author: GRONER, Associate Justice.

text:
    CHICHESTER CHEMICAL CO. et al. v. UNITED STATES.
    No. 5016.
    Court of Appeals of District of Columbia.
    Argued March 3, 1931.
    Decided April 6, 1931.
    C. H. Merillat and P. H. Marshall, both of Washington, D. C., for appellants.
    L. A. Rover, of Washington, D. C., for the United States.
    Before MARTIN, Chief Justice, and ROBB, YAN ORSDEL, HITZ, and GRONER, Associate Justices.
   GRONER, Associate Justice.

This is a libel filed by the United States August 20, 1920, to condemn certain drugs, known as “Chi-ches-ters, Diamond Brand, New Style Pills,” as misbranded, in violation of the Food and Drugs Act. There was a trial to a jury in the court below, and a verdict and judgment in favor of the government. An amended libel was filed November 28, 1921, which charged that the drug was misbranded, in that the booklet plaeed in each package of pills contained statements which were false and fraudulent within the intent and purpose of section 8, paragraph 3, of the act. Act of June 30, 1906, e. 3915, § 8, 34 Stats. 771, as amended by Act of Aug. 23,1912, c. 352, 37 Stats. 416, 21 USCA § 10. The statements which the libel charges were false and fraudulent are as follows:

«‘Relief for Ladies. * * * Worth proved * * ® Reliable. Effective * * * a standard, reliable remedy for functional derangements of the female organism. * * * a standard and reliable remedy * * * for Amenorrhoea (Suppression of the menses, due to colds, ill-health and other morbid causes). * * * Eor Dysmenorrhoea (Painful or scanty menstruation). The intensity of suffering varies. In some, the pain is moderate, continuing only a few hours, or it may be agonizing as to cause fainting, and undermine the patient’s health. In all such cases, we earnestly recommend that a regular course of treatment with Chi-ehes-ters Diamond Brand Pills be taken at each period for three or four months, when our remedy will be found to give lasting benefit and genuine relief * * * To prevent difficult, painful, over-profuse and other morbid menstrual conditions, and to keep this important function normal, take one pill three times daily for a few days before- the expected re-appearance of the menstrual flow.. Our Diamond Brand Pills can confidently be depended'upon * * * ‘Worth any money to suffering females. * * * No lady should think of being without this valuable remedy, and avoid long suffering. ® * * Can not be surpassed * * ® For .severe pain they can not be surpassed for relief given R * * they are truly wonderful. * * * ’ ”

Section 8 of the Drugs Act, as amended (21 USCA § 10), provides: For the purposes of this act, an article shall also “be deemed to be misbranded; In ease of drugs: * ® * If its package or label shall bear or contain any statement, design,' or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent.”

The assignments of error on this appeal relate, first, to the refusal of the trial court to permit to be read in evidence letters of instruction and directions from appellant to his attorney, written between the years 1908 and 1920, and a certain other letter from appellant to Drug Inspector Kathe, the purpose in offering the letters being to show appellant’s good faith in the preparation of its advertising literature; second, the admission in evidence by the court, over the objection of the company, of a certified copy of a record of the Department of Agriculture containing an alleged formula, or list of ingredients entering into the composition of the pills; third, that the court erred m so broadening the inquiry before the jury as to permit the government to show that the pills were useless in cases of menstrual trouble caused by cancer, tuberculosis, and other diseases, notwithstanding a fair construction of the language used in the pamphlet confined its claims to value as a cure for amenorrhoea due to colds, anemia, and other like causes; and, finally, that the court erred in submitting the case to the jury at all because the evidence failed to show intentional fraud.

The pills were first put on the market in 1881, and were manufactured for the then owner of the formula by Parke, Davis & Co. Since 1915 they have been manufactured by Arner & Co., who are said to be the largest manufacturing chemists in the United States. The challenged literature was changed from time to time, but had been used as it was when suit was brought for several years. The pills are said to contain four ingredients, namely, two grains of extract of cotton root bark, one-fourth grain of extract of hellebore, one-half grain of iron sulphate, one-half grain of aloes.

Since, after careful consideration, we have reached the conclusion that the court erred in rejecting the letters from appellant which were offered in evidence, we shall discuss the other assignments only as they relate to the first.

The rejected correspondence between Chidester, who then owned the formula, and his counsel began in February, 1908 — twelve years before the institution of the suit in this case. The first letter in the correspondence directed counsel to deliver to the head of the Bureau in Washington copies of the decisions in three federal eases involving infringements in which the Chichester Company had been successful, and directed him to go over these decisions with the law officers of the government. The letter also noted an inelosure of advertising matter which had been revised by counsel, and requested that counsel would confer with the Department and obtain its directions so that all necessary changes in its printed matter could be made. Another letter was dated in 1915, in which attention was called to the fact that new booklets were being gotten out, and requesting that these be gone over carefully to “see whether there is anything in any of it that might for any reason be regarded as ‘repugnant’ to the federal or state officials within whose purview such matters come,” and instructing counsel to “go over it again and strike out or change or modify any part of it that in your best judgment might be open to criticism.” And again in the latter part of 1915 a letter to the effect that “in view of increasing strictness of the censorship of all such matter in connection with proprietary or patent medicines it may be well for us to have you go over them again and eliminate anything and everything that in your judgment might be in any way repugnant to the powers that be.” And still again in 1916, instructions that you “again scan carefully to see if anything should be taken out or added to in order to make sure that nothing in either piece will conflict with any existing laws, regulations, or decisions”; and, at a later date in the same year, “we are very glad * * * that it will not be necessary * * * to throw away the printed matter which we had gotten out.” And in 1917, the excluded letter to the government inspector, after noting the inelosufe of advertising matter, labels, etc., stated: “If there is anything further you would like from us in regard to our business or any of our preparations, please let us know and we shall be glad to furnish it.”

It is quite true that the court permitted the letters of counsel in response to the excluded letters to be introduced in evidence, but the admission of the latter gave only half of the picture, and tended to' confuse, rather than to explain, the issue, which was, as we shall see, whether appellant was guilty of fraudulent intent in the advertisement and sale of its drugs.

We think the fact that the obligation imposed by the act on the government involved proof of actual intent to deceive— an intent which may be derived from the facts and circumstances, but which must be established, Seven Cases v. U. S., 239 U. S. at page 517, 36 S. Ct. 190, 60 L. Ed. 411, L. R. A. 1916D, 164 — takes the question of the admissibility of the letters out of the established rule that the statements of a party, oral or written, which are self-serving, are not admissible in his favor. In such circumstances, it is not unusual or improper to admit evidence of his declarations or acts fairly indicative of the existence of the mental state in which he did a particular thing. “Whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.” Connecticut Mut. Life Insurance Co. of Hartford, Connecticut, v. Hillmon, 145 U. S. 285, 295, 12 S. Ct. 909, 912, 36 L. Ed. 706. See, also, Butler v. Watkins, 13 Wall. 456, at page 464, 20 L. Ed. 629.

If it be conceded, as apparently the trial court thought, that the test of the good faith of the advertising literature which the government declares is fraudulent, embraces the question whether the advertisement held out the pills as a “eure-all” for amenorrhea, obviously little, if any, evidence would have been necessary to prove the falsity of such a represenfátion, for it may be assumed that the most ignorant person would know that no medicine which science had discovered is capable of relieving a disease, or sympton, whichever it may be called, produced sometimes by cancer, tuberculosis, pernicious anemia, lead poisoning, or induced by misplaced organs, or no organs, but, in the view we think may be taken of, the fair import of the advertising language which the government points to as the head and front of the offending — namely, “a standard and reliable remedy for amenorrhea (suppression of the menses due to colds, ill-health, and other morbid causes)” — the language “other morbid causes,” when read in connection with the preceding language, may fairly be construed to mean “other Wee causes,” that is to say, other irregularities of the menstrual function of the same general nature as those particularly specified. “ 'When an author makes use, first, of terms, each evidently confined and limited to a particular class of a known species of things, and then, after such specific enumeration, subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet, when thus, used, embraces only things “ejusdem generis” ’ — that is, of the same kind or species — with those comprehended by the preceding limited and confined terms.” 3 Words and Phrases, First Series, page 2328.

And, since the advertising matter does not guarantee a cure, but is held out only as a remedy, and since the evidence unquestionably shows that several of the ingredients contained in the drug are' prescribed and used by reliable physicians and chemists in amenorrhea and dysmenorrhea resulting from trivial causes rather than organic diseases, and that the authors of well-recognized medical text-books agree that some, at least, of the ingredients forming the composition of the pills are useful in relieving such temporary menstrual disorders, the question of the good faith of the language used, as well as the significance which -ordinarily would attach to it, was properly one for the jury. In saying this, however, we do not wish to be understood as approving the challenged language of the booklet as it was. Enough, we think, is shown in the record to convince us that the remedy is at best confined to those causes which are in their nature ephemeral, and a broader claim than this may well subject it to the condemnatory provisions of the statute. But, notwithstanding this, it was important-in the protection of appellant’s rights that its good faith in so advertising its drug should be tested by its motives and actions in the preparation thereof, and, in the absence of any suggestion or evidence of any kind that the rejected letters were ivritten for the purpose of making a case, or in anticipation of a prosecution, or for any other purpose than an honest desire to obey the law, we think their rejection was error. “When the good faith or the intent of a party in a given affair is in issue, his acts and sayings in relation to it at about the time of the transaction generally constitute the best evidence of the fact, and are always competent.” U. S. v. Gentry (C. C. A.) 119 F. at page 73.

In that view, w'e think it important that a manufacturer of patent drugs should, on the issue of his good faith, be permitted to show, if it is a fact, that he sought the adr vice of counsel, who in turn had consulted the proper officers of the government in an effort to bring his advertising matter within the terms of the law, and this appellant sought to do in his tender of the letters.

In these circumstances, the rejection of the letters was material, and makes it our duty to send the ease back for a new trial, for it is only when it is certain that the error assigned could not have prejudiced the complaining party that the rule — that it is no ground for a reversal — is applicable. Choctaw, O. & G. R. Co. v. Holloway (C. C. A.) 114 F. 458, 465.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    SHORE et al. v. UNITED STATES.
    No. 5216.
    Court of Appeals of District of Columbia.
    Argued March 3, 1931.
    Decided April 6, 1931.
    Rehearing Denied April 25, 1931.

      Wm. E. Leahy and James F. Reilly, both of Washington, D. C., for appellants.
    Leo A. Rover and Harold W. Orcutt, both of Washington, D. C., for the United States.
    Before MARTIN, Chief Justice, and ROBB, VAN ORStíEL, HITZ and (KRONER, Associate Justices.
   GRONER, Associate Justice.

The United States attorney on the 8th of May, 1929, filed a bill of complaint on the equity side of the Supreme Court of ‘the District of Columbia against appellants, whom we shall hereafter call defendants, charging them, and one Mae Money, pursuant to sections 22 and 23 of title 2 of the National Prohibition Act (27 USCA §§ 34, 35), with maintaining a public and common nuisance in the premises No. 1223 New York Avenue N. W., Washington, D. C., and praying for the abatement thereof, and for a temporary, and at the final hearing a permanent, injunction restraining defendants from moving, storing, or having possession of contraband liquor thereon. The lower court issued an injunction pendente lite. In November, 1929, the United States attorney filed an information in eontempt alleging that, after the issuance of the order and the service thereof, the defendants Frank Shore and Mae Money violated its terms, in that at various times, while it was in full force and effect, they had kept and possessed, on the premises named, large quantities of intoxicating liquors. The defendants, respectively, answered the bill of complaint, and filed motions to quash certain search warrants issued January 28, May 3, and November 16, 1929, and also to have returned certain quantities of liquor seized as the result of the issuance of the warrants, and to suppress the use of the same in evidence. There was a hearing in February, 1930, at which evidence was taken, and, as a result of which, the court entered a final decree padlocking the premises, continuing the injunction as against Shore and Hall, and adjudging defendant Shore in contempt, and committing him to prison for the period of one year.

The main grounds assigned as error go to the question of the validity and legality of the several search warrants, to the failure of the court to suppress the evidence, and to the refusal of the court to compel a government witness on cross-examination to disclose the source of confidential information which he had stated on direct examination he had as to the conduct of defendant Shore in selling liquor on the premises. The point made against the search warrants is that they failed particularly to describe the place that was, to be searched, and were issued without probable cause.

The premises to be searched, as described in the three warrants, were “the premises of one Frank Shore, said premises being described as 1223 New York Avenue Northwest and being within the District of Columbia,” and it is now insisted that this was not sufficient, because the premises thus described consisted, not only of defendant Shore’s garage and tire shop, but also of a small lunch room occupied by some one else, but which also bore the same number on a separate front door or entrance. Some further point was made of the fact that the third story of the building was occupied as to two of the rooms, one by Shore and another by the defendant Money. It is admitted on the record that the defendant Shore owned the whole building, and it satisfactorily appears that neither the lunchroom nor the upstairs was searched.

We think the description in the warrant sufficiently identified the premises to be searched. The house which the warrant ordered searched was the property of the defendant Drank Shore, and was identified as No. 1223 New York Avenue Northwest, in the city of Washington. The house searched was the house of Drank Shore at the designated number in the designated street. To say now, as we are asked to say, that the warrant is defective because there was on the premises a lunchroom with the same street number, but which it was not intended to search and which was not searched, would be to indulge in behalf of an admitted lawbreaker those protective provisions of the amendment intended to be invoked only in behalf of one whose rights of person or property had been invaded contrary to its provisions. We think the defendant Shore cannot complain if, as the Supreme Court puts it, the description in the warrant is such that the officer can with reasonable effort ascertain and identify the place intended to be searched. Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757. As we have already seen, the warrant in question declared that the place to be searched was the premises of Drank Shore at a given number in a given street, all of which correctly described Shore’s place. That there happened to be a small restaurant in a corner of the same building, wholly separated from the balance of the premises and occupied and used by another, though similarly numbered, would not, we think, have created such confusion as would have led astray any officer in the exercise of reasonable care, but since, as we have also seen, the restaurant was not searched, even if it be conceded that the warrant gave the right of search, its inclusion in no wise prejudiced defendants, or violated their constitutional rights, and hence they may not complain. Chicco v. U. S. (C. C. A.) 284 F. 434; Shields v. U. S., 58 App. D. C. 215, 26 F.(2d) 993; U. S. v. Silverthorne (D. C.) 265 F. 853.

But it is also insisted that, even if the several warrants were sufficient in describing the premises, they were invalid because issued without probable cause. “Probable 'cause,” as defined by the Supreme Court, is “reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.” Dumbra v. U. S., 268 U. S. at page 441, 45 S. Ct. 546, 548, 69 L. Ed. 1032.

On this point we are not passing on the guilt or innocence of a person charged with crime, but only whether a reasonably cautious person, on the strength of, the then known facts, would have believed that the Prohibition Law was being violated on the-premises proposed to be searched. In this aspect, the facts to be noticed may be stated as follows: Prohibition agents received information on January 27 that two suspicions looking trunks consigned to one Willoughby, in care of one Shore at 1223 New York Avenue N. W., Washington, were being held at the express company’s office. The agents went to the express office, and saw the trunks, and observed that they were shipped from Dlorida. They watched the trunks for about twenty-four hours, thinking perhaps some one would call for them, but, when this was not done, they moved the trunks and shook them, and could hear “a gurgle” and the sound of the movement of straw, which indicated to them that they contained liquor. The seals on one of the trunks being broken, they applied a key and opened it, and found it to contain whisky; whereupon they arranged with the express company to deliver the trunks at the premises in New York avenue to which they were consigned, and this was done. The officers, meanwhile watching, observed defendant Hall receive the trunks and help take them into the premises. They thereupon obtained a search warrant, served it on defendant Shore while defendant Hall was on the premises, and, upon opening the trunks, found them to contain a large quantity of liquor, and, upon search of other-parts of the ground floor of the premises, found additional liquor there. At the time the search warrant was served, defendant Shore stated to the agents that he did not know Willoughby, to whom the trunks were consigned, and had no connection with either. Neither of the defendants then or later claimed property in the liquor or the trunks. It is perfectly clear, therefore, that whatever may be said with relation to the right of the agents to examine the contents of the trunks in the office of the express company without a search warrant, or without any more reliable information of the presence therein of contraband than the “gurgle” they testified, they heard, neither of appellants may complain, for the simple reason that, since they do not claim property in the liquor or the trunks, no constitutional rights of theirs were invaded. The guaranties of the Fourth and Fifth Amendments, as we have seen, were intended for the benefit of the person whose rights have been transgressed,' but this right is personal, and may not be availed of to protect one who claims no ownership in or right of possession of the goods seized, and so we held in Shields v. D-. S., supra, that such a person is not in a position to challenge the validity of the warrant or to ask a return of the property of a third person. In this view, the proposition is perfectly clear that the officers were entirely within their rights in securing the search warrant, and that the grounds on which it was obtained were ample to sustain it. They had seen in the express office trunks containing whisky. They followed them to defendant’s place of business, saw them delivered to one of .the defendants, and brought by him into that place. They not only had a right to believe, but they knew, that the Prohibition Law had been violated, and it thereupon became their duty to seize the offending thing, that the guilty parties, whoever they might be, should be brought to justice. Any other course than that pursued would have made a mockery of the law.

What we have already said with relation to the validity of the search warrant of January 28 applies more or less to the other two. All were identical in form, and differed only in the circumstances of their issue. In the one of May 3, the officers, who, as we have noted, had every reason to believe that the premises of the defendant Shore were being used as an illegal dispensary of contraband liquor, watched from the rear, and saw persons leaving with wrapped packages having all the earmarks of bottles of liquor. One of these persons — the same who had helped unload and take into the premises the liquor laden trunks — was followed, and, when he paused in a lane, was asked by the officers to. hand over his liquor, which he did without protest, and likewise, without constraint of any kind, in reply to the question where he had got it, stated, “Down at Frank Shore’s.” This, we think, was enough on which to base the warrant. And so likewise on November 16, when the officers had sent a policeman, as they had a right to do, into the ground-floor room occupied by Shore as a public garage, who, without any other search than the use 'of his eyesight, saw unconcealed whisky in several places, enough was shown, we think, to justify the warrant of that date. Indeed, this flagrant violation of both the law and the court’s order, in a place in which the public generally were invited and expected to come; showed such contempt of the injunction as to make us wonder how the officer’s subsequent action in swearing out the warrant can be seriously urged as an invasion of defendants’ rights.

We have made a painstaking examination of the record, and we And no evidence of an abuse of power, or the suppression or infringement of defendants’ legal rights. It presents, rather, the not unusual picture of the persistent lawbreaker seeking on technical grounds to avoid the penalty of his offense, and we think it not untimely to say that in such circumstances we do not regard our duty to require us to exercise our ingenuity to assist in the accomplishment of that result. While we shall not abate one jot or tittle of our energy now and always to preserve entire those rights which are our common inheritance, -we shall nevertheless feel that we have done our full duty if we seek to find and uphold their real spirit and intent, and thus to preserve them, rather than, by distorting their purpose and meaning, to translate them into a sanctuary for lawbreakers. However strong the opinion of many may be to the contrary, ours is still a government of laws, and the right to participate as an elector in the making of the laws no more now than at any other time gives the right to break the laws, and in the recognition of this fact by the people generally, we are convinced, lies the only safe path in the perpetuation of government.

The remaining points do not impress us any more seriously. Obviously, the whisky having been legally seized, as we hold, it -was proper to retain it as evidence, and the suggestion that an officer receiving confidential information of an alleged violation of the law should be required to disclose the name of his informant has been decided to the contrary. Vogel v. Gruaz, 110 U. S. 311, 4 S. Ct. 12, 28 L. Ed. 158; Segurola v. U. S. (C. C. A.) 16 F.(2d) 563, and the cases cited there. But, without regard to this principle, defendants may no more complain of the action of the court in refusing to require this fact to be disclosed than could defend-. ants in the Seguróla Case, supra, for the information thus obtained by the police furnished only the impulse for the act — the watch and search. The information itself was not used as evidence of guilt, and the fact of guilt itself is really not denied, and, if the uneontradieted evidence of the officers is believed, the defendant Shore intends to persist in his unlawful career. To have required, Trader these circumstances, that the name of the informant should be disclosed, would merely -have gratified his curiosity or his vengeance, whichever was most involved, without affecting in any way the pending question before the court.

Affirmed.


author: ROBB, Associate Justice.

text:
    BLACKMER v. UNITED STATES.
    Nos. 5131, 5132.
    Court of Appeals of District of Columbia.
    Argued Feb. 4, 1931.
    Decided April 6, 1931.

      Frederick DeC. Faust and Charles F. Wilson, both of Washington, D. C., Eugene D. Millikin and Karl C. ■ Schuyler, both of Denver, Colo., and George G. Battle, of New York City, for appellant.
    Leo A. Rover, U. S. Atty., of Washington, D. C., and Atlee Pomerene, of Cleveland, Ohio (Frank Harrison, of Cleveland,' Ohio, of counsel), for the United States.
    Before ROBB and VAN ORSDEL, Associate Justices, and COX, Associate Justice of the Supreme Court of the District of Columbia.
   ROBB, Associate Justice.

In No. 5131, appellant, Harry M. Blackmer, was adjudged guilty of contempt of the Supreme Court of the District in failing to respond to a subpcena to appear on October 17,1927, as a witness on behalf of the United States at the trial of Harry F. Sinclair and Albert B. Fall in that court on a criminal charge of having conspired to defraud the United States in violation of section 37 of the Criminal Code (18 USCA § 88).

In No. 5132, a mistrial of the SinelairFall conspiracy ease having been declared on November 2, 1927, appellant was again subpoenaed to appear on Monday, April 2,1928, as a witness on behalf of the United States at the retrial of the-case. Again he failed to appear. He was also found guilty of contempt of the Supreme Court of the District because of that failure.

The issuance and service of the subpoenas and the proceedings in each contempt case were under the provisions of the Act of July 3, 1926 (c. 762, 44 Stat. 835, U. S. C., Sup. IV, tit. 28, §§ 711-718 [28 USCA §§ 711-718]).

Section 1 of that act provides that whenever letters rogatory shall issue out of any court of the United States, addressed to any court of any foreign country, to take the testimony of any witness, he being a citizen of the United States or domiciled therein, and such witness, having been personally notified, neglects to appear, the court out of which such letters issued may authorize the issuanee of a subpoena addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the court at a time and place therein designated.

The remaining sections read as follows:

“Sec. 2. Whenever the attendance at the trial of any criminal action of a witness, being a citizen of the United States or domiciled therein, who is beyond the jurisdiction of the United States, is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the court before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue, addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the said court at a time and place therein designated.
“See. 3. It shall be the duty of any consul of the United States within any country in which such witness may be at the request of the clerk of the court- issuing any subpoena under this Act or at the request of the officer causing such subpoena to be issued, to serve the same personally upon such witness and also to serve any orders to show cause, rules, judgments, or decrees when requested by the court or United States Marshal, and to make a return thereof to the court out of which the same issued, first tendering to the witness the amount of his necessary expenses in traveling to and from the place at which the court sits and his attendance thereon, which amount shall be determined by the judge on issuing the order -for the subpoena and supplied to the consul making the service.
“See. 4. If the witness so served shall neglect or refuse to appear as in such subpoena directed, the court out of which it was issued shall, upon proof being made of the service and default, issue,an order directing the witness to appear before the court at a time, in such order designated to show cause why he should not be adjudged guilty of contempt and be punished accordingly.
“Sec. 5. Upon issuing such order the court may, upon the giving of security for any damages which the recusing witness may have suffered, should the charge be dismissed (except that no security shall be required of the United States), direct as a part of such order that the property of the recusing witness, at any place within the United States, or so much thereof in value as the court may direct shall be levied upon and seized by the marshal of said court in the manner provided by law or the rule of the court for a levy or seizure under execution, to be held to satisfy any judgment that may be rendered against such witness in the proceeding so instituted.
“See. 6. The marshal, having made such levy, shall thereupon forward to the consul of any country where the recusing witness may be a copy of the order to show cause why such witness should not be adjudged guilty of contempt with the request that said consul make service of the same personally upon the recusing witness, and shall cause to be published such order to show cause and for the sequestration of the property of such witness, in some newspaper of general circulation in the district within which the court issuing such order sits, once each week for six consecutive weeks.
“Sec. 7. On the return day of such order or any later day to which the hearing may by the court be continued, proof shall be taken; and if the charge of recusancy against the witness shall be sustained, the court shall adjudge him guilty of contempt and, notwithstanding any limitation upon the power of the court generally to punish for contempt, impose upon him a fine not exceeding $100,-000 and direct that the amount thereof, with the costs of the proceeding, be satisfied, unless paid, by a sale of the property of the witness so seized or levied upon, such sale to be conducted upon the notice required and in the manner provided for sales upon execution.
“See. 8. Any judgment rendered pursuant to this Act upon service by publication only may be opened for answer within the time and in the manner provided in section 57 of the Judicial Code.”

On May 13, 1925, in the court below, Sinclair and Pall were indieted for conspiracy to defraud the United States. On May 13,1927, counsel for the United States filed in that court a petition stating that at the trial of the case they desired the attendance of -appellant and another; that appellant was a citizen of and then beyond the jurisdiction of the United States; “that your petitioners believe and therefore aver that the attendance of the said persons at the trial of the said cause is vital and important to the United States, because as your petitioners aver, they believe that the said witnesses have knowledge and information with regard to certain important facts which the United States desires to prove in the said cause, and that their testimony as to said facts will be material in connection with the establishment not only of the conspiracy charged between the defendants in. the above captioned cause, but in connection -with the proof of overt acts done by the defendants pursuant to sáid conspiracy. More partieularly your petitioners believe and therefore aver that the said * * * and H. M. Blaekmer can testify to facts concerning the persons who were in the latter part of the year 1921 and during the year 1922 stockholders of the Continental Trading Company, Ltd., a corporation, and with regard to the distribution by that corporation to its stockholders of certain United States 3% Liberty Loan bonds as dividends, certain of which bonds, as your petitioners believe and therefore aver, were subsequently delivered by or on behalf of one of the defendants, Harry F. Sinclair, to the other defendant, Albert B. Fall.”

The petition further prayed the issuance of a subpoena addressed to any consul general or consul of the United States within the republic of France, or within any country in which either of the witnesses might be, “commanding such witness to appear before this Court in Criminal Court No. 2, at the City of Washington, D. C., on the 17th day of October, 1927.”

This petition was duly verified by Owen J. Roberts, Special Assistant to the Attorney General, and now an Associate Justice of the Supreme Court of the United States. On the same day the eourt ordered the subpoena to issue, and fixed and determined at $500 the amount to be tendered to each witness “for his necessary expenses in traveling to and from Washington, D. C., and for his attendance at Court.” Thereupon a subpoena in regular form was issued, and on May 27, 1927, was served on appellant by George Orr, consul of the United States at Paris, France; the consul’s return reciting that the service was “at the usual residence of the witness, * * *■' 25 AÚvenue Montaigue, Paris, France, and in the presence of Consul Raymond Davis and Mr. Henri Gadd, Attorney for the witness. The witness declined to accept the sum of $500 in United States currency tendered him for traveling expenses. The original copy hereof was left in the hands of the witness.” On June 7, 1927, another such subpoena was served on appellant by Raymond Davis, consul of the United States at Paris, who tendered appellant “the sum of $500 currency of the United States of America,” which tender likewise was refused.

On November 4, 1927, counsel for the United States presented a petition to the court below for a rule in contempt, setting forth in detail the proceedings culminating in the failure of appellant to appear as a witness. In addition to the order to show cause, it was prayed that the eourt direct that the property of appellant within the United States of the amount and value of $100,000, or such other amount and value as to the eourt might seem proper, be levied upon and seized by the marshal of the court “and held to satisfy any judgment that may be rendered against the said H. M. Blaekmer in this proceeding.”

On November 16,1927, the court, on consideration of the foregoing petition, issued an order directing appellant to appear before the court on January 6, 1928, to show cause why he should not be adjudged guilty of contempt and punished accordingly, and that the property of appellant to the amount and value of $100,000 be levied upon and seized by the marshal to satisfy any judgment that might be rendered against appellant in the proceeding. The order directed that the marshal of the court making the levy forward to the consuls of the United States at Paris, France, or in any other countries where appellant might be, a copy of the order, with the request that such consul or consuls make service of the same personally upon appellant ; and, further,, that the marshal should cause the order to be published in the Washington Evening Star once each week for six consecutive weeks, “in accordance with the provisions of Section 6, e. 762, of the Act approved July 3, 1926, 44 Stat. 835.”

■ The marshal made return that he had executed the order by levying upon and seizing $100,000 in United States First Liberty Loan bonds at the par value of $100,000,- the property of appellant; and George Orr, consul of the United States at Paris, France, made return that on the 5th day of December, 1927, he had “served a true copy of the within order on the within-named Harry M. Blaekmer by delivering said true copy to, him.” After the levy there was a publication once a week for six consecutive weeks in the Washington Evening Star.

In No. 5132 the verified petition for the issuance of a subpoena was filed on January 9, 1928. The eourt directed the subpoena to issue, commanding appellant to appear on April 2, 1928. The subprana issued and was served by Consul Orr on the 1st of February, 1928. $500 in currency was again tendered appellant, and was again refused.

On July 6, 1928, counsel for the United States filed a petition for a rule to show cause, setting forth the proceedings culminating in appellant’s failure to respond to the subpoena. An order to show cause was issued but was not served. On December 26, 1928, an alias order was issued commanding appellant to show cause, if any he had, why he should not be adjudged guilty of contempt of court for failing and refusing to obey the subpoena theretofore issued in the ease of United States v. Sinclair and Fall. The order further directed the marshal of the District to make a further levy upon property of appellant in the United States to the value of $100,000. The marshal levied upon the same property which he had seized in the prior contempt proceeding. The order was served upon appellant personally by Consul Orr on the 21st of January, 1929, at Paris, France. After the levy there was a publication once a week for six consecutive weeks in the Washington Evening Star.

In each case counsel for appellant appeared specially and moved to vacate the order to show cause and proceedings thereunder, alleging the same to be in conflict with the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution. The motions were overruled. Whereupon, pleas were filed, on which the United States joined issue or demurred. The ea&es were heard together, and a fine of $30,000, and costs, adjudged in each case, to be satisfied out of the property seized, unless otherwise paid.

Counsel for appellant, both in brief and argument, have displayed a wealth of learning and great industry in the presentation of their very numerous contentions, but, in our view, the controlling question is whether it is constitutional for Congress to authorize the service of a subpoena upon a citizen of the United States residing abroad. In determining this fundamental question, we should construe the statute, “if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401, 36 S. Ct. 658, 659, 60 L. Ed. 1061; Baender v. Barnett, 255 U. S. 224, 226, 41 S. Ct. 271, 65 L. Ed. 597; Panama R. R. Co. v. Johnson, 264 U. S. 375, 390, 44 S. Ct. 391, 68 L. Ed. 748; Michaelson v. United States, 266 U. S. 42, 64, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451. In the Sinking Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496, the court said: “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” Again, in Atkin v. Kansas, 191 U. S. 207, 223, 24 S. Ct. 124, 128, 48 L. Ed. 148, the court said: “We are reminded by counsel that it is the solemn duty of the courts in eases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true — indeed, the public interests imperatively demand — that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution.”

That the citizen, wherever he may be, and so long as he sustains that relationship, owes an absolute and permanent allegiance to his government, may not be denied. Carlisle v. United States, 16 Wall. 147, 154, 21 L. Ed. 426. He is entitled to the protection of his government, and in return the government is entitled to his unqualified allegiance. Minor v. Happersett, 21 Wall. 162, 166, 22 L. Ed. 627; Luria v. United States, 231 U. S. 9, 22, 34 S. Ct. 10, 58 L. Ed. 101.

In Rose v. Himely, 4 Cranch, 241, 279, 2 L. Ed. 608, Mr. Chief Justice Marshall said: “It is conceded that the legislation of every country is territorial; that beyond its own territory it can only affect its own subjects or citizens.” In The Apollon, 9 Wheat. 362, 370, 6 L. Ed. Ill, the court, speaking through Mr. Justice Story, said: “The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction.”

In United States v. Bowman, 260 U. S. 94, 43 S. Ct. 39, 67 L. Ed. 149, it was held that a criminal statute, dealing with acts that are directly injurious to the government and capable of perpetration without regard to particular locality, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no’express declaration to that effect; that citizens of the United States while in a foreign country are subject to penal laws passed by the United States to protect itself and its property. In United States v. Bennett, 232 U. S. 299, 34 S. Ct. 433, 58 L. Ed. 612, it was held that the government of the United States as a nation by its very nature benefits the citizen and his property wherever found, and that no imaginary barrier shuts that government off from exerting the powers which inherently belong to it by virtue of its sovereignty. In Cook v. Tait, 265 U. S. 47, 44 S. Ct. 444, 68 L. Ed. 895, it was ruled that Congress has power to tax income received by a citizen of tbe United States domiciled abroad from property situated abroad.

In Bartue and Duchess of Suffolk’s Case, 2 Dyer’s Rep. 176.h, 73 Eng. Reprint 388, and in Knowles v. Luce, Moore’s Rep. (K. B.) 109, 72 Eng. Reprint 473, it was held that at common law the sovereign has a right to recall the subject or citizen from abroad and may seize and forfeit all his property if he refuses to return.

We think it logically 'follows from the foregoing authorities that a citizen of the United States, though residing abroad, is nevertheless amenable to process issuing under a statute requiring him to appear as a witness in a court of the United States, and that, if he receives reasonable notice and reasonable traveling and attendance fees, due process is satisfied. It is inconceivable that a citizen witness may clog the wheels of justice by crossing the international border, and that the government should be powerless to summon him to return and to subject him to a penalty if, without cause, he fails to respond to the summons.

The act of 1926 makes it the duty of a citizen, residing abroad, to return when wanted as a witness, and prescribes the notice to be served upon him. In serving that notice the consul exercises no sovereign power. His notice is informative and not coercive. Mr. Chief Justice Taft, speaking for the court in United States v. Bowman, 260 U. S. 94, 102, 43 S. Ct. 39, 42, 67 L. Ed. 149, said: “Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government [of the United States] to which they owe allegiance.” So here, it is no offense to the dignity or right of sovereignty of France merely to notify an American citizen residing therein that he is wanted as a witness in a .court of the United States. The consul who served the subpoena was not acting in his consular or diplomatic character, but as a mere messenger of the government of the United States. The act might as well have authorized the court to designate a messenger to serve the notice. Moreover, the record discloses no complaint on the part of France.

But appellant contends that the act does not provide any valid method of acquiring jurisdiction to render a personal judgment against the defendant and his property; hence that all proceedings authorized by the act leading to the judgment against person and property, and all subsequent proceedings, are void as lacking due process.

Contempt proceedings “are sui generis — • neither civil actions nor prosecutions for offenses, within the ordinary meaning,of those terms — and exertions of the power inherent in all courts to. enforce obedience, something they must possess in order properly to perform their functions. * * * While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not ‘criminal prosecutions’ within the Sixth Amendment or common understanding.” Myers v. United States, 264 U. S. 95, 103, 104, 44 S. Ct. 272, 273, 68 L. Ed. 577.

In Ex parte Grossman, 267 U. S. 87, 117, 45 S. Ct. 332, 336, 69 L. Ed. 527, 38 A. L. R. 131, the court said: “Contempt proceedings are sui generis because they are not hedged about with all the safeguards provided in the bill of rights for protecting on'e accused of ordinary crime from the danger of unjust conviction.”

In Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767, the court reaffirmed the ruling in Ex parte Terry, 128 U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405, that, when a contempt is committed in open court,, it may be adjudged and punished summarily upon the court’s own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender. The court then said (page 536 of 267 U. S., 45 S. Ct. 390, 395): “When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of the procedure in the prosecution of such contempts is not important. * * * Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.”

In the present ease, proof was made that appellant did not respond to either of the subpoenas. Thereupon the court, in each ease, issued an order directing appellant to appear at a fixed time to show cause why he should not be adjudged guilty of contempt and punished accordingly; and the order in each ease also directed that the property of appellant “within the United States, of the amount and value of $100,000, be levied upon and seized by the Marshal of this Court and held to satisfy any judgment that may he rendered against the said Harry M. Blaekmer in this proceeding.” (Italics ours).

In No. 5131 the order to show cause did not set forth the basis of the order. In No. 5132 appellant was specifically informed that he should show cause why he should not be adjudged guilty of contempt in neglecting, failing, and refusing to obey the subpoena, theretofore issued by the court and served upon him, to appear before the court as a witness in the ease of United States v. Harry F. Sinclair and Albert B. Fall. In the circumstances of this ease.we do not think appellant is in a position to complain because the charge in No. 5131 was not more specific. To determine whether a defendant has been sufficiently informed of the charges against him, the reviewing court may examine the entire. record. Schwartz v. United States (C. C. A.) 217 F. 866. Mr. Blackmer is a lawyer, was represented by counsel throughout, and the record leaves no room for doubt that he fully understood that the rule to show cause in each ease was based upon his failure to respond to the subpoenas.

Moreover, at the trial of the contempt cases, evidence was introduced by counsel for appellant in supposed extenuation of the offense in each case and in mitigation of penalty. This amounted to a general appearance, and appellant will not now be permitted to challenge the sufficiency of the rules to show cause.

In each instance property of the value of $100,000 was attached to satisfy any judgment that might be rendered against appellant. As provided by section 5 of the aet, appellant received personal notice in each instance, and in each instance there was sendee by publication as required by section 6 of the act. In each instance, the charge of recusancy against him having been sustáined, the court, as required by section 7 of the aet, adjudged him guilty of contempt and imposed the only penalty provided by that section, namely, a fine of not exceeding $100,000 — to wit, $30,000 in each instance. These judgments were to be fully satisfied out of the property attached. It is, we think, plain that there has been no attempt in these cases to obtain a judgment in personam to be enforced in any other court than the court below or in any other respect than upon the property under the control of that court. The proceedings were quasi in rem, in which class of eases a judgment binds nothing bat the property attached. Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; Pennoyer v. Neff, 95 U. S. 714, 730, 24 L. Ed. 565. The fact that Congress theretofore had not authorized such a procedure does not militate against the existence of the power to do so. In Big Vein Coal Co. v. Read, 229 U. S. 31, 33 S. Ct. 694, 696, 57 L. Ed. 1053, it was ruled that a Circuit Court of the United States has no jurisdiction to issue an order of attachment in a ease where no personal service can be had upon the defendant and where there has been no personal appearance in the action, but the court was careful to say: “If Congress had intended any such radical change, it would have been easy to have made provision for that purpose, and doubtless a method of service by publication in such eases would have been provided.”

It is not necessary, therefore, to determine whether section 4 of the act authorizes a personal judgment in the absence of the recusing witness, nor whether the prescribed procedure would constitute due process. We are convinced that Gongress would have authorized the procedure under section 5, irrespective of section 4. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 635, 636, 15 S. Ct. 912, 39 L. Ed. 1108; El Paso & N. E. Ry. v. Gutierrez, 215 U. S. 87, 96, 30 S. Ct. 21, 54 L. Ed. 106; Southwestern Oil Co. v. Texas, 217 U. S. 114, 121, 30 S. Ct. 496, 54 L. Ed. 688.

Appellant advances the contention that the search and seizure of property authorized by the aet is unreasonable and violative of the .Fourth Amendment. Reasonably construed, the aet does not contemplate or authorize an unreasonable search and seizure, and the records iii these cases fail to disclose such a search and seizure. The marshal’s return in each case recites that he executed the order of the court “by levying upon and seizing One Hundred Thousand ($100,000) Dollars in United States First Liberty Loan Bonds at the par value of $100,000, the property of the said defendant, Harry M. Blaekmer.”

It further is contended that “by excluding defendants in criminal prosecutions from the right to extra-territorial subpoenas the Aet violates that part of the Sixth Amendment of the United States Constitution providing that the accused in such actions shall have compulsory process for obtaining witnesses in his favor.”

Section 1 of the aet (28 USCA § 711) provides that, if a citizen of the United States while abroad refuses to respond to letters rogatory, the court out of which such letters issued may authorize the issuance of a subpoena for such citizen to appear before the court at the time and place designated. This section is available to either party in a civil action and to the defendant in a criminal action or in a contempt proceeding. Because of the provisions of the Sixth Amendment that the accused is entitled to be confronted with the witnesses against him, the United States is not entitled to letters rogatory in a criminal ease. The defendant in such a ease may have such letters, and, if the witness refuses to respond, may have a subpoena. He has, therefore, substantially equal process to that accorded the United States. This is all that is required. ■ In United States v. Heinze, 218 U. S. 532, 31 S. Ct. 98, 54 L. Ed. 1139, 21 Ann. Cas. 884, -the contention was advanced that the defendant in a criminal case was denied due process and equal protection of the law because he was not accorded rights to appeal equal to those accorded the prosecution. The contention was rejected.

In Blair v. United States, 250 U. S. 273, 39 S. Ct. 468, 471, 63 L. Ed. 979, the plaintiffs in error had been adjudged guilty of contempt because of their refusal to obey a court order directing them to answer certain questions before a federal grand jury, and committed to the custody of the marshal until they should comply. On their refusal to answer the questions, the grand jury made a written presentment of the facts to the District Court, with the prayer that they might be dealt with as contumacious witnesses. Counsel for the witnesses contended that the Corrupt Practices Act of June 25, 1910 (36 Stat. 822), was unconstitutional 'and void, and hence that the grand jury lacked authority to investigate supposed violations of that act. In affirming the judgment, Mr. Justice Pitney for the Supreme Court said: “In truth it is in the ordinary case no concern of one summoned as a witness whether the offense is within the jurisdiction of the court or not.” So here, it was the duty of appellant to respond to the summons, and it was not his function but that of the defendants in the criminal case to challenge the validity of the proceedings.

It is further contended that the act violates the guarantee of due process under the Fifth Amendment “because it is arbitrary, .capricious, unreasonable, indefinite and uncertain” ; first, because it makes “ownership of ‘nonoffending’ property condition precedent to guilt of a criminal offense.” Section 5 (28 USCA § 715) as we have already ruled, authorizes the quasi in rem proceeding whenever property of the recusing witness may be attached, but the contumacy of the witness depends, not upon the ownership of property, but upon the question whether he, without cause, failed to respond to the witness subpoena. Knowing that so long as the recusing witness remained abroad he eould_not be subjected to punishment, except through a fine levied upon his property located here, we think the provision was within the power of classification of Congress. As the court below observed: “The provision of the statute for the sequestration of the property of such a witness within the territorial jurisdiction of the United States is analogous to the sequestration of property, not infrequently made, of a party litigant who otherwise, by the simple expedient of remaining out of the territorial jurisdiction of the court, may defeat the purposes of a suit or action.”

Section 5 of the act authorized the court to direct: “That the property of the recusing witness, at any place within the United States, or so much thereof in value as the court may direct shall be levied upon and seized * * * to be held to satisfy any judgment that may be rendered against such witness in the proceeding so instituted.” Under section 7 (28 USCA § 717), the limit of the fine is $100,000. It must be assumed, therefore, that the court, in the exercise of a reasonable discretion, would not direct the attachment of more property than necessary to liquidate the authorized fine. The circumstances of each ease also would be an element in the determination by the court of the amount of- the property to be attached.

Since personal service was had .in the present cases, it is unnecessary to consider section 8 (28 USCA § 718).

Appellant further contends that the subpoenas directed to him were not issued upon proper showing, and hence violative of due process under the Fifth Amendment. Section 1 of the act (28 USCA § 711) authorizes the court to issue a subpoena “upon proper showing” in cases where a witness has neglected to respond to letters rogatory. Section 2 (28 USCA § 712) provides that whenever the attendance, at the trial of any criminal action, of a witness who is beyond the jurisdiction of the United States, “is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the court before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue. * * * ” It may be observed at the outset that it is for the court, in the exercise of a sound discretion, to determine whether a proper showing has been made, and not the recusing witness. That a proper showing was made in the present case is, we think, too plain to admit of doubt.

The act of 1926 contains no requirement that the subpcena contain notice that it was issued under authority of the act. It is to be presumed, therefore, that the ordinary form of subpcena was to be issued. Moreover, the records in these eases disclose that appellant had advised with counsel and was thoroughly familiar with the provisions of the act. He not only was chargeable with knowledge of the act, but was possessed of actual knowledge of the act.

Appellant further contends that “the tenders of witness fees were insufficient and appellant was not bound to obey the subpoenas.” In each instance the court, in conformity with the statute, fixed the amount to be tendered to appellant “for his necessary expenses in travelling to and from Washington, D. C., and for his attendance at Court,” at $500. In serving the first subpoena, Consul Orr tendered the $500 “for travelling expenses” ; but in serving the second subpcena for attendance at the same trial, Consul Davis simply tendered $500; and Consul Orr in serving the subpoena in No. 5132 tendered $500 without any limitation. Appellant in each instance, so far as the records disclose, refused each tender without asking any questions and without any protest. There is no evidence that the amounts of the tenders were insufficient. If appellant did not understand what they were for, he was lacking in intelligence. Being a lawyer and actually familiar with the provisions of the act* it will be presumed that he knew the purpose and scope of the tenders.

The contention is made that there was an abandonment of the seizure in No. 5131 by the seizure of the same property in No. 5132, and authorities cited to the effect that, if in a particular action an alias order is issued before property taken under the original writ is disposed of, the alias order destroys the lien acquired by the original writ. These cases are not in point, for here there were two different seizures in two different eases upon two different causes of action. The two different levies in these eases are not inconsistent with an intent on the part of the government to maintain each.

In No. 5132 appellant was subpoenaed to appear on April 2, 1928, “and not depart the court without leave of the court or district attorney.” The trial was continued and did not commence until April 9, 1928, when appellant was called as a witness and did not respond. He now contends that he was not subpoenaed to attend the court on April 9, 1928, and, hence, that all proceedings in No. 5132 under his alleged neglect and refusal to appear as a witness are null and void. The record shows that the Sinelair-Fall case was set for retrial on April 2, 1928. For cause shown, the trial court extended the time for commencement to April 4 and again until April 9,1928. Had appellant obeyed the subpoena and presented himself on April 2,1928, as required, he would have learned of the continuance and would not have been given leave to depart by either the court or the district attorney. As the court below observed: “What happened on April 2nd in the way of continuing the hearing until a later date was none of his concern.”

Finally, appellant contends that “the fines adjudged in these cases, totalling the sum of $60,000_ ($30,000 in each case) are so grossly excessive as to amount to deprivation of property without the due process of law-guaranteed by the Fifth Amendment.”

When appellant was called as a witness on October 17, 1927, his counsel appeared and attempted to explain why he was not present. In their brief they state that it was desired to give assurance that appellant had no contempt for the court, nor for the judge thereof, nor for the valid laws of the United States; that appellant, in good faith, believed and had been advised that the law and procedure thereunder violated his constitutional rights as a citizen.

In support of appellant’s motions to vacate the orders to show cause, his counsel filed appellant’s affidavit, in which appellant stated: “That in the year 1924 he left the City of Denver, State of Colorado, United States of America, resigning his position as Chairman of the Board of Directors of the Midwest Refining Company, and retired from business, taking up his residence at Hotel Plaza Athenee, in the City of Paris, France (although retaining his American citizenship) ; that thereafter and in the year 192-6 he formed the intention of residing permanently abroad and then disposed of his former home in the said City of Denver, since which time he has at all times resided abroad, spending his time in England, in France and elsewhere.”

At the trial of -the contempt eases, George Gordon Battle, Esquire, of New York City, and Eugene D. Millikin, Esquire, of Denver, Colo., appeared as counsel for appellant. During the course of the trial, Mr. Battle was called as a witness on behalf of the defendant (appellant here). He testified that he was in Paris, France, in the summer of 1927, just after the subpoenas had been served on Mr. Blackmer (dates of service: May 27, 1927, and June 7,. 1927), and discussed with him the constitutionality and procedure under the Walsh Act (Act of July 3, 1926, 44 Stat. 835 [28 TJSCA §§ 711-718]) and as to what his action should be with respect to responding to the subpoena; that the witness informed Blackmer that he (the witness) had carefully considered the question of the constitutionality of the act and had obtained the opinions of several prominent lawyers concerning it; that he “advised Mr. Blackmer that the Act was unconstitutional, that it was void, and that the whole proceedings under it would be void.” On cross-examination, the witness stated that he was Blackmer’s counsel “considerably before this subpoena went out. I knew that letters rogatory were issued to take his testimony in the suit in Wyoming.” Over objection of counsel for appellant, the witness was questioned concerning the suit of United States v. Mammoth Oil Co. (D. C.) 5 F. (2d) 330; Id. (C. C. A.) 14 F.(2d) 705; Id., 275 U. S. 13, 48 S. Ct. 1, 72 L. Ed. 137, in which the United States was seeking civil remedy on the same question on which it sought criminal remedy in the conspiracy case in which appellant was subpoenaed. Mr. Battle testified: “As Mr. Blaekmer’s counsel I am familiar with the fact that in the bill ■of the Mammoth Oil Company Case, Mr. Sin■elair was charged amongst other things, with conspiracy with Mr. Fall, as in the criminal ■eases; that there was an application made to .the United States District Judge at Cheyenne to take the testimony of Mr. Blackmer •on the issues, amongst others, of conspiracy to defraud the United States; that letters Togatory were issued by Judge Kennedy, of that court, addressed to a French Court to •examine Mr. Blackmer before them on certain questions propounded by the Government touching this alleged conspiracy”; that, when letters rogatory were exposed to appellant and the questions propounded to him by the French judge of the French court, he (appellant) answered to his name, gave his .age, and refused to answer any further, questions. The witness was asked whether appellant then knew of the provisions of the act, .and he replied, “I told him the provisions of the Act.” The witness further testified: “I would also say in regard to the letters rogatory that Mr. Blackmer depended upon the opinion of French counsel that he was not under any obligation to answer the questions addressed to him in the French court.”

The purpose of the testimony of Mr. Battle that appellant was advised by eminent counsel that the act was unconstitutional was in supposed extenuation of the offense and in mitigation of the penalty. Sinclair v. United States, 279 U. S. 749, 766, 49 S. Ct. 471, 73 L. Ed. 938, 63 A. L. R. 1258. Blackmer’s good faith, therefore, was involved. Tornanses v. Melsing (C. C. A.) 106 F. 775. As bearing upon his good faith, his attitude with respect to the letters rogatory in the civil suit was important. It is clearly recognized that the giving of testimony is a publie duty. Blair v. United States, 250 U. S. 273, 281, 39 S. Ct. 468, 63 L. Ed. 979.

It is further urged that the failure to respond to the subpoena at the retrial (R., No. 5132) resulted in no inconvenience to the government, because other testimony became available for use at that trial and, hence, that appellant’s conduct was not disrespectful to the court. It ill becomes appellant, after he has persistently manifested an intent to evade his publie duty and embarrass the government, to say that his conduct was not contemptuous of the court because other evidence was available to the government. ‘ The government prevailed in the civil suit, notwithstanding his refusal to testify (Mammoth Oil Co. v. United States, 275 U. S. 13, 48 S. Ct. 1, 72 L. Ed. 137), but it did not prevail in the criminal case. The result might have been different had appellant fulfilled his duty.

Under the provisions of the statute, the court might have fixed the fine at $100,000 in each ease. It was fixed at $30,000 in each case. Mr. Blackmer left the United States in 1924, when it must have been apparent to him that his testimony might and probably would be sought by the government in the attempt to uncover the fraud and corruption culminating in the oil and gas lease to the Mammoth Oil Company. Later, letters rogatory were issued, but Blackmer refused to testify, and could not be coerced. His hostile attitude and his disinclination to fulfill his publie duty became apparent. When his testimony was sought in the criminal ease involving substantially the same facts, he refused to respond to the subpoenas, and attempted to justify his conduct by challenging the constitutionality of the act under which the subpoenas were issued. He knew, or should have known, that it was as much his patriotic duty to yield his testimony in the government’s efforts to uncover fraud and punish the guilty as it would he his duty to bear arms in defense of his country. Indeed, the injury to the government resulting from the refusal pf a material witness to testify might be infinitely greater than that resulting from his refusal to bear arms, and, yet, the citizen “may be compelled, by force if need be, against his will and withoutregard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his ■country, and risk the chance of being shot down in its defense.” Jacobson v. Massachusetts, 197 U. S. 11, 29, 25 S. Ct. 358, 362, 49 L. Ed. 643, 3 Ann. Cas. 765.

Doubtless Congress considered the possible serious consequences which might result from the refusal of a witness to respond to a subpcena when it authorized a penalty of $100,000 for each offense. It had a right to take into consideration that ordinarily only a man of means could afford the luxury of abandoning his business and practically expatriating himself by taking up his residence abroad. A small fine in such circumstances would have no deterrent effect. In the present cases, the records indicate that Mr. Blackmer is a man of extensive business interests and large means. Considering the records as a whole, we are clearly of the view that the trial court in assessing the fines did not abuse its discretion.

Other contentions have not been overlooked, but they have not been found of sufficient merit to warrant discussion.

The judgments are affirmed.

Affirmed.


author: G-RONER, Associate Justice.

text:
    SCHWEINHAUT v. FLAHERTY.
    No. 5073.
    Court of Appeals of District of Columbia.
    Argued March 11, 1931.
    Decided April 6, 1931.
    C. H. Merillat, of Washington, D. C., for appellant.
    Harry T. Whelan and William B. O’Connell, both of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB and GrRONER, Associate Justices.
   G-RONER, Associate Justice.

This action was originally brought in the Supreme Court of the District of Columbia by Delia Flaherty, appellee, whom we shall hereafter call plaintiff, against Wardman Park Taxicab Company, Inc.,' appellant, whom we shall hereafter call defendant, and was to recover from the defendant damages for personal injuries done to the plaintiff, by carelessly and negligently driving a taxicab against her when crossing a street in the city of Washington.

The declaration alleges that the driver of the taxicab was the defendant’s servant, and engaged in its business. Defendant moved for a directed verdict on two grounds: First, that the evidence showed that the taxicab was not engaged at the time of the accident on business of the company, but in the personal affairs of the driver in transporting to- her home a woman who was not' a pa.y passenger; and, second, that the evidence showed that the accident was due to plaintiff’s contributory negligence.

Defendant was the operator of taxicabs in the city of Washington, and had two exclusive concessions or stands, one located at Wardman Park Hotel and the other at Chastleton Apartment Hotel. Its drivers were instructed that, when three of its cabs drew up to the Chastleton stand, the cab at the head of the line should pull off and proceed to the other stand. When a cab was dismissed by a passenger, its duty was to report to the Wardman Park stand for directions, and, while in transit from one point to another, the driver was at liberty and expected to take on a passenger if hailed for that purpose. When not carrying passengers, the driver was expected to be on,one or the other stand. There was no regular place fixed for the drivers to get their meals during working hours, but they were warned to use as little mileage as possible for that purpose, and not to go out of their way to eat.'

On the evening in question, the driver of the taxicab involved had taken a passenger from the Chastleton Hotel to the Wyoming Apartments, and had then gone back to the Chastleton again. About 9 o’clock, while he was in line at the Chastleton, two other taxis of the defendant came up, and this required him to move. The driver, who had invited a female friend to meet him at the Chastleton that evening, -and who had done so, thereupon invited her to get into the cab and go with him while he had his supper, and promised then to drive her home. He paid the company nothing for her transportation. The accident occurred after he had gotten his supper and was driving his woman companion to her home, which was several blocks out of his regular course.

The first question for determination is whether the action of the driver of the taxicab in departing from his line of duty in his employer’s business exempted the employer from liability for his negligence. There is, of course, no controversy here as to the rule that the master is liable for the negligence of the servant while the latter is acting in the master’s business and within the scope of the employment, and equally is it admittedly true that such liability exists even in those cases in which the servant’s negligent aet is contrary to the master’s instructions. In the latter case — where the servant is disobeying the master’s orders and as a result injures a stranger — the question ordinarily is whether the servant was at the time acting within the course of his employment, that is to say, whether at the time of the injury the relation of master and servant obtained. Many eases may be cited to the effect that the servant’s disregard of the master’s orders, even though the disregard be impelled by some purpose personal to the servant, does not change the ordinary rule, or, in the event of injury to a third person as a result thereof, exempt the master from liability. Quinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040. On the other hand, it is undoubtedly true that it has been frequently held in many of the state courts that, since the liability of the master in such circumstances grows out of the maxim qui facit per alium faeit per se, the master is not liable if the tortious act of the servant occurs during a severance of the relationship, notwithstanding he may then be using his master’s property. ■

This rule, as applied to cases of the wrongful use by the servant of his master’s automobile, is well expressed in 2 R. C. L. page 1198, as follows: “The owner of an automobile is not liable to one who is injured by the negligence of his ehauifeur while operating the machine without his knowledge or permission and for a purpose other than that for which he was employed, as where the driver is on an errand personal to himself, or is making a detour for his own purpose.” Following this rule, it has been held that, where the servant steps outside of his employment to do an act for himself not connected with his master’s business, no liability attaches. Tyler v. Stephan’s Adm’x, 163 Ky. 773, 174 S. W. 790. And so here we are asked to hold in effect that defendant cannot be held liable because the driver of his cab was at the time of the injury to plaintiff using the same in violation of the master’s rule, and this too, notwithstanding it is not contested he was then in the master’s employ and rightfully in possession of the cab. This we think is not and should not be the law. We cannot shut our eyes to the fact that an automobile, in the crowded conditions of street traffic as it exists today iii large cities, is, as was declared by Mr. Justice Sutherland in the recent case of District of Columbia v. Colts, 282 U. S. 63, 51 S. Ct. 52, 53, 75 L. Ed.-, decided Nov. 24, 1930, “•potentially, a dangerous instrumentality,” nor to the further fact, of universal knowledge, that the fatalities due to its use, as shown in the published statements of state bureaus and insurance companies, approach those of modem warfare. Nor likewise are we unmindful of the fact that conditions in this respect are growing worse rather than better.

In these circumstances, it seems to us the duty of the courts to indulge no subtle reasoning in extending the doetrine of nonliability to the owner of such an instrumentality who, in his search of gain and profit, places one of these in irresponsible hands, but rather to require of him such supervision of his servant as will avoid disobedience to and disregard of his rules, or, failing so to do, when injury occurs to a stranger, to shoulder the responsibility. Hence we are of opinion that whatever may be the rule in the case of a private chauffeur who, in violation of his master’s orders, takes his private automobile and uses it without the master’s knowledge and for the servant’s purposes alone, or, in the ease of one intrusted for the moment by its owner with an automobile for a specific purpose who, in disregard of that purpose, uses it for another, the rule in the ease of one who, as a carrier of passengers for hire, places an automobile in the hands of a servant for the purpose of soliciting and obtaining fares and transporting them from one part of the city to another, and who, in such circumstances, admittedly would be liable to a pedestrian negligently injured by the servant, should reasonably be held to include liability for an injury inflicted by the negligence of the servant where that servant, in violation of the master’s rules, is, as was here the case, transporting free a friend to her home near by. There is, we think, nothing novel in such a rule. Precisely the same proposition was many years ago announced by the Supreme Court in an action against a railroad company in a ease in which an injury was caused through the negligence of an employee in disregard of the general orders or special command of the employer. Philadelphia & Reading R. Co. v. Derby, 14 How. 468, 487, 14 L. Ed. 502. In that case, Mr. Justice Grier, speaking for the court, used this striking language: “Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. The intrusting such a powerful and dangerous engine as a locomotive, to one who will not submit to control, and render implicit obedience to orders, is itself an act of negligence, the ‘causa eausans’ of the mischief; while the proximate cause, or the ipsa negligentia which produces it, may truly be said, in most cases, to be the disobedience •of orders by the servant so intrusted. If such disobedience could be set up by a railroad company as a defence, when charged with negligence, the remedy of the injured party would in most cases he illusive, discipline would be relaxed, and the danger to the life and limb of the traveler greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases, would be highly detrimental to public safety.”

In the case under consideration, defendant plaeed its taxicab in the hands and under the control of its driver. It instructed him as to his duties, and these instructions included a prohibition of his use of the cab except in transporting passengers for pay in accordance with its established tariff. The injury here' complained of occurred because the driver, in disobedience of defendant’s rules, was transporting a passenger — a friend —free of charge, and doubtless, except for this disobedience, the injury would not have happened. But, as we think, having intrusted the cab to the driver, it is not enough that the servant disobeyed the master’s instructions, nor do we think such disobedience — • not amounting to an obvious or complete abandonment of the service (Kruse v. White Bros., 81 Cal. App. 86, 253 P. 178) — ipso facto destroys the relationship of master and servant, or makes inapplicable the rule of respondeat superior, but that for injury thus sustained the master should respond, and on the ground that the master’s act in putting it in the servant’s power, through the use of the car, to do the damage, creates the liability, notwithstanding it would not have occurred except for the servant’s disobedience of the rule. Phila. & R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Sleath v. Wilson, 9 Car. & P. 607.

To the extent that what is said above may be in conflict with Lucas v. Friedman, 58 App. D. C. 5, 24 F.(2d) 271, the latter case may be considered as overruled.

It is next insisted that binding instructions should also have been given because plaintiff’s own evidence establishes that she was negligent in failing to look as she crossed • the street and in failing to use due care for her own safety. The evidence shows that she left her brother’s house on Twentieth street to go home, proceeding south on the east side of Twentieth street toward M street; that, when she'reached the north curb of M street, she looked to the right and left to see if there were any ears approaching in either direction. She observed nothing to" hinder her safe passage, and walked rapidly in a straight line across the street, and just as she reached the curb on the south side she was struck by the cab. It is admitted that, under the District traffic regulations then in effect, plaintiff had the right of way, but it is urged by defendant’s counsel that, notwithstanding this, it was plaintiff’s duty to keep; a constant lookout as she crossed the street, and that, because of her failure in this respect, she was guilty of contributory negligence barring her recovery. Faucett v. Bergmann, 57 App. D. C. 290, 22 F.(2d) 718. We have examined the evidence carefully, and have reached the conclusion that the question in this respect was properly .submitted to the jury. Plaintiff on her cross-examination was asked by counsel for defendant if she had looked in either direction while she was crossing the street, and replied, “I look every time I .cross the street, and I am sure I looked then.” Later, in answer to the same question, she stated she had looked in both directions as she left the curb, but that while on the concrete she “had no time,” and on still another occasion, “I could not look; * I had no time; when this fellow came to the curb-stone and hit me, I was knocked out.” Plaintiffj was sixty-five years old at the time of the accident, and many of her answers to questions both of her own counsel and defendant’s show that her statement that “my head is not right since this happened to me” was not a pose, but very likely reflected her confusion in remembering events that had occurred more than two years before. In one of her answers, as we have shown, she distinctly said she looked up and down after’ leaving the curb; vin another the meaning is confused, and we are not prepared to say whether she meant that she had not looked at all “while on the concrete,” or whether she meant she had not looked at the moment of the impact. In these circumstances, the court properly, we think, submitted the question to the jury with appropriate instructions, to which no exception was taken. To have directed a verdict on the ground,that plaintiff’s own evidence showed her guilty of contributory negligence would, in the circumstances we have instanced, have been error, for, as we have said innumerable times, “it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.” Washington Ry. & Electric Co. v. Buscher, 54 App. D. C. 353, 298. F. 675, 678.

Defendant’s final ground of error, namely, that the court erred in permitting the witness Chichester to testify to the speed of the cab at the time of the injury, was not pressed in the argument, and we think properly so, because the record shows that the objection to this evidence was sustained by the trial court, and no error in this respeet could or should have been assigned.

Affirmed.


author: SPARKS, Circuit Judge.

text:
    RANIERI v. SMITH, District Director of Immigration, et al.
    No. 4522.
    Circuit Court of Appeals, Seventh Circuit.
    April 29, 1931.
    Rehearing Denied June 11, 1931.
    John A. Chumbley, of Washington, D. C., for appellant.

      L. H. Bancroft, of Richland Center, Wis., for appellees.
    Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
   SPARKS, Circuit Judge.

Alien, a citizen of Italy, entered the United States June 21, 1924. On December 19, 1929, he was arrested by an immigration inspector upon a warrant which charged him with managing a house of prostitution, and deriving benefit from and assisting a prostitute, in violation of the Act of February 5, 1917, 39 Stat. 889, 8 USCA § 155. The warrant was secured from the Department of Labor by telegraphic communication by virtue of rule 18, subdiv. B, par. 1. The application followed immediately, containing the facts prescribed by the statute. The record is silent as to the necessity for a telegraphic warrant. Hearings were had before the inspector on December 19 and 20, 1929, February 3 to 6, 1930, inclusive, and on April 9 to 11, inclusive. At these hearings the alien appeared in person and by attorney, and the various adjournments were had at his request, and hy reason thereof he stipulated that cross-examination of witnesses from whom the government had secured evidence would bo waived by alien in the event the government was unable to locate the witnesses, with, the reservation that alien might cross-examine such witnesses if he could produce them.

The testimony at these hearings was taken down in shorthand by the inspector, and by him transcribed and certified to be correct. The record shows that the witnesses were sworn, but in no instance did any witness sign his testimony. The application and warrant were produced at the hearing and read to and examined by the alien and his attorney/ The preliminary statements of the witnesses examined were introduced as evidence at the hearing and submitted to the alien and his attorney, and lengthy and vigorous cross-examinations thereon were had on behalf of the alien. Deportation was recommended by the. inspector, and the Department of Labor, issued an order to that effect. This proceeding was thereupon instituted and a record of the above facts submitted to the court, and it dismissed the petition.

By the appeal two questions are raised: (1) Was there any competent evidence to support the findings of the immigration authorities? (2) Was the hearing unfair? Ex parte Cahan (D. C.) 42 F.(2d) 664.

Alien insists that the hearing was unfair for the following reasons: (1) The preliminary statements of witnesses were not competent evidence. (2) They were neither signed nor sworn to. (3) The inspector had no authority to administer oaths. (4) Alien was prejudiced by the fact that inspector acted as stenographer and transcriber. (5) He •was prejudiced by the fact that such statements were taken in the presence of other officers of the law.

It was held in Ex parte Hidekuni Iwata (D. C.) 219 F. 610, that evidence used to obtain a warrant against the alien was admissible at the hearing. In the case of Svarney v. United States (C. C. A.) 7 F.(2d) 515, relied upon by alien, affiant was not present, and there had been no effort to get her, and these were the reasons assigned by the court for excluding the evidence. This was quite proper because alien was deprived of his right of cross-examination. In the instant case most of the witnesses — and all of the principal witnesses — were present, and alien had stipulated a waiver of his right to cross-examine those not present. He cross-examined extensively all government witnesses present, and raised no objection at the hearing of his lack of opportunity to cross-examine those not present.

We are unable to find either a statute or rule of the Department of Labor which requires the preliminary testimony to be signed or sworn to. In the instant case, however, the record shows that each, witness swore to his preliminary statement.

Inspectors’ authority to administer oaths is based on the Act of Feb. 5, 1917, 39 Stat. 885, 8 USCA § 152. The eases cited by alien were decided prior to the enactment of this statute.

It does not appear that alien was in any way prejudiced by reason of the subject-matter of objections (4) and (5), and they merit no further consideration. We are convinced that alien was accorded a fair hearing.

If the preliminary statements of the witnesses are to be considered as properly admitted as evidence, as we have so ruled, then alien does not deny that the finding is supported; but, aside from the preliminary statements, we are convinced that the finding is fully supported by the evidence. It is-true that the witnesses changed their testimony in many respects from that contained in their statements; but, as changed, the testimony presented a state of circumstances from which it would be difficult for a person of ordinary intelligence and moral conceptions to arrive at any other conclusion than-that a house of prostitution was being conducted at the times and place in controversy,- and under the ownership, supervision, management, and control of alien.' While the-work was being directly conducted by his servants, yet his presence there, both day and night, and his opportunities to observe their conduct, proves that he must have been cognizant of the continued acts of prostitution then and there being carried on.

The evidence abundantly supports the-finding, and the five-year statute of limitations does not apply. Ex parte Gin Kato (D. C.) 270 F. 343; Cafaro v. Tillinghast, Com. (D. C.) 31 F.(2d) 384; Pillisz v. Smith (C. C. A.) 46 F.(2d) 769.

Decree affirmed.