text:
    UTLEY et al. v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    June 1, 1925.)
    No. 4479.
    1. Criminal law <©=> 1091(10) — Exception necessary for review of instruction.
    Assignment of error to the giving of an instruction need not be regarded; the bill of exceptions not showing any exception was taken to the instruction, or that there were any requests for instructions.
    2. Criminal law <@s=3Í036(8) — Insufficiency of evidence must first be raised at trial.
    Insufficiency of evidence to justify verdict may not be raised for the first time by motion for new trial.
    In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.
    . Russell Utley and another were convicted under the National Prohibition Act, and bring error.
    .Affirmed.
    Walter Metzenbaum, of Seattle, Wash., for plaintiffs in error.
    Thos. P. Revelle, U. S. Atty., and J. W. Hoar, Asst. U. S. Atty., both of Seattle, Wash.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   HUNT, Circuit Judge.

Writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923,'§ 10138}4 et seq.). Plaintiffs in error were convicted of possession and sale of intoxicating liquor, and of maintaining a common nuisance at a described place in Seattle.

The evidence of the government was that the place was an old saloon, with a bar and mirror, a table, and a, few chairs; that twice on November 29, 1922, a government agent went to the place, and each timé bought distilled spirits, moonshine liquor, from defendant Hull, who was behind the bar; that defendant Utley was not present when that sale was made; that on the 27th of November an agent bought distilled spirits at the place, and that Utley was present when that sale was'made; that Utley was owner and proprietor of the premises, and had taken possession a few days before.

Defendant Utley admitted that he bought the place on November 24, 1922, but said that he was sick and away from the place after 5 o’clock on that day. Defendant Hull admitted that he sold the liquor to the agent on the 29th, but denied that he knew the premises had been purchased by Utley. He said that he had been employed by a man named Kelly, who had died, and that one Smith was the proprietor when he sold the liquor.

It is argued that the court erred in an instruction pertaining to the possession of the property in the- place; but, as the bill of exceptions fails to show that any exception was taken to the instruction given, or that there were any requests for instructions, the assignment need not he regarded. Feigin v. United States, 3 F.(2d) 866; Diamond v. United States (C. C. A.) 4 F.(2d) 111.

It is also contended that the court erred in overruling motion of the defendants below for a new trial. Such motion was based upon the ground that the evidence was insufficient to support the verdict. But, as there was no motion by the defendants or either of them for an instructed verdict, the case falls within the well-settled rule that insufficiency of the evidence to justify the verdict cannot be raised for the. first time by a motion for a new trial, or in the appellate court. Bilboa v. United States (C. C. A.) 287 F. 125; Clements et al. v. United States (C. C. A.) 297 F. 206, certiorari denied 266 U. S. 605, 45 S. Ct. 92, 69 L. Ed. -; Moore v. United States (C. C. A.) 1 F.(2d) 839.

We find nothing in the record which calls for a reversal of the judgment.

Affirmed.


source: Caselaw Access Project

author: ANDERSON, Circuit Judge.

license: Public Domain

text:
    ALEXANDER v. MARE. McCARL et al. v. WYLLY.
    (Circuit Court of Appeals. First Circuit.
    June 12, 1925.)
    Nos. 1841, 1842.
    1. Army and navy <@=13(2) — Withholding pay of officer, on claim of previous overpayment for support of dependents, unauthorized.
    Pay of naval officer, admittedly due, may not be withheld by disbursing officer on unad-judicated claim of previous overpayment for support of dependents.
    2. Action <@=15 — Same person may be petitioner and respondent in' different capacities.
    A naval officer, who is also disbursing officer, may individually petition for mandamus against himself, as disbursing officer and the Comptroller General to compel payment of his salary as naval officer without deductions for claimed overpayment for support of dependents.
    Appeals from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
    Two petitions for mandamus, one by Anton L. Mare against Edward Alexander, and the other by Thomas S. Wylly against J. Raymond MeCarl and others. Writs granted (2 F.[2d] 895, 897), and respondents appeal.
    Affirmed.
    O. R. McGuire, of Washington, D. C., and George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for appellants.
    Robert J. White, of Boston, Mass., for appellees.
    Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
   ANDERSON, Circuit Judge.

These two eases, heard together, are petitions for mandamus to compel disbursing officers to pay lieutenants in tbe navy sums admittedly due them for salary and allowances. The Comptroller General claims the right to collect, by way of set-off, alleged overpayments previously made these naval lieutenants for support of their dependents. To sustain this claim would manifestly make the Comptroller General judge, jury, and deputy marshal, armed with an execution in behalf of the United States. To withhold salaries would or might cripple the naval and army services. No such power is vested in any government official. All questions here involved are really determined by the decision of the Supreme Court in Smith v. Jackson, 246 U. S. 388, 38 S. Ct. 353, 62 L. Ed. 788, affirming, as did the Circuit Court of Appeals (241 F. 747, 750, 154 C. C. A. 449), Judge Clayton’s opinion in the District Court. To the same effect are District Court opinions—Dillon v. Groos, 299 F. 851; Howe v. Elliott, 300 F. 243.

In No. 1842 there is a technical objection, in that Wylly is both petitioner and disbursing officer. But he made the Comptroller General of the United States a party respondent, an assistant United States attorney accepted service for both respondents, and the appeal is prosecuted in behalf of both respondents. Wylly’s situation is therefore like that of a trustee under a will, seeking the instructions of the court as to conflicting rights among the beneficiaries, of whom he is one, and therefore appears as both petitioner and respondent. The objection is purely technical and without merit. On this point we reach the same conclusion as did the Supreme Court of Iowa in Cooper v. Nelson, 38 Iowa, 440.

In each case the decree of the District Court is affirmed.


author: STONE, Circuit Judge.

text:
    HAGAN et al. v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    April 13, 1925.)
    No. 6673.
    I. Criminal law <§=>318 — Failure to produce warrant and vagueness of testimony as to its terms held to require assumption that it was insufficient, and seizure under it illegal.
    Where officers, executing search warrant and seizing liquor, failed to produce warrant on demand, and testified but vaguely as to its terms, defendants claiming it was in blank, held) warrant would be assumed insufficient, and seizure illegal.
    2. Criminal law <§=395 — Liquor seized in execution of illegal search warrant cannot be used in evidence.
    Liquor seized in execution of illegal search warrant cannot be used in evidence.
    In Error to the District Court of the Unit; ed States for the Western District of Oklahoma; John H. Cotteral, Judge.
    John Hagan and another were convicted of unlawfully possessing intoxicating liquor within Indian country, and they bring error:
    Reversed and remanded.
    J. Francis O’Sullivan, of Kansas City, Mo. (Harry Friedberg, of Kansas City, Mo. Urban C. Patterson, of Miami, Fla., and Victor A. Sniggs, of Oklahoma City, Okl., on the brief), for plaintiffs in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.
    Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.
   STONE, Circuit Judge.

Plaintiffs in error were convicted of unlawful possession of intoxicants within the Indian country. Act May 25, 1918, 40 Stat. 563 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa).

Several errors are urged here, but we find it necessary to determine but one of them. A necessary link in the chain of evidence of the crime was certain liquors seized by the arresting officers on the premises. Before trial, plaintiffs in error moved seasonably to suppress this evidence because obtained solely through unlawful search and seizure. It appears that the officers had a search warrant. For some unexplained reason, neither this warrant, nor a copy, served at the time of arrest, nor the affidavit upon which it issued was produced although demand was made therefor. The arresting officer was strangely vague as to the„ terms of the warrant and could not remember whether it described the premises or whether it named the person. The only positive testimony concerning this warrant is by one of the two defendants, who testified that the warrant was in blank. We must conclude that the warrant was insufficient and that the seizure thereunder was illegal. Liquor obtained only by such means cannot be used as evidence. Garske v. United States (C. C. A.) 1 F.(2d) 620, 622, and citations. With this improperly obtained and used evidence excluded, there is a failure of the evidence to sustain the convictions.

The judgments must be and are reversed and the case remanded.


author: GILBERT, Circuit Judge.

text:
    BEATON v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    June 1, 1925.)
    No. 4466.
    1. Criminal law <@=>l 156(1) — Order denying motion for new trial is not reviewable in Circuit Court of Appeals.
    Order denying motion for new trial is not ,revi.ewable in Circuit Court of Appeals.
    2. Criminal law <§x=»901— Request for instructed verdict, made at close of government’s case, ' is waived by defendant’s failure to renew it after having testified in his own beharf.
    Request for instructed verdict, made at close of government’s case, is waived by defendant’s failure to renew it after having testified in his own behalf.
    In Error to the District Court of the United States for the Northern Division of the Western District of Washington; William H. Sawtelle, Judge.
    Doward A. Beaton was convicted of unlawfully purchasing opium, and he brings error.
    Affirmed.
    T. D. Page, of Seattle, Wash., for plaintiff in error.
    Thos. P. Revelle, U. S. Atty., and Donald G-. Graham, Asst. U. S. Atty., both of Seattle, Wash.
    Before GILBERT, HUNT, and RUD-KIN, Circuit Judges.
   GILBERT, Circuit Judge.

The plaintiff in error was convicted under- a count of an indictment which charged him with unlawfully purchasing 40 grains of a preparation of opium. He brings the case before this court, relying upon the denial of his motion for a new trial, a ruling which is not reviewable here, and the refusal of the court below to direct a verdict of acquittal.

The request for an instructed verdict .was made at the close of the government’s case, and was waived by the failure of the plaintiff in error to renew it after having testified in his own behalf. The assignments of error, therefore, bring nothing to the consideration of this court. We may add, however, that we have looked into the record, and find that there was. substantial evidence upon which'the jury’s verdict was based.

The judgment is affirmed.


author: PER CURIAM.

text:
    UNITED STATES v. SINGER.
    (Circuit Court of Appeals, Third Circuit.
    June 18, 1925.)
    No. 2965.
    Habeas corpus <S=>II3(3) — Appeal from order discharging prisoner dismissed, as unauthorized.
    Appeal from order of Circuit Judge, made prior to Act Feb. 13, 1925, discharging on ha-beas corpus a prisoner confined under sentence imposed in district court will be dismissed; no statute authorizing it.
    Appeal from Order of Discharge on Ha-beas Corpus Proceeding by Woolley, Circuit Judge, in the District of New Jersey.
    Habeas corpus by Samuel Singer against the United States. Petitioner was discharged, and the United States appeals.
    Appeal dismissed.
    Walter G. Winne, U. S. Atty., of Hacken-sack, N. J., and Walter H. Bacon, Jr., Asst. U. S. Atty., of Bridgeton, N. J.
    James Mercer Davis, of Camden, N. J., for appellee.
    Before BUFFINGTON, Circuit Judge, and THOMPSON and MORRIS, District Judges.
   PER CURIAM.

This is an appeal from an order made by a Circuit Judge discharging from custody one Samuel Singer, who had been convicted and sentenced in the District Court of New Jersey. The question involved in this case is whether, when the order appealed from was made, a United States Circuit Judge had power and jurisdiction to grant a writ of habeas corpus and thereon to discharge a prisoner confined under sentence imposed in the District Court. He so did and the United States took this appeal. A motion is now made by the prisoner to dismiss the appeal, on the ground that no statute grants an appeal to this court from an order so made by a Circuit Judge. Neither the efforts of counsel nor our own have found such a statute.

The appeal is therefore dismissed, and, being without jurisdiction to consider the question involved in this appeal, we express no opinion upon it.

       Such power has since been expressly conferred by Act Feb. 13, 1925, § 6 (a) 43 Stat. 940, c. 229.


text:
    BERKOWITZ v. UNITED STATES.
    (Circuit Court of Appeals, Third Circuit.
    May 2, 1925.)
    No. 3257.
    Criminal law @=>789(2) — Instruction defining “reasonable doubt” held correct.
    Instruction that “reasonable doubt” means a doubt founded in reason and arising from evidence, and that if, after fair, impartial consideration of facts and circumstances, jurors have abiding conviction of accused’s guilt to a moral certainty, they have no reasonable doubt, held correct.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt.]
    In Error to the District Court of the United States for the District of New Jersey; Charles F. Lynch, Judge.
    Criminal proceeding by the United States against Isadore Berkowitz. Judgment against defendant, and he brings error.
    Affirmed, and remanded for due procedure.
    Joseph F. S. Fitzpatrick, of Jersey City, N. J. (Thomas J. Armstrong, of Jersey City, N. J., of counsel), for plaintiff in error.
    Walter G. Winne, of Hackensack, N. J., for the United States.
    Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   PER CURIAM.

The sole question in this ease is the alleged error of the court wherein it said: .“Reasonable doubt means, first, what the words themselves indicate, a doubt founded in reason and must arise from the evidence. If, after a fair, impartial consideration of all the facts and circumstances of the case, you have'an abiding conviction of the guilt of the accused, to a moral certainty, then of course, you have no reasonable doubt.”

This involved no error. It stated in different words, but in substance, what was approved in Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624, viz.: “By a reasonable doubt is not meant a possible doubt, but such a doubt arising from the evidence that leaves the minds of the jury in such a state that they cannot say, after having reviewed all the evidence, that they have an abiding conviction, to a moral certainty, of the guilt of the accused.”

The judgment below is therefore affirmed, and the cause remanded for due procedure.


author: DAWKINS, District Judge.

text:
    BLOUNT v. KANSAS CITY SOUTHERN RY. CO.
    (District Court w. D. Louisiana, Shreveport Division.
    May 12, 1925.)
    No. 1447.
    1. Master and servant <@=>401 — Pleading <@=>248 (12) — Petition held to state cause of action under both federal and state statutes.
    The petition in an action by an employee against an interstate railroad company for personal injury, which alleged the facts of the injury, showing that it was accidental and that plaintiff at the time was employed in interstate commerce, held! to state facts which also constituted a cause of action under the Louisiana Workmen’s Compensation Law, and an amendment praying for relief thereunder, if it was found that the federal statute could not apply held not to introduce a new cause of action.
    2. Courts <@=>276 — Objection to venue waived by excepting to sufficiency of pleading on the merits.
    A defendant, by appearing to except to the petition as stating no cause of action, waived objection to the venue where the federal court had general jurisdiction of the suit.
    3. Courts <@=>259 — State Legislature cannot limit jurisdiction of federal courts.-
    A state Legislature, by providing in a statute giving a right of action that a suit thereon may be brought only in a state court, cannot deprive a citizen of another state from suing in a federal court which has jurisdiction of the subject-matter.
    At Law. Action by P. M. Blount against the Kansas City Southern Railway Company. On objection by defendant to amendment to petition, and plea to the jurisdiction.
    Amendment allowed, and plea overruled.
    Jones, Sexton, Jones, Buck & Gibson, of Fort Worth, Tex., and Bullock & Warren, of Shreveport, La., for plaintiff.
    Wilkinson, Lewis & Wilkinson, of Shreveport, La., for defendant.
   DAWKINS, District Judge.

Plaintiff brought this suit in the Shreveport division of this court on January 2, 1924, alleging that he was a resident of Water Valley, Miss., and that the defendant is a citizen of the state of Missouri, engaged in interstate commerce through the states of Missouri, Louisiana, and Texas; that it is “actively engaged in business as stick railroad corporation in the state of Louisiana and operates its ears and trains and its other business connected with the general business of said corporation in Caddo parish, La., where it has agents and officers upon whom process may be served in this cause; and that it does not extend its lines into Mississippi, and is a nonresident of Mississippi.” ' The petition otherwise alleges as follows:

“Second. Plaintiff says that on or about the 23d day of April, 1923, he was employed by the Kansas City Southern Railway Company in its railroad shops at Shreveport, state of Louisiana, and was by the requirements of such employment and by the orders of the defendant’s officers, agents, and employees superior in authority to this plaintiff, engaged in the proper performance of his duty repairing a railroad car which car was used by the defendant in the prosecution of its business as a common carrier between the various states of the United States.
“Third. Plaintiff states that, while so engaged in repairing said ears, a heavy plank, about two inches in thickness, twelve inches in width, and approximately sixteen feet long was by the negligence and carelessness of the defendant, its agents, servants, and employees, permitted and allowed to fall from a distance of approximately ten feet above ■ plaintiff upon and against plaintiff’s head, shoulders, and body with great, force and violence, seriously and permanently and painfully injuring him.
“Fourth. Plaintiff states that the. said plank fell from a suspended scaffold upon which it was lying, but to which it was not properly fitted or made fast.
“Fifth. Plaintiff states that the unsafe condition of said board was wholly unknown to him.
“Sixth. Plaintiff says that by reason of the injury inflicted upon him by reason of said board falling upon him he has suffered great pain and mental anguish, and has also suffered serious and permanent injuries which have caused a severe and permanent nervous affliction, accompanied by palsy of and paralysis of the muscles of his body, together with physical debility and weakness, which palsy, paralysis, debility, and weakness are permanent afflictions which have at all times, since the receipt of the injury aforesaid, and will hereafter wholly incapacitate the plaintiff to do labor of any kind that will enable him to earn any money whatever.
“Seventh. Plaintiff states that at the time of the receipt of the injuries complained of he was earning and able to earn the sum of one hundred and seventy-five ($175.00) dollars per month, and that he would have continued to earn such sum, or a 'greater sum, fot a long period of years, but for the injuries hereinabove complained of.”

Plaintiff prays for damages in the sum of $60,000. On June 21, 1924, defendant appeared and filed an exception of no cause or right of action, and on July 7th of the same year it also pleaded that this court was without jurisdiction of this cause, “because the same involves and is based on an accident which occurred while the plaintiff was engaged in intrastate commerce, and that therefore plaintiff’s exclusive remedy is under the Workmen’s Compensation Act of Louisiana in the state courts of said state.”

On February 16, 1925, plaintiff filed an amended petition, the pertinent allegation of which is as follows: “That, should plaintiff be not entitled to recover in this suit under the federal Employers’ Liability Law or other laws of the United States, then and in that event, in the alternative, he is entitled to recover herein under the Workmen’s Compensation Law of the state of Louisiana; that the amount due him under said law exceeds $3,000.”

The first question to be passed upon is the objection to this amendment which is made upon the ground that it changes the issues or injects a new cause of action into the case, and while no plea of prescription has been filed, the amendment not having as yet been allowed, it is said that any claim under the state compensation law has been lost by the prescription of one year (some 22 months having elapsed from the date of the injury to the filing of the amendment). However, this contention must stand or fall upon whether or not the proposed amendment amounts to the assertion of a new and independent cause of action. In his original petition plaintiff did not allege that his claim had arisen under any specific statute, either state or federal, but merely set forth the facts and circumstances of the injury and prayed for judgment in the sum mentioned “and for all proper relief to which he may be entitled.” Of course, there is no general federal statute granting the right to recover for torts, although such suits may be brought in the federal courts where there exist the proper jurisdictional facts, such as diversity of citizenship, ete.; but the right to recover in such eases depends upon the law of the particular state in which the injury was inflicted.

The national compensation law, which is a departure from this general rule, finds its support in the constitutional power of Congress to regulate interstate commerce, and can apply only in those eases where the employer is engaged in interstate commerce and the employee at the time is performing “work so closely related to it as to. be practically a part of it.” Industrial Accident Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Hence, if the proper jurisdictional facts have been alleged in the original petition in this ease, I think the question of whether or not the amendment changes the issues or amounts to a new cause of action can best be tested by treating the matter for present purposes as if the suit had been filed originally in the state court. If this had been done in the identical form in which it appears, the state court would have found that the Louisiana Workmen’s Compensation Law was the exclusive remedy, unless the facts showed that both the employer and employee were at the time engaged in interstate commerce, in which event the federal compensation statute might have been applied, even in the state court. Ordinarily a pleader does not have to allege the particular law upon which he relies for relief; he merely states the facts, and the court takes cognizance of the law applicable to his case. I find that the above-quoted articles of the petition set forth the employment, the rate of pay per month, the facts and circumstances surrounding the accident, and the extent and nature of the injury. The measure of recovery is provided by the statute, and the court must look to it, rather than to the allegations of the petition upon the subject, in determining the rights of the claimant.

Counsel for defendant relies upon three decisions of the Supreme Court of Louisiana as sustaining its contention, to wit, Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381, Smith v. White, 146 La. 313, 83 So. 584, and Gros et al. v. Millers’ Indemnity Underwriters, 153 La. 257, 95 So. 709, which it is said hold that the claimant must allege that his demand is made under the compensation law. However, in the first case, the main question considered was the one of constitutionality of the 'Louisiana Workmen’s Compensation Law, the plaintiff contending that for the reasons urged it was invalid, although in the prayer he asked that, if it should be held that the case was governed by said statute, “an adequate and equitable relief and an equitable lump sum be adjudicated, according to said acts, adding to it an adequate and equitable sum for sufferings, mental agony, loss of consortium, and pecuniary loss.” In passing briefly upon the point, the court had this to say:

“Except as in this prayer, nothing was alleged to be due, or claimed, under said Employers’ Liability Act in the petition; but, on the contrary, said act was repudiated throughout as invalid, and inapplicable to the case. The learned trial judge thought the petition insufficient to justify any judgment under the act. This ruling was correct. Plaintiff has made no specific demand upon defendant under the act, either in or out of court. Section 18 of the act would seem to contemplate that suit may be brought under the act only after the parties have failed to agree out of court upon the amount of compensation due. At any rate, the defendant company is entitled to know what specific amount the plaintiff is claiming before it can be required to answer.”

It is true that the writer of this opinion, who was then a member of the court, concurred in that opinion, but the Chief Justice dissented — whether upon the constitutional question or the ruling upon the alternative prayer is not recalled. But it will be noted that no authority was cited in support of the conclusions reached, and besides the language just quoted justifies the belief, that it was based more upon the vagueness of the demand, in so far as the compensation law is concerned, than upon the proposition that the petitioner could not have been granted relief under said law, if all of the facts had been alleged as has been done in this case. The demand was merely nonsuited. The general principle applicable to such matters is announced in 31 Cyc. p. 101, verbo “Pleading,” as follows:

“Test of Sufficiency. — -The test of sufficiency frequently applied is whether the declaration informs defendant of the nature of the demand, so that he may not be misled in the preparation of his defense. If it does this it is sufficient, although inartifieially drawn. If facts are alleged, which entitle plaintiff to any relief in the court where the action is commenced, the pleading will be held to state a cause of action, even though the pleading contains a demand for relief to which plaintiff is not entitled. And if sufficient facts are stated to make a good cause of action, the pleading is not vitiated by the further averment of legal conclusions respecting the effect of the facts alleged. Vagueness, uncertainty, or other formal defects will not be deemed fatal under rules permitting liberal interpretation, if a good cause of action can be gathered from the pleading. But a declaration containing facts sufficient to constitute a cause of action will be rendered insufficient by the averment of other facts constituting a defense to it.”

See, also, cases cited in footnote and Appleton v. Citizen’s Central National Bank, 190 N. Y. 417, 83 N. E. 470, 32 L. R. A. (N. S.) 543.

My opinion is that, if the petition had been as full as in this ease and the point sufficiently stressed, the court would have held the allegations sufficient.

In Smith v. White, the court, in passing upon the contention that the petition had not alleged that the accident “was wholly accidental,” merely held that this had been waived by the admission of evidence which showed that such were the facts. In the present ease, the petitioner does not specifically allege that the injury was accidental; but the facts which are alleged show that it was accidental, within the definition of that word as defined in the state statute.

In Gros v. Miller’s Indemnity Underwriters, the case went off on the proposition that the petition did not sufficiently allege as a matter of fact that the plaintiff was the adopted child of the deceased, and otherwise did not affirmatively show the nonexistence of other persons who would have been entitled to the right of action ahead of the plaintiff, and further: “Nor is it alleged with sufficient clearness that the death of plaintiff’s illegitimate grandson was caused by an aceident arising out of and in the eourse of his employment.” I, of course, have not the pleadings before me, but take it that, if the petition had alleged facts such as has been done in this ease, showing that the accident had arisen out of and in the course of the employment, it would not have been necessary to allege those exact words.

My conclusion is that, while defendant might have been entitled to more details under proper exception, the original petition did state a cause of action under the Louisiana Workmen’s Compensation .Law (Acts La. 1914, No. 20), and the proposed amendment merely asked relief thereunder in so many words, if it be found that the federal statute cannot apply. I am convinced that in no event could petitioner recover, in view of the allegations, under article 2315 of the Louisiana Civil Code, but that his remedy is either under the federal Employers’ Liability Law (U. S. Comp. St. §§ 8657-8665) or the state Employers’ Liability Law. The amendment is therefore allowed.

Exception of No Cause of Action.— What has been said upon the right to amend, I think, sufficiently disposes of the exception of no cause of action.

Plea to the Jurisdiction. — As herein-above stated, the plea to the jurisdiction is based upon the proposition that the allegations show that the “plaintiff was engaged in intrastate commerce.” It does not decline the venue upon the ground that defendant has not been sued at its domicile, and, having first made its appearance by way of exception of no cause of action before pleading to the jurisdiction, defendant thereby waived any right to except to the venue. Lee v. Chesapeake & Ohio Railroad Co., 260 U. S. 653, 43 S. Ct. 230, 67 L. Ed. 443. The alleged diversity of citizenship was sufficient to give a federal court jurisdiction under the Constitution, and -the only inhibition against bringing a suit of this kind anywhere else than at the domicile of plaintiff or defendant is section 51 of the Judicial Code, which may be waived, and, for the reasons stated, I think the immunity has been lost by defendant’s appearance for other purposes.

In their brief defendant’s counsel urge mainly the contention that the right under the Louisiana law is created by statute, and that it expressly limits the right to sue in the state court having jurisdiction in the parish where the injury was done. On the other hand, two acts were passed by the Louisiana Legislature in 1920 on the same subject, one providing for the bringing of such suits before the “court which would have jurisdiction in a civil ease,” and the other declaring that the same should be brought in the parish where the injury was done. These two acts, which were passed and approved on the same day, have been construed by the Louisiana Supreme Court as supplementary of each other, and as permitting the bringing of such eases before either court. Kinney v. Edenborn, 151 La. 216, 91 So. 712. The present suit was brought in the division of this court including Caddo parish, where the accident is alleged to have happened.

Counsel insist that the Louisiana law has confined the right to'assert such claims to the state court-, but I cannot agree that it was even the intention of the statute to deny that right to persons who, because of their citizenship, are given the privilege of going into federal court for the assertion of such claims, and, if it did, the provision would be in conflict with the Constitution of the Unite ed- States. 25 C. J. p. 261, verbo “Federal Courts,” § 6, C.

The plea to the jurisdiction is therefore overruled.


author: HOLLISTER, District Judge.

text:
    UNITED STATES v. EIGHT PACKAGES AND CASKS OF DRUGS.
    (District Court, S. D. Ohio, W. D.
    August 15, 1910.)
    No. 1970.
    1. Druggists <§=II — Seizu're of misbranded drugs prior to filing of libel for forfeiture is jurisdictional.
    Seizure of drugs misbranded in violation of Act June 30, 1906, § 8, par. 2 (Comp. St. § 8724), is jurisdictional, and must precede filing of libel for forfeiture under section 10 (Comp. St. § 8726), and be alleged in libel, in view of sections 3-5 (Comp. St. §§ 8719i-8721), and Judiciary Act (Comp. St. 1901, § 457), and notwithstanding punctuation of section 10.
    2. Statutes <§=3200 — Punctuation may be disregarded.
    Punctuation may be disregarded in construe ing statute.
    3. Lis pendens <§=3(l) — Proceeding in rem is notice to world.
    Proceedingi in rem is notice to world.
    4. Druggists <§=11 — Libel for forfeiture of mis-branded drugs must be verified by person having knowledge of facts.
    Under Const. Amend. 4, libel for forfeiture of goods misbranded under Act June 30, 1906, § 8, par. 2 (Comp. St. § 8724), must be verified by person having knowledge of facts, since proceeding is in effect proceeding against owner, in nature of criminal proceeding.
    5. Druggists <§=>l I — Libel for forfeiture of mis-branded drugs held insufficient.
    Libel for forfeiture of packages of drugs, misbranded in violation of Act June 30, 1906, § 8, par. 2 (Comp. St. § 8724), on ground that drugs, having been transported from one state to another, remain unloaded, unsold, or in original unbroken packages, in violation of sections 2 and 10, held insufficient for failure to show drugs subject to act.
    6. Druggists <§==! I — Packages of drugs with unintelligible labels held to require statement of alcoholic contents.
    Though legend on packages of drugs reading, “Prescription Products Company, Dayton, Ohio, S. 59884, P. D. Co. No. (1),” is unintelligible, it is a label within Act June 30, 1906, § 8, par. 2 (Comp. St. § 8724), and section 10 (Comp. St. § 8726), and alcoholic contents should be shown on the label.
    7. Criminal law <^=>559 — Forfeitures <§==5— One cannot be convicted, or his property forfeited, by inference.
    One cannot be convicted of a criminal offense, or his property forfeited, by inference.
    Libel by the United States for forfeiture of eight packages and casks of drugs. On demurrer to libel.
    Demurrer to libel • sustained.
    Sherman T. McPherson, U. S. Atty., of Cincinnati, Ohio.
    Charles M. Woodruff, of Detroit, Mich. (H. M. Campbell, of Detroit, Mich., of counsel), for claimant.
   HOLLISTER, District Judge.

The libel-ant represents that certain packages and casks of drugs are labeled and marked and branded on the outside in a certain way. The marking on each is described, the description differing only in the designated numbers of each, and it may suffice to quote the marking and branding of one. “Prescription Products Company, Dayton, Ohio, S. 59884, P. D. Co. No. (1).” The casks or packages are represented as being within and on the premises of the Prescription Products' Company, in Dayton, Ohio, and owned by or in the possession of that company for the purpose of being used and manufactured, sold, and consumed as drugs.

It is represented that these packages are misbranded, within the meaning of section 8, paragraph 2, under the title “Drugs,” of the Act of Congress of June 30, 1906, 34 Stat. 768 (Comp. St. § 8724), and are liable to condemnation for the reason that each package and cask fails to bear a statement on the label of the quantity and proportion of any alcohol, or any derivative or preparation of alcohol, contained therein, and that each of the packages and casks contain a certain percentage of alcohol, as set forth in the libel. It is alleged that they have been and were transported from Detroit to Dayton, and are now in the original unbroken packages as the same were transported, and the libelant prays that they be proceeded against and seized for condemnation in accordance with the act of Congress, and according to the course of this court in eases of admiralty and maritime jurisdiction, so far as it is applicable, and that they may be adjudged and decreed misbranded, and be condemned as provided by law.

The Act of June 30, 1906, provides, in section 10 (Comp. St. § 8726): “That any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one state, territory, district, or insular possession, to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia or the territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a.process of libel .for condemnation. And if such article is condemned as being adulterated or misbrand-ed, or of a poisonous or deleterious character, within the meaning of this act, the same shall be disposed of by destruction or sale, as the said court may direct, and the proceeds thereof; if sold, less the legal costs and .charges, shall be paid into the Treasury of the United States, but such goods shall not be sold in any jurisdiction contrary to the provisions of this Act or the laws of that jurisdiction: Provided, however, that upon the payment of the costs of such libel proceedings and the execution and delivery of a good and sufficient bond to the effect that such articles shall not be sold or otherwise disposed of contrary to the provisions of this act, or the laws of any state, territory, district, or insular possession, the court may by order direct that such articles be delivered to the owner thereof. The proceedings of such libel eases shall conform, as near as may be, .to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any such case, and all such proceedings shall be at the suit of and in the name of the United States.”

The claimant demurs on four grounds, which will be taken up and disposed of se-riatim.

. (1) “The court is without jurisdiction, inasmuch as it appears from said libel that no seizure of the goods therein mentioned had been made prior to the filing of said libel.”

It has been the practice in this jurisdiction for seizures of goods for alleged infringements of the food laws to be made on warrant issued after the libel. This is probably the . universal practice in such cases. The question, 'so far as it relates to the Pood Act, has not been passed upon by any of the courts, so far as this court is aware. But it is not a new question in admiralty, or in the many cases in which seizure and forfeiture of goods have been sought under navigation, revenue, and other laws of the United States.

■ Upon first impression, and having regard to the punctuation of the act, it would seem that the article is to be seized for confiscation by a process of libel for condemnation in any District Court within the district where the same is found; the basis for the seizure being the libel on which the warrant of seizure, is issued. If there were no other light to be had upon the subject, the conclusion might easily be reached that it would be sufficient for a warrant of arrest to follow the libel, the filing of which gives the court jurisdiction. But it has been the rule in proceedings in rem, ever since the declaration of Mr. Justice Story in The Brig Ann, 9 Cranch, 289, 3 L. Ed. 734, “that before judicial cognizance can attach upon a forfeiture in rem, under the statute, there must be a seizure; for until seizure it is impossible to ascertain what is the competent forum.”

In that case the Nonintereourse and Non-importation Act directed against Great Britain and Prance (Act March 1, 1809, 2 Stat. 528) was involved. Section 5 provided: “That whenever any article or articles, the importation of which is prohibited by this act, shall, after the twentieth of May, be imported into the United States, * 3i 31 contrary to the true intent and meaning of this act, or shall, after the said twentieth of May be put on board of any ship or vessel,' boat, raft or carriage, with intention of importing the same into the United States, * *• * as well as all other articles on board the same ship or vessel, boat, raft, or carriage, belonging. to the owner of such prohibited articles, shall be forfeited; and the owner thereof shaE moreover forfeit and pay treble the value of such articles.”

Section 8 gave authority to every collector and other enumerated officer to seize the goods and to “keep the same in custody untE it shall have been ascertained whether the same have been forfeited or not.”

Section 18 provides: “That.all penalties and forfeitures arising under or incurred by virtue of this act, may be sued for, prosecuted and recovered, with costs of suit, by ae-_tion of debt, in the name of the United States of America, or by indictment or information, in any court having competent jurisdiction to try the same.”

Mr. Justice Story said what he did after a consideration, not of the particular statute under which the seizure was made or attempted to be made in that ease, but from a consideration of Judiciary Act September 24, 1789, c. 20, § 9 (1 Stat. 76), which conferred jurisdiction upon the District Court, and which says those courts are vested with “exclusive original cognizance of all civE causes of admiralty and maritime jurisdiction including aU seizures under laws of impost, navigation qr trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within then’ respective districts, as weE as upon the high seas.”

Tn determining the question of the jurisdiction of the court, Mr. Justice Story said: “It seems manifest '* * * that the jurisdiction as to revenue forfeitures was intended to be given to the court of the district, not where the offense was committed, but where the seizure was made. And this with good reason. In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the court. It is actually within its possession when it is submitted to the process of the court; it is constructively so when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem. If the place of committing the offense had fixed the judicial forum where it was to be tried, the law would have been, in numerous cases, evaded; for, by a removal of the thing from such place, the court could have had no power to enforce its decree. The Legislature, therefore, wisely determined that the place of seizure should decide as to the proper and competent tribunal.”

It seems clear that the “statute” to which that great judge referred was the Judiciary Act, the terms of which he was considering. This court is not alone in that view. The case, Silver Spring, Fed. Cas. No. 12,858, is reported to have been brought under Act July 29, 1813, §§ 5-7. That act (3 Stat. at Large, 49-52) seems to have been limited in its operation to February 17, 1816, while the libel charges the fraud and deceit of obtaining the bounty to have been perpetrated in the summer of 1853; but it must be assumed to have been in force when it was sought to •condemn the fish, etc., in the year 1854. It will be noticed that the act does not provide for a seizure, although it does provide for a forfeiture.

The claim of counsel for the defendant in that case, based on the Judiciary Act, and' Mr. Justice Story’s decision that the action must fail because no seizure of the property was alleged in the libel, was sustained by Judge Sprague, of the District Court of Massachusetts, who, speaking of the decision in The Brig Ann, said: “The decision, in that case, did not depend upon the construction of the particular statute under which the property then became forfeited, but upon the construction of Act September 24, 1789 (the Judiciary Act), which is equally applicable to the present" proceeding and, therefore, the rule laid down by the Supreme Court in that case, ‘that before judicial cognizance can attach upon a forfeiture, in rem, there must be a seizure,’ must govern the present case.”

The question was before Judge Drum-mond in The May Fed. Cas. No. 9,330, and while he was evidently not satisfied with the reasons for the rule, yet he felt compelled, upon a consideration of the Judiciary Act, the Navigation Act of 1871, and the decision in The Brig Ann, to rule that an actual seizure of the res prior to the filing of the libel is essential to the jurisdiction of the federal courts, and that the libel should state the place of seizure. The learned judge also states the fact to be that the twenty-second rule in admiralty was adopted by the Supreme Court in conformity with the view of Mr. Justice Story in The Brig Ann.

The Judiciary Act as it now reads (1 Comp. St. 1901, p. 457) gives jurisdiction to the District Courts: “Eighth. Of-all civil causes of admiralty and maritime jurisdiction, saving to suitors in all eases the right of a common-law remedy where the common-law is competent to- give it, and of all seizures on land and on waters not within admiralty and maritime jurisdiction.” If this section is construed as the Judiciary Act was construed in The Brig Ann, and it would seem it ought to be, the conclusion is inevitable that jurisdiction is based upon the seizure, and for the same reasons as were given in that case, as well as those to which reference will be made.

In every one of the cases arising under the laws of the United States, providing for seizure, forfeiture, confiscation, and condemnation, whether they are revenue laws, or navigation laws, or laws providing for confiscation of certain property in times of war or rebellion, the rule is universally declared, whenever the question was raised, that the matter of seizure is jurisdictional, and that the libel follows, through which it may be determined whether the seizure was legal or not.

In Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381, the Act of February 18, 1793, 1 Stat. 305, was under consideration, section 27 of which provided that an officer of the revenue might go on board a ship within or -without his district, and if it should appear that any breach of the laws of the United States has been committed, whereby the ship or goods on board might be liable to forfeiture, to make seizure of the same. Mr. Justice Story, at page 318, says with respect to proceedings in rem: “Where property is seized and libeled as forfeited to the government, the sole object of the suit is to ascertain ■whether the seizure be rightful, and the forfeiture incurred or not.”

Food and Drugs Act, §§ 3, 4, and 5 (Comp. St. §§ 8719-8721), make provisions for an examination of specimens of food and drugs offered for sale in unbroken packages in any state other than that in which they may have been manufactured or 'produced, and, if any of the provisions of the act have been violated, the Secretary of Agriculture shall certify the facts to the proper district attorney, with a copy of the results of analysis or examination, and it is made the duty of each district attorney “to cause appropriate. proceedings to be commenced and prosecuted in the proper courts of the United States without delay for the enforcement of the penalties.” What are the penalties? The whole act has in view seizure, forfeiture, condemnation, and confiscation, and in that respect does not differ in the slightest from all other acts the court has examined, providing for seizure, forfeiture, condemnation, and confiscation under various admiralty and revenue and other laws of the United States.

Among the cases which may be examined with profit are United States v. 92 Barrels of Rectified Spirits, Fed. Cas. No. 15,892, 8 Blatch. 480; U. S. v. One Raft of Timber (C. C.) 13 F. 796; The Lewellen, Fed. Cas. No. 8,307, 4 Biss. 156; Hatch v. Steamboat Boston (D. C.) 3 F. 807; U. S. v. Winchester, 99 U. S. 372, 376, 25 L. Ed. 479; Clifton v. United States, 4 How. 242, 11 L. Ed. 957; Coffey v. U. S., 116 U. S. 427, 435, 6 S. Ct. 432, 29 L. Ed. 681; The Washington, Fed. Cas. No. 17,221; The Josefa Segunda, 10 Wheat. 312, 6 L. Ed. 329; Fideliter v. U. S., Fed. Cas. No. 4,755, 1 Sawy. 153; Dobbin’s Distillery v. U. S., 96 U. S. 395, 396, 24 L. Ed. 637; The Bolina, Fed. Cas. No. 1,608; The Idaho (D. C.) 29 F. 187, 190; The Rio Grande, 23 Wall. 458, 23 L. Ed. 158; Miller v. U. S., 11 Wall. 268, 294, 295, 296, 20 L. Ed. 135; Windsor v. McVeigh, 93 U. S. 274, 278 et seq., 23 L. Ed. 914; In re Moore (D. C.) 66 F. 950.

In fact, in some of the eases in which the .same rule was adopted, there was no provision for forfeiture or seizure of the property. The Lewellen, Fed. Cas. No. 8,307, 4 Biss. 156; Hatch v. Steamboat Boston (D. C.) 3 F. 807. Such a ease was The Bolina, Fed. Cas. No. 1,608. Full authority is found in that ease for. a seizure by the district attorney, or under his authority, even if the statute had been silent on the subject, and in the opinion Mr. Justice Story said: “But if there had been no mode of prosecution pro-.videá, I should have had no .doubt that an information would have lain upon common-law principles.”

Under the Food and Drugs Act the steps provided are the same, and just as drastic in their results, as in any of the other eases. In the ease under consideration “the sole object of the suit is to ascertain whether the seizure be rightful and the forfeiture incurred or not,” just as much as in all of the other eases in which the statute expressly gives some officer the power to seize the offending article. It would serve no useful purpose to go at length into the many cases cited by counsel and found by the court, in which revenue laws, navigation laws, or laws providing for confiscation in times of war and rebellion, were under consideration. They all announce the same rule,, that when it is sought to declare a forfeiture of goods for a violation of some law of the United States, and the proceeding is strictly in rem, the seizure must be made prior to the filing of the libel, and the libel must allege the fact.

This conclusion is not to be affected by questions of punctuation. If the comma after the word “found” is omitted, the language will be found to contain all of the elements found in the other statutes considered in "the eases referred to. If the comma is transposed, and put after the word “seized,” then there eould be no doubt that the intention of the statute was that the same proceeding should be had as in admiralty in cases providing for seizure. Punctuation may not be regarded in construing a statute. Cushing v. Worrick, 75 Mass. (9 Gray) 382; Martin v. Gleason, 139 Mass. 183, 29 N. E. 664. “But for the punctuation as it stands,” says Judge Day in Hamilton v. Steamboat, Hamilton, 16 Ohio St. 429, “there eould be little doubt but that this was the meaning of the Legislature. Courts will, however, in the construction of statutes, for the purpose of arriving at the real meaning and intention of the law-makers, disregard the punctuation, or repunetuate, if need be, to render the true meaning of the statute.”

It cannot be that when, without the comma, or with the comma after the word “seized,” the act would be in its operation in conformity with all similar legislation, that Congress, by putting the comma after the word “found,” intended to change the whole course of established procedure. It is interesting to notice that Act March 3, 1807, c. 22, § 4 (2 Stat. 427)) considered in The Josefa Segunda, 10 Wheat. 312, 6 L. Ed. 329, the language with respect to the property to be confiscated was: “Shall be liable to be seized, prosecuted, and condemned * * * in the district where the said ship or vessel may be found or seized. * * * ”

There are good reasons why, in such eases as this, the seizure should precede the libel. It will be observed that the offense may be committed while the article “is being transported, ' * '* or having been transported remains unloaded, unsold, or in original unbroken packages.”- Let a case be assumed in which the proper authorities have information that goods misbranded in violation of the act are on the cars in the Northern district of Ohio, en route to Dayton, in the Southern district. If the district attorney in the Northern district, apprised by the Secretary of Agriculture, after an examination, that certain goods are misbranded, files his libel within his jurisdiction, and by it seeks seizure of the article, it is very apparent that, long before the libel may be prepared and the warrant of arrest issued and served, the goods may be without the jurisdiction of the court, and the libel a futility. But if, on the other hand, the district attorney in the Northern district of Ohio, who causes a warrant of seizure, upon information lodged in the proper court, to issue, and thereupon the goods were seized in his district, can it be doubted that the court in the jurisdiction in which the seizure was made would acquire jurisdiction of the case?

Again, let it be assumed that the goods have arrived in Dayton and remained in the unbroken packages, and, being misbranded, are forfeited under the law, the district attorney for the Southern district of Ohio files his libel and a writ of seizure is issued. Let it be assumed that, before his libel is prepared and filed and the writ issued and served, the goods have been sold by the Dayton consignee and transported to a bona fide purchaser in the Northern district of Ohio, or in some other state, of what avail would the libel be then? The-court could certainly not proceed to condemn and forfeit the mis-branded article.

It is an established rule that a proceeding in rem is notice to the world. Mankin v. Chandler, Fed. Cas. No. 9,030, 2 Brouck. 125, 127, Marshall, C. J. If the proceeding is not instituted until the libel is filed, then a bona fide purchaser has no notice, actual or constructive. It is easy to see how upon goods actually forfeited by a commission of the offense a lien to a bona fide purchaser might be put, or a sale made, which would render a libel seeking a forfeiture a vain thing. Under section 68 of the Internal Revenue Act of June 30, 1864 (13 Stat. 248), providing for the forfeiture of liquors and spirits, and the seizure of the same for violation of internal revenue laws, it was held that a factor’s lien was protected, where the bona fides are unquestioned, if the lien was subsisting at the date of the seizure. U. S. v. 396 Barrels of Distilled Spirits, Fed. Cas. No. 16,504.

The purposes of the Food and Drug Act, and of seizures, condemnations, and forfeitures under it, are the same as the purposes of the other acts of the government seeking the enforcement of laws of the United States by seizure, condemnation, and forfeiture of the property and goods which by the laws are made contraband, and there seems to be no reason why the proceedings in this ease Should differ from the proceedings in cases of similar purport and intention. The demurrer on the first ground will be sustained.

(2) “Said libel is not properly verified by any person having knowledge of the facts.”

The claim is that the proceedings of seizure and forfeiture are criminal in their nature, and that the warrant should be of the character contemplated by the Fourth Amendment to the Constitution, which reads: “The right of the people to be secure in their persons, houses, papers, ,and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It is claimed that the probable cause must he supported by oath or affirmation of some one conversant with the facts, which must be submitted to the magistrate issuing the warrant, so that he may determine whether probable cause exists.

It was the opinion of Chief Justice Marshall that a proceeding in forfeiture of a vessel is a civil cause. The Yengeanee, 3 Dali. 297, where he says at page 301 (1 L. Ed. 610): “We are unanimously of opinion that it is a civil cause; it is a process of the nature of a libel in rem, and does not, in any degree, touch the person of the offender.” The same great authority expressed the same view in The Schooner Sally, 2 Craneh, 406, 2 L. Ed. 320, in The Samuel, 1 Wheat. 10, 4 L. Ed. 23, and in The Betsy and Charlotte, 4 Cranch. 443, 2 L. Ed. 673.

It is said by Mr. Justice Clifford in Dobbins’ Distillery v. U. S., 96 U. S. 395, 399 (24 L. Ed. 637): “Cases arise, undoubtedly, where the judgment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed, and in that state of the pleadings it is clear that the proceeding is one of a criminal character; but where the information, as in this case, does not involve the personal conviction of the wrongdoer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature, as the conviction of the wrongdoer must be obtained, if at all; in another and wholly independent proceeding.”

This Vould seem to settle the question, but there is a long list of cases, beginning with Boyd v. U. S., 116 U. S. 616, 634, 6 S. Ct. 524, 29 L. Ed. 746, which hold that proceedings in seizure and forfeiture are so far criminal as to come within the meaning of the Fourth Amendment. Lees v. U. S., 150 U. S. 480, 14 S. Ct. 163, 37 L. Ed. 1150; Stone v. U. S., 167 U. S. 178, 187, 17 S. Ct. 778, 42 L. Ed. 127; State v. Chicago, B. & Q. R. Co. (C. C.) 37 F. 497, 500, 3 L. R. A. 554; State v. Day Land, etc. (C. C.) 41 F. 228, 230; U. S. v. Two Barrels of Whisky 96 F. 479, 482, 37 C. C. A. 518; Snyder v. U. S., 112 U. S. 217, 5 S. Ct. 118, 28 L. Ed. 697; Coffey v. U. S., 116 U. S. 434, 6 S. Ct. 432, 29 L. Ed. 681; Clifton v. U. S., 4 How. 242, 250, 11 L. Ed. 957.

The question in Boyd v. United States was whether or not, in an action in rem to establish a forfeiture of goods alleged to have been fraudulently imported without paying duties, an order of court, based on the fifth section of the act authorizing the proceeding, which required the claimants of the goods to produce a certain invoice in court for the inspection of the government attorney and to be offered in evidence by him, was constitutional, or not. Section 5 was held to be unconstitutional. Mr. Justice Bradley, at page 634 (6 S. Ct. 534), says: “As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is, the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment.”

The propriety of these views has not been questioned, so far as this court, after much research, has been able to ascertain, and they are summed up by Mr. Justice Harlan in Hepner v. U. S., 213 U. S. 103, 111, 29 S. Ct. 474, 478 (53 L. Ed. 720, 27 L. R. A. [N. S.] 739, 16 Ann. Cas. 960) in this language: “In the latter case [Boyd v. U. S.] it was adjudged that penalties and forfeitures incurred by the commission of offenses against the law are of such a quasi criminal nature that they come within the reason of criminal proceedings for the purposes of the Fourth Amendment of the Constitution and of that part of the Fifth Amendment declaring that no person shall be compelled in any criminal case to be a witness against himself.”

Some light is thrown upon the subject by what is said in Smith v. Maryland, 19 How. 71, 76, 15 L. Ed. 269. In that ease the question was whether a law of Maryland, enacted for the protection of oysters in waters covering lands in the state, afforded valid cause for seizing a licensed and enrolled vessel of the United States and interrupting its voyage, and pronouncing for its' forfeiture. As bearing upon the subject under discussion Mr. Justice Curtis said: “The objection that the law in question contains no provision for an oath on which to found the warrant of arrest of the vessel cannot be here maintained. So far as it rests on the Constitution of the state, the objection is not. examinable here, under the twenty-fifth section of the Judiciary Act. If rested on that clause in the Constitution of the United States which prohibits the issuing of a warrant, but on probable cause, supported by oath, the answer is that this restrains the issue of warrants only under the laws of the United States, and has no application to state process.” See, also, what is said by Mr. Justice Curtis in Murray’s Lessee v. Hoboken, etc., Co., 18 How. 272, 15 L. Ed. 372,. bottom page 285, and see the opinion of Attorney General Nelson (1843): “The protection guaranteed is not against all seizures;. it is against unreasonable seizures, can be-made only upon reasonable cause, and, when authorized, the evidence of its reasonableness, is to be furnished by oath or affirmation.” 4 Op. Attys. Gen. 213.

The question in every case of seizure-is whether the seizure was justified or not, and the proceeding to ascertain that fact is a civil proceeding, but a seizure of goods is in effect a proceeding against the owner (Boyd v. U. S., 116 U. S. 637, 6 S. Ct. 524, 29 L. Ed. 746; The City of Norwich, 118 U. S. 468, 504, 6 S. Ct. 1150, 30 L. Ed. 134), and hence criminal in nature, and the matter is brought within the meaning and operation of the Fourth Amendment, under which it is a no less serious offense to seize goods than it is to seize the person without a warrant under oath founded upon probable cause.

Power is given Congress by the Constitution to regulate commerce and to pass all laws necessary and proper to carry that power into effect. The Food and Drugs Act is sanctioned by that power. But in carrying out that power regard must be had to other provisions of the Constitution, and if a seizure of goods is necessary it can only be made in the way prescribed by the Fourth Amendment. See remarks of Judge Drummond in Mason v. Rollins, Fed. Cas. No. 9, 252.

In all criminal cases in which a warrant is issued for arrest, probable cause must be shown by the affidavit of some one who has knowledge of the facts. This may be regarded as settled. The rule is laid down by Justice Bradley, on the circuit, in the Rule of Court, Fed. Cas. No. 12,126. He says: “No warrant shall be issued by any commissioner of this court for the seizure or arrest of any person charged with a crime or offense against the laws of the United States upon mere belief, or suspicion of the person making such charge, but only upon probable cause, supported by oath or affirmation of such person, in which shall be stated the facts within his own knowledge constituting the grounds for such a belief or suspicion.” See, also, United States v. Tureaud (C. C.) 20 F. 621, 623; U. S. v. Polite (D. C.) 35 F. 59; Erwin v. U. S. (D. C.) 37 F. 470, 489, 2 L. R. A. 229; In re Gourdin (D. C.) 45 F. 842, 843; In re Dana (D. C.) 68 F. 895; Johnston v. U. S., 87 F. 187, 30 C. C. A. 612.

Historically, arbitrary seizure is one of the great grievances against .despotic power. In these days the reasons for the protection- of persons and property, and the fact that they are protected, are almost forgotten in the paucity of attacks upon them, yet how that protection was wrung from reluctant tyranny must always be borne in mind, and no act can be sanctioned which would tend to weaken the great safeguard of our liberties, and permit at some time encroachments thereon which might‘seem justified by authority of law or by judicial interpretation. Boyd v. United States, 116 U. S. 616, 635, 6 S. Ct. 524, 29 L. Ed. 746. In many eases of seizure discussed in this opinion the fact does not appear whether a warrant was issued prior to the seizure, nor was the form of the warrant disclosed; but in the opinion of this court, considering the seriousness of governmental seizures of the private property of a citizen and the requirements of the Fourth Amendment, it would seem that the affidavit preceding a warrant in proceedings in their nature criminal for the seizure of goods should be made by some one cognizant of the facts. Then upon the issuing of the warrant and the seizure of the goods the district attorney may proceed “to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay for the enforcement of the penalties,” as provided by the act.

It is argued by the district attorney that “even the Constitution must be reasonably construed, and it was never intended or decided that’ the court should examine a ease in advance of issuing process for seizure for condemnation, and should afterwards have to try the ease on the same evidence to determine whether the ease was actually made out.” In answer to this it may be said that the proceedings resulting in the issuing of the warrant are altogether ex parte. There is no trial. There is an affidavit presented by some one who claims to be conversant with the facts, setting forth facts which would show probable cause. The demurrer on its second ground is well taken.

(3) “It does not appear, in and from the averments contained in said libel, that the goods therein mentioned are still subject to the provisions of the Act of Congress of June 30, 1906, in said libel invoked.”

From sections 2 and 10 it may be gathered that the offense charged is the shipping of the contraband article from one state into another, or, having received it, to deliver or offer to deliver the unbroken packages for pay or otherwise, and that a seizure and forfeiture may be had, first, when the article is being transported from one state to another for sale; and, second, having been so transported, remains unloaded, unsold, or in the original unbroken packages.

It may well be that the Preseription'Prod-uets Company was the owner of these unbroken- packages, or had them in its possession for the purpose of being used, manufactured, sold, and consumed as drugs, without the packages having been transported for sale or received for sale. Of course, if the original packages were to be used and manufactured, Congress had no power to legislate respecting them, and if they were to be sold after manufacture then the original packages must necessarily have been broken, and then the law would have to look to the labels on tbe original packages into which the manufactured product had been put, and only then if it were shipped from Dayton into some other state.

If the words “used and manufactured” are rejected as surplusage, and the illegal conduct is restrained to the words “sold and consumed as drugs,” it may be said that the owner or possessor of these original packages could do as he pleased with them if they were not transported into the state to be sold in the original packages. They may have been, as they probably were, transported to be manufactured, as in United States v. Sixty Five Casks Liquid Extracts (D. C.) 170 F. 449, 456, and then, when the manufactured product is sold, it must bear the proper label, if labeled at all. TJiese casks may have been transported’ for purposes of experiment, and, not being used for such purposes, were sold by the person receiving them to the present owner or possessor. So far as it appears by the label, years may have elapsed since the transportation for some other purpose than for sale in the original packages, and it may be that during all that time state taxes have been paid by the owner or possessor. Indeed, the packages may have been in the ownership and possession of the claimant before the Food Act was passed, and, if so, could not come within its operation. Article 1, § 9, cl. 3, Constitution of the United States. The court is of opinion that no forfeiture can be declared under the libel as drawn, and the third ground of demurrer will be sustained.

(4) “Said libelant has not, in and by its said libel, made or stated such a case as entitles the said libelant to the relief therein prayed, inasmuch as the said Act of June 30, 1906, has no application to shipments of the character of the said shipments set forth in said libel.”

Under the provisions of section 8, the term “misbranded” applies to drugs, “the package or label of which shall bear any statement, design, or device regarding such article, or- the ingredients or substances contained therein which shall be false or misleading in any particular,” or (subdivision second) “if the package fail to bear a statement on the label of the quantity or proportion of any alcohol. * * * ”

The legend “Prescription Products Company, Dayton, Ohio, S. 59884, P. D. Co. No. (1),” is not intelligible. It may be a shipping direction, or it may have been put on the packages by the claimant for-purely innocent purposes of its own. As it reads, it cannot be said to be a statement, etc., of the article in the casks, or of the ingredients and substances contained in them. It may be that apt words by way of inducement or innuendo woulcl bring the legend within the language of the law, and show that it was a statement, etc., false or misleading in some particular. ■ It may be that, when interpreted, it would show a full compliance with the law.

The law does not require any label, except by inference, and by no- means necessary inference. A man cannot be convicted of a criminal offense or his property forfeited by inference. The effect of the provision of the law is that no original packages of drugs shall be introduced into one state from another for purposes of sale in the original packages, the label of which is misleading or false. If there is no label, there is no misrepresentation. If the label is unintelligible, it is no description of the contents of the package, and can deceive nobody.

But it would be a too great refinement of language to say that these marks are not labels. The casks certainly are labeled as described.. It may be that the marks, when interpreted, would show the required content of alcohol; but the label should make that fact intelligible. Since the casks are labeled, the required information should appear clearly on the label, whether it is a separate paper pasted on the cask or branded upon it. Inasmuch, however, as the libel does not charge that the packages were transported into the state for sale, this ground, also, for the demurrer must be sustained.

Order accordingly.


author: McDOWELL, District Judge.

text:
    UNITED STATES v. EIGHTEEN CASES OF TUNA FISH.
    (District Court, W. D. Virginia.
    April 20, 1925.)
    Food <s=>24 — Court may order Issue of monitions and attachments on information not supported by oath or affirmation in forfeiture proceedings.
    In forfeiture proceedings under Pure Food and Drugs Act, § 10 (Comp. St. § 8726), providing that the proceeding in such cases “shall conform as near as may be to the proceedings in admiralty,” the court may order the issue of monitions and attachments on informations which are wholly unsupported by oath or affirmation, in view of admiralty rule 22, and sections 1-3 of the Food and Drugs Act (Comp. St. §§ 8717-8719), since Const. Amend. 4, does not apply.
    Proceeding by tbe United States for forfeiture of eighteen eases of tuna fish. Information upheld.
    S. H. Hoge, Asst. U. S. Atty., of Boanoke, Ta.
   McDOWELL, District Judge.

This is a proceeding for forfeiture under the Eood and Drugs Act. The information does not allege previous seizure of the food sought to be condemned, and admits that it is in the possession of its owner, a wholesale dealer in groceries in this district. The information is not verified or supported, otherwise than by an affidavit by an assistant district attorney, which reads: “The foregoing facts are true to the best of affiant’s knowledge and belief.” The prayer is for the issue of monition attachment. For present purposes I shall assume that the Food and Drugs Act (34 Stat. 768 [Comp. St. §§ 8717-8728]) does not contemplate or require previous seizure (see U. S. v. Geo. Spraul & Co., 185 F. 405, 406, 407, 107 C. C. A. 569; U. S. v. Two Barrels, etc. [D. C.] 185 F. 302; U. S. v. One Hundred Barrels, etc. [D. C.] 188 F. 471, 475), and on such assumption I 'shall discuss the question of verification of informations for forfeiture of food and drugs, where a search warrant is not asked for.

If the Fourth Amendment forbids the issue of the attachment, except on probable cause, supported by oath or affirmation, or if the conformity provision of section 10 of the Food and Drugs Act (Comp. St. § 8726) requires that the information be on oath or affirmation, the affidavit here is, I think, insufficient. See Rice v. Ames, 180 U. S. 371, 375, 376, 21 S. Ct. 406, 45 L. Ed. 577; Ex parte Bollman, 4 Cranch, 75, 130, 2 L. Ed. 554; Salter v. State, 2 Okl. Cr. 464, 102 P. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935, 939-944; Mowry v. Sanborn, 65 N. Y. 581, quoted in Clarke v. Neb. Nat. Bank, 57 Neb. 314, 77 N. W. 805, 73 Am. St. Rep. 512; Ex parte Lane (D. C.) 6 F. 34-38; Ex parte Morgan (D. C.) 20 F. 298, 307; Ex parte Spears, 88 Cal. 640, 26 P. 608, 22 Am. St. Rep. 341, 342; Leigh v. Green, 64 Neb. 533, 90 N. W. 255, 101 Am. St. Rep. 592, 595.

However, I know of no sufficient reason or authority for a belief that the Fourth Amendment was intended to apply to an attachment for the seizure of property. The bald letter of the amendment suggests that it was intended to apply only to warrants which direct both search and seizure. But, at least as to warrants for the arrest of persons charged with crime there seems no room for doubt that the amendment applies. Ex parte Burford, 3 Cranch, 448, 451, 453, 2 L. Ed. 495; West v. Cabell, 153 U. S. 78, 85, 87, 14 S. Ct. 752, 38 L. Ed. 643; In re Rule of Court, 3 Woods, 502, Fed. Cas. No. 12,126; U. S. v. Maxwell, Fed. Cas. No. 15,750, pp. 1221, 1222; U. S. v. Tureaud (C. C.) 20 F. 621; In re Gourdin (D. C.) 45 F. 842; In re Dana (D. C.) 68 F. 886, 895; Johnston v. U. S., 87 F. 187, 30 C. C. A. 612; U. S. v. Sapinkow (C. C.) 90 F. 654; U. S. v. Baumert (D. C.) 179 F. 735; Weeks v. U. S., 216 F. 292, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524.

A very satisfactory reason for discriminating attachments from search warrants, and from ordinary warrants for the arrest of persons for crime, is that there is no historical evidence, so far as I know, of abuses in respect to writs of attachment, either in England or in America, prior to the adoption of the Fourth Amendment, and therefore there was no reason for an intent that the amendment should include attachments.

In Boyd v. U. S., 116 U. S. 616, 624, 6 S. Ct. 524, 529 (29 L. Ed. 746), is said, obi-ter: “The entry upon premises, made by a sheriff or other officer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the Fourth or Fifth Amendment, or any other clause of the Constitution.”

In Den ex dem. Murray v. Hoboken Land, etc., Co., 18 How. 272, 285, 286 (15 L. Ed. 372), in respect to the distress warrant, an extent, authorized by the Act of May 15, 1820, c. 107, § 2 (3 Stat. 592), against delinquent collectors of federal revenues, it is said:

“The remaining objection to this warrant is that it was issued without the support of an oath or affirmation, and so was forbidden by the fourth article of the Amendments of the Constitution. But this article has no reference to civil proceedings for the recovery of debts, of which a search warrant is not made part. The process in this case is termed, in the act of Congress, á warrant of distress. The name bestowed upon it cannot affect its constitutional validity. In substance, it is an extent authorizing a levy for the satisfaction of a debt; and as no other authority is conferred, to make searches or seizures, than is ordinarily embraced in every execution issued upon a recognizance, or a stipulation in the admiralty, we are of opinion it was not invalid for this cause.”

A distress warrant, issued by the order of a treasury agent and directing the seizure and sale of goods and chattels, and an attachment issued by order of a court, and directing the seizure of goods and chattels, are not identical. But, if the Fourth Amendment does not apply to the distress warrant, I see no reason for saying that it applies to the attachment.

I have discovered only two adjudications relating to the application of the Fourth Amendment to the issue of attachments in forfeiture proceedings under section 10 of the Food and Drugs Act. In U. S. v. Eight Casks of Drug Products, Notice of Judgment 697, 5 F.(2d) 971, the District Court for the Southern District of Ohio in 1910 sustained a demurrer to the information because, inter alia, the “libel was not properly verified by any persons having knowledge of the facts.” In U. S. v. Three Hundred Cases of Mapleine, Notice of Judgment 163 (no opinion filed), the District Court for the Northern District of Illinois, in 1909, overruled, without discussion, an exception to the Information on the ground that it was not under oath. In the first ease there is some discussion, but it is quite unconvincing and no authority in point is cited.

The only' satisfactory conclusion I can reach is that the Fourth Amendment does not apply to the issue of the writ of attachment in forfeiture cases under section 10 of the Food and Drugs Act.

Section 10 contains a provision reading: “The proceedings in such libel cases shall conform, as near as may be, to the proceedings in admiralty. * * * ” If it be assumed that the “proceedings in admiralty” intended were not those followed in forfeiture eases based on previous seizure (rule 22 of 1854, 3 How. xiii), but were those in ordinary libels in instance causes (rule 23 of 1854 and Rule 22 of 1920); still the use of the expression “as near as may be” authorizes the exercise of some degree of judicial discretion. As was said in Indianapolis, etc., R. Co. v. Horst, 93 U. S. 300 (23 L. Ed. 898): “The conformity is required to be ‘as near as may be’ — not as near as may be possible, or as near as may be practicable.” See, also, Mexican Central R. Co. v. Pinkney, 149 U. S. 194, 207, 13 S. Ct. 859, 37 L. Ed. 699; Shepard v. Adams, 168 U. S. 618, 624, 625, 18 S. Ct. 214, 42 L. Ed. 602.

It is quite possible -that food may be so “adulterated” within the meaning of the act as to be poisonous. It is also possible that drugs, either because of adulteration or misbranding, may be highly dangerous; and if seizure previous to the drafting of the information is not authorized by the act, it is clear that great rapidity of action on the part of the district attorney will frequently be necessary. Outside of the District of Columbia and of the insular possessions, the (domestic) article to be condemned must be either in transit or still unloaded, unsold, or in original unbroken packages. So far as my own experience goes, it is rarely practicable to attach in transit, and it is sometimes necessary to use great expedition to attach before the article has been sold; and where haste is necessary the delay involved in having affidavits by the government agents who know the facts transmitted to the judge may easily be wholly or in part fatal to the effort to condemn. In view of this fact, it seems , a reasonable exercise of discretion to hold that the informations in such cases need not be verified.

It may be added that the practice in admiralty under old rule 23, new rule 22 (254 U. S. appendix), in instance causes in which the United States is the libelant, is not and seemingly has never been uniform. In some of the District Courts such libels are not required to be verified, and in others they are. See Waples, Proceedings in Rem, p. 77; 2 Foster, Fed. Pr. (5th Ed.) p. 1947; The J. R. Hoyle, Fed. Cas. No. 7,557; U. S. v. 2 Barrels, etc. (D. C.) 185 F. 302, 307. In this circuit the affidavit is required in the district of Maryland and in the Eastern district of Virginia. No affidavit is required in the .Eastern district of South Carolina, and such, I believe, is the practice also in the Eastern district of North Carolina.

In section 4 of the Food and Drugs Act (Comp. St. § 8720) is a requirement of verification by the analyst of every analysis of food or drugs found to be adulterated or misbranded; and this verified analysis is to be certified by tbe Secretary of Agriculture to the proper district attorney. But, as there is no requirement for an affidavit showing other equally indispensable facts justifying a forfeiture, such, for instance, as an interstate transit, and as the affidavit required by section 4 is not directed to be filed with the information for forfeiture, it seems to me that the provision in question was intended either merely to insure accuracy on the part of analyst or as a basis for a possible warrant for the arrest of a person to be criminally prosecuted under section 1 or 2 of the act (Comp. St. §§ 8717, 8718).

Section 10 of the act is of very doubtful meaning.in several respects; and which of several practices in admiralty was in the mind of the draftsman will, I believe, always be in great doubt. It may have been the practice (under old rule 22) in forfeiture cases, where previous seizures had been made and in which verification was needless; or it may have been the practice (under old rule 23) in those courts which required that all libels in instance causes be verified; or it may have been the practice in those courts which did not require libels in instance causes in behalf of the United States to be verified. But this doubt need not be solved in respect to informations for forfeiture, which seek only the issue of monition and attachment. As has been said, the words “as near as may be” permit the exercise of a reasonable discretion, and as the delays involved in laying before the court affidavits by persons who have first-hand knowledge of the facts may frequently be fatal to the efficacy of the proceeding, I believe it permissible and judicious to order the issue of monitions and attachments on informations which are wholly unsupported by oath or affirmation.


author: CLAYTON, District Judge.

text:
    Petition of FARMER.
    (District Court, M. D. Alabama, S. D. at Dothan.
    May 8, 1925.)
    Bankruptcy <@=3481 — Trustee’s petition for payment of fees from money deposited held not to require detailed statement of services.
    Trustee’s petition for payment of statutory fees from moneys deposited with clerk to cover costs helé not within rule 42, requiring detailed statement of services, in view of Bankruptcy Act, §§ 48, 51 (Comp. St. §§ 9632, 9635).
    In Bankruptcy. In the matter of the petition of B. G. Parmer, Jr., trustee in bankruptcy, for payment of statutory fees.
    Petition granted.
    Lee & Tompkins, of Dothan, Ala., for petitioner.
   CLAYTON, District Judge.

It appears that the petitioner, ' the trustee, was duly elected and qualified as trustee in the cases mentioned in the petition; that he has performed all the duties incumbent upon him as such trustee; and that he is entitled to be now paid the statutory trustee’s fees in the eases named in the petition, which petition is verified by affidavit. It is also made to appear that more than 10 days have elapsed since each case has been closed.

The new rule, rule XLII, says that: “Every * * * trustee seeking an allowance of compensation from a bankrupt estate for services rendered, shall file with the referee a petition under oath, setting forth a full and detailed statement of such services and the amount claimed therefor. * * ” The, fees claimed by the petitioner are asked to be paid out of the money deposited with the clerk of the court to cover the costs in the several bankruptcy cases described in the petition. I think it cannot be said that the trustee is “seeking an allowance of compensation from a bankrupt estate for services rendered,” within the meaning of this new rule.

Section 48 of the Bankruptcy Act, being Comp. St. § 9632 (13th Ed. Collier on Bankruptcy, p. 1071), provides that:

“(a) Trustees shall receive for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the petition is filed in each ease, except when a fee is not required from a voluntary bankrupt, and such commissions on all moneys. disbursed or turned over to any person, including lienholders, by them, as may be allowed by the courts, not to exceed six per centum on the first five hundred dollars or less, four per centum moneys in excess of five hundred dollars and less than fifteen hundred dollars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per cen-tum on moneys in excess of ten thousand dollars. And in ease of the confirmation of a composition after the trustee has qualified the court may allow him, as compensation, not to exceed one-half of one per centum of the amount to be paid the creditors on such composition.”

Section 51 of the aet, being Comp. St. § 9635 (13th Ed. Collier on Bankruptcy, v. 2, p. 1087), provides:

“(a) Clerks shall respectively (1) account for, as for other fees received by them, the clerk’s fee paid in each ease * * * (2) collect the fees of the clerk, referee, and trustee in each ease instituted before filing the petition, * * * (4) and within ten days after each ease has been closed pay to the referee, if the case was referred, the fee collected for him, and to the trastee the fee collected for him at the time of filing the petition.”

I am of opinion that the case presented by this petition comes under such sections 48 and 51 of the Bankruptcy Act, and not under rule XLII.

Therefore, it is ordered and adjudged by the court that the prayer of the petition be granted, and that the clerk of this court pay to such trustee the statutory fees out of the funds deposited for costs in the several bankruptcy cases included in the petition.