The times., 1899-11-14
AN APPEAL FILED.
The wilkins OIconaraurinc Case Be-
fore the supreme Court.


fore the supreme Court.
A writ of eertiorari in the oleomargarina
cases was asked for before the Supreme
Court of the United States yesterday by
Jare NJ Wilson, representing Joseph
wilkins and Howard Butler, both of whom
have been convicted and sentenced under
the oleomargarine laws of Pennsylvania.
The grounds upon which the writ is asked
are set forth in the following petition:
That, accordingly, in order to constitute
an offence under the said provision of the
said act. the following separate and dis
tinct things are concurrently essential.
namely. ID The article in respect of which
the offence is alleged must be shown to be
oleomargarine within the definition of the
said act of Congress; (2) a mark, stamp, or
brand must have been prescribed by the
Commissioner of Internal Revenue; (S) the
Secretary of the Treasury must have ap-
proved the mark stamp, or brand so pre-
scribed: ~ the mark, stamp, or brand
claimed TO have been removed or defaced
must have been such as prescribed by said
act-that is, such as prescribed by the said
Commissioner with the approval Of the said
Secretary; 60 the mark. stamp, or brand
of the sort so defined must have beeL
unlawfully removed or defaced, and co.
the oIeomargarine contained in the pack
age bearing the mark, stamp, or brand
must have been taxed in conformity with
the act; and that, accordingly, before any
person, as contemplated by said act, can
be brought to trial for an alleged violation
thereof he is entitled to be and must be
informed by the charge against him that
each of the foregoing six essentials exists;
and that the trial court and the said Cir
cult Court of Appeals erred in holding that
4
sufficient in merely stating that each of
the marks, stamps and brands alleged to
have been removed by the petitioner was
then and there required and was then and
there under the requirements of law brand
ed upon the aforesaid package
That, as appears from the said indict-
ment, the same in no part AYERS that the
Commissioner of Internal Revenue either
with or without the approval of the Secre-
tary of the Treasury, prescribed any
marks, stamps or brands. as in and by the
sixth section of the said act of Congress
contemplated and provided without an
ayerment to which effect the petitioner is
advised that the said indictment was and
is wholly insufficient; and the petitioner is
further advised that the trial court erred in
admitting in evidence, Notwithstanding the
absence of such ayeTment, certain regu-
iatiOns purporting to have been so pre-
scribed, and in so admitting the said allega-
tions had recourse to the doctrine of judiciai
notice, which, as the petitioner is advised.
has application only to the proof of mat
ters sufficiently alleged or averred, and
cannot be resorted to for the purpose OF
supplying the omission of matters of essen
tial ayeTment
That, as appears from the opinion of
the said Circuit Court of Appeals in the
premises, the said court assumed in its
consideration Of the case that the word
taxed in the last sentence of the said fif-
teenth section of the said act of Congress
was, in fact, the word affixed and that
the same assumption was made throl gho I
/ by counsel for both the United States and
the petitioner on the hearing of the said
cause in the said trial court and in the
said Circuit Court Of Appeals; that accord
ingly, through inadvertence, no argument
was made by counsel or consideration had
! by the court OF the meaning to be given TO
/ said section as it in fact was enacted. and
! that the petitioner is advised and now
! urges that the language of the said act so
as aforesaid containing said word taxed
/ has another and different meaning than
that given to it by the said trial court and
! the said Circuit Court of Appeals, and that
+ this fact presents a question upon which
! the petitioner has not been heard, and
upon which, as he is advised, il is especial
ly important to his interests that the
/ opinion of this court should be expressed
after he shall have had an opportunity to
be heard in relation thereto and, further
! that it is especially important and de irabls
that this court should declare the meaning
Of the said act in this regard for the guild
ance OF the courts OF the United States in
! prosecutions under the said act and OF the
! executive officers thereof charged with the
administration of the same for the reason
I that by executive construction OF the said
act the officers of the Bureau OF Internal
Revenue in applying an opinion Of the At
torney General of the United States ha e
4 declared an actual determination by said
! bureau of the character Of the arice pro-
I posed TO be taxed and an actual levy Of a
/ tax thereon to be essential in the admins
tration of the said act, as appears il and
! by the very regulations admitted in g i
dence, as aforesaid being rev -sed Iegu.a-
tions, series :, No. 9, revised June IS,
1885.
/