author: CAMPBELL, District Judge.

text:
    SUPERIOR SKYLIGHT CO., Inc., v. ZERBE CONST. CO. et al.
    (District Court, E. D. New York.
    June 2, 1925.)
    1. Patents ©=>26(2) — Though all elements of combination be old, structure may be patentable if combination is new and produces new and useful result.
    Though all elements of combination be old, structure may be patentable if combination is new and produces new and useful result.
    2. Patents ©=>168(1)— Argument before Patent Office cannot control or restrict plain language of claim,-though it may support it.
    Argument made before Patent Office in support of claims cannot control or restrict plain language of claim finally allowed, though, if patent bears on its face particular construction, argument before Patent Office may "confirm that construction.
    3. Patents ©=168(2) — Patentee may not claim anything rejected by Patent Office nor broaden claim by dropping elements which he was compelled to include.
    Patentee cannot claim anything which Patent Office rejected, nor can he broaden his claim by dropping those elements which he was compelled to include in order to secure patent.
    4. Patents ©=328 — No. 1,009,502, for skylight having inclined jambs and offsets, held valid but not infringed; “jamb.”
    , Goldman patent, No. 1,009,502, for skylight having inclined jambs and offsets at top with fusible supporting link for automatically releasing, held valid, but not infringed; “jamb” meaning a side post or side of a doorway, window, opening, or fire place; a side or vertical piece of any opening or aperture in wall which helps to bear overhead member.
    5. Patents ©=>172 — Patents not pioneer patents, but affecting only improvement narrowly interpreted.
    Patent which is not a pioneer patent, and claims of which cover mere improvement on prior machines, capable of accomplishing same general result, must receive a narrow interpretation.
    6. Patents ©=>226 — Where patent not a pioneer patent, identity of means and operation, combined with identity of result, is essential to infringement.
    Where patent is not a pioneer patent, there must be identity of means and identity of operation combined with identity of result to constitute infringement.

      i

    7. Patents ©=5I(I) — That which infringes if later, would anticipate if earlier.
    That which infringes if later, would anticipate if earlier.
    In Equity. Patent infringement suit by the Superior Skylight Company, Inc., against the Zerbe Construction Company and others.
    Decree for defendants.
    Hauff & Warland, of New York City (William E. Warland, of New York City, of counsel), for plaintiff. ’
    Cox, Kent & Campbell, of New York City (Clarence G. Campbell, of New York City, of counsel), for defendants.
   CAMPBELL, District Judge.

This is an action in equity brought by the plaintiff to restrain the alleged infringement by the defendants of patent No. 1,009,502, issued by the United States Patent Office to Barney Goldman, and dated November 21, 1911, for skylight;' and for the recovery of damages.

The defendants have interposed the answer of invalidity and noninfringement. '

The patent in suit is described in the specification by the patentee who says, “I * * * have invented new and useful improvements in skylights, of which the following is a specification,” and the action is based on all- four claims of the patent in suit, which read as follows:

“1. A skylight comprising a frame projecting from the roof .of a building and having an opening with an inclined' jamb, and provided with an offset at the top of the jamb, a cover pivoted to the lower^ part of the jamb, means connected to the cover for securing the cover onto the jamb, and means attached to the said connection for' automatically releasing the cover to swing downwardly to its open position.
“2. A skylight comprising a frame projecting from the roof of a building and having an opening with an inclined jamb, and provided with an inclined offset at the top of the jamb, a cover pivoted to the lower part of the jamb, a flexible connection operatively secured to the cover for holding the cover onto the jamb, a fusible link attached to and situated between the end of the connection and the cover for automaticaly releasing the cover to swing downwardly to its open position.
“3. A skylight comprising a frame projecting upwardly from the roof of a building and having a number of openings with inclined jambs, and offset tops located in the sides and ends of the frame, covers pivoted to the lower portions of the jambs, means connected to the covers for securing the covers over the openings and onto the jambs, and means relative to each connection for automatically releasing each cover to swing downwardly to its open position.
“4. A skylight comprising a frame projecting upwardly from the roof of a building and having a number of openings with inclined jambs, and sloping offset tops located in the sides and ends of the frame, covers pivoted to the lower portions of the jambs, a flexible connection operatively secured to each cover and adapted to hold the cover onto the opening, a fusible link attached to and located between the end of each connection and the cover for automatically releasing the cover to swing downwardly to its open position.”

Defendants offered in evidence the following patents, 'all issued by the United States Patent Office, to show the prior state of the art:

No. 83,166, issued to Benjamin Irrgang, for improvement in chimney cowls, dated October 20, 1868, relates to ventilating chimney caps which are provided with hinged doors or flaps, to be opened or closed by the action of the wind.

The control of the movement of the doors beyond a certain point is described in the patent as follows:

“The' doors- F have a constant tendency by reason of the outward inclination of the sides of the cap, to move outward by their own gravity; and each door is prevented from moving.beyond a given limit by a rod, d, whose opposite ends are secured to shields, e e, which project from the sides of the cap, at each side of each door.”

No. 209,854, issued to Louis Brecht, for improvement in ventilating greenhouses, dated November 12, 1878, relates to an improved combination of devices for opening or closing a series of greenhouse windows simultaneously and to any desired extent.

No. 600,186, issued to Prank Yoigtmann, for fireproof window, dated March 8, 1898, discloses the use of a fusible link in the chain holding open the window which in case of fire will melt causing the window to close.

No. 810,499, issued to Warren R. Shel-mire, for transom lifter, dated September 6, 1898, discloses means for drawing downwardly, at the same moment, one or more or all the ventilating sashes in longitudinal alignment with each other, upon the roof of a greenhouse or other building.

No. 835,598, issued to William J. Burton, for metallic window, dated November 13, 1906, discloses a sash that is overbalanced on its pivot and is self-closing, which is held open by a chain or wire cord attached to the upper part of the sash and adequately secured below and in order to close the sash automatically in case of fire, the chain is made in two sections which are joined by a fixture containing a spring which is compressed; the two halves of the fixture being joined together at the meeting edges by a fusible solder which melts under heat, and by the force of the compressed spring the two parts of the fixture are forced apart.

No. 950,839, issued to Everett D. Chadwick, for ventilator, dated March 1, 1910, discloses outwardly opening window which is held closed with a chain or cord máde in two halves which are joined together with a fusible link, which in case of fire will melt and the window will close.

No. 1,025,957, issued to William Bayley, for lantern ' windows and their operating mechanism, dated May 14, 1912. The application for this patent was copending with the patent in suit, and though issued earlier cannot be considered as prior art.

The defendants also offered in evidence a paper by Mr. John R. Freeman, entitled “The Safeguarding of Life in Theaters,” presented in New York at the meeting of the American Society of Mechanical Engineers, in December, 1905, and forming part of volume 27 of the transactions. This paper was the result of investigations made -by the author after the great loss of life in the Iroquois Theater fire in Chicago. On page 96, Fig. 7, are shown auxiliary smoke vents in wall above gridiron. These openings have sashes hinged at the bottom and are set in vertical jambs with stop members at the top, and would normally drop open outwardly were they not held closed by a cord or chain secured to the top of the sash by a fusible link and secured below, which fusible link in ease of fire would melt and the sash would drop outward, opening the whole space of the window and permitting the escape of gas and smoke.

And the defendant also offered in evidence to show prior use an oral description, photograph, and a model of the skylight which was designed hy H. A. Daniel, president of the Atlas Ro.ofing Company by whom this action was defended, who was then the manager of the roofing and sheet metal work .of Henry E. Wieber, which was erected on the roof'of the Kingston Opera House, Kingston, N. Y., in 1906, the sashes of which were set in vertical jambs with slanting stops; the sash being so pivoted that they would normally drop open inwardly were they not, held closed by a chain or cord in which was mounted a fusible link, which in ease of fire would melt and allow the sash to drop open.

Plaintiff contends that the proof offered by the defendants 'as to the construction of said skylight was not sufficient to warrant its consideration, but with this contention I am not in accord because to my mind the proof is convincing.

The principle involved in the operation of that skylight is the same as that involved in the skylight erected at the Rockville Center High School, of which complaint is made in this action. On the Rockville Center High School the sash is held in a slanting position in vertical jambs with slanting stops, by a cord or chain in which is mounted a fusible link which holds the sash closed; the only difference being that the sash in the Kingston Opera House skylight was pivoted part way of the sash and the sash swung inwardly; whereas, the sash at the Rockville Center High School is hinged at the bottom and swings outwardly.

The prior art also contained the two patents issued by the United States Patent Office which were cited as references by the Patent Office on the rejection of the claims first filed by the patentee herein.

No. 609,278, issued to William Kane, for automatic flue-opening device, dated August 16, 1898, discloses a series of inclined sashes opening into flues which fall outward by their own weight. These sashes are held closed by fusible holders which are so constructed as to release the sash when a certain heat is reached.

No. 792,902, issued to William. J. Kelly, for roof ventilator for buildings, dated June 20, 1905, discloses covers and a fusible link as means to automatically open said covers.

It thus appears that all the elements of the patent in suit, with the exception of the offset at the top or sides of the jamb and the possible exception of an inclined jamb, were old and well known to the art.

Even if all the elements of a combination may be old, the structure may be patentable if the combination is new and produces a new and useful result. Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527. I do not find, however, that all of tfie elements of the patent in suit, as I construe that patent, are found combined in any of the prior art, and therefore I do not find that there was any anticipation. Eastern Dynamite Co. v. Keystone Powder Mfg. Co. (C. C.) 164 F. 47.

The defendants offered in evidence the file wrapper and contents of the patent in suit, and from it we find that in his application- the patentee first presented five claims, which read as follows:

“1. A skylight comprising a frame having an aperture located in the side of the frame, a cover pivoted at the lower portion of the aperture and adapted to set at an angle with the top as a stop.
“2. A skylight comprising a frame haying an aperture with an offset top located in the side of the frame, a cover pivoted at the lower portion of the aperture and adapted to set at an angle with the top as a stop.
“3. A skylight comprising a frame having a number of apertures located in the sides of the frame with offset tops, covers pivoted to the lower portions of the apertures and adapted to set at an angle with the tops.as stops.
“4. A skylight comprising a frame having a number of apertures located in the sides and ends of the frame with offset tops, covers pivoted to the lower portion of the apertures and adapted to set at an angle with the tops as stops.
“5. A skylight comprising a frame having a number of apertures located in the sides and ends of the frame with offset tops, covers pivoted to the lower portions of the apertures and adapted to set at an angle with the tops as stops, flexible connections oper-atively attached to the cover, and a fusible link secured to the connection.”

All of these claims provided, among other elements, either for a cover- or for covers pivoted at or to the lower portion or portions of the aperture or apertures and adapted to set at an' angle with the top or tops as a stop or stops; and the fifth claim provided for flexible connections operatively attached to the cover, and a fusible link secured to the connection.

All of the five claims were rejected by the examiner, who cited the following references :

Kane, 609,278, August 16, 1898, 98-27.

Kelly, 792,902, June 20, 1905, 98-27.

Claims 1-4, inclusive, were rejected on Kane.

Claim 5 was rejected on Kane in view of Kelly, since it would not involve invention to use the cords and fusible link of Kelly in Kane’s device.

This decision was accepted by the pat-entee, who amended by canceling said claims and filing new claims, which were again rejected, and the patentee filed still further amendments, after which the claims as finally amended were allowed as they are now found in the patent in suit.

Each of the first two claims as finally allowed provides for “an opening with an inclined jamb, and provided with an offset at the top of the jamb,” and each of the two last claims "provides for “a number of openings with inclined jambs, and offset tops located in the sides and ends of the frame.”

The patentee’s attorney called the attention of the Patent Office to these elements in the explanation accompanying the last amendments, and said:

“Applicant’s invention consists in the novel method of positioning the covers onto the inclined jambs of a skylight frame projecting from the roof of a building. The peculiar way of arranging the inclined jambs with offset sloping tops whereby the cover when in place over the opening in conjunction with the jamb forms a water-tight closure. It is obvious that it required some inventive skill to construct the jamb frames as illustrated and claimed and not shown in any of the patents cited.”

Of course, the argument made before the Patent Office could not control or restrict the plain language of the claim finally allowed (A. G. Spalding & Bros. v. John Wanamaker, 256 F. 530, 167 C. C. A. 602); but plaintiff cannot now claim anything which the Pateiit Office rejected (Van Epps v. United Box Board & Paper Co., 137 F. 418, 75 C. C. A. 77). If, however, the patent bears on its face a particular construction, the argument made before the Patent Office may confirm that construction. Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 227, 26 L. Ed. 149.

In my opinion the invention of the pat-entee in the patent in suit consists in the novel method of positioning the covers onto the inclined jambs and the offsets from the jambs, which prevented ice and snow from accumulating in the jambs outside of the sash, and thus prevented it from automatically opening, which was not and cannot as surely be accomplished when the sash is inset in the jambs at the bottom and slanted outwardly at the top as was shown in the prior art; and on that the patent may be held valid over the prior art. It is clear to me that the broader claim which would have covered apertures or windows with vertical jambs was rejected, and that in order to obtain the patent plaintiff acquiesced in that restriction.

The patentee first made broad claims in his application filed with the Patent Office, and on their rejection he limited them by inserting as two essential elements in the claims in his application “inclined jambs” and “offsets” in order to distinguish the patent in suit from the prior art, and he cannot now broaden his claim by dropping those elements he was compelled to include in order to secure his patent. Shepard v. Carri-gan, 116 U. S. 593, 6 S. Ct. 493, 29 L. Ed. 723.

Each of the claims of the patent in suit being liipited as to one of its elements to an “inclined jamb,” it becomes necessary to define that element.

The definition of “jamb,” as given in the Standard Dictionary, Unabridged, is: “A side post or side of a doorway, window opening or fire place.” And as given in the Century Dictionary is: “A side or vertical piece of any opening or aperture in a wall, such as a door, window or chimney, which helps to bear the lintel or other member overhead serving to sustain or discharge the superincumbent weight of the wall.”

It therefore seems to me that the claims of the patent in suit must be construed as covering only a skylight with an opening or openings, having inclined jambs, as “jambs” have been hereinbefore defined, and offsets.

Plaintiff offered in evidence a number of final decrees in actions brought on this patent, but they were consent decrees, and the most that could be claimed for them, it seems to me, would be acquiescence in the validity of the patent.

The only reported case on this patent was Superior Skylight Co., Inc., v. August Kuhnla, Inc., 265 F. 282, in which a decision was rendered by Judge Garvin, in the District Court," dismissing the bill for noninfringement, in which opinion, at page 285, he said:

“The Goldman patent, upon which plaintiff sues, and which it is claimed the defendants have infringed, is not a pioneer patent. The claims of the patent include a construction which involves an inclined jamb. Originally five claims were presented, which were rejected. The applicant then made an amendment canceling all the five original claims, and substituted four, by which he limited each claim to the feature of an inclined jamb. It seems to me that, by this acquiescence in the rejection, the applicant limited the construction of his claims to a jamb set at a distinct incline.”

The decree of the District Court in Superior Skylight Co., Inc. v. August Kuhnla, Inc., supra, was affirmed by the Circuit Court of Appeals of this circuit, in an opinion by Circuit Judge Mantón (273 F. 482), who, at page 484, said:

“When application was made by the appellant for a patent originally, five claims were presented. Not any of these, claims were limited to a structure wherein the opening was provided with vertical or inclined jambs, and, when the claims were allowed, it was for an inclined jamb. Further, by his second amendment the applicant limited four of his claims for a frame projecting from the roof of the building. We must therefore consider the patent within the scope of its claim as allowed by the Patent Office. Minerals Separation Co. v. Butte Mining Co., 250 U. S. 336, 39 S. Ct. 496, 63 L. Ed. 1019. For when an applicant for a patent to cover a new combination is compelled by rejection or submission to narrow his claim by the introduction of a new element, he cannot, after the issue ' of the patent, broaden his claim by dropping the element which he was compelled to include in order to secure his patent. Shepard v. Carrigan, 116 U. S. 593, 6 S. Ct. 493, 29 L. Ed. 723.”

There was no express holding either in the District or Circuit Courts in that ease sustaining the validity of the patent, but I assume that they treated it as valid or they would not have devoted the attention that they did to the subject of infringement.

The device in that ease was radically different in construction and operation from that which is alleged to infringe in the instant suit, but it is to be noted that the courts fully discussed the element of the patent in suit, an “inclined jamb.”

In the skylight of the Rockville Center High School, which is the alleged infringing.1 structure, there are no inclined jambs to the openings, but the jambs are vertical, and the sashes are hinged at the bottom and held in a slanting position against slanting stops, by a cord or chain in two parts joined together by a fusible link. Furthermore, there are no offsets to the top or sides of the jambs as described in the patent in suit. These elements of the claims being omitted, there can be no infringement. Cimiotti Unhairing Co. v. Am. Fur Ref. Co., 198 U. S. 399, 25 S. Ct. 697, 49 L. Ed. 1100.

Plaintiff contends that the slanting stops are the equivalent of the slanting jambs, but I cannot agree with this contention, in the face of the prior art, especially the Freeman Publication and Kingston Opera House installation.

.The patent in suit is not a pioneer patent, but the claims cover a inere improvement upon prior machines which were capa, ble of accomplishing the same general result, and must receive a narrow interpretation. Greene v. Buckley, 135 F. 520, 68 C. C. A. 70.

In view of the prior state of the art and the proceedings in the'Patent Office, the patent is not a pioneer patent, and there must therefore be identity of means and identity of operation combined with identity of result to constitute infringement. Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 S. Ct. 521, 47 L. Ed. 689.

The defendants in constructing the skylight, in my opinion, did not copy the patent in suit, but closely followed the prior art; it being in substance identical with the disclosures of the Freeman Publication and in principle the same as the Kingston Opera House installation; and if the skylight of the Rockville Center High School infringes any claim of the patent in suit, then the window disclosed in the Freeman Publication and the skylight installed at the Kingston Opera House, if later, would also infringe the patent in suit.

, That which infringes if later, would anticipate if earlier. Knapp v. Morss, 150 U. S. 221, 14 S. Ct. 81, 37 L. Ed. 1059; Miller v. Eagle Manufacturing Co., 151 U. S. 186, 14 S. Ct. 310, 38 L. Ed. 121.

As I have construed the patent in suit, however, two of the essential elements of each of its claims, “inclined jambs” and “offsets” to the tops or sides of the jambs, which constituted invention, are not found in the disclosure of the Freeman Publication or the installation of the skylight on the Kingston Opera House; therefore they do not anticipate the patent in suit, and as the same elements are not found in the Rockville Center High School skylight, it does not infringe.

The patent, limited as I have construed it, is valid, but not infringed.

A decree may be entered in favor of the defendants dismissing the bill of complaint, with costs.


source: Caselaw Access Project

author: INCH, District Judge.

license: Public Domain

text:
    BLACKMAN v. MELLON, Secretary of the Treasury, et al.
    (District Court, E. D. New York.
    April 22, 1924.)
    1. Injunction @=>114(2) — Purchaser of denatured alcohol held not proper party to suit to enjoin interference with sales to him.
    One having permit to use denatured alcohol in manufacturing of insecticide held not proper plaintiff to suit to enjoin prohibition authorities from interfering with dealer who has been supplying him; such dealer or seller being proper party to make complaint.
    2. Injunction @=>136(2) — Temporary injunction against interference with plaintiff’s purchases of denatured alcohol, pending hearing on citation questioning his proper use of permit, held unwarranted.
    Where plaintiff, having permit to use denatured alcohol in manufacturing of insecticide without warrant, refused to permit prohibition agents to take samples of his product for analysis, with result that Commissioner of Internal Revenue issued citation for hearing on question of revoking' permit held, temporary injunction against interference with purchases by plaintiff pending hearing on citation was unwarranted.
    3. Intoxicating liquors @=>101! — Exception to general prohibition in form of permit strictly construed.
    Courts should not be hasty in adding technical difficulties to reasonable enforcement of prohibition law, arid permit, under National Prohibition Act, tit. 2, § 1, subd. 5 (Comp. St. Ann. Supp. 1923, § 10138%), to use denatured alcohol for specific purpose should be strictly construed.
    4. Intoxicating liquors @=>101, — Refusal to permit prohibition authorities to analyze insecticide unwarranted on ground that formula is secret.
    Refusal by one having permit to use denatured alcohol in manufacture of insecticide to permit prohibition officers to take samples for analysis is unwarranted, on ground that formula is secret one, and that preparation should, not be so sampled and analyzed, in absence of unfairness or unusual hardship.
    5. Injunction @=>145 — Unnecessary examinations of product manufactured by permittee to use denatured alcohol will not be assumed on affidavits alone.
    It will not be assumed on affidavits alone, on motion for temporary injunction, that hold er of permit to use denatured alcohol in manufacturing of insecticide has been unjustly or maliciously harassed or subjected to unnecessary examination by Commissioner of Internal Revenue or those acting' under him.
    6. Intoxicating liquors @=>101 — Prohibition agents held proper officers to demand samples of alcoholic product for analysis.
    Prohibition agents, acting under delegated authority of Commissioner of Internal Revenue, pursuant to National Prohibition Act, tit. 1, § 2 (Comp. St. Ann. Supp.' 1923, § 10138%b), and title 2, § 1, subd. 7, and section 28 (Comp. St. Ann. Supp. 1923, §§ 10138%, 10138%o) have authority to take samples for analysis of insecticide manufactured by holder of permit to use denatured alcohol.
    7. Intoxicating liquors @=>108(7)— Dismissal of proceedings questioning use of alcohol obtained under permit held not dismissible because of district in which brought.
    That proceeding under National Prohibition Act, tit. 2, § 9 (Comp. St. Ann. Supp. 1923, § 10138%dd), questioning permittee’s use of denatured alcohol obtained by him and looking to cancellation of that permit, was instituted in district other than that in which permittee "had right to insist on hearing, is not ground for dismissal before hearing.
    Action by Leonard Blackman, as sole owner and proprietor of the Latin-Ameriea Manufacturing Company, doing business in the state of New York under such name, against Andrew W. Mellon, Secretary of the Treasury of the United States, and others. On motion in form of order to show cause seeking temporary relief pending trial.
    Motion denied.
    Charles F. Murphy, of New York City, for plaintiff.
    Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Guy O. Walser, of New York City, of counsel), for defendants.
   INCH, District Judge.

This is a motion, in the form of an order to show cause, seeking temporary relief pending a trial, in an action where to a limited extent the same relief is sought permanently. The order to show cause is based on the eomplaint in the action.

Prom this complaint it appears that plaintiff, two years ago, decided to go into the insecticide business. He invested $30,000, and took a lease for two years on a building in Brooklyn. He apparently needs and uses a large quantity of specially denatured alcohol in his business. In fact, he has been using on an average of 1,000 barrels of this denatured alcohol each month. In accordance with the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%, et seq.) he applied for and received a permit to use specially denatured alcohol. After his preparation is manufactured, he sells it to another concern, which in turn, he alleges, makes large 'sales of it abroad.

Plaintiff’s insecticide has been a success from the start, as he states that last year, the first year of the business, he sold over $1,-250,000 worth of this preparation, and during the two months of January and Februa-ary this year he has sold over $400,000 worth. He has a pay roll of $600 a week, and is under a large bonded contract to supply more of this preparation to bis said customers. He does not make this denatured alcohol, but buys it from a dealer, who is referred to, but not named; the latter supplying it to plaintiff on order. On receiving this denatured alcohol, plaintiff then makes up this insecticide by a secret formula.

The above was the situation on March 20 of this year, when, plaintiff states, this dealer, who had been selling him this 1,000 barrels" of specially denatured alcohol each month, informed plaintiff that he either would or could not sell plaintiff any more, and that plaintiff’s right to withdraw further denatured alcohol had been suspended by the Commissioner. Plaintiff, however, states that his permit had not yet then been, and has not yet been, revoked or canceled (paragraph 16 of complaint). Plaintiff further states that he has been informed by said dealer that the latter will make no further shipments to plaintiff of this denatured alcohol.

The relief asked for on this motion differs somewhat from that sought in said complaint, in that; in addition to asking that the defendants be enjoined from in any way preventing plaintiff from obtaining this de-atured alcohol from persons authorized to sell same, unless and .until his permit for the use thereof shall have been duly revoked, the plaintiff also seeks that defendants be enjoined from taking any steps to revoke or suspend his permit, except according to the National Prohibition Act, and in an amended notice of motion that the hearings as to revocation take place elsewhere than that designated in the citation./

This dealer, from whom plaintiff apparently has been obtaining his supply, is neither a party to this proceeding nor mentioned by name. The court cannot compel this dealer to sell alcohol to plaintiff if he does not want to do so, and even if said dealer wants to sell, but is prevented by some suspension of his own permit, or otherwise, the application to be permitted to do so should be by this dealer, and not by one of his customers. If any dealer has violated the law, no customer should seek to help him continue to do so; and, if he has not violated the law, he is the. one who should naturally seek the aid of this court.

Therefore, if plaintiff is entitled to any relief, it must be such as is given solely for illegal interference with plaintiff’s permit. According to plaintiff this permit has not been revoked by order, nor, according to certain decisions, cited by plaintiff’s counsel in his skillful brief, has plaintiff’s permit been temporarily revoked by the statute, unless this motion and action, addressed, as a portion of it is, to questioning steps taken by the Commissioner, pursuant to a citation issued under title 2, § 9 (Comp. St. Ann. Supp. 1923, § 10138%dd), is considered an action to review same. N. J. Wholesale Drug Co. v. Brown (D. C.) 289 F. 108; Wilson v. Bauers (Jan. 14, 1924, no opinion).

Certain cases cited by counsel for the defendants, as to this point, seem to have arisen after a revocation by order. While possibly some other construction might seem reasonable to me, should the necessity for decision arise, the confusion of a different construction should be avoided, if possible, pending a decision by a'n appellate court.

Besides, I do not consider that this proceeding and action before me is a review. It seems to me that plaintiff is seeking to prevent a hearing, rather than to review one, and I prefer to base this decision on the rights, if any, of plaintiff to obtain some or all of the equitable relief asked for on this motion, rather than on a disputed construction of a sentence in a statute. Assuming, therefore, that plaintiff’s permit is not revoked, do the facts presented justify a court of equity in interfering, prior to the trial of the issues raised by the complaint and answer? I think not, and for the following reasons:

Plaintiff complains, not that his permit to use alcohol has been taken away, but that he is temporarily prevented from buying more alcohol. What he has had and still has in his possession he has duly used and can continue to use. It is not, therefore, his right to use alcohol, but something else in connection with it, that he complains is being interfered with.

It should be borne in mind that plaintiff does not manufacture this alcohol, nor has he a permit to do so, and therefore any argument that a permit to manufacture alcohol implies the right to buy the different ingredients used in its manufacture does not apply. It is “insecticide” that is being-manufactured, and no permit is necessary as to this. However, when plaintiff uses alcohol in any form in the manufacture of this insecticide, then it is necessary to have a permit, not to manufacture the insecticide, but to use the alcohol.

To deal in liquor in any form is a matter of permission under the present law, and the courts should not be hasty in adding technical difficulties to those already existing ■ in the reasonable enforcement, by the Commissioner and Ms agents, of the law. TMs being so, the exception to general prohibition, in the shape of a permit, should be strictly construed.

Plaintiff’s permit reads in substance as follows : “Permit is hereby granted to Leonard Blackman, trading as the Latin-Ameriea Manufacturing Company, located at 150 Uti-ca avenue, Brooklyn, N. Y., removed to 172 Eighth street, Brooklyn, N. Y., to use for the purposes specified in an application dated 5 — 9—22 specially denatured alcohol manufactured in accordance with authorized formula No. 40-39 A-39 B in the manufacture of preparations approved by the department.”

Title 2, § 1, subd. 5, National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%) defines the term “permit”: “It shall mean a formal written authorization by the Commissioner setting forth specifically' therein the tMngs that are authorized.” Accordingly it seems to me clear that this permit to1 plaintiff is strictly confined to the right to use denatured alcohol.

There is no contention here that plaintiff’s right to use alcohol has been directly interfered with. On the contrary, it is his right to purchase more alcohol, for the purpose of afterward using it, that he says is being interfered with. In a ease where it clearly appeared that the interference complained of as to the right to purchase was but a subterfuge for concealing an interference with the ultimate right to use such alcohol, a court of equity undoubtedly could compel such fictitious interference to cease; but it cannot be assumed that such is the case here, nor simply. on affidavits use this extraordinary power in advance of trial, unless plaintiff’s right thereto is clearly shown.

Here not only are there disputed questions of facts, raised by affidavits, but also by a verified answer, and there does not appear to me to be such a plainly unreasonable interference with plaintiff’s indirect rights under his permit as to warrant the issuance of a temporary injunction giving to plamtiff all the rights he would be entitled to after a successful trial of the issues.

The plaintiff attaches to and makes a part of his complaint what purports to be a notice by the collector of internal revenue, dated March 20, 1924, to the effect that the Commissioner of Internal Revenue has temporarily suspended the withdrawals of specially denatured alcohol by plaintiff, and it appears from both plaintiff’s and defendant’s papers that the action above referred to is based on the following’facts: That the government officials in charge of the proper enforcement of the law, and charged with the proper supervision over permits, have good reason to believe that plaintiff has not used the alcohol he has obtained in good faith and in conformity with Ms permit, and therefore have good reason to believe that plaintiff has been violatmg the law by means of this permit; that, therefore, they intend to find out the truth, and in the manner expressly laid down in the statute for that purpose.

This question of violation of the law by plaintiff must be the ultimate fact to be determined, for surely the government is not concerned so deeply with any alleged disrespect to any of its agents, or attaches such great importance to mere inspections, as to consider them in themselves a sufficient basis for the right to take away a valuable permit from a law-abiding citizen. What is important is for the government to have a reasonable opportunity from time to time to watch and examine the business in such particulars as may throw light upon this “use,” and particularly to examine and analyze at frequent intervals; if they choose, samples of the preparation, for the purpose of ascertaining whether Or not this “use,” authorized by the permit, is the sole use to which, in good faith, the plaintiff is alone authorized to put the alcohol he purchases.

Such information can only be obtained by proper agents of the Commissioner of Internal Revenue. Therefore, when a permit-tee refuses such reasonable information, and refuses such taking of samples, it warrants, not only the inference of bad faith, but also the more important inference that the permit is being used to cover an unauthorized use.

TMs being the legal purpose of the hear-Mg complained of, it does not seem to me that on a preliminary motion, based on affidavits only, with the facts in .dispute, and where no unusual facts appear, and where the extraordinary relief is sought while refusing the government such necessary information and analysis, this court should interfere1 prior to a trial, or restrain a’ hearing apparently provided for by the statute. That there has been a refusal by plaintiff is shown by plaintiff’s papers, and such refusal is based upon three grounds:

Eirst, that Ms formula is a secret one, and hence his preparation should not be so sampled and analyzed. Such contention certainly should not be approved, simply as a general statement, in dealing with the use by a permittee of any kind of alcohol. It should clearly appear to be most unfair and an unusual hardship.

Second, that he has been harassed by repeated taking of samples and other investigations. It cannot be assumed, particularly on affidavits, that this plaintiff or any other permittee has been’unjustly or maliciously harassed or subjected to plainly unnecessary examinations by the Commissioner of Internal Revenue, or any of those duly authorized to make same, and all other kinds of examinations and tests, by which the use referred to can be ascertained, must and should be allowed and borne by a permittee, as a necessary inconvenience, perhaps, to the proper administration of the law, which this plaintiff, as well as every other citizen of this country, who believes in the Constitution and the proper administration of a law carrying it into effect, desires.

Third, that the persons who called to take samples or analysis did not have authority. While there may be a divergence in decisions, there is no ruling by an appellate court, to which my attention has been called,' deciding the question raised as to the status and relation between the Commissioner of Internal Revenue and the so-called Prohibition Unit. It is my opinion, however, that Congress, knowing full well the magnitude of the work of enforcement and the necessity which surely would arise for the proper division of the actual work, intended that the Commissioner of Internal Revenue should and could delegate the authority imposed on him, and that this was intended when they enacted: “Any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose” — title 2, section 1 (7); title 1, section 2 (Comp. St. Ann. Supp. 1923, § 1013814b); title 2, section 28 (Comp. St. Ann. Supp. 1923, § 10138%o) — which seems to mean that the Prohibition Commissioner, and in turn, the Prohibition Director, and in turn the Prohibition Agent, each duly appointed and acting within the scope of their authority, are, while engaged in the work imposed in-the first instance on the Commissioner of Internal Revenue, his agents and a part, for the purpose of this work, of the Bureau of Internal Revenue, and are federal officers whose respective credentials must be respected.

To require a letter to be shown from the Commissioner of Internal Revenue is unnecessary red tape. As well might a patrolman be required to show a letter from the mayor of the city, or possibly from his appointee and subordinate, the commissioner of police. That such authority was duly delegated appears from the affidavits submitted by the defendants. The ultimate responsibility rests on the Commissioner of Internal Revenue. The acts of his agents are his acts. This interpretation, so 'far as I can see, in no way conflicts with any provision of the Constitution, but, on the contrary, seems common sense; based on the necessity of construing new laws to meet new conditions, and to advance and not retard the proper administration of a law, ena'cted to enforce the Constitution.

This decision in no way means that the court has no power to prevent alleged agents from doing or threatening to 'do acts plainly beyond their authority, or to exercise a proper supervision or correction over both principal and agents, where it clearly appears that such is necessary for the protection of rights of citizens, and has been brought to the attention of the principal, without any attempt by him to correct same being made. There is no evidence here of such a condition.

While the act apparently selects the Commissioner of Internal Revenue as the ultimate principal, and allows him to appoint agents as aforesaid, and such agents, acting' within the scope of their’ appointment, represent the said Commissioner, the prohibition of intoxicating liquor as a beverage and the dealing in what might be termed business alcohol, both pure and denatured, could possibly with advantage be supervised by two distinct branches of agents, so that the multitudinous or police duties of those attending to the former would not delay and interfere with business men rightfully dealing in the latter. The act, while it prohibits intoxicating beverages, also seeks to insure an ample supply of business alcohol and promote its use in lawful industry. This in no way would conflict with the fact of agency, but would seem to be rather a matter of administration, for-the Commissioner to consider in such ways as he deemed best.

The plaintiff, having refused on the various grounds, more or less conflicting, above mentioned, to allow the Commissioner, through his agents, to obtain proper information, the defendants did the only thing possible under the law. They proceeded, under section 9 of title 2 of the act, to issue a citation for a hearing, and if at such hearing the acts from which the inference of violation of the law had arisen were proved, and not satisfactorily explained, to revoke the permit, which had been abused.

Pending such a hearing, no circumstances are here suggested to me, from the papers, that would justify this court of equity in interfering at this time and under such' conditions to prevent such hearing, or in exerting itself on affidavits only, and with such a refusal before it, to see that such refusing permittee, charged with had faith, is allowed to purchase more alcohol, which purchase, like a sale thereof, however important, and in the ordinary sense connected with the full enjoyment of the permit, is yet strictly not within the permit, and exists as a prior or subsequent right, incident only to a permit properly used, at least until some reason is clearly shown that said hearing is either not being conducted promptly and 'fairly, to a reasonably quick decision, so that such decision may be promptly reviewed, or that some act has been done by those of whom plaintiff complains that is clearly in violation of the authorization in plaintiff’s permit.

There remains, therefore, but the question raised as to the proper district.

This was raised by an amendment to the notice of motion. As to this question I believe the plaintiff is right. The hearing mentioned should be held in this ease in the Eastern district of New York, which is the judicial district referred to in the statute.. It is apparent, however, that the place is not important in and of itself prior to a decision, as the statute expressly allows the proceeding to be commenced in any district on consent, and until that consent is refused it naturally has to be started somewhere, and as according to the cases such proceeding itself does not create a revocation of the permit, it seems unnecessary to dismiss the proceeding before a hearing simply for the reason that the place in the notice is objected to. Rather it should be directed that the hearing be held in the proper district and that plaintiff be duly notified that the hearing place is changed to a place, etc., in this district. A new citation, however, may be issued, if so desired.

Accordingly I find no grounds which would justify this court in granting an injunction prior to the trial, where the facts are conflicting and a distinct issue of faet is raised by the pleadings. This motion originally came on for hearing on the 26th day of March. On consent of the counsel for both parties, and in order to permit the filing of an amended complaint and various affidavits desired by the parties, it was adjourned from time to time. The court refused, however, to continue, during all such adjournments, the temporary stay contained in the order to show cause. Consequently such stay ceased to exist some time ago, and it is not necessary to vacate same.

Motion denied.


text:
    SHERWOOD et al. v. UNITED STATES.
    (District Court, E. D. New York.
    April 17, 1925.)
    1. Internal revenue <@=26 — Taxation <@=509— Tax lien of United States held subordinate to mortgage lien, real estate taxes, and water charges, and purchasers at foreclosure were subrogated to mortgagees’ rights.
    Lien of United States for taxes due from purchasers from mortgagor was subordinate to purchase-money mortgage, real estate taxes, and water charges, and mortgagees who purchased property at foreclosure sale under judgment of state court were subrogated' to all rights they had as mortgagees.
    2. Internal revenue <@=26 — Tax lien of United States not extinguished by judgment in state court foreclosing mortgage.
    Tax lien of United States was not extinguished by judgment in state court foreclosing mortgage on premises.
    3. Internal revenue <@=26 — District Court not empowered completely to extinguish United States tax liens, but merely to remove liens as cloud on title.
    Under Rev. St. § 3207, as amended by Revenue Act 1924, § 1030, District Court is not empowered to completely extinguish tax liens of United States on premises, but merely to provide for their removal as liens on premises on which they constitute cloud on title.
    4. Internal revenue <©=26 — Cloud of United States tax lien on title of premises sold under judgment foreclosing mortgage by state court removable only by sale under decree of federal District Court.
    Under Rev. St. § 3207, as amended by Revenue Act 1924, § 1030, cloud of United States tax lien on title of premises sold under judgment of state court foreclosing prior mortgage can be removed only by sale of premises by marshal at public auction, under decree of federal District Court free and clear of liens, from proceeds of which, after allowing purchaser for payments for real estate taxes or water rates, mortgagee shall be paid mortgage debt with interest, etc., after which United States shall receive amount due on taxes with interest; any balance remaining going to mortgagees.
    5. Internal revenue <@=26 — Assessments of taxes covered by notice of lien filed by United States conclusively presumed valid; costs of proceedings to determine all claims being on plaintiffs.
    Under Rev. St. § 3207, as amended by Revenue Act 1924, § 1030, subd. (b), assessments of taxes covered by notice of lien filed on behalf of United States are conclusively presumed valid and all costs of proceedings on petition and bill by persons having interest in realty for final determination of claims must be borne by plaintiffs therein.
    In Equity. Suit by John L. Sherwood and others, as permanent receivers of the Atlantic Dock Company, in voluntary dissolution, against the United States, broug'ht by permission of court under Rev. ■ St. § 3207, as amended by Revenue Act 1924, § 1Q30, to determine , liens upon real property.
    Decree adjudicating plaintiffs’ liens prior to tax liens of defendant.
    Cullen & Dykman, of Brooklyn, N. Y. (Francis L. Durk, of Brooklyn, N. Y., of counsel), for plaintiffs.
    Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y., and Guy O. Walser, Asst. U. S. Atty., of New York City.
   CAMPBELL, District Judge.

This is an action in equity brought by permission of this court, after notice, under the provisions of section 3207 of the Revised Statutes of the United States, as amended by section 1030 of the Revenue Act of 1924 (43 Stat. 350), which reads as follows:

’“Sec. 3207. (a) In any ease where there has been a refusal or neglect to pay any tax, and it has become necessary to seize and sell real estate to satisfy the same, the Commissioner of Internal Revenue may direct a bill in chancery to be filed, in a District Court of the United States, to enforce the lien of the United States for.tax upon any real estate, or to subject any real estate owned by the delinquent, or in which he has any right, title, or interest, to the payment of such tax. All persons having liens upon or claiming any interest in the real estate sought to be subjected as aforesaid, shall be made parties to such proceedings, .and be brought into court as provided in other suits in chancery therein. And the said court shall, at the term next after the parties have been duly notified of the proceedings, unless otherwise ordered by the court, proceed to adjudicate all matters involved therein, and finally determine the merits of all claims to and liens upon the real estate in question, and, in all eases where a claim or interest of the United . States therein is established, ishall decree a sale of such real estate, by the proper officer of the court, and a distribution of the proceeds of such sale according to the findings of the court in respect to the interests of the parties and of the United States.

“(b) Any person having a lien upon or any interest in such real estate, notiee of which has been duly filed of record in the .jurisdiction in which the real estate is located, prior to the filing of notice of the lien of the United States as provided by section 3186 of the Revised Statutes as amended, or any person purchasing the real estate at a sale to satisfy such prior lien or interest, may make written request to the Commissioner of Internal Revenue to direct the filing of a bill in chancery as provided in subdivision (a), and if the Commissioner fails'to direct the filing of such bill within six months after receipt of such written request, such person or purchaser may, after giving notiee to the Commissioner, file a petition in the District Court of the United States for the district in which the real estate is located, praying leave to file a bill for a final determination of all claims to or liens upon the real estate in question. After a full hearing in open court, the District Court may in its discretion enter an order granting leave to file such bill, in which the United States and all persons having liens upon or claiming any interest in the real estate shall be made parties. Service on the United States shall be had in the manner provided by sections 5 and 6 of the Act of March 3, 1887, entitled ‘An act to provide for the bringing of suits against the government of the United States.’ Upon the filing of such bill the District Court shall proceed to adjudicate the matters involved therein, in the same manner as in the case of bills filed under subdivision (a) of this section. For the purpose of such adjudication, the assessment of the tax upon which the lien of the United States is based shall be conclusively presumed to be valid, and all costs of the proceedings on the petition and the bill shall be borne by the person filing the bill.” .

There does not seem to be any dispute as to the facts.

The Atlantic Dock Company was the owner of the premises in question, and on the 20th day of May, 1920, the 'then trustees, -in pursuance of an order of the New York Supreme Court, conveyed the said premises to Rodney T. Martinsen for $625,000, the said conveyance was duly recorded, and on the same day the said Rodney T. Martinsen paid $225,000 in cash to the then trustees and executed and delivered to them his bond for the balance of $400,000, with interest thereon at the rate of 6 per cent, per annum, payable semiannually, the principal of said bond to be paid in sums of $50,000 each, on the 20th day of May, 1919, and the 20th day of May, 1920, and the balance on the 20th day of May, 1923; and also a purchase-money mortgage, which was duly recorded in said reg-isteffs office, covering the premises in question, and to secure the said sum with interest as provided in said bond, the said trustees being empowered to sell said premises in case of default in the payment of said principal sum or interest as therein provided.

Thereupon the said Rodney T. Martinsen conveyed said premises to the Ramberg Iron Works, the same being subject to said mortgage. . .

_ Default was made in the payment of the installment of principal which became due on May 1, 1920, and on or about the 2d day of December, 1921, the then receivers commenced an action in the state court for the foreclosure of said mortgage, alleging that there was due them on said bond and mortgage the sum of $308,000, with interest thereon at the rate of 6 per cent, per annum from June 1, 1921.

To this action all persons, firms, or corporations having any right, title, or interest in or lien on the premises, except the United States of America, were made parties defendant, and said action proceeded to judgment.

On a sale of the said premises, the then receivers, to protect their interest as such receivers, purchased the said premises and paid the sum of $28,391.43 for taxes and water charges, which were liens on the said premises, for which they were allowed credit on the purchase price on April 12, 1922.

That on such sale there arose a deficiency for which the then receivers recovered a deficiency judgment, which has never been paid, nor has any payment been made on account of the principal of or interest on said mortgage since the commencement of said action.

Since the then receivers became the purchasers of the said premises on said foreclosure sale, they have paid for taxes on said premises the following sums, on the following dates, to wit: $5,678.65 on May 31, 1923; $5,678.65 on November 28, 1923; $5,-968.50 on May 31, 1924; and $5,968.50 on November 29, 1924.

After the filing of the lis pendens in the foreclosure action in the state court and before the sale in that action, to wit, on the 30th day of December, 1921, there was filed in the office of the clerk of this court and in the office of the register of the county of Kings, by the collector of internal revenue for the First district of New York, on behalf of the United States of America, a notice of lien against the Ramberg Dry Dock & Repair Company, Inc., and the Ramberg Iron Works, Inc., for income, excess profit, and capital stock taxes, for a period commencing some years prior to that time, in the sum of $77,136.24, and thereafter on th? 18th day of July, 1923, after the said receivers had acquired title to said premises on said foreclosure sale, the said collector of internal revenue, on behalf of the United States of America, filed a supplemental notice of lien against the same corporations, in the same offices, in the sum of $17,891.11.

These notices of lien are a cloud on the title of the plaintiffs in this action; the plaintiff Burehard Duteher having succeeded George G. Duteher, deceased, as receiver, by appointment of the state court on the 5th day of September, 1923.

No persons, firms, or corporations have or claim to have any right, title, or interest in or elaim to said premises at this time except the plaintiffs and the United States of America.

This ease is properly before this court, all the jurisdictional requirements having been complied with.

The purchase-money mortgage, which was taken by the plaintiffs when the said premises were sold to said Martinsen, was prior in point of lien to the taxes for which the United States of America claim a lien on said premises, and the plaintiffs herein as purchasers at said foreclosure sale were, subrogated to all the rights which they had as mortgagees.

‘ The lien of the United States of America was not extinguished and concluded by the judgment of the state court in the action brought therein to foreclose said mortgage (United States v. Snyder, 149 U. S. 210, 13 S. Ct. 846, 37 L. Ed. 705), nor has this court, under the statute, section 1030 of the Revenue Act of 1924, supra, power to completely extinguish the lien of the taxes in question, but simply to provide for their removal 'as liens on the premises in question, on which they constitute a cloud on the title.

The lien of the said taxes on the premises in question are subordinate to the said mortgage, and the real estate taxes and water charges levied on said premises, which have been paid by the receivers to protect the said premises covered by said mortgage, and constitute a cloud on the title; but inasmuch as'the United States of America is not bound by the sale in the foreclosure action, the' only way that said cloud can be removed is by a sale of the said premises under a decree of this court, by the marshal at public auction, free and clear, from the proceeds of which sale, after allowing the purchaser for any real estate taxes or water charges which may be liens on said premises at the time of sale, -which the purchaser shall pay and for which it shall present receipts, there shall he first paid to the plaintiffs the amount of -the principal sum of said mortgage with interest, and the amounts which have been paid by' them for real estate taxes and water charges with interest, or if they be the purchasers, by allowing the same as a credit on their bid. Second, if any balance of the proceeds shall remain after making such payment, there shall be paid to the United States of America the amount due to it'for said taxes with interest, in whole or in part, so far as it may be possible. Third, if the proceeds of sale shall be in excess of the amount required to make payment in full of the amounts hereinbefore provided to be paid, firstly and secondly, the balance remaining shall be paid to the plaintiffs.

Under the provisions of said section 1030 the Revenue Act of 1924, supra, the assessments of the taxes covered by the notice of lien filed on behalf of the United States of America, as hereinbefore stated, are conclusively presumed to be valid, and all costs on the petition and the bill herein must be borne- and paid by the plaintiffs.

The amounts to he first paid to plaintiffs from the proceeds of sale are as follows: Balance of principal sum of mortgage, $308,000, with interest thereon at the rate of 6 per cent, per annum from the 1st day of June, 1921; $28,391.43, paid for taxes ■and water charges, with interest thereon at the rate of 6 per cent, per annum from the 12th day of April, 1922; $5,678.65, paid for taxes, with interest thereon at the rate of 6 per cent, per annum from May 31, 1923; $5,678.65, with interest thereon at the rate of 6 per cent, per annum from November 28, 1923; $5,968.50, with interest at the rate of 6 per cent, per annum from May 31,1924; and $5,968.50, with interest thereon at the rate of 6 per cent, per annum from November 29, 1924 — amounting in all- at the date of this opinion to $437,975.93, with interest at the rate of 6 per cent, per annum on the sum of $359,685.73 in addition thereto from the date of this opinion to the date of the payment of the amount due plaintiffs as aforesaid, in whole or in part, as may be warranted by the amount received on such sale or the crediting of the same on the plaintiffs’ bid.

The amounts to be secondly paid to the defendant, if the proceeds of sale after making the payments hereinbefore provided to be first paid to the plaintiffs are sufficient to pay. the defendant’s lien in whole or in part, are the amounts set forth in the two notices of lien, to wit, $77,136.24 and $17,891.11, amounting in the aggregate to $95,027.35, with interest as set forth in said notices of lien.

The terms of sale to be 10 per cent, in cash at the time of sale, the balance in cash, or if the plaintiffs are the purchasers, by credit on the amount due them, on the delivery of the deed, not more than 30 days after the sale.

The purchaser to be allowed credit on the bid for all real estate taxes and water charges which may be liens on said premises, which it may pay and for which it may present receipts.

All cash received by the marshal to be paid into the registry of the court.

Notice of such sale shall be given by publication once a week for four successive weeks in two daily newspapers to be designated by the court in the decree.

Submit decree. Settle the same on notice.


author: CANT, District Judge.

text:
    BISEK v. BELLANGER et al.
    (District Court, D. Minnesota, Sixth Division
    February, 1925.)
    1. Indians 13 — Cancellation of patent to mixed-blood Indian held unauthorized.
    Where mixed-blood Indian, enrolled as such under Act Cong. June 30, 1913, was allotted land under Nelson Act, and given title in fee, \Vith power to sell and convey, by Clapp Amendments, and under Act Cong. May 8, 1906, became subject to laws of state wherein he resided, heldi that, after death of such Indian after he became 21 years of age and alienation by his father, his heir at law, cancellation of the patent was not authorized, under Act Cong. April 23, 1904.
    2. Indians c§= 13 — 'That original allotment was fraudulently induced does not'defeat superior rights of bona fide purchaser of land.
    Where land allotted to mixed-blood Indian under Nelson Act and Clapp Amendments descended to heir, and passed into hands of bona fide purchaser, held,, rights of purchaser were superior to those of government, notwithstanding original allotment and trust deed were induced by fraud.
    3. Indians <®=>l3 — Cancellation of patent, without notice or opportunity for hearing to persons interested, unwarranted.
    Under Nelson Act and Clapp Amendments, where land allotted to mixed-blood Indian descends to heir, who conveyed to bona fide purchaser, there can be no cancellation of patent under Act Cong. April 23, 1904, without notice to person actually interested and opportunity for hearing.

      4. Indians <§=>43 — Validity of attempted cancellation of patent held properly litigated in action to determine adverse claims.
    In. action to determine adverse claims to lands purchased from heir of Indian allottee, validity of attempted cancellation of patent, pursuant to Act Oong. April 23, 1904, may properly be litigated.
    At Law. Action by John F. Bisek against Charlotte Bellanger and others, to determine adverse claims to certain lands.
    Decree for plaintiff.
    L. W. Prendergast, of Le Sueur Center, Minn., and Joseph N. Moonan, of Waseca, Minn., for plaintiff.
    C. C. Cooper, of Mahnomen, Minn., for defendants Bellanger.
    Louis D. Davis, of Waubun, Minn., for defendants Luck Land Co. and Waller.
    P. F. Sehroeder, of Detroit, Minn., and F. D. Beaulieu, of White Earth, Minn., for defendants Boudreau and heirs of George Libby.
    Marshall A. Spooner, of Bemidji, Minn., for defendants Arbitt and wife. ,
    John F. Scott and John E. Martin, both of St. Paul, Minn., for defendant Federal Land Bank of St. Paul.
    Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., and W. C. Preus, Asst. U. S. Atty., of Minneapolis, Minn., for the United States.
   CANT, District Judge.

Harry Tibbetts, was a mixed-blood Chippewa Indian. On December 30, 1902, the United States issued to him a trust patent, so-called, covering the 80 acres of land here in controversy. This land was alloted to him under the provisions of Nelson Act Jan. 14, 1889 (25 Stat. 642). Act May 8, 1906 (34 Stat. 182), provides that all Indian allottees, with patent in fee to their lands, shall be subject in all things to the laws of the State wherein they - reside. This would include the laws with respect to the probate of estates. On june 21, 1906, and March 1, 1907, the so-called Clapp Amendments were passed. They are respectively 34 Stat. 325, 353, and 34 Stat. 1015,1034. These ámendments gave adult mixed-blood Indians title in fee to their allotted lands, with power to sell and convey the same. Tibbetts died during the year, 1907. Thereafter Rock G. Tibbetts, the father of said deceased, by warranty deed, conveyed the lands here in question, and by successive conveyances thereunder the plaintiff claims title. The estate of Harry Tibbetts was probated in Cass county, Minn., in which county he died, and in that proceeding the said Rock G. Tibbetts was held to be his sole heir. Plaintiff’s rights in the land, if any, were acquired in the year 1914. In the year 1920, and without notice to plaintiff, the Land Department of the United States in form canceled the patent to Harry Tibbetts, which cancellation, if valid, would annul plaintiff’s claim to the land. After such attempted cancellation, various of the defendants and interveners have made application to have said land allotted to them.

Under the authority of Act June 30, 1913 (38 Stat. 77, 88), the Enrollment Act, it was duly determined and is a matter of record that Harry Tibbetts was a mixed-blood Chippewa Indian, that he died on October 7, 1907, and that he was 21 years of age at the time of his death. Upon these points, this record is conclusive. Aside from the language of the statute, there are persuasive practical reasons why this formal document, prepared with great care, should be final. The law and the enrollment covered allottees on the White Earth Reservation. 'Harry Tibbetts was such an allottee.

This is not the case of a mixed-blood protesting against his accepting the benefits of the Clapp Amendments, which, being greatly in his favor, would presumably be accepted by him. It is the case of the government passing the Clapp Amendments, and then proceeding arbitrarily to ignore their existence and cancel the trust patent, as though no such acts were on the books, and wholly irrespective of what the attitude of the mixed blood may have been. It is like saying in one breath, “We have emancipated you,” and in the next, “We have not” This cannot be done.

In 1920, therefore, the United States was not holding the title to these lands in trust. Baker v. McCarthy, 145 Minn. 167, 176 N. W. 643; United States v. Waller,243 U. S. 452, 37 S. Ct. 430, 61 L. Ed. 843. Under such circumstances, Act April 23, 1904 (33 Stat. 297), giving the right of cancellation to the Secretary of the Interior, does not apply.

Even if the original allotment and the. trust deed were induced through fraud, the equity of a bona fide purchaser thereunder would be superior to the rights of the government. U. S. v. Debell, 227 F. 760, 763, 142 C. C. A. 284. Plaintiff was and is a bona fide purchaser of the land in question.

There could be no cancellation without notice to the person actually interested and opportunity for a hearing in reference to the action proposed. Any other course, would be without due process of law. So are all the authorities. Garfield, Sec’y., v. U. S. ex rel. Goldsby, 211 U. S. 249, 29 S. Ct. 62, 53 L. Ed. 168.

The validity of the attempted cancellation may properly be litigated in this action. The application on behalf of Harry Tibbetts for the lands in question took precedence of all other applications made therefor.

A decree should be entered in favor of plaintiff in accordance with this opinion.


author: POLLOCK, District Judge.

text:
    DERBY OIL CO. v. MOTTER, Collector of Internal Revenue.
    (District Court, D. Kansas, Second Division.
    March 26, 1925.)
    No. 626.
    1. Internal revenue @=»9 — Oil refinery held not subject to transportation tax; “transportation.’-’
    A corporation operating a petroleum refinery in or near a producing field, which obtains its crude oil through its own small gathering pipe lines running to the wells, is not engaged in the business of transporting oil, but its “transportation” is merely incidental to and a part of its refinery business, and it is not subject to the tax imposed'by Revenue Act 1918, § 500, subd. (e), being Comp. St. Ann. Supp. 1919, § 6309%a, subd. (e).
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transport-Transportation.]
    2. 'Internal revenue ®=>9 — Oil refinery held not subject to transportation tax.
    If such corporation be considered a carrier of oil by pipe line, it is exempted from the tax by Revenue Act 1918, § 501, subd. (c), being Comp. St. Ann. Supp. 1919, § 6309%b, subd. (c), providing that nothing in the preceding section shall be construed as imposing a tax “(1) upon the transportation of any commodity which is necessary for the use of the carrier in the conduct of its business as such and is intended to be so used or has been so used.”
    At Law. Action by the Derby Oil Company against H. H. Hotter, Collector of Internal Revenue for the District of Kansas. On tbe merits. Judgment for plaintiff.
    C. G. Yankey, of Wiebita, Kan., John H. Brennan, of Tulsa, Okl., and L. P. Brooks, of Wiebita, Kan., for plaintiff.
    Al F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., and Nelson T. Hartson and Chas. T. Hendler, Associate Solicitors of Internal Revenue, both of Washington, D. C., for defendant.
   POLLOCK, District Judge.

This is an action at law, brought by plaintiff to recover from defendant certain taxes paid by plaintiff under protest. A demand for refund of same having been made and denied, this action was brought. The taxes were assessed by the government against the plaintiff under the provisions of. the Act of February 24, 1919. By stipulation the amount of recovery, if allowed to plaintiff, is fixed by stipulation of parties at $6,590.18, with interest thereon from date paid.

The question presented arises in this manner. The plaintiff was engaged at the time the tax was laid in the business of producing oil in the field in Butler county, this-state, from its own wells,' conducting this oil in small 2 and 3 inch pipes about 30 miles to its refinery in Wichita, and there refining the same, and in' marketing the refined products. In addition to this it did purchase from tanks in the oil fields some crude oil which was produced by others, and carry the-same through its- pipes to its refinery, and there use the same in the conduct of its business, the same as the crude oil produced from its own wells. The question presented on this state of facts is: Was the plaintiff liable for the payment of a tax under the provisions of sections 500 and 501, commonly called the law of 1918, the same being the act of Congress of February 24, 1919 (Comp. St. Ann. Supp. 1919, §§ 6309%a, 6309%b), the pertinent provisions of which said act read as follows:

“1918 Law. Title V. — Tax on Transporta-tation and Other Facilities, and on Insurance.
“Sec. 500. That from and after April 1, 1919, there shall be levied, assessed, collected, and paid, in lieu of the taxes imposed by section 500 of the Revenue Act of 1917.
* ifr •*
“(e) A tax equivalent to 8 per centum of the amount paid for the transportation on or after such date of oil by pipe line. * * •*
“Sec. 501. (a) That the taxes imposed by section 500 shall be paid by the person paying for the services or facilities rendered.
* * ♦
“(c) The taxes imposed by section 500 shall apply to all services or facilities specified in such section when rendered for hire, whether or not the agency rendering them is a common carrier. In ease a carrier (other than a pipe line) principally engaged in rendering transportation services or facilities for hire does not, becaiise of its' ownership of the goods transported, or for any other reason, receive the amount which as a carrier it would otherwise charge, such carrier shall pay a tax equivalent to the tax which would be imposed upon the transportation of such goods if the carrier received payment for such transportation, such tax, if it cannot be computed from actual rates or tariffs of the carrier, to be computed on the basis of the rates or tariffs of other carriers for like services as determined by the Commissioner.
“In the ease of any carrier (other than a pipe line) the principal business of which is to transport goods belonging to it on its own account and which only incidentally renders services for hire, the tax shall apply to such services or facilities only as are actually rendered by it for hire. ’ Nothing in this or the preceding section shall be construed as imposing a tax (1) upon the transportation of any commodity which is necessary for the use of the carrier in the conduct of its business as such and is intended to be so used or has been so used; or (2) upon the transportation of company material transported by one carrier, which constitutes a part of a railroad system, for another carrier which is also a part of the same system.
“(d) The tax imposed by subdivision (e) of section 500 shall apply to all transportation of oil by pipe line. In case no charge for transportation is made, by reason of ownership of the commodity transported, or for any other reason, the person transporting by pipe line shall pay a tax equivalent to the tax which would be imposed if such person received payment for such transportation, and if the tax cannot be computed from actual bona fide rates or tariffs, it shall be computed (1) on the basis of the rates or tariffs of other pipe lines for like services, as determined by the Commissioner, or (2) if no such rates or tariffs exist, on the basis of a reasonable charge for such transportation, as determined by the Commissioner.”

The Commissioner of Internal Revenue, with the approval of the honorable Secretary of the Treasury, after due consideration of the question, decided the plaintiff, and others conducting a similar business, was liable for the payment of a transportation tax under this law. Hence plaintiff was compelled to and did under protest pay the tax assessed under the act for the period the same remained in force; that is, from April 1, 1919, to December 31, 1921. A claim for refund was made by plaintiff and immediately denied by the government. Hence this action to recover the amount above stated.

The solution of the problem whether the plaintiff was liable under the act for the tax assessed against it must, in my judgment, be arrived at from a consideration of the nature of the business in which plaintiff was engaged at the time the tax was assessed against it, and, having this determined, to then consider whether the business done by plaintiff fell within the provisions of the act. Now, in a consideration of these questions, it must be thought the law-making power acted with a due regard to the natural and fundamental laws of the oil trade and business. This being true, Congress knew, as do all men, it is impossible to locate, build, and operate a refinery at the mouth of each and every producing oil well in an oil field; but, on the contrary, a refinery could be built and operated successfully at one only of two possible locations, either close to the producing field, where an adequate supply of crude oil may be had through small gathering lines run to the wells in the field, as in the ease at bar, or in a large distributing center, where the refined products can be readily disposed of, but the crude must be carried a great distance through pipe lines.

In the ease first instant, the refined products are transported after the operation of refining is undergone, and a transportation tax is imposed and paid thereon under the act. In the second ease, the crude oil is transported to a commercial center before refining, and when refined is there sold on the market, in which case the crude oil is transported and should bear the transportation tax. Now, in the case at bar, the oil company plaintiff is engaged in the business of refining oils. For the purpose of conducting this business it must have a daily constant supply of crude oil. This supply it obtains in the nearby fields through its gathering lines, but its wells, its gathering line, its oil tanks,' and' all other such appliances are simply a part and parcel of its refinery, and the offices they perform in the business are merely incidental to the actual and only business conducted by the plaintiff; that is to say, the plaintiff is in no just sense a carrier of goods or commodities at all, nor is it engaged in the business of transportation of commodities or goods. It is simply a manufacturer of refined oils from the crude product, which it digs or buys and brings to its plant, in like manner as a lumberman cuts and brings the logs from the forest to his mill, or a smelter the ores dug from the ground to the location of the smelter. Thus viewed, the business of plaintiff did not fall under the category of one engaged in the business of transportation, and was not within the. purview of the act above quoted.

However, should this conclusion as to the true nature of the business in which the plaintiff was engaged be wrong, and the plaintiff should be determined to be a carrier engaged in the business of transportation, and not a refinery engaged in the business of manufacturing, in such ease the transportation of the oil in the gathering lines is its principal business, and the act of producing the oil and refining the same are merely incidental, and simply a part and parcel of its main or principal business as a carrier or transporter. But this conclusion, if reached, and which under the facts of this ease is not supported by the evidence, the rights of the government to the tax which it claimed and collected is not sustained, but is denied by the express provisions of the act itself, for section 501, subdivision (c), being Comp. St. Ann. Supp. 1919, § 6309%b, among other things, prohibits this court, the taxing officers, and all others, from so construing the - act in the following language: “Nothing in this or the preceding section shall he construed as imposing a tax (1) upon the transportation of any commodity which is necessary for the use of the carrier in the conduct of its business as such and is intended to be so used or has been so used.”

Hence, if the principal business of the plaintiff he considered to have been that of a carrier or transporter of oil, yet as the refining business in such ease was incidental to and merely a part and parcel of such business, then the prohibition here found forbids the tax which was levied and' paid in this case. Therefore the government was not entitled to the tax under the act in question, and must refund the tax paid as stipulated.

There will be judgment for the plaintiff for the stipulated amount, and interest from date of its payment. It is so ordered.


text:
    THE MATTIE.
    (District Court, E. D. New York.
    January 19, 1924.)
    1. Towage <@=l I (I) — Tug not insurer of tow.
    Tug is not insurer of tow.
    2. Collision <§=123 — Towage <§=!5(2) — Libel-ant seeking damages from collision has burden of proving negligence.
    Libelant seeking damages, from collision of tow with abutment of bridge, either through negligence of tug or negligence of pile driver, in violating Act March 3, 1899, § 15 (Comp. St. § 9920), has burden of proving negligence.
    3. Towage <§=l I (I) — Captain of tug held negligent, and tug liable for injury to tovi.

    Captain of tug held negligent in proceeding with tow into position such that he was compelled to take unnecessary chances with tow in endeavor to extricate himself, rendering tug liable for injury to tow.
    4. Navigable waters <§=23 — Pile driver creating danger to vessel using channel may be liable under statute for damages.
    Under Act March 3, 1899, § 15 (Comp. St. § 9920), declaring it unlawful to tie up or anchor vessels or other craft in navigable channels in manner to prevent or obstruct passage of other vessels or craft, pile driver tied at end of pier near drawbridge, in manner to create dangerous situation, for vessels desiring to use draw, may be liable for damages proximately resulting.
    5. Navigable waters <@=23 — Pile driver’s obstruction of channel held not proximate cause of damage.
    Where tug' captain, after seeing pile driver tied at end of pier so near to draw as to render use of draw unsafe, continued to proceed 'until he reached such position that he was' forced to take unnecessary chances with his tow in effort to extricate himself, held, captain’s negligence was proximate cause of injury to tow, and pile driver was not liable because of its obstruction of course, notwithstanding Act March 3, ¿899, § 15 (Comp. St. § 9920).
    In Admiralty. Libel by Cleary Bros., Inc., against the steam tug Mattie, her engines, etc., wherein libelee petitioned in Allen N. Spooner & Son, Inc., owner o£ pile driver No. 3.
    Decree for libelant against the tug only.
    Affirmed 5 E.(2d) 1001.
    John R. McMullen, of New York City, for libelant.
    Whittman, Ottinger & Ransom, of New York City, for the Mattie.
    Duncan & Mount, of New York City, for pile driver No. 3.
   INCH, District Judge.

About midday .September 21, 1922, the tug Mattie was towing the scow Roslyn up the Bast River. It was a clear bright day with apparently no wind to speak of or any unusual condition of weather or tide. As one witness said, “It was a fine day.”

The scow was loaded with sand and gravel and was being towed behind the Mattie, by means of hawsers. These hawsers were about 40 feet long and ran from the stern'of the tug to each corner of the bow of the scow.

The tug and scow was proceeding up the East River and running with the tide, which was just beginning to flood. .At Willis avenue, a bridge crosses the river. This bridge bas two draws, one on the west or Manhattan side, and one on the east or Bronx side. Between these two draws in the middle of the bridge and dividing the river into two channels is a rugged stone support, and on the east side and west side of these two so-called channels is a similar stone abutment.

'The scow in question is owned by the libel-ant Cleary Bros., Inc.

The East River at this point is a well-known and busy thoroughfare. It. seems at certain parts of the tide each day a current sets in some distance below the bridge, and this has a tendency to run towards the Manhattan side until a few blocks below the bridge, where it turns and approaches in a diagonal direction the east or Bronx side.

Whether or not this current was running at the time of the accident is disputed; the libelant claiming that the tide had reached a condition, at least one-half hour before the accident, where its effect would be un-notieeable. However, it seems that when the current is running, tug captains prefer to take the west side or Manhattan draw in going up the river.

Apparently the tug Mattie was so proceeding in the direction of the west draw, but then changed her course and endeavored to pass through the east draw. In doing so the starboard side of the bow of the scow Roslyn drove against the corner of the aforesaid stone abutment on the land or east side of this east draw and was damaged. Both the towing hawsers broke, and the scow and the tug Mattie proceeded to drift through the east draw. The tug later succeeded in again getting hold of her tow, and the latter was beached.

The libelant claims that the scow Roslyn was damaged by reason of the negligence of the tug. The tug claims that it was not negligent and blames the whole accident upon a large pile driver No. 3, which at the time was lying alongside the end of a pier at the foot of 126th street, a little below the west or Manhattan draw.

The owner of this pile driver No. 3, the respondent Allen N. Spooner & Son, Inc., was thereupon duly petitioned in by the tug, and has answered, denying any negligence or liability.

There is no evidence that the scow Roslyn was at fault in any way. The tug was not an insurer.

The sole question therefore is: Was this scow damaged simply in an accident for which no one is liable, or was she damaged by negligence on the part of the tug or the; pile driver No. 3, or both? The burden of: proof was on libelant to prove negligence. <

Taking up the liability,, if any, of the tug Mattie, it seems to me plain when all, the testimony is considered that her captain, was negligent. The time was about noon, a. clear fine day, and that there was no unusual, disturbance in the water or other conditions in this much traveled channel. The conclusion is irresistible that the captain of the tug carelessly proceeded with his tow into a situation where, in his endeavor to extricate himself, he was compelled to take unnecessary chances with his tow and unfortunately he was not successful in avoiding damage to it.

The testimony of Capt. Parkhill, a disinterested witness, called by the tug, in my opinion, confirms this view. This witness was a licensed captain in charge of a tug boat Golden Age for the Newtown Creek Towing Company, and on the day in question had a coal boat alongside and was proceeding up the East River towards the Willis Avenue Bridge’ a little behind of, and going in the same direction as, the Mattie with the Roslyn. The mere fact that the Roslyn was being towed behind the Mattie while Capt. Parkhill’s tug had her tow alongside is unimportant, for the reason that I refer to this testimony, not to show a method of towing, but that the navigation of the Mattie was blameworthy. This witness says that when he got up about 119th street, which is about 8 or 9 blocks away from the Willis Avenue Bridge, he saw the Mattie and her tow ahead of him; “there is no use of two boats going up around that bridge at the same time, and I slowed down to let him go through the bridge.” He then says that he waited, heard the Mattie blow an alarm several times, and that he saw the derrick of the pile driver over certain carfioats that were sticking out into the river which has a slight turn about that point. When Park-hill had proceeded slowly around and up to about 123d street, he says: “I saw him maneuvering around there, and the first thing I saw the Mattie shoot for the Bronx draw. He was slowed down and was blowing his whistle, and I stopped my boat still, and laid there.” A little later in his testimony he says: “When I got there (referring to a place where he could see clearly), I saw the pile driver was laying on the end of the dock, and I had to try to make that Manhattan draw myself and blew an alarm to see if I could get him off the end of the dock.” “I was headed for the Manhattan draw, yes; but I saw the pile driver, and I knew I could not make the Manhattan draw and took a chance with the other draw.” “When I got up aroiind 125th street, I saw the pile driver laying there, and I knew I could not make that draw, and I got myself in shape for the other draw.” “This was about a block and a half or two blocks away from the bridge.”

This witness had testified he had seen the derrick of the pile driver about four blocks away, and says that when he got about two blocks, which was about 125th street, he saw the pile driver plainly, and that then, “when I saw the pile driver, I knew I could not make that draw and had my boat alongside and I could shape my course up.” He did so and passed safely through the east or Bronx draw. It may be argued that both of these captains took chances, as Parkhill admits he did; but it seems to me that no one can consider all the testimony without coming to the conclusion that the captain of the Mattie neglected to exercise that prudence and caution which an ordinarily prudent captain should exercise, and on the contrary allowed himself to get into this dangerous position because of a reliance entirely upon a blowing of his whistle which should have been shown to him some time before to be a vain thing. It is like an automobile approaching a crossing simply relying on the blowing of the horn. Reasonable care calls for exercise of eyesight as well. The great preponderance of evidence shows that this large and cumbersome pile driver was still and fast to the end of the pier. I believe that any alleged maneuvering was but an excuse of a negligent captain. This was not an error of judgment in extremis. It was neglect. The captain of the Golden Age testified he heard him blowing whistles several blocks away.

It seems to me proved that the captain of the tug, by the exercise of reasonable prudence and care, could have seen that his reliance on whistles alone was a vain.and useless thing, and he should have thereupon shaped his course for the Bronx draw.

That the above was apparent to Capt. Parkhill was admitted by him, and it seems to me that it should have been equally apparent, in the exercise of reasonable care, to the eaptain-of the Mattie.

The fault therefore was that the captain of the Mattie carelessly allowed himself to get into a position where he had to take, in view of the state of the tide, not only a chance but a very dangerous chance.

The pile driver No. 3 presents an entirely different question. There was no collision between it and the scow. Lying off the end of a pier, may, of itself, be perfectly safe and proper and entirely protected from attack by reason of any statute which relates to vessels going in or out of the slip. It was not anchored in the channel. The question as to permit was not rais^ ed in any way on the trial. Yet it is plain that this pile driver No. 3 by its bulk and position at the end of the pier, and so near the west draw, created a dangerous situation to vessels desiring, at that state of the tide, to use the west draw.

One witness stated in substance that he called to those in charge of the pile driver that it was dangerous, and it appears that the Golden Age and the Mattie both decided that they could not make the west draw; the latter carelessly waiting until the hazard had been greatly increased. The east draw at the state of the tide was apparently not the customary one to take, yet the presence of the pile driver No. 3 compelled vessels to take this draw, although they were entitled to use the west draw.

The fact that the Mattie carelessly came to its decision does not relieve the pile driver No. 3 from blame if it was also in the wrong.

If the master of the pile driver No. 3 had gone around and into the slip instead of 'tieing up at the end of this pier, where it remained for several hours, the Mattie and the Golden Age would have passed up the west draw. So far as I can see, there was no reason for tieing up there. The master said he had no orders, and that he went ashore to find out what was wanted of him to do.

The claimant cites section 15, Act March 3, 1899 (30 Stat. 1152; U. S. Comp. St. § 9920), which reads, in part: “It shall not. be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft.”

The pile driver No. 3 was in or substantially in the channel but a short distance from the west draw. It was tied up; it prevented or at least obstructed the Mattie and her tow from going up the west draw as it did the Golden Age. It compelled the Mattie to take the east draw.

■ Cases under this statute relate largely to collisions with other vessels, and anchoring in channels. Other statutes relating to the use of a pier do not apply. However, this statute, forbidding the tieing up of vessel in navigable channels in such a way as to obstruct the passage of other vessels, seems to me to impose a duty, for violation of which the offending vessel must respond in damages, if found to have been a eause of damage. Was this neglect of a duty one of the causes of the damage here ?

Had the Mattie attempted to go up the west draw and she and her tow collided with the pile driver No. 3, or been damaged against abutments of the west draw, not only would the statute apply, but the breach of duty imposed by it might have been one of the proximate causes of the damage. The Mattie did not do this, however, but decided, too late, to go up the east draw. I cannot find that this east draw was so inherently or plainly dangerous as to be likely to eause damage to any tug and tow going through it. I cannot speculate or guess about it. So far as I ean see, if the Mattie had carefully shaped her course for the east draw when it plainly appeared that the pile driver was tied up, she could have made the east draw safely. If this is so, then the violation of the statute was not one of the proximate causes of the damage. There is therefore no liability on the part of the pile driver No. 3, and the petition against it must be dismissed.

Decree for libelant against the tug.


author: PER CURIAM.

text:
    CLEARY BROS., Inc., Libelant-Appellee, v. Steam Tug MATTIE, Her Engines, etc., Thomas F. Felder, as Receiver, etc., Claimant-Appellant; PILE DRIVER NO. 3, Her Engines, etc., Allen N. Spooner & Son, Inc., Claimant-Appellee.
    (Circuit Court of Appeals, Second Circuit.
    January 23, 1925.)
    No. 133.
    Appeal from the District Court of the United States for the Eastern District of New York.
    Whitman, Ottinger & Ransom, of New York City (Colley E. Williams, of New York City, of counsel), for appellant.
    John R. McMullen, of New York City, for appellee.
    Duncan & Mount, of New York City (Warner Pyne, of New York City, of counsel), for Allen N. Spooner & Son, Inc., ap-pellee.
    Before ROGERS, MANTON, and HAND, Circuit Judges.
   PER CURIAM.

Decree (5 F.[2d] 998) affirmed.