author: DICKINSON, District Judge.

text:
    HOOVER CO. v. SESQUI-CENTENNIAL EXHIBITION ASS’N et al.
    No. 4015.
    District Court, E. D. Pennsylvania.
    April 8, 1931.
    See also 26 F.(2d) 821.
    Thomas Raeburn White, of Philadelphia, Pa., Wallace R. Lane, of Chicago, Ill., Algernon R. Clapp, of Philadelphia, Pa., and Benton Baker, of Chicago, Ill., for plaintiff.
    Edwin M. Abbott, of Philadelphia, Pa., for Sesqui-Centennial Exhibition Ass’n.
    George C. Klauder, of Philadelphia, Pa., for Eureka Vacuum Cleaner Co.
   DICKINSON, District Judge.

We are indebted to the capable and experienced counsel who have argued this case for a very helpful analysis of its facts. This has saved us much labor, for which we wish to make acknowledgment. Except for this, the case would have that complexity which is the most confusing and disturbing characteristic which a case can have. Even with this help, we fear any opinion must have painful length.

There is in truth only one simple fact finding to be made, but the discussion which leads up to it is well-nigh endless. This is evidenced by the nearly two hundred requests for findings with which we have been threatened. Any one who without a guide delves into this record will become entangled in a maze of details, controversies over trivialities, and personal temperamental conflicts which may cause him to lose all sense of direction and any clear view of the legal and equitable rights of the parties.

A good beginning to an understanding of any legal controversy is to get the point of view of the complaining party. The plaintiff and one of the defendants are dealers in the trade in carpet or floor sweepers, known also from their mode of operation as vacuum cleaners. There was and is a sharp, unfriendly trade rivalry between them. Each was an exhibitor at the Sesqui-Centennial Exhibition, with a view to being given an award of merit which would have an advertising value in promoting the sale of the competing sweepers. As they were competitors, it is easy to understand that each exhibitor had a selfish interest, not only in securing an award of merit for its own make of sweeper, but also in the award made to its rival.

The grievances of which the plaintiff in the main complains grow out of an averred unlawful conspiracy among the defendants, which had three objectives: (1) To give to the rival company an unearned and undeserved award of merit in the form given; (2) to deprive the plaintiff of the award to which it had a right; and (3) to give the opportunity to the rival company to enter upon (as it at once did) an advertising campaign of detraction, which was conducted in bad faith, bad manners, bad taste, and bad English, all to the injury of the plaintiff.

We may interpolate here a grievance of our own arising out of the advertising methods of the defendant company. We are not now passing judgment upon the justness of the complaints voiced by the plaintiff, but we do make the finding that the advertising of the defendant company, which affects this court, was conducted with bad judgment, whatever else may be said of it.

When the original bill was filed, it was met by a motion to dismiss on the ground that it disclosed no cause of action and because of this was without equity. We upheld the defendant in this motion as directed to the bill as first drafted, but gave the plaintiff leave to amend, of which leave it promptly availed itself. Of course, nothing was said or thought of respecting the rival merits of these sweepers, beyond perhaps the expression of the opinion that it was not the province of the court to pass upon this question. The defendant company, however, in deceptive and misleading advertising statements, given wide publicity, represented to prospective purchasers of sweepers that a United States court had solemnly pronounced the superiority of defendant’s sweeper over that of the plaintiff. This act of the defendant has been brought into the record by supplemental bill. Such grossly unfair and improper conduct throws a flood of light upon ■what had preceded.

We have striven, and we think successfully, not to permit this episode to unduly influence our judgment upon the broader merits of the éause, but such conduct cannot be permitted to pass unnoticed. We shall endeavor later to assign to it its just consequences.

We come back from this diversion to the defense, which is a broad denial of the conspiracy charge and specific denial of the supporting averments of the bill.

It is impossible for any one to make any specific fact findings in this case with any satisfying assurance of being right without having first a grasps of the general fact situation'out of which these facts emerge. That general fact situation was this:

One of the things the exhibition managers sought to do was to garner exhibits of the natural and industrial products of all the countries and nations of the world. The different governments of all nations were invited to send in exhibits of what they wished to have displayed. There was in this no direct commercial appeal, although of course the people of any country might derive a future benefit from what was thus exhibited. A like invitation was extended to private exhibitors. The promise was held out that all exhibits would be fairly judged upon their merits and awards made which would be certificates of the merits of what was displayed. Here there was a direct appeal to the selfish commercial interests of exhibitors. Such awards were expected to have a great advertising value and would be coveted because of this. The management should have known, and of course did know, that an appeal to this selfish commercial instinct of exhibitors would arouse that small, mean, envious spirit of commercial and trade rivalry which is too often displayed when selfish trade interests Come into conflict. This called for a high measure of circumspection in the awards made. The required degree of care was sadly missing. This lack was in large part due to the inherent defects of the system adopted.

It was announced that all awards would ¡be made by a tribunal which bore the high sounding name of an International Jury of Awards. This carried with it the thought that an award meant that the exhibit thus distinguished had been tested and its merits commended by a jury of world experts. This was only nominally true. The title was a mere sonorous sound signifying really nothing. What was really done was to con-, fer the honorary appointment of jurors upon a number of very estimable women and men, assigning them to judge different classes of exhibits. These jurors served without compensation and were graciously permitted, if so disposed, to bestow time and labor in the work of examination, and to make recommendations for awards, but the real awarding was meant to be done by the paid staff of the exhibition. Whenever reliance is placed upon unremunerated service, the work will usually be honestly done when it is done, but it will not always be done. When the power to do things which are of value to third persons is confided to paid servants, there are other dangers present. Any attempt to use both always has one of two results. In a jury of awards, for illustration, the unpaid jurors will look upon their duties as purely perfunctory and leave the awards to be made by the paid members, or if any of the unpaid jurors take their duties seriously and try to really function, a condition of friction is always created in which they feel they are being thwarted and suspicion and bickerings result. Any one who has had the participants in this controversy under observation during the developments of this trial would be persuaded that the present suit had grown out of just the situation above outlined.

This is a convenient place to interpolate a few general findings and comments. Those to whom we. have referred as the “paid staff” who had to do with the making of awards, for reasons which they aver to have been altogether proper, early manifested a purpose and an intention to see to it that the Eureka Company triumphed over the Hoover Company in the competition between them. Whether this was due to their judgment of the competitive merits of the two sweepers and the superiority of the Eureka cleaner, or to the unworthy motives with which they are charged, is an inquiry into which we see no need to go. We feel grateful for this escape because this record abounds in criminations and recriminations which run the gamut of accusations from intimated corruption to the flat charge of fraudulent alterations of writings and downright forgery. We are relieved from this inquiry because the award to the Eureka Company is not in issue here, and the failure to award to the Hoover Company is not a failure to give it the prize awarded to the Eureka Company, but, as will later appear, a wholly different prize. In the case really before us neither company has a standing to complain of the prize awarded to the other. This we think will be made clear. Notwithstanding this, each of these companies has struck a wrong attitude and has taken an indefensible position. The Eureka, instead of accepting the award made to it as a certificate to the merits of its own make of sweeper and getting out of this all the advertising value that it had, turned it into a battery of attack upon the Hoover sweeper and valued the award not as a commendation of the Eureka sweeper, but as a denial of merit in the Hoover sweeper. The Hoover people likewise felt a greater grievance because a prize was awarded, to the Eureka than they did because it was denied to themselves. We limit ourselves to the fact finding that the “Paid Staff” succeeded in having the highest form of award made to the Eureka company, and as but one grand prize could be awarded in any one class competition for the same type of exhibit, such prize was perforce refused to all others.

A knowledge of the machinery through which awards were made is necessary to an understanding of what was done and how it was done. The awards were planned to be made in the name of a tribunal having, as we have said, the grandiloquent title of “International Jury of Awards.” This jury was planned to be made up of subordinate juries. The honorary jurors, to whom we have referred, were permitted to play at judging of exhibits by acting as (1) a class jury. This jury might examine exhibits, and was the only jury expected in the first instance to do this. It, however, only made recommendations. The recommendations made by the class jury were to go to (2) a group jury. This jury was supposed to pass upon the recommendations of the class jury, and to make recommendations of its own. These in turn were to go to (3) a superior jury, which determined what awards were to be made. After the superior jury had made its awards, their findings went to (4) a committee on appeals, which might affirm or reverse the findings of the superior jury, and send a mandate to (5) the executive jury, which then made known the awards. The parties thus' interested were then given the right to an appeal to (6) the same committee on appeals (4). This tribunal finally determined the awards which were to be made through the executive jury (5). We pause again here to note that if this system had been adhered to, the superior jury (3) would in the first instance have determined the awards subject to the approval of the committee on appeals (4), which awards would have been announced by the executive jury (5), and the awards have been made unless an interested party appealed to (6) the committee on appeals (4). On such appeal this tribunal finally determined what awards should be made, and it became the duty of the officials of the defendant association to formally make them. It is a reiteration, but the restatement in the form of a summary may be an aid to clarity, that the application of an exhibitor for an award did not ripen into a right until (1) the class jury had made its recommendation; ■ (2) the group jury had made its recommendation; (3) the superior jury had made its award; (4) the committee on appeals had made its findings; and (5) the executive jury had announced the awards to be made. Even yet the award determined on was not a finality because it was subject to (6) an appeal to the same committee on appeals (4) which as an appellate court gave the final decision. A second comment to be made is upon the fact that the superior jury (3), which was primarily to make the awards, was never constituted, so that in truth this primary award was never made. Here we have our finger upon the sore .spot of this controversy. Had there been a superior jury (3) and had it functioned, we would have before us the awards which were made. Neither the class jury (1) nor the group jury (2) could make an award. They could only make recommendations. Much time and much of this record is taken up with angry controversy over what recommendations were made by these juries. What they were is of no value to us except for what bearing this may have upon other features of the controversy. We are concerned, not with what recommendations, but solely with what awards were made.

This leads to another comment. In the machinery devised for the grinding out of awards the only operating part was the superior jury (3) as reviewed and revised by the committee on appeals. The superior jury alone, in the first instance, could make awards. As it made none, there were none made, and it follows that every award which was made was, judged by this system, irregularly made. We may, for our purposes however, consider not the system which was devised but the system which was followed, ignoring the system which was not followed. There was a class jury (1). What this jury did is in controversy, and we pass it by. There was likewise a group jury (2) over whose recommendations there is a like controversy, which we also ignore. There was also an executive jury (5), to which we give the same “absent treatment.” There was, however, a committee on appeals (4), which functioned in this case as an appellate court (6). However it was brought about (and into this we do not go), the result was a grand prize (the highest class award) had been given to the Eureka Company, and a medal of honor (or the other less prize) to the Hoover Company. The appeal from this was dismissed. Had what was done rested here, the duty of a court would be clear and its labors light.

This brings us to the pivotal point of the present controversy. The committee on appeals, as we have already stated, had dismissed the appeal of the Hoover Company from the awards as they stood. This meant that the members of the “Paid Staff” had had their way, and the Eureka people had the opportunity to broadcast the boast that an “International Jury of Awards” had not only awarded to them the grand prize, thus certifying to the merits of their sweeper, but had made the award in competition with the Hoover sweeper, to which an inferior award had been made, thus certifying that in the judgment of world experts the Eureka cleaner was superior to the Hoover cleaner.

Up to this point none of the jurors who were serving without compensation had taken any interest in what has grown into this controversy, beyond the more or less perfunctory part which such jurors usually take. They had performed their duties conscientiously and efficiently in the light of the information given them, with no knowledge of what was going on below the surface. After the committee on appeals had first passed upon these awards, the question arose in the mind of at least one of them whether a grave injustice had not been done the Hoover’ people. This was in part because the committee had been largely influenced by statements made to it that the same makes of sweepers had been in competition at the San Eranciseo Pair, and that the first prize had there been awarded to the Eureka Company, when the truth was that the Hoover sweeper was a different type of sweeper than the one exhibited at San Francisco. This juror in consequence wished the committee on appeals to be reconvened to reconsider the awards to be made. The suggestion met with the most strenuous opposition from the “Paid Staff,” and was likewise discouraged by the responsible officials of the association.

Just here we must enter upon another digression. We have not made, because we see no need to make, any findings respecting the motives of those of the “Paid Staff” who advocated and worked for the award of a grand prize to the Eureka Company and opposed one to the Hoover Company. We have not even named them as they are not parties to this bill, nor have we discussed the propriety of their conduct pro or con. We do feel called upon to make findings respecting the conduct and motives of the executive officers of the association, and of Mr. James S. Rogers, the member of the committee on appeals to whom reference has been made. We have already found as a fact that these officers of the association discouraged any review of the awards as the first finding of the committee on appeals left them. Whether or not they acted with good judgment, we find that they acted upon their own independent judgments and from no unworthy motives. We absolve them- frotn all charges, if there be any, of being parties to any unlawful conspiracy. The association was at the time winding up its affairs and its officials disbanding. If the executive officers were over anxious to be done with their responsibilities no one would impute any blame to them, for it cannot be said that the exhibition ended in any blaze of glory as its affairs were shortly afterwards placed in the hands of receivers. It was to be expected that the management would be disinclined to do anything which would prolong their duties or upset any awards which had been made. The feeling to stand by what had been done was natural enough and proper enough. Mr. Rogers, for what he did, has been subjected to rather sharp, and as it seems to us, wholly uncalled for criticism. He beyond all question was a very capable member of the committee, and we make the unqualified finding that his motives were unselfish, disinterested, and wholly worthy. The very kind of opposition he encountered was-bound to make him more determined, insistent, and persistent. If this took on to those whose purposes he. was thwarting the appearance of partisanship and advocacy of the Hoover cause, we see no discredit to him in this. We find that he had no motive nor purpose in what he did other than to do what he could to have what he believed to be justice done. The question had been raised whether a finding, to which be had been a party, did not do an injustice to an exhibitor. This suggested to him the recalling of the committee. Objections were made and then abandoned as untenable in favor of others, which were found likewise untenable, with a recurrence to those which had been abandoned. If this confirmed him in his view that there should be a reconsideration of the action of the committee, there would be small wonder. The committee was reconvened. The situation-was not without its difficulties. An award of a grand prize had been made to the Eureka Company. It would have been' embarrassing to have recalled a prize once given even if this course had been practicable.

The giving of a like prize to the Hoover Company met with the obstacle of a provision of the rules. Incidentally slight attention was paid to these rules when the paid staff were in accord with what was proposed to be done. They were appealed to only to stop what the staff didn’t want done. The rule referred to prescribes that only one grand prize should be awarded in class competitions between exhibits of the same type. There was, however, another rule which permitted of more than one grand prize being awarded when the exhibits were of different types, although in the same class. This offered a happy solution of the problem if the sweepers were found to be of different types. It was found that the rival sweepers, although both in the class of vacuum cleaners, operated upon wholly different principles, and hence were of different types, to each of which a grand prize might be awarded.

The committee of appeals, upon the re-hearing granted on the application of the Hoover Company, came to the conclusion indicated and awarded a, grand prize to the Hoover Company for its special type of sweeper. The Hoover Company- acquiesced in this, thus putting itself out of competition with the Eureka Company. The situation then was the award of a grand prize to the Eureka for its sweeper and a like prize to the Hoover Company for a different type of sweeper. It is clear that neither has any standing in law or equity to complain of the award to the other. All that remained to be done was for the executive jury to announce the award to the Hoover Company and for the officials of the association to issue it in the form provided. The officers of the association, however, refused to follow tkis simple course or to permit the Hoover Company to receive the prize awarded, resulting in the filing of this bill. In its original form complaint was made of the award of a grand prize to the Eureka Company. We held that the. Hoover Company had no status to object to the award of a prize to another exhibitor with whom the Hoover Company was not in competition. By the same token, we also hold that the Eureka Company cannot be heard to complain of an award to the Hoover Company or to any other exhibitor with whom it is not in competition. Notwithstanding this the Eureka Company has taken upon itself, perhaps felt driven to take upon itself, the whole burden of the defense. The paid staff and the officials of the association, instead of taking a neutral and impartial position, have yielded to the impulse to take sides with the Eureka Company and to oppose at every step the grant of a grand prize to the Hoover Company.

We can easily understand why the executive officials of the association were led into this attitude of opposition. One of the objections to issuing the grand prize awarded to the Hoover Company was that the affairs of the association had been wound up and that the officials, whose duty it was to issue the prizes, were officially defunct, yet as an expression of neutrality the offer was made to issue a grand prize to the Hoover Company, if the Eureka Company would cons.ent. This offer was made before the bill was filed and was reiterated when the ease was first before the court in the argument at bar. Of course, this was characterized by counsel for plaintiff as a mere gesture, as it was well known the Eureka Company would never consent. When the answer came to be' filed, a reiteration of the offer was made. The bill had averred that the association had refused to issue the prize to the Hoover Company without the consent of the Eureka Company.

We give the answer in its own words:

"It is admitted that the officials of the defendant Association refused to accept the recommendation and decision of the illegally constituted Committee on Appeals and award a Grand Prize to the Hoover Company unless the defendant, Eureka Vacuum Cleaner Company gave its consent thereto, knowing that the Eureka Vacuum Cleaner Company would never recognize any such illegally made award.”

The versatile counsel for the exhibition places a different construction upon this part of the answer from what an otherwise uninformed reader would place upon it. Any adequate discussion of all the questions of fact and law raised and discussed by counsel would unduly prolong this already overlong opinion. We in consequence content ourselves with a finding of fact and statement of the conclusions of law reached and are brought to the sole question of fact which this ease presents and with which we began, which is whether the committee on appeals awarded a grand prize to the Hoover Company.

Finding of Fact.

1. The committee on appeals, in accordance with the system of making awards and the practice followed by the Exhibition in the granting of prizes, duly awarded to the plaintiff, Hoover Company, a grand prize for its positive, agitator type of vacuum cleaner.

Conclusions of Law.

1. It was the duty of the executive jury, upon the above award being made, to announce and publish the same, and of the officials of the Sesqui-Centennial Exhibition Association to make this award effective by granting and issuing to the Hoover Company, in the usual form, the grand prize so awarded.

2. It was within the powers of the committee on appeals to grant the rehearing allowed and to reconsider the conclusions before reached.

3. A court of equity has jurisdiction by mandatory process to enjoin the officials of said association to issue sueh grand prize so awarded to the Hoover Company.

4. The plaintiff has the right to a decree granting the second prayer of the bill of complaint.

5. The third prayer of the bill should be denied.

6. The plaintiff has the right to a decree against the defendant, the Eureka Vacuum Cleaner Company, for costs.

Perhaps a word should be said in support of conclusion 6. It is doubtless true that what the Eureka Company did it was to some extent provoked into doing by the tactics employed by the Hoover Company, and that it felt obliged to present its defense to the bill as filed. Thus far we do not hold the Eureka Company to blame nor have we permitted our judgment to be influenced by the flaming rhetoric in which this defendant has indulged, except in so far as it has misrepresented the rulings of this court. For this latter we do hold them blameworthy, as from this they should have refrained. Had this defendant contented itself with a defense to the charges in the bill aimed at it and to the prayer for an injunction against it, a decree for the payment of costs might have been escaped. It chose, however, to do what we have found was not its concern, viz., to challenge the right of the Hoover Company to a prize for a different type of exhibit with which it was not in competition. The consequence is a decree against it for costs.

A word of admonition may not be out of place. In the formal decree enforcing the findings made, we shall see to it that a clause is inserted that no advertising use be made of the rulings of this court. The Eureka Company may- make such use as it pleases of the fact that it received a grand prize. The Hoover .Company may do likewise, if and when it gets one. Neither is any concern of this court. Neither of these prizes has, however, been granted by this court, and they are neither less nor more because of any rulings of the courts. Any reference therefore to what the courts have done is out of place.

The very full briefs submitted by the defendants deserve more than mere mention. We could not, however, follow the arguments advanced without extending this opinion to such a length as to be a burden to any one who feels in duty bound to read it.

Such of the requests for findings of fact and conclusions of law as counsel may submit to be answered we will answer to be incorporated with this opinion.

To give definiteness of date for appellate and other purposes, no decree is now made, but the parties have leave to submit drafts of a formal decree in accordance herewith, the court retaining jurisdiction of the cause in order to enter a formal decree.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank T. HINES, Director of the United States Veterans’ Bureau, Appellant, v. UNITED STATES ex rel. Harry V. FISHER.
    No. 5175.
    Court of Appeals of District of Columbia.
    Argued April 6, 1931.
    Decided May 4, 1931.
    Leo A. Rover, John W. Fihelly, James T. Brady, and A. Hinderliter, all of Washington, D. C., for appellant.
    Samuel T. Ansell, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   PER CURIAM.

This ease arises upon a petition filed by appellee as plaintiff in the lower court for a writ of mandamus to require appellant, as Director of the United States Veterans’ Bureau, to award certain benefits to the plaintiff under the Act of May 24, 1928, 45 Stat. 735 (38 USCA § 581, 582), which theretofore had been denied plaintiff by the Director.

A hearing was had on the petition and answer, and a demurrer to the latter, whereupon, on January 13, 1930, the court sustained the demurrer, and, the Director standing upon his answer, a writ of mandamus was issued as prayed in the petition. This appeal was then taken.

In this court the appellee concedes that the issue herein is on all fours with that decided by us on June 2, 1930, in the appeal of Hines v. United States ex rel. Livingston, 59 App. D. C. 363, 42 F.(2d) 347, and that the decision rendered in that case governs the present appeal, if it is to be adhered to. It is also conceded that in such event the contention of appellee herein must be overruled and the judgment of the lower court be reversed.

Upon a. consideration of our decision in the Livingston Case, wherein certiorari was denied by the Supreme Court at its October term, 1930, 51 S. Ct. 35, 75 L. Ed.-, and in conformity with the important rule of stare decisis, we enter a similar decision in the present ease.

The judgment of the lower court is accordingly reversed, and this cause is remanded for further proceedings not insistent herewith.


text:
    Frank T. HINES, Director of the United States Veterans’ Bureau, Appellant, v. UNITED STATES ex rel. Clyde V. BERGLUND. Frank T. HINES, Director of the United States Veterans’ Bureau, Appellant, v. UNITED STATES ex rel. Edward T. FERGUSON. Frank T. HINES, Director of the United States Veterans’ Bureau, Appellant, v. UNITED STATES ex rel. Bayard BROOKS.
    Nos. 5198-5200.
    Court of Appeals of District of Columbia.
    Argued April 6, 1931.
    Decided May 4, 1931.
    Leo A. Rover, John W. Fihelly, James T. Brady, and A. Hinderliter, all of Washington, D. C., for appellant.
    S. T. Ansell, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, arid GRONER, Associate Justices.
   PER CURIAM.

It is conceded that these appeals respectively raise the same issue as'that decided by us this day in the appeal of Frank T. Hines, Director of the United States Veterans’ Bureau, Appellant, v. United States ex rel. Harry V. Fisher, 60 App. D. C. 1113, 48 F.(2d) 1067.

In conformity with our decision in that case, the judgments of the lower court in these eases are reversed, and the causes are remanded for further proceedings not inconsistent herewith.


text:
    Samuel KLUFT, Appellant, v. FEDERAL FIREPROOFING CO., a Corporation, Appellee.
    No. 5076.
    Court of Appeals of District of Columbia.
    Argued April 14, 1931.
    Decided May 4, 1931.
    E. Hilton Jackson, of Washington, D. C., for appellant.
    David L. Riordan, H. Winship Wheatley, Geo. C. Gertman, and P. J. J. Nicolaides, all of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB and GRONER, Associate Justices.
   PER CURIAM.

Appeal from a decree in the Supreme Court of the District overruling exceptions to the master’s report in a proceeding to enforce mechanics’ liens.

Appellee, the Federal Fireproofing Company, contracted to erect a building for appellant within a certain time. Before completion of the building, appellee, for reasons it deemed sufficient, ceased work. It then claimed to be due the sum of $46,900, for which it filed a' mechanic’s lien. Appellant contended that there was no justification for the abandonment of the contract. The question, among others, was referred to the special master, who found in favor of appellee, and his finding was confirmed by the court. Prior to the report of the special master, appellee’s claim, covering “full amount due,” ‘was assigned to appellant. It is apparent that on the date of the decree below the parties had effected a compromise, and that therefore the ease became moot.

The appeal must be dismissed, with costs.

Dismissed.


text:
    W. P. ALLEN, Appellant, v. CITIZENS’ BANK & TRUST COMPANY, OF MIDDLESBORO, KENTUCKY, Appellee.
    No. 3064.
    Circuit Court of Appeals, Fourth Circuit.
    May 1, 1931.
    See, also, 43 F.(2d) 549.
    S. H. Sutherland, of Clintwood, Va. (S. H. & George C. Sutherland, of Clintwood, Va., on the brief), for appellant.
    B. H. Sewell, of Janesville, Va., and E. M. Fulton, of Wise, Va., for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.
   PER CURIAM.

This was a suit oh certain promissory notes. Defendant contended that he had been released from liability thereunder by plaintiff’s acceptance under a deed of assignment which he had executed for the benefit of creditors. ' Plaintiff contended that it had not accepted under the deed of assignment, and that, if what was done be construed as an acceptance thereunder, it was not binding, because made under mistake as to the legal effect of certain instruments. The judge below ruled that plaintiff had not accepted the deed of assignment, and permitted recovery on the notes on condition that plaintiff disclaim any rights under it.

A majority of the court are of opinion that what was done by plaintiff amounted to an election to take under the deed of assignment, but that this election was made as a result of mistake, and that plaintiff, for that reason, is not bound thereby, where, upon acquiring knowledge of its rights, it withdrew its claim made under the deed of assignment. The judgment below will accordingly be affirmed.

Affirmed.


text:
    AMERICAN GYPSUM COMPANY v. UNITED STATES GYPSUM COMPANY.
    No. 5392.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 14, 1930.
    Richey & Watts, of Cleveland, Ohio, for appellant.

      Bates, Golrick & Teare, of Cleveland, Ohio, and Jones, Addington, Ames & Seibold, of Chicago, Ill., for appellee.
   PER CURIAM.

Appeal dismissed by court order.


text:
    AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant, v. UNITED STATES of America, Appellee.
    No. 6347.
    Circuit Court of Appeals, Ninth Circuit.
    May 1, 1931.
    Before SAWTELLE, Circuit Judge, and KERRIGAN, District Judge.
   PER CURIAM.

Ordered appeal dismissed pursuant to stipulation of the parties; mandate forthwith.


text:
    William M. ANDREWS v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5551.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 5, 1930.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Decree of Board of Tax Appeals affirmed upon authority of opinion in Hitchcock v. Commissioner (No. 5550) 44 F.(2d) 756.


text:
    ARUNDEL CORPORATION, Owner of THE Dredge GOVERNOR WARFIELD, Libelant-Appellee, v. THE Motor Vessel SOCONY NO. 5, Standard Transportation Company, Claimant-Appellant, and United States of America, Respondent-Impleaded.
    No. 133.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for claimant-appellant.
    Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (A. M. Menkel, Sp. Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Decree [39F.(2d) 926] affirmed.


text:
    Walter W. BAUER, Bankrupt, v. Chester P. FITCH, Trustee of W. W. Bauer.
    No. 5761.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 5, 1930.
    Peck, Shaffer & Williams, of Cincinnati, Ohio, for appellant.
    Blair & Ball, of Portsmouth, Ohio, for appellee.
   PER CURIAM.

Dismissed on authority of Deeley v. Cincinnati Art Pub. Co. (C. C. A.) 23 F.(2d) 920, and Taylor v. Voss, 271 U. S. 176, 180, 46 S. Ct. 461, 70 L. Ed. 889.


text:
    Henry M. BEHRE, Plaintiff-Appellant, v. INTERNATIONAL PROJECTOR CORPORATION, Defendant-Appellee.
    No. 343.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Manton Marks, of New York City, for appellant.
    Bruce R. Tuttle, of New York City (N. A. Smyth and J. H. O’Connell, both of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    Gust BESTE v. UNITED STATES of America.
    No. 5676.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 3, 1930.
    Edw. J. Dwyer and W. J. Hennes, both of Detroit, Mich., for appellant.
    John R. Watkins, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    B-LINE BOILER CO. v. BRYANT HEATER & MFG. CO.
    Nos. 5656, 5657.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 6, 1931.
    Brockett, Hyde, Higley & Meyer, of Cleveland, Ohio, for appellant.
    Kwis, Hudson & Kent, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Dismissed by court order, pursuant to stipulation of counsel.


text:
    J. L. BRADSHAW v. UNITED STATES of America.
    No. 5701.
    Circuit Court of Appeals, Sixth Circuit.
    June 11, 1930.
    Floyd Estill, of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Docketed'and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    BUCKEYE ENGINE CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5566.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 7, 1930.
    Luther Day and Orville Smith, both of Cleveland, Ohio, and Harry J. Gerrity, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Dismissed by court order pursuant to stipulation of counsel.


text:
    David BURNET, Commissioner of Internal Revenue, Petitioner, v. Lizzie S. MASTICK, etc., Respondent. David BURNET, Commissioner of Internal Revenue, Petitioner, v. Laura F. M. DOE, et al., etc., Respondents. ESTATE of Frank P. DOE, Deceased.
    Nos. 6419, 6420.
    Circuit Court of Appeals, Ninth Circuit.
    March 24, 1931.
    C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., for petitioner.
    Howard F. Chadbourne, of San Francisco, Cal., for respondents.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, and agreeably to Rule 20, petition to review in each of above causes dismissed by the clerk.


text:
    Minnie BURNS, Appellant, v. UNITED STATES of America, Appellee.
    No. 3049.
    Circuit Court of Appeals, Fourth Circuit.
    Oct. 9, 1930.
    C. G. Wyche, of Greenville, S. C., for appellant.
    Joseph A. Tolbert, U. S. Atty., of Greenville, S. C., and H. K. Osborne, Asst. U. S. Atty., of Spartanburg, S. C.
   PER CURIAM.

Case dismissed under Rule 20 per agreement of counsel.


text:
    John CARNEY and Joe Ingram v. UNITED STATES of America.
    No. 5757.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Wm. H. Tyler, Jr., of Nashville, Tenn., for appellants.
    A. V. MeLane, U. S. Atty., of Nashville, Tenn.
   PER CURIAM.

Judgment of District Court affirmed as to Ingram and reversed as to Carney, by court order.


text:
    John P. CARROLL, Petitioner, v. Honorable Morris A. SOPER, United States District Judge for the District of Maryland, Respondent.
    No. 3113.
    Circuit Court of Appeals, Fourth Circuit.
    Jan. 28, 1931.
    John P. Carroll, of Leavenworth, Kan., per se.
    O. N. Forrest and Raphael I. Levin, Asst. U. S. Attys., both of Baltimore, Md., for respondent.
   PER CURIAM.

Petition for writ of mandamus denied.


text:
    Ashley M. CATLETT, Appellant, v. UNITED STATES of America, Appellee.
    No. 3045.
    Circuit Court of Appeals, Fourth Circuit.
    Sept. 26, 1930.
    Gatling, Morris & Parker, of Raleigh, N. C., for appellant.

      W. H. Fisher, U. S. Atty., of Clinton, N. C., and Willis G. Briggs, Asst. U. S. Atty., of Raleigh, N. C.
   PER CURIAM.

Case dismissed under Rule 20 per agreement of counsel.


text:
    CLEVELAND MACHINE & MFG. CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5565.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 7, 1930.
    Luther Day and Orville Smith, both of Cleveland, Ohio, and Harry J. Gerrity, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Dismissed by court order pursuant to stipulation of counsel.


text:
    CONCRETE MIXING & CONVEYING COMPANY, a Corporation, Appellant, v. GREAT WESTERN POWER COMPANY OF CALIFORNIA, a Corporation, Appellee.
    No. 5585.
    Circuit Court of Appeals, Ninth Circuit.
    March 25, 1931.
    For opinion below, see 46 F.(2d) 331.
    Williams, Bradbury, McCaleb & Hinkle, of Chicago, Ill., and Chas. M. Fryer, of San Francisco, Cal., for appellant.
    Charles E. Townsend, of San Francisco, Cal., for appellee.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered appeal dismissed; mandate forthwith.


text:
    Daniel F. COUGHLIN v. UNITED STATES of America.
    No. 5774.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 9, 1931.
    Miles E. Evans and Ben H. Zwick, both of Cleveland, Ohio, for appellant.
    Lee N. Murlin, Asst. U. S. Atty., of Toledo, Ohio.
   PER CURIAM.

Dismissed by court order, for failure to comply with Rule 20.


text:
    Thomas E. COYNE v. ERIE RAILROAD COMPANY.
    No. 5597.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 3, 1930.
    Berusteen & Bernsteen, of Cleveland, Ohio, for appellant.
    Cook, McGowan, Foote, Bushuell & Burgess, of Cleveland, Ohio, for appellee.
   PER CURIAM.

■ Judgment of District Court affirmed by court order.


text:
    John H. CRAWFORD and Earl Crawford, Appellants, v. UNITED STATES of America, Appellee.
    No. 3093.
    Circuit Court of Appeals, Fourth Circuit.
    Jan. 14, 1931.
    T. J. Lilly, of Hinton, W. Va., for appellants.
    James Damron, U. S. Atty., of Huntington, W. Va.
   PER CURIAM.

Judgment of District Court affirmed.


text:
    D. J. & T. SULLIVAN, Inc., Petitioner, v. David BURNET, Commissioner of Internal Revenue, Respondent.
    No. 6453.
    Circuit Court of Appeals, Ninth Circuit.
    May 1, 1931.
    Before SAWTELLE, Circuit Judge, and KERRIGAN, District Judge.
   PER CURIAM.

Pursuant to motion of respondent, or-. dered petition to review in above cause dismissed for failure of appellant to file record and docket cause; mandate forthwith.


text:
    FREDERICK H. THOMPSON COMPANY, Appellant, v. The MAGNAVOX COMPANY, Appellee.
    No. 6448.
    Circuit Court of Appeals, Ninth Circuit.
    May 11, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for tho respective parties, ordered appeal dismissed without costs to either party; mandate forthwith.


text:
    F. L. FULLER, Jr., Trustee, and The Fidelity Bank of Durham, North Carolina, Appellants, v. W. G. BRAMHAM and T. L. Bland, Receivers of First National Company of Durham, Inc., and Julian S. Stein, C. Prevost Boyce, and Others, Partners Trading and Doing Business as Stein Bros, and Boyce, Appellees.
    No. 3111.
    Circuit Court of Appeals, Fourth Circuit
    Feb. 3, 1931.
    Jones Fuller, of Durham, N. C., for appellants.
    R. Clarence Dozier, of South Mills, N. C., and McLendon & Hedrick, of Durham, N. C., for appellees.
   PER CURIAM.

Appeal dismissed per stipulation and agreement of counsel.


text:
    Frank GALLETTI v. UNITED STATES of America.
    No. 5672.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    M. A. McCormack and O. J. Zinner, both of Cleveland, Ohio, for appellant.
    W. J. Mahon, U. S. Atty., of Cleveland, Ohio.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Louis GINSBURG v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5527.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 7, 1930.
    Peck, Shaffer & Williams, of Cincinnati, Ohio, and Edw. B. Follett, of Cleveland, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Dismissed by court order pursuant to stipulation of counsel.


text:
    Frank GRAHAM, Appellant, v. UNITED STATES of America, Appellee.
    No. 3131.
    Circuit Court of Appeals, Fourth Circuit.
    Jan. 14, 1931.
    J. Raymond Gordon, of Charleston, W. Va., for appellant.
    James Damron, U. S. Atty., of Huntington, W. Va.
   PER CURIAM.

Case docketed and dismissed on motion of appellee.


text:
    GRAND BEACH COMPANY, Charles S. Abbott, and Landowners’ Association v. Hon. Fred. M. RAYMOND, U. S. District Judge for Western District of Michigan.
    No. 5708.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    Charles S. Abbott, of Chicago, Ill., for petitioners.
   PER CURIAM.

Petition for writ of mandamus denied by court order.


text:
    L. Gessford HANDY and The Lionel Corporation, Appellees, v. AMERICAN FLYER MANUFACTURING COMPANY, Appellant.
    No. 315.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Joel B. Liberman, of New York City (David P. Wolhaupter, of Washington, D. C., and Robert B. Killgore, of New York City, of counsel), for appellant.
    George F. Scull, Walton Harrison, and John M. Cole, all of New York City, for appellee.
    Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Decree [44F.(2d) 633] affirmed on opinion below.


author: PEE CURIAM.

text:
    HARTFORD FIRE INSURANCE COMPANY, Appellant, v. J. S. and J. K. JONES, Appellees.
    No. 5735.
    Circuit Court of Appeals, Sixth Circuit.
    May 15, 1931.
    H. H. Huffaker, of Louisville, Ky., and A. T. Siler, of Williamsburg, Ky. (Tye, Siler, Gillis & Siler, of Williamsburg, Ky., and John R. Moremen, of Louisville, Ky., on the brief), for appellant.
    I. N. Steely, of Williamsburg, Ky. (Wm. Lewis & Son, of London, Ky., and Stephens & Steely, of Williamsburg, Ky., on the brief), for appellees.
    Before DENISON and HICKS, Circuit Judges, and WEST, District Judge.
   PEE CURIAM.

After our decision in Hartford Co. v. Jones, 15 F.(2d) 1, plaintiffs filed this bill for reformation, and the District Court awarded reformation and entered judgment for the loss. Upon plaintiff’s testimony, there was clearly an inadvertence consisting in the agent’s carelessness in not attaching the necessary indorsement as to the incumbrance. We think the reformation sought and given should have been to correct this omission, rather than by eliminating the whole provision in question; but this variance is not now material.

We do not overlook that one purpose of requiring the indorsement in writing is to prevent the need of considering conflicts in oral testimony as to whether the agent had knowledge of that incumbrance which, if not permitted by indorsement, made the policy invalid, and that, where such conflict develops, it may often, or usually, be impossible to establish this mistake with that certainty which the rule of reformation requires; but the trial judge who heard and saw the witnesses was entirely familiar with this necessity for convincing proof, and we are not satisfied that we should disturb his conclusion.

The decree is affirmed.


text:
    Henry HEDRICK, Appellant, v. UNITED STATES of America, Appellee.
    No. 6248.
    Circuit Court of Appeals, Ninth Circuit.
    March 10, 1931.
    E. A. Ewald, of Great Palls, Mont., for appellant.
    Wellington D. Rankin, U. S. Atty., and Howard A. Johnson and Arthur P. Acher, Asst. U. S. Attys., all of Helena, Mont.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of appellant, ordered appeal dismissed; mandate forthwith.


text:
    Henry W. HEEDY v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5648.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 5, 1930.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Decree of Board of Tax Appeals affirmed upon authority of opinion in Hitchcock v. Commissioner (No. 5550) 44 F.(2d) 756.


text:
    HERNOR COMPANY, Inc., Plaintiff-Appellant, v. SUPERIOR FIRE INSURANCE COMPANY, Defendant-Appellee, and Clara E. Burroughs, Defendant.
    No. 318.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    For opinion below, see 39 F.(2d) 477.
    Walter & Wolff, of New York City (Alfred A. Walter, of New York City, of counsel), for appellant.
    Denman, Bevier & Scotti, of New York City (Louis Bevier, Jr., of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    William J. HITCHCOCK v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5549.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 5, 1930.
    Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Decree of Board of Tax Appeals affirmed upon authority of opinion in Hitchcock v. Commissioner (No. 5550) 44 F. (2d) 756.


text:
    Lawrence E. HUNTLEY, as Managing Owner of THE Steam Tug WINCECO, Appellant, v. THE Steam Tug J. C. REICHERT, Her Engines, etc., Reichert Towing Line, Inc., Appellee.
    No. 330.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Maeklin, Brown, Lenahan & Speer, of New York City (J. Dudley Eggleston, of New York City, of counsel), for appellant.
    Single & Single, of New York City (William J. Mahar, of New York City, of counsel), for appellee.
    Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Decree [39 F.(2d) 970] affirmed.


text:
    Richard HUSTY and Charles Laurel v. UNITED STATES of America.
    No. 5660.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    Percy F. Parrott, of Toledo, Ohio, for appellants.
    Fred C. Wetmore, U. S. Atty., of Grand Rapids, Mich.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Apostolos Naoum KOTSOFSKIS, alias Apostol Naum Kochovsky, v. UNITED STATES of America.
    No. 5795.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 6, 1930.
    John G. Romanoff, of Detroit, Mich., for appellant.
    John R. Watkins, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    Edwin C. KUDY and Byron Langtry v. UNITED STATES of America.
    No. 5667.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    Martin J. Brennan, of Milwaukee, Wis., and Burleson & Herscher, of Grand Rapids, Mich., for appellants.
    Fred C. Wetmore, U. S. Atty., of Grand Rapids, Mich.
   PER CURIAM.

Judgment of District Court affirmed upon authority of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790.


author: PER .CURIAM.

text:
    LANCHASHIRE SHIPPING COMPANY, Limited, Appellee, v. MORSE DRY DOCK & REPAIR COMPANY, Appellant. TOKIO MARINE & FIRE INSURANCE COMPANY, Appellee, v. MORSE DRY DOCK & REPAIR COMPANY, Appellant. STANDARD TRANSPORTATION COMPANY, Appellee, v. MORSE DRY DOCK & REPAIR COMPANY, Appellant. STANDARD OIL COMPANY OF NEW YORK, Appellee, v. MORSE DRY DOCK & REPAIR COMPANY, Appellant.
    Nos. 288-291.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Palmer & Furman, of New York City (Courtland Palmer and Chauncey I. Clark, both of New York City, of counsel), for appellant.
    Geo. Whitefield Betts, Jr., of New York City, for Lancashire Shipping Co., Limited.
    Leonard J. Matteson, of New York City, for other appellees.
    Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   PER .CURIAM.

Decrees [43 F.(2d) 750] affirmed on •opinion below.


text:
    Abe LANGLOIS, Appellant, v. UNITED STATES of America, Appellee.
    No. 6451.
    Circuit Court of Appeals, Ninth Circuit.
    May 1, 1931.
    Before SAWTELLE, Circuit Judge, and KERRIGAN, District Judge.
   PER CURIAM.

Pursuant to motion of appellee, ordered appeal in above cause dismissed for failure of appellant to file record and docket cause; mandate forthwith.


text:
    LEKTOPHONE CORPORATION v. CROSLEY RADIO CORPORATION.
    No. 5262.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 9, 1931.
    For opinion below, see 46 F.(2d) 126.
    Pennie, Davis, Marvin & Edmonds, of New York City, Murray & Zugelter, of Cincinnati, Ohio, and Hoguet & Neary, of New York City, for appellant.
    Allen & Allen, of Cincinnati, Ohio, Thos. G. Haight, of Jersey City, N. J., and Giles W. Rich, of New York City, for appellee.
   PER CURIAM.

Decree of District Court affirmed upon authority of Lektophone v. Rola Company and Miller Bros. Co. v. Lektophone, 282 U. S. 168, 51 S. Ct. 93, 75 L. Ed.-, decided by Supreme Court on December 8, 1930.


text:
    Joe LIGHT v. UNITED STATES of America.
    No. 5706.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 9, 1931.
    Thos. Crutchfield, of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PEE CURIAM.

Judgment of District Court affirmed by court order.


text:
    Charles W. LOHRUM v. UNITED STATES of America.
    No. 5658.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    Dudley C. Outcalt, of Cincinnati, Ohio, for appellant.
    Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio.
   PER CURIAM.

Judgment of District Court affirmed by, court order.


text:
    In the Matter of Margaret W. LONG and George W. Cushing, Trustee for Margaret W. Long, on Petition for Writ of Mandamus.
    No. 5854.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 15, 1931.
    Simmons & Barker, of Louisville, Ky., for petitioner.
    Dodd & Dodd, of Louisville, Ky., for respondent.
   PER CURIAM.

Petition for writ of mandamus denied by court order.


text:
    Robert H. LUCAS, Commissioner of Internal Revenue, Petitioner, v. CONSOLIDATED TEXTILE CORPORATION, Respondent.
    No. 3106.
    Circuit Court of Appeals, Fourth Circuit.
    Oct. 21, 1930.
    Allin H. Pierce, Sp. Atty., Bureau of Internal Revenue, and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, both of Washington, D. C., for petitioner.
    John W. Townsend, of Washington, D. C., for respondent.
   PER CURIAM.

Case docketed and dismissed on motion of petitioner.


text:
    LYMAN-HAWKINS LUMBER CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5646.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 10, 1930.
    John E. O. Feller, of Canton, Ohio, and Arthur K. Presmont, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Dismissed by court order, for failure to file briefs under the rule'.


text:
    Albert MARCO, alias Albert Rossi, Appellant, v. UNITED STATES of America, Appellee.
    No. 6463.
    Circuit Court of Appeals, Ninth Circuit.
    May 8, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.
   PER CURIAM.

Upon consideration of motion of appellee for dismissal of appeal upon ground that the order appealed from is not an appealable order, and after oral argument, and good cause therefor appearing, it is ordered that said motion be, and hereby is, granted, that the appeal herein be, and hereby is, dismissed, and that the mandate of this court issue forthwith.


text:
    Thomas W. MEREDITH v. Murray BENDER.
    No. 5686.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Stanley, Horwitz & Kiefer, of Cleveland, Ohio, for appellant.
    Squire, Sanders & Dempsey, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Dismissed by court order, pursuant to motion of counsel for appellant.


text:
    MEYER, WISE & KAICHEN COMPANY v. UNITED STATES of America.
    No. 5855.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 9, 1931.
    For opinion below, see 43 F.(2d) 375.
    Wallick & Shorb, of Washington, D. C., for appellant.
    Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio.
   PER CURIAM.

Dismissed by court order, pursuant to agreement of counsel.


text:
    Joe MOCERI v. UNITED STATES of America.
    No. 5824.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Andrew C. Baird, of Detroit, Mich., for appellant.
    John R. Watkins, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Dismissed by court order, pursuant to stipulation of counsel.


text:
    John D. NAGLE, as Commissioner of Immigration for the Port of San Francisco, California, Appellant, v. WONG DOO GOW, Appellee.
    No. 6359.
    Circuit Court of Appeals, Ninth Circuit.
    May 8, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.
   PER CURIAM.

Pursuant to stipulation of parties, ordered appeal dismissed; mandate forthwith.


text:
    Charles H. NAUTS, Collector of Internal Revenue, v. BUCKEYE RELINER PRODUCING CO.
    No. 5700.
    Circuit Court of Appeals, Sixth Circuit.
    June 11, 1930.

      W. J. Mahon, U. S. Atty., of Cleveland, Ohio, for appellant.
    Marshall, Melhom, Marian & Martin, of Toledo, Ohio, for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    Joseph OMBRELLO v. UNITED STATES of America.
    No. 5655.
    Circuit Court of Appeals, Sixth Circuit.
    June 28, 1930.
    A. F. Dixon, of Iron River, Mich., for appellant.
    John Jones, Asst. U. S. Atty., of Ironwood, Mich.
   PER CURIAM.

Judgment of District Court affirmed by-court order.


text:
    Berry PADGETT v. UNITED STATES of America.
    No. 5738.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 9, 1930.
    Geo. R. Shepherd, of Newport, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Dismissed by court order, for lack of presentation and failure to file brief.


text:
    Marie PEDERSON and Hans Pederson, Petitioners, v. David BURNET, Commissioner of Internal Revenue, Respondent.
    No. 6431.
    Circuit Court of Appeals, Ninth Circuit.
    April 6, 1931.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of counsel for respondent, ordered petition to review dismissed for failure of petitioners to file record and docket cause; mandate forthwith.


text:
    PENINSULAR TRADING AGENCY, Inc., FW. Dunbar & Co., and the Xylos Rubber Co. v. NEW TREAD TIRE COMPANY, Bankrupt.
    No. 5624.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 8, 1931.
    Burch, Bacon & Denlinger, of Akron, Ohio, for appellant.
    Cannon, Spieth, Taggart, Spring & Annat, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Leonard S. PUSEY and Joseph F. Kelly, Appellant, v. Jerry CLIFFORD and Lee Baylis, Appellees.
    No. 6432.
    Circuit Court of Appeals, Ninth Circuit.
    April 7, 1931.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of appellees, ordered appeal dismissed for failure of appellants to file record and docket cause; mandate forthwith.


text:
    Irving J. ROSE and Alonzo K. Rose, Copartners, etc., Libelants-Appellee, v. THE Steam Tug PERSEVERANCE, Her Engines, etc., Cornell Steamboat Company, Claimant-Appellant, and Cornell Steamboat Company, Respondent-Appellant, and Hedger Transportation Company, Inc., Respondent Impleaded, Appellee, and George I. Forsythe, Respondent Impleaded, Appellee. Anthony O’BOYLE, as Owner of THE Barges LAKE SUPERIOR and ANTHONY KERWIN, Libelant-Appellee, v. HEDGER TRANSPORTATION CO., Inc., Respondent-Appellee, and The Steam Tug Perseverance, Impleaded, Cornell Steamboat Company, Claimant-Appellant, and George I. Forsythe, Respondent Impleaded, Appellee. (Two suits.)
    Nos. 302-304.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Robert S. Erskine and Henry P. Elliott, both of New York City, of counsel), for Cornell Steamboat Co. and Tug Perseverance.
    Alexander, Ash & Jones, of New York City (Edward Ash and Max Taylor, both of New York City, of counsel), for Rose Bros.
    Single & Single, of New York City (Wm. J. Mahar, of New York City, of counsel), for appellee Hedger Transportation Co., Inc.
    Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for Anthony O’Boyle, libelant-appellee.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Decrees affirmed.


text:
    C. F. ROUTZAHN, Collector of Internal Revenue, v. The TYROLER REALTY COMPANY.
    No. 5694.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 6, 1930.
    See, also, 36 F.(2d) 208.
    W. J. Mahon, U. S. Atty., of Cleveland; Ohio, for appellant.
    M. S. Farmer, of Cleveland, Ohio, for appellee.
   PER CURIAM.

Dismissed by court order, pursuant to stipulation of counsel.


text:
    SANDOVAL SALES COMPANY and Horace E. Sandoval, Appellants, v. WESIX NATIONAL COMPANY, Appellee.
    No. 6464.
    Circuit Court of Appeals, Ninth Circuit.
    May 11, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered appeal dismissed without costs to either party; mandate forthwith.


text:
    Mrs. Carrie L. SHAW, Executrix of Estate of John Shaw, v. COMMISSIONER OF INTERNAL REVENUE.
    Nos. 5552-5554.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 5, 1930.

      Kennedy, Manchester, Ford, Bennett & Powers, of Youngstown, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Decrees of Board of Tax Appeals affirmed upon authority of opinion in Hitchcock v. Commissioner (No. 5550) 44 F.(2d) 756.


text:
    Cal SHELTON et al. v. UNITED STATES of America.
    No. 5633.
    Circuit Court of Appeals, Sixth Circuit.
    June 27, 1930.
    Lovette, Berry & Easterly, of Greeneville, Tenn., for appellants.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Robert A. STRANAHAN v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5503.
    Circuit Court of Appeals, Sixth Circuit.
    June 27, 1930.
    Marshall, Melhom, Marlar & Martin, of Toledo, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Decree of Board of Tax Appeals affirmed under authority of opinion in Stranahan v. Commissioner (No. 5502) 42 F.(2d) 729.


text:
    STROH BREWERY COMPANY v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5797.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 7, 1930.
    H. A. Mihills, of Washington, D. C., for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Doeketed and dismissed by court order, pursuant to motion of counsel for respondent.


text:
    SUNSET LIGHTERAGE CORPORATION, Appellant, v. Joseph R. FERRY, Appellee.
    No. 354.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1931.
    Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant.
    William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for appellee.
    Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Decree affirmed.


text:
    Frank TALLIS, Appellant, v. UNITED STATES of America, Appellee.
    No. 3134.
    Circuit Court of Appeals, Fourth Circuit.
    Jan. 20, 1931.

      Join Jay Henderson, of Burlington, N. C., for appellant.
    E. L. Gavin, U. S. Atty., of Greensboro, N. C.
   PER CURIAM.

Case docketed and dismissed on motion-of appellee.


text:
    TAYLOR MOTOR TRUCK COMPANY and H. C. De Ran v. H. G. BURFORD COMPANY and the Lauth-Juergens Motor Car Company.
    No. 5804.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Prank S. Monnett, of Columbus, Ohio, and David B. Love, of Fremont, Ohio, for appellants.
    Brown & Sanger, of Toledo, Ohio, for appellees.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellees.


text:
    TAYLOR MOTOR TRUCK COMPANY and H. C. De Ran v. H. G. BURFORD COMPANY and the Lauth-Juergens Motor Car Company.
    No. 5803.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Frank S. Monnett, of Columbus, Ohio, and David B. Love, of Fremont, Ohio, for appellant.
    Brown & Sanger, of Toledo, Ohio, for appellees.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellees.


text:
    TAYLOR MOTOR TRUCK COMPANY and H. C. De Ran v. H. G. BURFORD COMPANY, the Lauth-Juergens Motor Car Company, L. C. Worst, Adm’r, etc., and Vonda G. Worst, Adm’x, etc.
    No. 5802.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Frank S. Monnett, of Columbus, Ohio, and David B. Love, of Fremont, Ohio, for appellant.
    Brown & Sanger, of Toledo, Ohio, for appellees.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellees.


text:
    TAYLOR MOTOR TRUCK COMPANY and H. C. De Ran v. H. G. BURFORD COMPANY the Lauth-Juergens Motor Car Company, John S. Pratt, and W. J. Mead.
    No. 5801.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Frank S. Monnett, of Columbus, Ohio, and David B. Love, of Fremont, Ohio, for appellants.
    Brown & Sanger, of Toledo, Ohio, for appellees.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellees.


text:
    TAYLOR MOTOR TRUCK COMPANY and H. C. De Ran v. H. G. BURFORD COMPANY and the Lauth-Juergens Motor Car Company.
    No. 5800.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Frank S. Monnett, of Columbus, Ohio, and David B. Love, of Fremont, Ohio, for appellants.
    Brown & Sanger, of Toledo, Ohio, for appellees.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellees.


text:
    Thomas G. TERRY, Appellant, v. Henry S. OBERDORFER, Appellee.
    No. 3098.
    Circuit Court of Appeals, Fourth Circuit.
    Nov. 10, 1930.
    Sharp & Sharp, of Reidsville, N. C., and Harry Wooding, Jr., of Danville, Va., and Hunter K. Penn, of Reidsville, N. C., for appellant.
    Harris, Harvey & Brown, of Danville, Va., for appellee.
   PER CURIAM.

Case dismissed under Rule 20, per agreement of counsel.


text:
    TROUT MINING COMPANY, Appellant, v. George DUCICH, Appellee.
    No. 6452.
    Circuit Court of Appeals, Ninth Circuit.
    May 1, 1931.
    Before SAWTELLE, Circuit Judge, and KERRIGAN, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered appeal in above cause dismissed; mandate forthwith.


text:
    Georgia TURNER and Ray Davis v. UNITED STATES of America.
    No. 5749.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 8, 1931.
    Harry Neal Smith, Frank L. Leonard, and Jos. C. Bird, all of Cincinnati, Ohio, for appellants.
    Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    UNION INDEMNITY CO. v. Ethel ACORD.
    No. 5587.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 13, 1930.
    Booth, Keating, Pomerene & Boulger, of Columbus, Ohio, for appellant.
    Thos. H. Clark, of Columbus, Ohio, for appellee.
   PER CURIAM.

Judgment of District Court reversed, and cause remanded upon authority of Gotfredson v. German Commercial Accident Co. (C. C. A.) 218 F. 582, L. R. A. 1915D, 312.


text:
    UNITED STATES of America, v. William G. BABER.
    No. 5870.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Sawyer A. Smith, U. S. Atty., of Covington, Ky., for appellant.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellant.


text:
    UNITED STATES of America, Appellee, v. Edward MANG, Appellant.
    No. 382.
    Circuit Court of Appeals, Second Circuit.
    April 20, 1931.
    William B. Mahoney, of Buffalo, N. Y., for appellant.
    Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Justin C. Morgan, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.
    Before L. HAND, SWAN, and CHASE, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    UNITED STATES of America v. Coley ROWE.
    No. 5871.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Sawyer A. Smith, U. S. Atty., of Covington, Ky., for appellant.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellant.


text:
    UNITED STATES of America v. Sabina SCHATZINGER.
    No. 5699.
    Circuit Court of Appeals, Sixth Circuit.
    June 11, 1930.
    W. J. Mahon, U. S. Atty., of Cleveland, Ohio.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellant.


text:
    UNITED STATES of America ex rel. HOM LEE HONG, Next Friend of Hom Sang, Appellant, v. CHINESE INSPECTOR IN CHARGE AT THE PORT OF NEW YORK, etc., Appellee.
    No. 384.
    Circuit Court of Appeals, Second Circuit.
    April 20, 1931.
    James C. Thomas, of New York City, for appellant.
    George Z. Medalie, U. S. Atty., of New York City (Walter H. Schulman, Asst. U. S. Atty., of New York City, of counsel), for appellee.
    Before L. HAND, SWAN, and CHASE, Circuit Judges.
   PER CURIAM.

Order affirmed.


text:
    VAN DORN IRON WORKS COMPANY v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5817.
    Circuit Court of Appeals, Sixth Circuit.
    Dec. 5, 1930.
    W. B. Stewart, of Cleveland, Ohio, for petitioner.
    C. M. Charest, of Washington, D. C., for respondent.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for respondent.


text:
    Benny WEISS v. UNITED STATES of America.
    No. 5869.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    Nicholas Walinski, of Toledo, Ohio, for appellant.
    Lee N. Murlin, Asst. U. S. Atty., of Toledo, Ohio, for appellee.
   PER CURIAM.

Docketed and dismissed by court order, pursuant to motion of counsel for appellee.


text:
    Will WELLS v. UNITED STATES of America.
    No. 5705.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 9, 1931.
    Thos. Crutchfield and H. W. Schoolfield, both of Chattanooga, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Judgment of District Court affirmed by court order.


text:
    Sam WHEELOCK v. UNITED STATES of America.
    No. 5728.
    Circuit Court of Appeals, Sixth Circuit.
    Jan. 12, 1931.
    Robert T. Neel and J. R. Gardner, both of Johnson City, Tenn., for appellant.
    W. J. Carter, U. S. Atty., of Knoxville, Tenn.
   PER CURIAM.

Dismissed by court order, for failure to file brief under the rule.


text:
    H. E. WILKENSON et al. v. HYDRAULIC PRESS MFG. CO.
    No. 5622.
    Circuit Court of Appeals, Sixth Circuit.
    Nov. 7, 1930.
    Loomis & Caris, of Ravenna, Ohio, for appellant.
    Burch, Bacon & Denlinger, of Akron, Ohio, for appellee.
   PER CURIAM.

Order of District Court reversed, and cause remanded pursuant to agreement of counsel.


text:
    S. L. WILLIAMSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 3071.
    Circuit Court of Appeals, Fourth Circuit.
    Nov. 26, 1930.
    Kenneth J. Kindley, of Charlotte, N. C., for appellant.
    Thomas J. Harkins, U. S. Atty., of Asheville, N. C.
   PER CURIAM.

Case dismissed under Rule 23.


text:
    W. E. WINKLER v. T. A. GRUBER, Trustee of W. A. Gulsinger, Bankrupt.
    No. 5640.
    Circuit Court of Appeals, Sixth Circuit.
    Feb. 10, 1931.
    J. M. Eeed and Van C. Cook, both of Mansfield, Ohio, for appellant.
    Wm. E. Voegele, of Mansfield, Ohio, for appellee.
   PER CURIAM.

Decree of District Court affirmed by court order.


text:
    YEE AH SHIM on Behalf of Yee On Fok, Appellant, v. Luther WEEDIN, Commissioner of Immigration for the Port of Seattle, Wash., Appellee.
    No. 6465.
    Circuit Court of Appeals, Ninth Circuit.
    May 11, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to motion of counsel for appellee, ordered appeal dismissed for failure of appellant to file record and docket cause; mandate forthwith.


author: DYER, Circuit Judge:

text:
    Irby SPROUSE, Jr., and Kermit Stubblefield, Individually and on behalf of other inmate employees of the Federal Prison Industries, Inc., et al., Plaintiffs-Appellants, v. FEDERAL PRISON INDUSTRIES, INC., Defendant-Appellee.
    No. 73-1470
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 18, 1973.

      Haines & Hyatt, Wayne Hyatt, Atlanta, Ga., for plaintiffs-appellants.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   DYER, Circuit Judge:

This appeal involves a back pay suit against the Federal Prison Industries, Inc., (FPI) brought by 187 inmates at the federal penitentiaries in Atlanta, Georgia, and Marion, Illinois. Alleging that the $.21-51 hourly wage rate at which prisoners are compensated is substantially below the federal statutory minimum wage of $1.60 per hour, the inmates seek back wages, liquidated damages, and attorney’s fees for violation of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201 et seq. Although Congress has seen fit to require every employer to pay all of its employees a certain minimum wage, the United States is expressly excluded from FLSA coverage. Accordingly, because the district court concluded that the prisoners’ complaint is essentially against the United States, it dismissed their suit on the ground that the court lacked subject matter jurisdiction to entertain the case. We affirm.

The thrust of the prisoners’ argument on appeal is two-fold. First, they contend that this action is not against the United States but rather against a wholly owned government corporation of a proprietary nature — self-sufficient, incorporated in the District of Columbia and, like a private corporation, managed by a board of directors. Citing Powell v. United States Cartridge Co., 1950, 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017, and Creekmoore v. Public Belt R. R. Comm., 5 Cir. 1943, 134 F.2d 576, the inmates attempt to bolster this argument by emphasizing that the FLSA government exclusion provision is couched in plain and unambiguous language and by stressing that exceptions to FLSA should be narrowly interpreted. Thus they reason that the clause of 29 U.S.C.A. § 203(b) excepting the United States from coverage does not encompass their complaint against FPI. Secondly, they argue that a comparison between the definitions of “employer” contained in the National Labor Relations Act, 29 U.S. C.A. § 152(2), the Social Security Act, 42 U.S.C.A. § 410(a)(6)(B)(i), and the Equal Employment Opportunity Act, 42 U.S.C.A. § 2000e(b) (1), with the FLSA definition of “employer,” 29 U.S.C.A. § 203(d), demonstrates that Congress intended that employees of government corporations be included within the coverage of FLSA; for the exception clauses contained in the first three acts exclude employees of the “United States or any wholly owned government corporation,” whereas FLSA only excludes employees of the “United States.”

Although the plaintiffs’ theory might have merit if some other government corporation were involved, their argument does not withstand critical analysis as far as FPI is concerned. In the first place FPI is not, as plaintiffs claim, a proprietary corporation whose goal is to make a profit. Rather FPI was organized for the purpose of maximizing the opportunity of inmates of all federal correctional institutions “to acquire a knowledge and skill in trades and occupations which will provide them with a means of earning a livelihood upon release.” 18 U.S.C.A. § 4123. Congress made it clear that it was concerned with providing for the “proper government, discipline, treatment, care, rehabilitation, and reformation” of federal prisoners. 18 U.S.C.A. § 4001. Additionally, in laying the foundation for accomplishing its goal of providing inmates vocational training during their confinement and employment upon their release, Congress required (1) that FPI restrict the operation of its shops to “the production of commodities for consumption in such institutions or for sale to the departments or agencies of the United States, but not for sale to public in competition with private enterprise,” 18 U.S.C.A. § 4122(a), and (2) that FPI operate a diversified program of industrial production which would “reduce to a minimum competition with private industry or free labor.” 18 U.S.C.A. § 4122(b).

Moreover, we agree with the district court that this complaint is essentially one against the United States. It is now well established that the question whether a suit is against a sovereign is to be determined “not by the mere names of the titular parties but by the essential nature and effect of the proceeding.” Ex parte New York, 1921, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057. If the “essential nature and effect of the proceeding” is such that “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” Land v. Dollar, 1947, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209, then the suit is against the sovereign. Dugan v. Rank, 1963, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15.

It is abundantly clear from a reading of the applicable statutory provisions that, even though FPI is self-sufficient, the “judgment sought would expend itself on the public treasury.” In pertinent part 18 U.S.C.A. § 4126 provides:

All moneys under the control of the Federal Prison Industries, or received from the sale of the products or byproducts of such Industries, or for services of federal prisoners, shall be deposited or covered into the Treasury of the United States to the credit of the Prison Industries Fund and withdrawn therefrom only pursuant to accountable warrants or certificates of settlement issued by the General Accounting Office.

Additionally, 18 U.S.C.A. § 4007 provides:

The expense attendant upon the confinement of persons arrested or committed under the laws of the United States, as well as upon the execution of any sentence of a court thereof respecting them, shall be paid out of the Treasury of the United States in the manner provided by law.

Thus, though the prisoners vehemently deny it, “the conclusion is inescapable that the suit is essentially one designed to reach money which the government owns.” Mine Safety Co. v. Forrestal, 1945, 326 U.S. 371, 375, 66 S.Ct. 219, 221, 90 L.Ed. 140.

The inmates’ argument that Congress intended, by omitting from the exception clause of FLSA the phrase “or any wholly owned government corporation,” to include within the ambit of the statute suits such as this one is also unpersuasive. Where, as here, a suit against an essentially non-proprietary government corporation is in essence a suit against the United States, “jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and . . . such a waiver cannot be implied but must be unequivocally expressed.” United States v. King, 1969, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52. Indeed, it is a fundamental principle of public law, affirmed by a long series of Supreme Court decisions, that no suit in any court can be maintained against the United States or against its property without the express authority of Congress. Stanley v. Schwalby, 1896, 162 U.S. 255, 269-270, 16 S. Ct. 754, 40 L.Ed. 960. It is equally well settled that since consent of the government to be sued is a relinquishment of sovereign immunity, it must be strictly construed. United States v. Sherwood, 1941, 312 U.S. 584, 586 & 590, 61 S.Ct. 767, 85 L.Ed. 1058. In the case sub judice, there was no express congressional consent to suits against the United States under FLSA. Furthermore, any notion of implied waiver of government immunity is negatived by Congress’ explicit provision for prisoner compensation in 18 U.S.C.A. § 4126. Section 4126 authorizes FPI to employ the Prison Industries Fund and any earnings that may accrue to the corporation

in paying, under rules and regulations promulgated by the Attorney General, compensation to inmates employed in any industry or performing outstanding services in institutional operations, and compensation to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution where confined. In no event shall compensation be paid in a greater amount than that provided in the Federal Employees Compensation Act. (emphasis added).

We are of the view that whatever right plaintiffs have to compensation is solely by congressional grace and governed by the rules and regulations promulgated by the Attorney General. Cf. Sigler v. Lowrie, 8 Cir. 1968, 404 F.2d 659. Moreover, in an analogous situation, the Supreme Court has held that federal prisoners do not have a right of action under the Federal Tort Claims Act because injury compensation is provided for them under section 4126. “[W]here there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.” United States v. Demko, 1966, 385 U.S. 149, 152, 87 S.Ct. 382, 384, 17 L.Ed.2d 258.

The district court’s dismissal of this FLSA action is affirmed. •

Affirmed.


author: JAMESON, District Judge:

text:
    The ROCKVILLE REMINDER, INCORPORATED et al., Plaintiffs-Appellants, v. The UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.
    No. 800, Docket 73-1115.
    United States Court of Appeals, Second Circuit.
    Argued May 2, 1973.
    Decided June 20, 1973.

      William P. Murray, Jr., West Hartford, Conn. (F. Owen Eagan, West Hartford, Conn., and Herbert Hannabury, Rockville, Conn., of counsel), for plaintiff s-appellants.
    Henry S. Cohn, Asst. U. S. Atty. (Stewart H. Jones, U. S. Atty., D. Conn., of counsel), for defendants-appellees.
    Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge.

       Of the United States District Court for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Appellants, The Rockville Reminder, Incorporated, and three individuals representing a class of rural mailbox owners, brought this action against the appellees, The United States Postal Service and three local postmasters, seeking declaratory and injunctive relief to permit the installation of metal hook devices on rural mailboxes for private delivery of “The Rockville Reminder”, an advertising journal. The district court granted summary judgment of dismissal, holding that the device was proscribed by postal regulations. We agree and affirm.

The Rockville Reminder is primarily an advertising circular, but contains a small amount of local and community news. It is published weekly and delivered free to rural residents. The metal device consists of a hook approximately two inches long, fastened to the outside lower flange or lip of a rural mailbox with a sheet metal screw, which does not penetrate the actual mailbox receptacle. The Reminder is delivered in a plastic bag, and the hook is used to puncture and hold the bag. Delivery may be made from a car.

Appellant Reminder installed 4,736 of the hooks on rural mailboxes, with the express consent of approximately 1,000 owners of the boxes, and a consent by silence and use of the remainder, except for seven box owners who expressly denied permission to install the hooks.

On April 10, 1972 the Postmaster at Vernon, Connecticut notified appellant Reminder that the regional counsel of the Postal Service “has ruled that the use of hooks attached to rural mailboxes is contrary to existing Postal regulations”, and gave notice that mailable material on the hooks would be retrieved for postage. Thereafter Reminder discontinued the use of the hooks and paid postage on its delivery. This action was commenced on June 15, 1972.

Appellants contend that (1) there is no Postal Service regulation proscribing their “intended course of conduct”; and (2) the “attempted regulation” of the conduct is unreasonable and violates appellants’ rights under the First, Fifth, and Ninth Amendments to the Constitution of the United States.

Article 1, Section 8, Clause 7 of the Constitution of the United States grants to Congress the power to establish a postal system. In turn Congress has prescribed the “general powers” of the Postal Service, including the power “to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives [of title 39].” 39 U.S.C. § 401(2). The Postal Service is charged with the responsibility “to maintain an efficient system of collection, sorting-, and delivery of the mail nationwide.” 39 U.S.C. § 403(b)(1).

Regulations have been adopted by the Postal Service pursuant to 39 U.S.C. § 401. 39 C.F.R. § 151.1 (1972) reads:

“Private mail receptacles.
“(a) Designation as authorized depository. Every letterbox or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, star route, or other mail route is designated an authorized depository for mail within the meaning of 18 U.S.C. sections 1702, 1705, and 1708.
“(b) Use for mail only. Receptacles described in § 151.1(a) shall be used exclusively for mail except as provided in § 156.5(h). Any mailable matter such as circulars, statements of accounts, sale bills, or other similar pieces deposited in such receptacles must bear postage at the applicable rate and a proper address.”

39 C.F.R. § 156.5(h) (1972) provides:

“(h)' Unstamped newspapers. Rural boxes are to be used for mail only, except that publishers of newspapers regularly mailed as second-class mail may, on Sundays and national holidays only, place copies of the Sunday or holiday issues in the rural and star route boxes of subscribers, with the understanding that copies will be removed from the boxes before the next day on which mail deliveries are scheduled.”

Appellants argue that these regulations were intended to regulate what may be placed in the mailbox and do not proscribe what may be placed on the box, calling attention to the reference in § 151.1(b) to matter “deposited in” the receptacles. The district court, noting that this subsection also provides that the receptacle described in § 151.1(a) “shall be used exclusively for mail”, concluded that the regulations, taken together, “are concerned with the use to which” mailboxes are put; “and not merely with that which may be placed” inside the box. The court noted further that the exception contained in 39 C.F.R. § 156.5(c)(2) expressly limits non-postal use to areas above and below the mailbox itself, strengthening the conclusion that the box itself is not available for non-postal use. 350 F.Supp. at 591-592.

We agree with the district court that §§ 151.1(a) and (b), 156.5(h), and 156.-5(e)(2) together “evidence a design to regulate the uses to which mail receptacles may be put,” and “do in fact proscribe the activity here in question.” Id. at 592.

We are not persuaded by appellants’ argument that the “attempted regulation * * * is unreasonable, outside the perimeter of its regulatory authority as mandated by the Congress, and constitutes legislation.” In United States v. Obermeier, 186 F.2d 243 (2 Cir. 1950), cert. denied, 340 U.S. 951, 71 S.Ct. 569, 95 L.Ed. 685 (1951), and again in New York Foreign Freight Forwarders and Brokers Association v. Federal Maritime Commission, 337 F.2d 289, 295 (2 Cir. 1964), this court set forth the standards that govern the review of agency rules: See generally 1 K. C. Davis, Administrative Law Treatise §§ 5.05 and 5.06 (1958).

“(1) A regulation is presumptively valid, and one who attacks it has the burden of showing its invalidity.
(2) A regulation or administrative practice is ordinarily valid unless it is
(a) unreasonable or inappropriate or
(b) plainly inconsistent with the statute.” 186 F.2d at 247.

Judged by these standards the regulations are reasonable and valid. They are entirely consistent with the Congressional mandate to the Postal Service to “maintain an efficient system of collection, sorting, and delivery of the mail nationwide.” As the district court well said, “Broad rule-making authority must be allowed a federal agency such as the postal service whose activities are national in scope and are geared to meet varied conditions and circumstances throughout the country.” 350 F.Supp. at 593.

The regulations here in question are directed toward efficient delivery of the mail without interference from outside sources. If Reminder can place its own hooks on mailboxes, then every other publication that wishes to use the mailboxes as delivery boxes can do so. This could well lead to an undue burden on the Postal Service in delivery of the mail.

It is clear also that appellants have other alternatives. Indeed appellant Reminder considered and rejected the use of newspaper receptacles, “not restricted to any one paper”, expressly authorized in 39 C.F.R. § 156.5(c)(2). It also tried and rejected use of its own hooks placed on the post rather than the mailbox itself. In addition to the delivery alternatives, the Reminder was in fact mailed to its recipients prior to the installation of the hooks and has also been mailed since their use was prohibited.

Under these circumstances we cannot say that the Postal Service regulations limiting use of the mailbox itself exclusively for mail are unreasonable or that they violate the Constitutional rights of any of the appellants. It is true that the mailboxes and hooks belong to the owners of the boxes; but particularly in view of the alternatives available for delivery of the advertising circular, any interference with the economic or property rights of the appellants and any limitation of their freedom of speech or press is minimal. The district court properly held that these rights are subject to reasonable circumscription, and that the circumscription here imposed by the regulations of the Postal Service is reasonable.

Affirmed.

      . Rockville Reminder, Inc. v. United States Postal Service, 350 F.Supp. 590 (D.Conn.1972).

      . In the early part of February, 1972 the Postmaster at Vernon, Connecticut, one of the appellees, had consented to the installation of hook devices on the post supporting the mailbox for non-mail delivery of the Reminder. This did not prove satisfactory because delivery could not be made without leaving the delivery car. Reminder then proposed that the hooks be attached to the mailboxes themselves. The Postmaster requested a ruling on the legality of the proposal.

      . A reply card was mailed to approximately 5,000 rural residents explaining and picturing the placement and use of the hook and seeking permission to install and use it. Recipients were to check a yes or no, and return the card by mail, but the card stated that no reply would be considered consent.

      . 39 C.F.R. 156.5(c)(2) (1972) reads:
      “(2) Newspaper receptacles. A receptacle for newspapers, not restricted to any one paper, may be placed above or below the box or on the post or support, provided it will not interfere with the delivery of mail, obstruct the view of the flag, or present a hazard to the carrier or his vehicle. The receptacle must not extend beyond the front of the box when the box door is closed. No advertising shall be displayed on the outside of the receptacle except that the name of a publication may be shown.”

      . This conclusion is strengthened further by the fact that it is in accord with the Postal Service’s own interpretation of the regulations. The Supreme Court has held repeatedly that “when construing an administrative regulation, ‘a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Thorpe v. Housing Authority, 393 U.S. 268, 276, 89 S.Ct. 518, 523, 21 L.Ed.2d 474 (1969), quoting from Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).

      . The findings of the district court as summarized in its opinion set forth the basis for the court’s conclusion that the “regulations' reasonably foster the efficient delivery of the mails” and that “the seemingly innocuous practice of permitting the attachment of advertising matter other than official mail to the exterior of the receptacle could impair the xprompt and efficient delivery of official mail * * *.” 350 F.Supp. at 592.

      . This was found to be too expensive, since delivery to hooks placed on the post would require that the driver leave the car, thus slowing delivery, or requiring that two people make the delivery.

      . See, e. g., Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942); Breard v. Alexandria, 341 U.S. 622, 632-633, 71 S.Ct. 920, 95 L.Ed. 1233 (1951).