm

I cannot give my consent to such a narrowing an order of Circuit Court No. 2 of Balti-
definition.
more City refusing the plaintiff leave to file
an ancillary bill of complaint. There was
also a motion to dismiss. Dismissed.

See same case below, 85 Md. 681.
The facts are stated in the opinion.
Mr. Thomas C. Chappell for plaintiff
in error.

Confirmation of the above meaning of the word "smuggle" may, I think, be found in the act of June 22, 1874 (18 Stat. at L. 186, chap. 391), commonly known as the "antimoiety act." In section 4 of that act it is provided that the Secretary of the Treasury shall award to officers or others detecting or seizing smuggled goods a proportion of their proceeds, and that "for the purposes of this act smuggling shall be construed to mean the act with intent to defraud or bringing into the United States, or with like intent [465]attempting to bring into the United States dutiable goods without passing the same, or the package containing the same, through the custom house, or submitting them to the officers of the revenue for examination." It is true the definition is given "for the purposes of this act," and evidently with the object of including within its provisions, not only the act of smuggling proper, that is, the act of importing with intent to defraud dutiable articles without passing, etc.,-but of an attempt to do the same, which would probably not be construed as smuggling under the provisions of other acts. It is scarcely possible that Congress should have contemplated wholly different interpretations of the same words in different acts.

But it is useless to prolong this discussion. The whole question turns upon the meaning of the words "smuggle" and "clandestinely introduce." I have given my reasons for be

CHAPPELL CHEMICAL & FERTILIZER
COMPANY, Plff. in Err.,

v.

SULPHUR MINES COMPANY OF VIR

GINIA.

(See S. C. Reporter's ed. 465-471.)
Federal question.

When the decision of a state court rests upon
grounds other than those dependent upon a
Federal question, it is not reviewable here,
although a Federal question was also raised
in the state court.

Messrs. James M. Ambler, Randolph Barton, Skipwith Wilmer, and Randolph Barton, Jr., for defendant in error.

"That your orator is advised that the said

case was not before said judge at large when | honorable court, whose province is to prevent said judgment was rendered, and said judge wrong and to do right and the said plaintiff[468] had no jurisdiction or authority at law to claims that it is being deprived of its liberty render said judgment. and its property without due process of law, and that under the Declaration of Rights of the state of Maryland, art. 5, and the Constitution of the state and law of the state as laid down by the court of appeals of Maryland, it was entitled to a trial by jury in said case at law, having demanded such trial, and that the action of the judge at large in denying that right and in trying said case after an appeal from an order affecting a constitutional right, without a jury and ex parte and without notice to this plaintiff, and without an opportunity to be heard, and without any trial of the facts, and the finding of a verdict by the judge at large upon the false and fraudulent testimony of the officer of the said Sulphur Mines Company of Virginia, at said ex parte trial, all of which this plaintiff charges, is the enforcement of law and a regulation of the state abridging a privilege and immunity of this plaintiff, which is a citizen of the United States, and is repugnant to the Fourteenth Amendment of the Constitution of the United States, and every judge and all the people are bound by the Constitution of the United States, art. 2, Declaration of Rights of the state of Maryland, article 6, Constitution of the United States. Wherefore your petitioner prays leave to file an ancillary bill of complaint herein, and specially sets up and claims the privilege, and specially sets up and claims that any denial of the said privilege will be a denial of the equal protection of the laws and repugnant to the Fourteenth Amendment of the Constitution of the United States. Thos. C. Chappell, Att'y for Plaintiff.

"That the said judgment was made absolutely by the said judge at large, while there was pending a motion to strike out the verdict and the judgment thereon, and your orator insists that said judgment is absolutely void, and rendered ultra vires, and said motion to strike out the judgment is still pending in said superior court."

It is also alleged that there was pending in the case a motion to quash the attachment. There were exhibits filed with the bill. A demurrer was interposed. Subsequently an amended and supplemental bill was filed, containing additional allegations of proceedings, and the prayer was also broadened.

To this bill a demurrer was again filed, and the ground of it stated to be that the bill did not state such a case as entitled plaintiff to any relief in equity. [467] *The demurrer was sustained, and the bills dismissed on the 2d of June, 1896.

On the 22d of August, 1896, the plaintiff presented a petition for leave to file an ancillary bill in the following words:

The said plaintiff, by Thomas C. Chappell, its attorney, reserving every manner of advantage and exception whatsoever, shows to this honorable court:

1. That since the decree was passed in this case dismissing the bill of complaint herein, the motions of the said Chappell Chemical Fertilizer Company in the case of The Sulphur Mines Company of Virginia v. The Chappell Chemical & Fertilizer Company, which said motions are referred to in the original and supplemental bills filed herein, have been overruled.

2. That an appeal from the order of the court in said action at law is not an adequate remedy, and that under art. 16. sec. 69, Code Pub. Gen. Laws of Maryland, the said plaintiff herein is entitled to an injunction to enjoin the said plaintiff herein from reaping any benefit from the said purported judgment, and from occasioning this plaintiff any damage by any proceedings in said pretend ed judgment.

3. That while the filing of an amended or an ancillary or supplemental bill is in the discretion of the court, that discretion is to be exercised within prescribed legal and equitable limitations, according to the decision of the court of appeals.

4. That the property of this plaintiff is tied up and rendered extra commercium, and placed in such a position and its title so clouded by this invalid and illegal judgment delivered in a court without jurisdiction, and coram non judice, and in violation of the Seventh Amendment and the Fourteenth Amendment of the Constitution of the United States, under which the said plaintiff specially sets up and claims a right, privilege, and immunity, that the said plaintiff is entitled to file an amended, supplemental, and ancillary bill herein, fully setting forth all the facts and insists that said illegal and invalid judgment should be canceled by this

On the same day leave to file the bill was refused, and the plaintiff, on the 25th of August, 1896, filed the following:

The said plaintiff, by Thomas C. Chappell,
attorney, reserving every manner of advan
order of court requiring the demurrer filed
tage and exception whatsoever, excepts to the
in this case to be argued before all of the de-
fendants had been served with subpoena, and
to the order of court dismissing the original
and supplemental bills of complaint herein,
and to the order of court refusing to the[469]
plaintiff the right and privilege to file an an-
cillary bill, and specially sets up and claims
that said order abridges a privilege and im-
munity of the said plaintiff, a citizen of the
United States, and are repugnant to the
Fourteenth Amendment of the Constitution

of the United States, under which said plain-
tiff specially set up and claim a right, privi-
lege, and immunity.

Thos. C. Chappell,
Attorney for Plaintiff.
And on the same day the following:

Mr. Clerk: Please enter an appeal from the decree in this case dated the 22d day of August, 1896.

Thos. C. Chappell,
Attorney for Plaintiff.

Then follow in the record certain papers | validity; and that "certain errors were comwhich presumably were necessary to perfect mitted to the prejudice of this complainant, the appeal. the appellant, all of which will more fully appear from the assignment of errors, which will be duly filed herein."

This is true as to all the pleadings and papers, except the petition of the 22d of August, 1896, for leave to file an ancillary bill. If, however, a Federal question was raised There is more confusion when we come to by the petition and on the appeal from the the petition for writ of error. It does not order denying it, the motion to dismiss must distinguish between these judgments except nevertheless be granted, because the decision by a reference to the assignment of errors. of the court of appeals rests on grounds other The petition recites "that on or about the than those dependent on Federal questions. 5th day of June, 1897, this court [court of Simmerman v. Nebraska, 116 U. S. 54 [29: appeals] entered a decree herein in favor of 535]; Eustis v. Bolles, 150 U. S. 361 [37: the defendant, the appellee, and against this 1111]; California Powder Works v. Davis, plaintiff." It then recites that there was 151 U. S. 389 [38: 206]; Missouri P. R. R. drawn in question the validity of a statute Co. v. Fitzgerald, 160 U. S. 556 [40: 536]; or an authority exercised under the United Fowler v. Lamson, 164 U. S. 252 [41: 424]. States, and the decision was against See also Iowa Central R. R. Co. v. Iowa, 160 the validity, and also the validity U. S. 389 [40: 467]; Long Island Water Supof a statute or an authority ex- ply Co. v. Brooklyn, 166 U. S. 685 [41: 1165]; and Miller v. Cornwall R. Co. 168 U. S. 131 [42: 409].

[678] CHAPPELL CHEMICAL & FERTILIZER COMPANY, Plff. in Err.,

v.

SULPHUR MINES COMPANY OF VIR

GINIA.

(See S. C. Reporter's ed. 472, 473.)
Federal question.

The dismissal of an appeal on the ground that
it is prematurely taken does not present a
Federal question.

[No. 92.]

Argued December 16, 1898. Decided Jan

uary 9, 1899.

N ERROR to the Court of Appeals of the State of Maryland to review a judgment of that court dismissing an appeal from the Superior Court of Baltimore City brought by the defendant, the Chappell Chemical & Fertilizer Company. There was a motion to dismiss. Writ of error dismissed.

An appeal was entered from this order and perfected. The court of appeals dismissed it December 3, 1896, saying:

"The appeal in this case having been prematurely taken, the motion to dismiss it must prevail.

See same case below, 85 Md. 683.
The facts are stated in the opinion.

Mr. Thomas C. Chappell for plaintiff
in error.

Messrs. James M. Ambler, Randolph
Barton, Skipwith Wilmer, and Randolph
Barton, Jr., for defendant in error.

This cause was argued with No. 91, the
preceding case.

"The defendant, long after the time fixed by the rule of court, demanded a jury trial, and without waiting for the action of the court upon his motion, and indeed before there was any trial of the case upon its merits and before any judgment, final or otherwise, was rendered, this appeal was taken from what the order of appeal calls the order of the defendant the right of a jury trial; but court of the 6th of February, 1896, denying no such order appears to have been passed. On the day mentioned in the order of appeal low fixing the case for trial, but there was no action taken in pursuance of such order until subsequent to this appeal. There is another appeal pending here from the orders which were ultimately passed. "Appeal dismissed."

the court be

No Federal question was disposed of by this decision.

Writ of error dismissed.

CHAPPELL CHEMICAL & FERTILIZER[474}
COMPANY, Plff. in Err.,

v.

[472] *Mr. Justice McKenna delivered the SULPHUR MINES COMPANY OF VIRopinion of the court:

GINIA.

This is a writ of error to the court of appeals of the state of Maryland to review a judgment made by it, and which is hereafter Removal of cause equal protection of the

(See S. C. Reporter's ed. 474, 475.)

set out.

laws.

The action was at law for the recovery of eight thousand dollars for money payable, 1. goods sold, and work done, and materials furnished by defendants in error (plaintiffs in the court below) to plaintiff in error (defendant in the court below), and was brought in one of the city courts of [473]Baltimore, Md. To the declaration a plea was filed February 12, 1895, averring that the defendant was never indebted and never promised as alleged. On January 13, 1896, under the Maryland practice, upon the suggestion of the defendant (plaintiff in error) that it could not have a fair trial, the case was "transmitted" to the supreme court of Baltimore, Md.

The record contains a number of motions and exceptions to the rulings on the motions.

One of these exceptions was that the ruling of the court deprived plaintiff in error of a jury trial under a law of Maryland and the rules of court made in accordance therewith, which law and rules plaintiff in error alleges are repugnant to the Constitution of the United States. Another objection was to an order made on the 6th of February, 1896, requiring plaintiff in error to employ new counsel, the cause under the practice of the court having been peremptorily set for trial on the 20th of February, 1896, after having been twice postponed for the alleged sickness of counsel.

The loss of the jurisdiction of a state court by the pendency of a petition for removal of the cause to a Federal court is not shown by a record on writ of error which does not contain the grounds of the petition for removal or the petition Itself, and where the fact that this was filed appears only by recital and by the opinion of the court.

2.

The equal protection of the laws is not denied by a state statute abridging the right of trial by jury in the courts of a city, without making a similar provision for the countles of the state.

[No. 99.]

Argued December 16, 1898. Decided Jan-
uary 9, 1899.

IN ERROR to the Court of Appeals of the
State of Maryland to a
of that court affirming a judgment of the
Superior Court of Baltimore City in favor
of the plaintiff, the Sulphur Mines Company
of Virginia. Also on motion to dismiss.
Judgment affirmed.

See same case below, 85 Md. 684.
The facts are stated in the opinion.
Mr. Thomas C. Chappell for plaintiff
in error.

Messrs. James M. Ambler, Randolph
Barton, Skipwith Wilmer, and Randolph
Barton, Jr., for defendant in error.