opinion, p. 681, was made in view of this concession; but we see no reason for recalling it. The language used was: "No doubt the Enabling Act, followed by the adoption of the constitution therein prescribed and the admission of the new State, had the effect of remitting to the state government the enforcement of the prohibition respecting the manufacture, sale, barter, etc., of intoxicating liquors within the State, and respecting commerce in such liquors conducted wholly within the State; and, to the extent that the scheme of prohibition established by the Enabling Act covered the same field that had been covered by the act of 1895, the latter act must be considered as impliedly repealed." But this had reference only to the act of 1895, and not to the act of 1897, it having previously been stated in the opinion (p. 676) that since § 2139, Rev. Stat., and the act of 1897 contained provisions respecting the sale of intoxicating liquors to Indians, and in this and perhaps in other important respects covered ground not covered by the act of 1895, we must not be understood as deeiding that those prohibitions were no longer in force within what was the Indian Territory.

But, because the act of 1895 was impliedly repealed with respect to intra-state manufacture and traffic, it does not necessarily follow that the act of 1892, as amended in 1897, was likewise repealed in respect of that traffic, by the Enabling Act and the admission of the State. The one was a territorial prohibition applicable to the Indian Territory because made so by Congress, irrespective of other considerations; while the other act, applicable to Indian country throughout the States and Territories generally, happened to be applicable to the Indian Territory because that was Indian country. But as already pointed out, in passing the Enabling Act, Congress knew that if, and when, and so far as, portions of the Indian Territory ceased to be Indian country, the acts of 1892 and 1897 would cease to apply, irrespective

of Statehood; and on the other hand, must be deemed to have intended that the establishment of Statehood should repeal the act of 1895 with respect to matters wholly intrastate, because that act (whatever reasons may have moved Congress to enact it) was, by its terms, applicable to the Territory as a Territory and as a whole, irrespective of whether it was Indian country; and this kind of internal prohibition of the liquor traffic would naturally cease with Statehood, because inconsistent with local self-government and with equality between the States.

The terms of the act of January 30, 1897, show that it was especially designed to provide for the changes consequent upon the adoption of the policy of alloting the Indian lands in severalty. Hallowell v. United States, 221 U. S. 317. This policy was in progress in the Indian Territory at the time of the passage of the Oklahoma Enabling Act. The history has been so recently rehearsed that it need not be here repeated. Tiger v. Western Investment Co., 221 U. S. 286, 300, 302; Heckman v. United States, 224 U. S. 413, 435; Mullen v. United States, 224 U. S. 448; Goat v. United States, 224 U. S. 458; Deming Investment Co. v. United States, 224 U. S. 471. Every consideration arising out of the Governmental guardianship over the Indians, and control over their lands, indicated that as to them the liquor prohibition should be maintained after Statehood, so far as it was consistent with the control of the State over its internal police. The act of 1892, as amended in 1897, concededly remains in force in other States where there is Indian country or Governmental trusteeship over Indian lands or guardianship over the Indians. United States v. Sutton, 215 U. S. 291, 295. Such legislation is of undoubted constitutionality. United States v. Kagama, 118 U. S. 375, 383; Ex parte Webb, supra. The prohibition against introducing liquor into the Indian country has been consistently adhered

to for many years, with beneficial results so far as the welfare of the Indians is concerned.

All of these considerations were presumably in the mind of Congress when it passed the Enabling Act, and they are inconsistent with any tacit purpose to repeal the acts of 1892 and 1897. The liquor prohibition, so far as it concerns the Indians, has always been deemed one of the peculiar responsibilities of the Government at Washington, and it may easily be believed that Congress felt reluctant to delegate the subject-matter wholly to the state government that was about to be established in the Indian Territory; especially as the same subjectmatter in other States remained, as it still remains, under Federal control.

In United States Express Company v. Friedman, 191 Fed. Rep. 673, the Circuit Court of Appeals for the Eighth Circuit held that the Enabling Act did not repeal the act of 1897, at least with respect to the introduction of liquor into the Indian country from points outside the State. In Mosier v. United States, 198 Fed. Rep. 54, the same court held the act of 1897 to be in force within the State so far as relates to the sale of liquors to Indians.

Upon the whole, while the matter is not free from difficulty, it seems to us the better argument is against the implied repeal. It follows that the District Court erred in holding the acts in question, viz: § 2139, Rev. Stat., as amended by the acts of 1892 and 1897, to be no longer in force, and erred in sustaining the demurrer to the indictment. The judgment should be reversed and the cause remanded for further proceedings in accordance with the views above expressed.

Judgment reversed.

229 U.S.

Opinion of the Court.

UNITED STATES v. SHELLEY.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 943. Argued April 11, 1913.-Decided May 26, 1913.

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 § 36 of McKinley Tariff Law of October 1, 1890.

Criminal statutes ought not to be extended by construction. A statute which is primarily designed as a taxing act to raise revenue on, and not one to suppress the manufacture of, a specified article, will not be construed so as to subject the same substance more than once to the tax or to require surveillance over places where the secondary treatment is conducted as well as over the factory of primary manufacture.

The prohibition against manufacturing smoking opium under § 36 of the Tariff Act of 1890 is not more extensive than the clause taxing the article; and if the article produced is not taxable thereunder there is no violation thereof in its production.

THE facts, which involve the construction of provisions of § 36 of the McKinley Tariff Law in regard to the manufacture of opium, are stated in the opinion.

Mr. Assistant Attorney General Harr for the United States.

Mr. Robert M. Moore for defendant in error.

MR. JUSTICE PITNEY delivered the opinion of the court.

We have here under review a judgment of the District Court sustaining a demurrer to two counts of an indictment for a violation of § 36 of the act of Congress approved October 1, 1890, c. 1244, 26 Stat. 567, 620.

This act is the so-called McKinley Tariff Law, and provided for the tariff duties to be paid upon articles imported from foreign countries, and also for the collec

tion of certain internal revenue taxes. The tariff provisions are of course long since superseded. Section 36 reads as follows: "That an internal-revenue tax of ten dollars per pound shall be levied and collected upon all opium manufactured in the United States for smoking purposes; and no person shall engage in such manufacture who is not a citizen of the United States and who has not given the bond required by the Commissioner of Internal Revenue."

The counts in question are the second and third counts of the indictment. The former of these avers (omitting formal matters) that, without having given bond, etc., the defendant "did engage in the manufacture of opium for smoking purposes, in and by employing and using the process by means of which yen shee, which is the product or ashes which remains after prepared, or smoking, opium has been used and smoked by the smoker, is dissolved in water after having been permitted to remain in solution in water in any receptacle or vessel for a period of time; furthermore, by means of which the said aqueous solution of yen shee is strained and purified so as to remove from the said solution all matter which is foreign to such opium as may be contained in the said yen shee, such matter consisting 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 by means of which the said aqueous solution of yen shee thus strained and purified is heated and cooked in any receptacle or vessel for a period of time and until a product is produced as the result, among other things, of the evaporation of a part of the aqueous content of the said solution in the course of such heating and cooking, which said product thus remaining is smoking, or prepared, opium of an inferior grade, and which said product resembles in appearance and consistency thick molasses, and is opium for smoking