text:
    ALUMINATE CO., Inc., v. AKME FLUE, Inc.
    No. 1685.
    District Court, D. Maryland.
    June 8, 1931.
    Bartlett, Poe & Claggett, of Baltimore, Md., for plaintiff,
    Venable, Baetjer & Howard, of Baltimore, Md., for defendant.
   WILLIAM C. COLEMAN, District Judge.

The present suit arises under the patent laws and is based upon alleged infringement by the defendant of a patent upon a device for extracting soot and grease from flue gases escaping from gas ranges. The patent, No. 1,722,005, was issued July 23, 1929, to Joseph A. McCarthy, and the plain-' tiff now owns it by virtue of assignment. The patent contains sixteen claims, but infringement is based upon six claims only, namely, those numbered 9, 10, 11, 12, 15, and 16. Defendant’s device, of which plaintiff complains, is manufactured and marketed under patent No. 1,771,024, issued July 22, 1930, to Robert S. Baeheler and assigned to the defendant company.

Plaintiff’s device is summarized as follows in the McCarthy specifications: “This invention relates to a means for extracting soot and grease from fiue gases by leading same through a collar on top of which is supported a curved or sector shaped hood with filtering material supported in and against the curved wall of the hood. All particles from the ascending grease and soot laden vapors impinge on the filtering material, the hot gases escaping after depositing said soot and grease in the filtering material. This construction is an absolute guarantee against flue congestion because the clogging up of the filtering material would in no way interfere with combustion or the circulation of air or gases in the fiue.” Defendant’s device is described as follows in the specifications of the Baeheler patent: “This invention relates to a heat diverter and more particularly to a flue cover and deflector of the type generally associated with the flue collar or stack of a gas cooking range for the purpose of covering the top of the flue or stack and deflecting the gases comprising the products of combustion in a downwardly and forwardly direction whereby their tendency to be deposited on the walls and neighboring objects is reduced to a minimum.

“The object of this invention is to provide a heat diverter that may be easily attached to a flue, and also easily demountable with respect thereto for purposes of cleaning or replacing the same, said heat diverter being of an inverted trough shaped form and provided with spaced longitudinally positioned openings in the front of said heat diverter to facilitate the discharge of the products of combustion gently and without violence and discomfort in a downwardly and forwardly direction.”

Shorn of technical phraseology, both devices, as embodied in the five claims of the Baeheler patent and in the six claims of the McCarthy patent here in suit, may be described generally as a structure to be attached to a gas range or stove for the ventilation of the oven, consisting of a demountable tin collar or chimney attached to the outlet flange of the gas range and upon which there is a cowl or hood of tin, or other suitable material, having an interiorly curved surface against which the rising gases impinge and are deflected forwardly toward their point of discharge, which is accomplished by reason of the fact that the top and side'walls of the hood extend beyond the collar and have front and bottom openings in this extension. Briefly stated, the object of the curved hood with its openings, in the Bacheler patent, as disclosed by the specifications, drawings, and claims, is to deflect the current of grease and soot laden gases downwardly after rising vertically from the oven, so that they do not diffuse themselves into the room or against the users of the range, but are thrown downwardly onto the top surface of the range, from which the accumulated grease and soot may be more easily removed. There is no provision for any medium, within the device itself, for extracting or disposing of the soot or grease. In the McCarthy patent, the object of the curved hood, with its openings, as disclosed by the specifications, the drawings and the ten claims not here in suit, is twofold — i. e. to serve as a case and support for the filtering medium, i. e. metal wool, or other suitable material, upon which the grease and soot are arrested; and (2) to serve as an outlet for the hot gases after separation and deposit of the soot and grease on the filtering material. However, in the six claims of the McCarthy patent that are here in suit, while each describes in substantially similar language the curved hood with front opening, or with both front and bottom opening, there is no embodiment of the filter device in any form.

Plaintiff asks for injunctive relief, for an accounting, and for treble damages pursuant to the provisions of the statute. Rev. St. § 4921 (35 USCA § 70).

Defendant resists the charge of infringement on four separate grounds: (1) That the claims of the McCarthy patent in suit are invalid on the ground that they are broader than the McCarthy invention as described in the specifications and drawings, unless by construction those claims be limited to a collar and hood equipped with a Alter mat located at one side or against one wall of the hood, and that, if so construed, the claims are not infringed by defendant’s device; (2) that the claims of the McCarthy patent in suit are invalid because addressed to matter not described in the - specifications which form part of the original application for the patent, and more particularly, because such alleged new matter is not supported by the oath of the inventor in accordance with the requirements of the patent law; (3) that defendant’s device, manufactured and marketed under the Bacheler patent, is radically different, structurally and functionally, from that of the McCarthy patent, and more particularly, since the McCarthy patent, if not in fact void for anticipation by prior patents, is at most a mere improvement over an invention in a crowded art, and is in nO’ sense a pioneer invention, infringement, therefore is not shown to have occurred; and (4), that the McCarthy patent is void in toto, because of the marketing by plaintiff’s predecessor in business of the McCarthy device more than two years prior to the patent application.

At the commencement of the hearing plaintiff filed a motion to strike out paragraphs 9, 13, and 16 of defendant’s answer. Since a ruling on this motion was deferred, and since it now appears that the grounds for the motion, and the alleged objectionable paragraphs of the answer relate to questions of defense which, for the reasons hereinafter explained, it becomes unnecessary to decide, the abstract merits of plaintiff’s motion need not be considered, and so it may be overruled without affecting the result.

Addressing ourselves to the first of the four above enumerated grounds of defense made by the defendant company, it is, of course, well settled that the language of every claim in a patent must be viewed in the light of the specifications and drawings, and that a claim broader than the described invention is void. Carleton v. Bokee, 17 Wall. (84 U. S.) 463, 21 L. Ed. 517; Victor Cooler Door Co. et al. v. Jamison Cold Storage Door Co., decided by the Circuit Court of Appeals for this Circuit, 44 F.(2d) 288; Black & Decker Mfg. Co. v. Baltimore Truck Tire Service Corp., also decided by the Circuit Court of Appeals for this Circuit, 40 F.(2d) 910; In re Burnelli (Cust. & Pat. App.) 38 F.(2d) 891; General Electric Co. v. Nitro-Tungsten Lamp Co. (C. C. A.) 266 F. 994. It therefore becomes necessary, ab initio, to determine whether or not, as defendant contends, the filtering material, with its location in the McCarthy patent, is an indispensable component part of the patented device. If it is, since it is not expressly referred to in any of the six claims upon which plaintiff relies in the McCarthy patent, those claims must be held to be void as not responsive to the specifications and drawings, unless they may by implication be construed to include the filtering material.

There are a number of reasons which compel the conclusion that all of the six claims in suit are too broad to permit, by any reasonable interpretation, of their being brought within the specifications and drawings, and they are therefore void. In the first place, the specifications expressly state that the McCarthy device is an improvement upon the same inventor’s device covered by his patent No. 1,620,266, issued March 8,1928. In the specifications of this earlier patent it is stated:

“The primary objeet of the invention is to provide means for extracting soot and grease from flue gases arising from gas stoves, or the like, for preventing the scorching and staining of the surrounding walls and woodwork.
“I am familiar with the attempts made to extract and consume the soot and grease from heated gases arising from gas stoves, more particularly the oven portions of the same, by locating a body or bodies of metal wool in the flues through which said gases pass. I have discovered, however, that small particles of the wool disintegrate and fall back into the chamber from whence the gases came. If this chamber is the oven of a stove, the small metallic particles are apt to lodge in the food being baked, with the result that the latter may be poisoned.
“According to this invention, I have discovered that by contacting such gases with a closely meshed metal gause body or bodies for a brief interval during its passage through a flue, the soot and- grease present in the gases will be extracted and the purified gases will be permitted to pass on.” '

The improvement over this earlier patent is claimed to lie in the fact that the filtering material is changed from a position traverse to the bore of the flue, to the back or curved wall of the hood. This is expressly so stated in the opening paragraphs of the specifications in the second McCarthy patent as follows:

“The inventor, being familiar with flue construction and the means for extracting soot and grease from flue gases, has seen the necessity for making an improvement over the specific invention described and claimed in his existing patent No. 1,620,266', dated March 8th, 1927. Heretofore soot and grease extractors for gas ranges have had the filtering material traversing the bore of the flue, and said material therefore sooner or later becomes clogged and causes congestion in the flue, with the attending danger of a carbon monoxide gas being given off from the gas range due to' incomplete combustion.
“This invention relates to a means for extracting soot and grease from flue gases by leading same through a collar on top of which is supported a curved or sector shaped hood with filtering material supported in and against the curved wall of the hood.”

In the second place, the remarks of the inventor, McCarthy, before, the Patent Office, as evidenced by the file wrapper, at the time he was prosecuting various amended claims which ultimately resulted in the issuance of the patent with the claims which are now in suit, definitely substantiate a finding that the filtering material is an indispensable element of the patent. For example, on November 6, 1928, McCarthy said, in prosecuting these amendments: “ * * * A metallic mat is necessary to eliminate grease and soot, under the high temperature of a gas range where applicant’s device is adapted for use with a temperature as high as 500'° F. For filtering grease and soot at such high temperature a metallic mat is necessary and such gases must pass through the same to leave and deposit the soot and grease.” And again on April 24, 1929, he said: «“The new claims refer to a flue attachment for the outlet vent of a gas range for the purpose of removing soot and grease from gases and products of combustion outletting through the vent, the claims referring to a collar to be mounted upon the flue vent with a curved hood upon the upper end of the collar. * * * The hood is lined with an absorbent material for extracting soot and grease from gases and products of combustion passing through the collar- and hood. The new claims presented herewith are drawn to cover these features. * * * ”

Again, we find abundant support for the same conclusion in plaintiff’s trade circular illustrating and advertising its device, and complaining that defendant’s device merely imitates and infringes without giving the requisite results. For example, in this circular we And the following statements, accompanying which is a drawing of plaintiff’s device in operation showing the filtering or absorbent material, and also a drawing simulating defendant’s device in operation:

“You will note the Aluminate Deflector is so constructed as to allow the free and unimpeded escape of the products of eombustion with the grease and soot impinging the inner surface of the deflector, preventing same from escaping into the room. (Warm air ascends and unless deflected forward of the gas range, will draw the dust in the room to it, depositing same on the wall).”

“A glance at this device [illustrated by drawing of device similar to defendant’s] will show you what is wrong with the construction. The 500 degrees of heat issuing forth from an oven with great velocity, do so in a cycle motion, with the result, that the products of combustion instead of having free passage, deflect back into the cap, causing congestion in the oven, improper combustion, (which is dangerous), sweating of the oven and linings with the final rusting of the range- — -giving it a short-life. In addition, this heat is deflected directly on top of the range and against the back strip, with the result same becomes badly scorched, the enamel cracking. This device has east-iron sides, with a sheet steel top, so when the 500 degrees of heat hit these parts, the expansion of the sheet steel being greater than the cast-iron an opening on each side is created, where the products of combustion escape, at the same time badly scorching the edges of the sheet steel cover. This device has no absorbing material.”

The completely impractical nature of plaintiff’s device, if the filter material is discarded, is so apparent as also to lead to the conclusion that such material is an indispensable component part of the invention. The fact is not contradicted that, in the absence of the filtering medium in plaintiff’s device as disclosed by both specifications and drawings, the hot gases carrying the soot and grease, or other deleterious matter, would be ejected for the most part, if not exclusively, through the front or vertical grilled opening of the hood for a distance of several feet forward or horizontally in the face or against the body of the person using the stove, which would obviously be so objectionable as to render the device unmarketable. This method of operation would be directly contrary to what we have seen to be the primary advantage of plaintiff’s device as claimed in the specifications, in the statements before the Patent Office, and in its trade circular. The undesirable result is obviated in defendant’s device by the fact that the primary opening of the hood is parallel with the top of the stove, and the vapors containing the grease or soot are projected by the semieylindrieai wall of the hood through this opening, downward upon the stove, and not in an outward direction towards the operator. Some of the-solids may adhere to the inner surface of the wall of the hood. A small portion of the grease or soot laden gases that escape-may pass through the narrow openings or louvres in the front portion of the curved hood, particularly when the stove is first lighted, and before the vapors are moving sufficiently rapidly to insure their discharge-through the primary opening at the bottom of the hood. When, however, the stove reaches a normally high temperature, the vapors are sufficiently heated so as to be impelled through this primary opening without backing up into the top of the hood; and' even such small portion of the vapors as does circulate in this manner, will not pass out directly against the person using the stove.

Again, support for the conclusion that the-filtering material is indispensable under a correct reading of plaintiff’s device is borne out by the absence of any reference to a bottom outlet in McCarthy’s original specifications or drawings, and by the fact that,, in the specifications upon which the patent ultimately issued, the only reference is as follows : “The grill is spaced from the front wall of the collar to permit entrance of air or outlet for excess products of combustion as clearly shown in Figure 3.” That such reference-to the bottom opening as an “outlet” is merely incidental is further borne out by the fact that in none of the claims not here in suit is-any mention of it as such made. On the other hand, a bottom opening is a feature of five of the six claims that axe in suit, namely, claims Nos. 9, 10, 11, 15, and 16. Claim No. 11,. upon which plaintiff primarily relies to establish infringement, reads as follows: “A flue for gas ranges and the like comprising a collar, a curved hood attached to the upper end of theo collar, said hood having top- and side walls extending beyond one side-of the collar with front and bottom openings in the extension.” The remaining claim in suit, namely No. 12, does not call for a bottom opening, but for an “opening in the hood extending upwardly from the lower edge of the hood and at an angle to the lower edge * * «• » 0f in. short, the front opening covered by the perforated plate or grill.

Thus we find that the McCarthy device, from whatever angle analyzed, permits of but one and the same conclusion, namely, that the specifications and drawings contemplate a device by which only the filtered gases or vapors shall pass out through the hood, whether such exit be exclusively through the front* or grill opening, or primarily through such opening and secondarily through the smaller and lower outlet.

It is fundamental that where, as here, the patent is not a basic one, but one for a mere improvement in a crowded art, a construction must be given to it which limits it to the invention as clearly and definitely disclosed, and that any attempt to enlarge the scope of such a patent, the effect of which would be to enable the patentee to appropriate other inventions, must be forbidden. Chicago & N. W. Railway Co. v. Sayles, 97 U. S. 563, 24 L. Ed. 1053; Computing Scale Co. v. Automatic Scale Co., 204 U. S. 609, 27 S. Ct. 307, 51 L. Ed. 645; Weber Electric Co. v. E. H. Freeman Electric Co., 256 U. S. 668, 41 S. Ct. 600, 65 L. Ed. 1162; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., supra.

The burden of proving infringement is upon the plaintiff. For the foregoing reasons, we find that the plaintiff has failed to sustain this burden, and finding, as we do, that the claims of plaintiff’s patent, upon which it relies to sustain its claim of infringement, are void because of their too great breadth and failure to conform to the specifications and drawings, it follows that the bill of complaint must be dismissed. It thus becomes unnecessary to consider any of the other grounds of defense urged by the defendant, although it may be pointed out that, in reaching the conclusion that we do with respect to the vital difference in construction and functioning of plaintiff’s and defendant’s device, even should we assume that the claims in suit could be construed to embrace filtering material — which we cannot do because, as we have seen, a claim broader than the state of the art will allow to the invention described, is not to be narrowed by a construction out of harmony with its language — the bill of complaint should be dismissed, since there still would be no infringement; defendant’s device being totally devoid of any filtering medium.

In conclusion, we perhaps should allude to the fact that defendant has suggested that plaintiff, by falsely marking its products, has laid itself open to the penalties provided in section 4901 of the Revised Statutes (35 USCA § 50). We need not now pass upon this question because it does not appear from the pleadings that the defendant is in fact here claiming that it is entitled to invoke this provision of the law in this proceeding.

A decree will be entered dismissing the bill of complaint, with costs to the defendant.


source: Caselaw Access Project

author: WOOLSEY, District Judge.

license: Public Domain

text:
    In re OSOFSKY et al.
    No. 48597.
    District Court, S. D. New York.
    May 27, 1931.

      Krause & Hirsch, of New York City (Sydney Krause and George 0. Levin, both of New York City, of counsel), for trustee, petitioners for allowances.
    Tisehler & Gottesman, of New York City (Jacob F. Gottesman, of New York City, of counsel), for petitioning creditors.
    David Haar, of New York City, for bankrupt.
   WOOLSEY, District Judge.

I grant an increased allowance to the attorneys for the trustee, for the reasons and in the amount hereinafter mentioned.

I. When this ease was first submitted to me, although an oral argument was requested, I disregarded the request and wrote a short memorandum on the back of the papers confirming the report, althpugh it seemed to me that the allowance to Messrs. Krause & Hirsch, as attorneys for the trustee, was possibly on the low side.

After my memorandum confirming the report was filed, however, a member of the firm of Krause & Hirsch, attorneys for the trustee, called on me and explained the reason why his firm had asked for an oral argument, and requested me to allow a reargument.

After sending to the clerk’s office for the papers, and considering the matter again, I granted the reargument, and summoned thereon the attorneys for the trustee, the attorneys for the petitioning creditors, and the attorney for the bankrupt.

II. I am informed that this proceeding started without any assets and with claims amounting to $13,155.38. The estate has received in all $4,509.53.

Of this sum $4,500, was the result of a settlement of a suit in equity begun in pursuance of the provisions of sections 67 (e) and 70 (e) of the Bankruptcy Act, against Abe Osofsky, Harry Weisbord, Rose Serot-ta, and Anderson & Tarlow, to set aside a fraudulent transfer.

This suit was brought on behalf of the trustee by Messrs. Krause & Hirsch. During the course of the trial before Judge Goddard, an offer of settlement for $4,500 was made by the defendants. This offer was tentatively. accepted, subject to the approval of creditors, and later was finally accepted at a special meeting of the creditors, and thereafter the amount of the settlement was paid.

The result of this suit not only brought to the estate $4,500, but as the settlement involved the waiver of an alleged claim of $2,-800 by Messrs. Anderson & Tarlow against the estate, it decreased the claims against the estate by that amount.

By the further efforts of the attorneys for the trustee, $4,537.63 of the claims against the estate, including this claim of Messrs. Anderson & Tarlow, have been expunged, and the total claims have been reduced, substantially by one-third, from $13>155.38 to $8,617.75.

III. In dealing with allowances, the referee gave an adequate allowance to Messrs. Tisehler & Gottesman, the attorneys for the petitioning creditors, but when he came to make his allowance to Messrs. Krause & Hirsch he gave them an amount which, on reflection, I consider quite inadequate, and, in fixing this allowance, he made a statement which, by implication at least, reflects on the initiative of Messrs. Krause & Hirsch in a way which was not justified by any circumstances shown by the papers in this proceeding or in the suit in equity abo'® mentioned, and which was quite astonishing to me in view of their reputation for competence, activity, and diligence in caring for the interests of their clients. It has, therefore, seemed to me appropriate in justice to them to reconsider this matter, and this reeonsider- " ation has given me a long-awaited opportunity, using this case as a text, to deal in general with the question of allowances in bankruptcy matters.

IV. In approaching the question of allowances in bankruptcy the court has, of course, to consider the situation with which the receiver and trustee find themselves faced at the outset of the proceeding, and then look at the net result which has come out of that situation.

In a ease, which starts without assets, any substantial estate must almost always, to a large extent, be attributable to the efforts of the attorneys involved.

It is, of course, impracticable, if not impossible, accurately to allocate the exact contribution which each set of attorneys may make to such result. Consequently the court has often to consider, I think, what would be the proper aggregate allowance for legal fees in the proceeding, and then divide that amount as fairly as may be between the firms involved.

Here, however, the only question before me is the allowance to the attorneys for the trustee.

V. At the beginning this was a ease with upwards of $13,000 of claims, and without any assets.

Due to the efforts of these attorneys, this estate is now an estate with assets, after proper disbursements by the trustee, of $4,-414.89, and with aggregate claims of only $8,663.36.

VI. The elements to be considered in determining an attorney’s fee were once most aptly summarized in evidence given on a refernce by Honorable William G. Choate, for-. merly a judge of this court, and David B. Ogden, Esq., a well known lawyer of a generation ago.

They laid down the following elements as being matters properly to be considered when the fees of an attorney have not been agreed on beforehand, hut are to be fixed: (1) The time which has fairly and properly to be used in dealing with the case; because this represents the amount of work necessary. (2) The quality of skill which the situation facing the attorney demanded. (3) The skill employed in meeting that situation. (4) The amount involved; because that determines the risk of the client and the commensurate responsibility of the lawyer. (5) The result of the case, because that determines the real benefit to the client. (6) The eminence of the lawyer at the bar, or in the specialty in which he may be practicing.

Each case, of course, differs to some extent from every other case in respect of the importance of these several elements.

In some eases the time element is dominant; in others the skill used seems specially to stand out; and in others still, the amount which a defendant has been saved, or which a plaintiff has recovered, may be the dominating consideration in the charge. But if all these elements are considered together, and the relative importance off each element is fairly weighed by an attorney, it is possible to arrive at a proper charge in almost any case without much difficulty.

For many years, in my own practice, I used these elements in determining fees, and I have found that by using them it was possible so to rationalize the basis of charges as seldom to have disputes with any but the most unreasonable clients.

In bankruptcy cases, however, there seems to me to be another element which has to be considered. That is the fact that in bankruptcy very often futile quests for assets have to be made. Many times, however much ingenuity and time attorneys may expend, they may not be able to get anything for the estate by their efforts. It is then a question, as in salvage at sea, of no cure, no pay.

When the efforts of attorneys cause a material increase in the bankruptcy estate, or, as here, create it, they should be well rewarded; otherwise there will not be any incentive to attorneys to put forth their best efforts in eases which appear unpromising.

Indeed the situation may very well be compared, as I have just hinted, to salvage at sea.

In salvage eases courts have wisely come to think that, as a matter of public policy, it is necessary to give such adequate reward to a successful salvor as will make others to whom salvage situations are presented interested in attempting salvage operations. There must always be a flavor of generosity in the awards to success in order that an appetite for effort may be stimulated.

This attitude involves a wise public policy and is as beneficial to shipowners, cargo owners, and underwriters in admiralty law as a similar attitude is to creditors in bankruptcy proceedings.

VII. If one approaches a ease like this, in the light of these reflections and with all the elements of charges which I have above laid down in mind, it is perfectly clear, I think, that, when the claims have been so much reduced and the assets so greatly increased by the efforts of the trustee’s attorneys, a generous allowance to them is indicated.

VIII. As the referee has left this matter in his report, he has suggested a 32 per cent, dividend to the general creditors.

On the total claims allowed of $8,663.36, a 1 per cent, dividend to the general creditors would amount to $86.63. I hold that the dividend to the general creditors here should be decreased from 32 per cent to 27 per cent, in order that the attorneys for the trustee may be adequately paid. This reduction would, therefore, mean a total reduction in dividends of five times $86.63, which would amount to $433.15..

The referee has already allowed Messrs. Krause & Hirseh, as attorneys for the trustee, the sum of $643.48. I hereby allow them the additional sum of $433.15, which, together with what the referee has already allowed, will make the total of their allowance $1,076.63, to which, of course, should be added their disbursements as allowed in the sum of $46.79.

IX. The attorneys for the petitioning creditors, Messrs. Tisehler & Gottesman, have had an adequate allowance of $400 given to them by the referee. If they have any disbursements, they are entitled to have them added to the allowance.

It will thus be seen that this makes an aggregate allowance for legal fees and disbursements to Messrs. Tisehler & Gottesman and Messrs. Krause & Hirseh of $1,476.63.

This is a little less than 33% per cent, of the amount involved in a case where their joint activities in a no asset case were of the greatest value to creditors. I think that if this amount is judged in the light of the elements for charges in bankruptcy which- I have mentioned above, it will be found to have been justified as an aggregate allowance to the two active sets of attorneys for their legal services in this ease.

Furthermore, it is to be remembered that the fee which I am allowing to Messrs. Krause & Hirseh on the increased basis is less than 25 per cent, of the amount which they recovered for the estate in the equity proceeding, and less than 12 per cent, of the amount by .which they benefited the estate, as is shown, when the $4,500 which they recovered is added to the amount of the claims which they succeeded in getting expunged; namely $4,537.63.

X. Consequently the referee’s report herein must he modified in accordance with this opinion, by giving the general creditors a dividend of 27 per cent, instead of 32 per cent., and an allowance to Messrs. Krause & Hirseh, as attorneys for the trustee, for their fee, the sum of $1,076.63, plus disbursements in the sum of $46.79; making a total allowance for their fees and disbursements of $1,-123.42.

In other respects the referee’s report .is confirmed, and thej other recommendations thereof are approved.

Settle order on two days’ notice.


text:
    HEISTER v. LEHIGH & N. E. R. CO.
    District Court, S. D. New York.
    June 27, 1931.

      Thomas J. O’Neill, of New York City (Charles D. Lewis, of White Plains, N. Y., of counsel), for plaintiff.
    Wellman, Smyth & Scofield, of New York City (Herbert C. Smyth, Jr., of New York City, of counsel), for defendant.
   WOOLSEY, District Judge.

I grant the motion of the plaintiff in so far as it asks for an order directing the defendant to serve a bill of particulars as to the basis of its affirmative defenses of contributory negligence and assumption of risk, and I also grant the stay asked for as the fourth relief sought.

I deny the motion for dedimus potestatem and for an order for the taking of depositions of the witnesses named.

I am, however, granting the plaintiff relief in another form, as hereinafter described, which seems to me appropriate in view of the peculiar circumstances of this ease.

I. This is an action at law brought by Mrs. Laurine Heister, as administratrix of her husband, Charles A. Heister, who is alleged to have been an employee of the defendant railroad company as a yard conductor in its yard at Tamaqua, Pa., on February 17, • 1931.

The action is brought under the provisions of title 45, U. S. C., § 51 (45 USCA § 51), of the Employers’ Liability Act. The plaintiff claims that the accident in which the plaintiff’s intestate was killed occurred in interstate commerce.

The defendant in answering has filed a general denial and, for affirmative defenses, has set up contributory negligence and assumption of risk.

On May 1,1931, at the instance of the defendant’s attorneys, I granted a motion for a bill of particulars requiring the plaintiff to set forth the following details in regard to her claim:

“1. The facts upon which the plaintiff bases her claim that the plaintiff’s intestate was engaged in interstate commerce at the time and place alleged in paragraph 4 of the complaint.
“2. In what respect the defendant ‘caused and permitted one of its locomotives, together with the parts and appurtenanees thereof, to be and remain in an improper condition’, specifying separately and by nomenclature or by description sufficient to identify each part, the parts and appurtenanees claimed to be improper, and specifying the nature and extent of the condition that is characterized in paragraph 7 of the complaint as improper.
“3. State by number or by description sufficient to identify what locomotive is referred to in paragraph 7 of the plaintiff’s complaint.
“4. In what manner the said locomotive was unsafe to operate; as set forth in paragraph 7 of the plaintiff’s complaint.”

II. The contention of the plaintiff, in the affidavit on which the present motion is based, is that she is unable to give the verified bill of particulars as required above; because she has not sufficient knowledge of the circumstances of the accident, but that the circumstances of the accident are- known to certain employees and officers of the defendant, whose testimony the plaintiff requests may be secured by dedimus potestatem or by deposition before she is required to file her bill of particulars.

Inasmuch as the alleged place of residence of the witnesses, whose evidence is desired, is claimed to be more than one hundred miles from the place of trial, the plaintiff is free to take depositions if she wishes. Under such circumstances a dedimus potestatem will not be granted. Henning v. Boyle (C. C.) 112 F. 397; Turner v. Shackman (C. C.) 27 F. 183, 184.

If she serves a proper notice for taking these depositions, she will be able to procure subpoenas thereon by appropriate application to the United States District Court of the district in which the depositions are to be taken, compelling the attendance of witnesses. Henning v. Boyle (C. C.) 112 F. 397, 398.

In view of the circumstances here, however, I think that I have an opportunity of granting an alternate form of remedy which may serve the plaintiff’s purposes as well, if not better.

III. In the ease of Gimenes v. New York & Porto Rico Steamship Co. (D. C.) 37 F.(2d) 168, I had occasion to- deal at some length with the interlocutory relief in preparation for trial which could be given at law in a federal court, and I there allowed the examination under certain named restrictions of a boiler room of a steamship in which an accident was alleged to have occurred.

I called attention in my opinion in that case to the decision of Judge Learned Hand in the ease of Donnelly v. Anderson Brown & Co. (D. C.) 275 F. 438, in which he allowed an examination of the defendant before trial solely to assist the-plaintiff in framing his pleading and not for the purpose of use at the trial.

Except as permitted under the limitations of the statute for the taking of depositions de bene esse and title 28, U. S. C., § 639 (28 USCA § 639), there is not any method of examining witnesses before trial in a ease at law in the federal courts, so that their evi- . denee may be used on the trial. Cf. Ex parte Fisk, 113 U. S. 713, 718-727, 5 S. Ct. 724, 28 L. Ed. 1117; Union Pacific Railway Co. v. Botsford, 141 U. S. 250, 11 S. Ct. 1000, 35 L. Ed. 734; Hanks Dental Association v. International Tooth Crown Co., 194 U. S. 303, 24 S. Ct. 700; 48 L. Ed. 989; Gimenes v. New York & Porto Rico Steamship Co. (D. C.) 37 F.(2d) 168, 169.

IV. Proper bills of particulars assist much in narrowing the issues for trial. I think, therefore, that in a ease of this kind, it is most important that the plaintiff should explain fully the circumstances on which she bases her claim that the Employers’ liability Act (45 USCA §§ 51-59) applies. But when, as here, the plaintiff gives satisfactory reasons for not being able to state the circumstances in detail, I think it is appropriate to extend the doctrine which Judge Hand laid down in Donnelly v. Anderson Brown & Co. (D. C.) 275 F. 438, and hold, as I now do, that in order to be able to frame the bill of particulars, which has been ordered, the plaintiff may have an examination before trial of the defendant, its agents or employees, to enable the plaintiff to give the particulars required, although, of course, in view of the decisions above referred to, any evidence secured on such an examination cannot be used at the trial of this action, and the order to be entered hereunder must so provide.

The order must also contain a provision requiring jhe defendant, on five days’ notice to its attorneys, to afford the plaintiff’s attorneys a full opportunity of taking the evidence of such witnesses in the defendant’s employ as the plaintiff may name, or describe by naming the positions which they occupy.

The order may also contain a stay of all proceedings under the order requiring a bill of particulars from the plaintiff for a period of sixty days from the date of the service of this order on the defendant’s attorneys.

V. The statutory right, under title 28, U. S. C., § 639 (28 USCA § 639), to take depositions de bene esse which can be used at the trial, of course, remains unimpaired, and the plaintiff is quite free to avail herself of this right in the manner above suggested at any time.

Settle order on two days’ notice.


author: MUNGER, District Judge.

text:
    UNITED STATES v. SEYMOUR.
    No. 1536.
    District Court, D. Nebraska, Lincoln Division.
    May 13, 1931.

      Charles E. Sandall, U. S. Atty., of Omaha, Neb., and Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb.
    T. S. Allen and Robert Devoe, both of Lincoln, Neb., for defendant.
   MUNGER, District Judge.

By a demurrer, which in effect is a general demurrer, the defendant challenges the sufficiency of the charge against him in the indictment. The indictment contains eight counts, similar in nature. In each it is alleged that the defendant violated section 125 of the Penal Code of the United States (18 U. S. Code § 231 [18 USCA § 231]) which provides: “Whoever, having taken an oath before a competent tribunal, officer, or person, in any ease in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than five years.”

The indictment sets forth the time of the alleged perjury as on July 21, 1930, and the occasion as a hearing at Lincoln, Neb., before United States Senator Gerald P. Nye. It is alleged that the Senate of the United States on April 8, 1930, had adopted a resolution as follows:

“Resolved, That a special committee consisting of five Senators, to be appointed by the Vice-President is hereby authorized and directed to investigate the campaign expenditures of the various candidates for the United States Senate, the names of the persons, firms or corporations subscribing, the amount contributed, the method of expenditure of said sums, and all facts in relation thereto, not only as to the subscriptions of money and expenditures thereof but as to the use of any other means or influence, inelud-ing the promise or use of patronage, and all other facts in relation thereto which would not only be of public interest but which would aid the Senate in enacting any remedial legislation or in deciding any contest which might be instituted involving the right to a seat in the United States Senate,
“The investigation hereby provided for, in all the respects above enumerated, shall apply to candidates and contests before senatorial primaries, senatorial conventions, and the contests and campaign terminating in the general election in November, 1930.
“No Senator shall be appointed upon said committee from a State in which a Senator is to be elected in the general election in 1930.
“Said committee is hereby authorized to act upon its own initiative and upon such information as in its judgment may be reasonable or reliable. Upon complaint being made before said committee under oath by-any person, persons, senatorial candidate, or political committee, setting forth allegations as to facts which under this resolution it would be the duty of said committee to investigate, the said committee shall investigate such charges as fully as though it were acting upon its own motion, unless after a hearing upon such complaint the committee shall find that the allegations in said complaint are immaterial or untrue.
“Said committee is hereby authorized in the performance of its duties to sit at such times and places, either in the District of Columbia, or elsewhere, as it deems necessary or proper. It is specifically authorized to require the attendance of witnesses by subpoena or otherwise; to require the production of books, papers, and documents; and to employ counsel, experts, clerical, and other assistants; and to employ stenographers at a cost not exceeding 25 cents per one hundred words.
“Said committee is hereby specifically authorized to act through any subcommittee authorized to be appointed by said committee. The chairman of said committee or any member of any subcommittee- may administer oaths to witnesses and sign subpoenas for witnesses; and every person duly summoned before said committee, or any subcommittee thereof, who refuses or fails to obey the process of said committee or who appears and refuses to answer questions pertinent to said investigation shall be punished as prescribed' by law.
“The expenses of said investigation, not exceeding in the aggregate $100,000, shall bo paid from the contingent fund of the Senate on vouchers signed by the chairman of - the committee or the chairman of any subcommittee.
“All hearings before said committee shall be public, and all orders or decisions of the committee shall be public.
“The committee shall make a full report to the Senate on the first day of the next session of the Congress.”

It is further alleged that the vice president of the United States appointed a committee of five United States Senators pursuant to the terms of the resolution, including Senator Nye as one of the members, and that, at a meeting of the committee at which four of its members were present, action was taken as follows: “A discussion of future procedure was bad. The Chairman was unanimously authorized to act as a sub-committee and to appoint sub-committees of one or more members to hold hearings as in his judgment was desirable.”

It is further alleged that the committee appointed under the terms of the resolution of the United States Senate, through a subcommittee of one, composed of Senator Gerald P. Nye, proceeded to make an investigation in Nebraska with a view to making a report to the Senate upon matters referred to the committee, and that, in the course of the investigation, the defendant appeared and took an oath before Gerald P. Nye, United States Senator, a member and chairman of the committee. It is also alleged that the defendant took his oath that he would testify truly, and it is alleged that he willfully testified falsely. As'to the matter of inquiry, upon which the testimony of the defendant was alleged to have been given, it is charged that the Governor of Nebraska had duly designated the 12th day of August, 1930, as the date for holding a primary election for a nomination by the political parties of candidates for public offices to be voted for at the general election in 1930, and that one of these offices was that of a United States Senator from Nebraska. The indictment states that: “Prior to the aforesaid Primary election, applications had been respectively filed in the offiee of the Secretary of State of Nebraska, by and on behalf of George W. Norris of McCook, Nebraska, and George W. Norris of Broken Bow, Nebraska, requesting that each of their names be placed upon the official ballot of the Republican party for the Primary election to be held on the twelfth da# of August, in the year nineteen hundred thirty, as a candidate for United States Senator, and a state-, ment in writing was filed by W. M. Stebbins of Gothenburg, Nebraska, as provided by law, accepting a written application filed by sufficient qualified voters of the State of Nebraska, requesting that said W. M. Stebbins’ name be placed upon the official Primary ballot of the Republican party for the Primary election -to be held the twelfth day of August, in the year nineteen hundred thirty, as aforesaid, as a candidate for the office of United States Senator from Nebraska.”

In the several counts it is alleged that the defendant falsely testified, in substance, that he had had no contact with the pending senatorial campaign and had not conferred with any one about it; had heard only through the press that money was available for use in the primary senatorial campaign; had seen no evidence of availability of money in the campaign; had not spent any money in connection with it; that no money or credits had been placed at his disposal for use in it; that he- had no knowledge of any contributions made for or against the candidacy of any candidate for the United States Senate; 'that he had had no part in encouraging the candidacy of George W. Norris of Broken Bow, Neb., with (sic) the Republican nomination for United States Senator at the primary election ; that he had not taken part in any conferences relating to any political situation in Nebraska concerning the candidates for United States Senator at the primary election; and that he did not know of George W. Norris of Broken Bow, Neb., until he saw his filing in the newspapers, and had no information concerning him until he saw this filing in the newspapers. In the arguments offered upon the demurrer it was conceded that the. power of the committee of the Senate to make inquiry of the defendant depended upon some constitutional grant of power, express or im-plied, whereby the Senate committee was authorized to make the investigation which was outlined in the Senate resolution under which Senator Nye purported to act. This constitutional limitation of such an inquiry is well established. Kilbourn v. Thompson, 103 U. S. 168, 190, 192, 26 L. Ed. 377; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 478, 14 S. Ct. 1125, 38 L. Ed. 1047; In re Chapman, Petitioner, 166 U. S. 661, 668, 17 S. Ct. 677, 41 L. Ed. 1154; Ellis v. Int. Commerce Commission, 237 U. S. 434, 445, 35 S. Ct. 645, 59 L. Ed. 1036; Fed. Trade Commission v. American Tobacco Co., 264 U. S. 298, 305, 306, 44 S. Ct. 336, 68 L. Ed. 696, 32 A. L. R. 786; McGrain v. Daugherty, 273 U. S. 135, 174, 176, 178, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; Reed v. County Commissioner, 277 U. S. 376, 388, 48 S. Ct. 531, 72 L. Ed. 924; Sinclair v. United States, 279 U. S. 263, 291, 49 S. Ct. 268, 73 L. Ed. 692.

The inquiries made of the defendant in this ease relate to bis testimony concerning his knowledge and acts in connection with a campaign preceding a primary election in Nebraska, at which party candidates for United States Senator were to be selected. The Seventeenth Amendment to the United States Constitution provides for the election of such Senators by the people of each state, by voters having qualifications requisite for electors of the most numerous branch of the state Legislature. The statutory method of selection of such senators in the state of Nebraska may be outlined as follows: At th® general election, where a senator is to be chosen and which is held in November, voters may use only an official printed ballot, upon which is- printed a list of the candidates for public office, including the office of United States Senator (Neb. Comp. Stats. 1929, §§ 32-501 to 32-525). The returns of the votes at the general election are canvassed by election boards, and by the state Legislature, and the results declared. Id. Sections 32-901 to 32-933.

In order to’have one’s name printed upon the official ballot as a candidate for United States Senator, compliance must be had with the provisions of other statutes of Ner braska, relating to what is called a primary election. This primary election is held on the second Tuesday in August preceding the gen! eral election. Only official printed ballot^ may be used at the primary election and these are prepared by a public officer, who' may print thereon the names of those candidates only who have been selected in accordance with the terms of the statutes governing the primary election. The name of a candidate for United States Senator may be proposed by a written application of the candidate filed with the secretary of state, or may be proposed by a petition of electors likewise filed. If it is desired that his name shall be followed on the official primary ballot by the name of a political party, indicating that he is seeking to be the regular candidate of that party, the application states the name of such political party. At the primary election the votes are east and the returns are then canvassed, and the name of the candidate having the plurality of votes among those who were designated as candidates of such a political party is placed upon the official ballot to bé •used at the general November election, as the nominee for United States Senator, with the name of the political party following his name upon the ballot. There are provisions of law for the printing of the names of other candidates for United States Senator upon the ballots at the primary election, to be followed by the words “by petition” and otherwise. There are also provisions by which voters may write the names of other candidates upon the ballots. The general plan of the primary elections is to be found in Neb. Comp. Stats. 1929, §§ 32-1101 to 32-1174.

In support of the indictment the government asserts that the inquiries propounded to and the testimony given by the defendant were material to the investigation authorized by the Senate resolution, and was within the'scope of the Senate’s right of investigation, because it was in aid of legislation which the United States Senate could enact under Section 4 of article 1 of the United States Constitution, which reads as follows: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

There can be no doubt of the power of Congress to obtain information as to legislation which it is authorized to enact, and. that it may require witnesses to testify for that purpose. McGrain v. Daugherty, 273 U. S. 135, 160, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; Sinclair v. United States, 279 U. S. 263, 291, 49 S. Ct. 268, 73 L. Ed. 692; 40 Harv. Law Rev. 153.

It appears from the indictment that the information sought from the defendant and the testimony which he gave related to the acts of himself and others in procuring or aiding George W. Norris of Broken Bow, Neb., to seek to become a candidate for United States Senator at the primary election on August 12, 1930, and in .seeking thereby to aid tbe candidacy at that election of W. M. Stebbins as another proposed candidate for United States Senator, and in seeking thereby to injure the candidacy at that election of George W. Norris of McCook, Neb., as another proposed candidate for United States Senator. The inquiry related also to the receipt of money and property from W. M. Stebbins and its expenditures in support of proposed candidacy of George W. Norris of Broken Bow. The testimony was given on July 21, 1930, and related to the defendant’s conduct before that time. The right of Congress to legislate with reference to primary elections similar to such primary elections as were permissible in Nebraska in 1930 has been the subject of decisions in adjudicated cases.

In United States v. Gradwell, 243 U. S. 476, 487, 37 S. Ct. 407, 411, 61 L. Ed. 857, the court left undecided the question whether a primary should be treated as an election within the meaning of article 1, § 4, of the United States Constitution, but, in referring to the question, said:

“The constitutional warrant under which regulations relating to congressional elections may be provided by Congress is in terms applicable to the 'times, places, and manner of holding elections (not nominating primaries) for Senators and Representatives.’ Primary elections, such as it is claimed the defendants corrupted, were not only unknown when the -Constitution was adopted, hut they were equally unknown for many years after tbe law, now § 19; was first enacted. They are a development of comparatively recent years, designed to take the place of the nominating caucus or convention, as these existed before the change, and even yet the new system must be considered in an experimental stage of development, under a variety of state laws.
“The claim that such a nominating primary, as distinguished from the 'final election, is included within the provision of the Constitution of the United States, applicable to the election of Senators and Representatives, is by no means indisputable. Many state supreme courts have held that similar provisions of state constitutions relating to elections do not include a nominating primary. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; State ex rel. Von Stade v. Taylor, 220 Mo, 619, 119 S. W. 373; State v. Nichols, 50 Wash. 508, 97 P. 728; Gray v. Seitz, 162 Ind. 1, 69 N. E. 456; State v. Erickson, 119 Minn. 152, 137 N. W. 385.”

In that case it was pointed out that Congress had undertaken in 1842, in 1870, and in 1872, to regulate the manner of holding elections of members of Congress, but had after-wards repealed such statutes. Another act of Congress relating to a method of nominating and electing United States Senators was approved June 4, 1914 (38 Stat. 384), but by its terms was to expire in three years.

In Newberry v. United States, 256 U. S. 232, 41 S. Ct. 469, 470, 65 L. Ed. 913, a very full consideration was given to tbe power of Congress to regulate tbe conduct of primary elections for United States Senators. Truman H. Newberry had been convicted of a conspiracy to violate the Federal Corrupt Practices Act by expending, for the procurement of his nomination as a candidate for United States Senator, more money than was authorized by that act. The conviction was reversed by the Supreme Court. Four members of the court united in an opinion which held, in substance, that Congress did not have power, under article 1, § 4 of the United States Constitution, to regulate the manner of holding primary elections for United States Senator. In that opinion the court said:

“And the ultimate question for solution here is whether under the grant of power to regulate ‘the manner of holding elections’ Congress may fix the maximum sum which a candidate therein may spend, or advise or cause to be contributed and spent by others to procure his nomination.
“Section 4, article 1, of the Constitution provides: ‘The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.’ Here is the source of Congressional power over the elections specified. It has been so declared by this court — Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; United States v. Gradwell, 243 U. S. 476, 481, 37 S. Ct. 407, 61 L. Ed. 857 — and the early discussions clearly show that this was then the accepted opinion. The Federalist, LVIII, LIX, LX; Elliot’s Debates, vol. II, 50, 73, 311; volume III, 86, 183, 344, 375; volume IV, 75, 78, 211.
“We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from section 4. ‘The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.’ Martin v. Hunter’s Lessee, 1 Wheat. 304, 326, 4 L. Ed. 97. * * *
“Undoubtedly elections' within the original intendment of section 4 were those wherein Senators should be chosen by Legislatures and Representatives by voters possessing ‘the qualifications requisite for electors of the most numerous branch of the state Legislature.’ Article 1, §§ 2 and 3. The Seventeenth Amendment, which directs that Senators be chosen by the people, neither announced nor requires a new meaning of election and the word now has the same general significance as it did when the Constitution came into existence — final choice of an officer by the duly qualified electors. Hawke v. Smith, 253 U. S. 221, 40 S. Ct. 495, 64 L. Ed. 871, 10 A. L. R. 1504. Primaries were then unknown. Moreover, they are in no sense-elections for an office but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate ehoice by all qualified electors. General provisions touching elections in Constitutions or statutes are not necessarily applicable to primaries — the two things are radically different. And this view has been declared by many state courts. People v. Cavanaugh, 112 Cal. 674, 44 P. 1057; State v. Erickson, 119 Minn. 152, 137 N. W. 385; State v. Taylor, 220 Mo. 618, 119 S. W. 373; State v. Woodruff, 68 N. J. Law, 89, 52 A. 294; Commonwealth v. Wells, 110 Pa. 463, 1 A. 310; Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036.
“If it be practically true that under present conditions a designated party candidate-is necessary for an election — a preliminary thereto — nevertheless his selection is in no-real sense part of the manner of holding the election. This does not depend upon the scheme by which candidate are put forward. Whether the candidate be offered through primary, or convention, or petition, or request of a few, or as the result of his own unsupported ambition does not directly affect the manner of holding the election. Birth must precede but it is no part of either funeral or apotheosis.
“Many things are prerequisites to elections or may affect their outcome — voters, education, means of transportation, health, public discussion, immigration, private animosities, even the face and figure of the candidate; but authority to regulate the manner of holding them gives no right to control any of these. It is settled, e. g., that the power to regulate interstate and foreign commerce does not reach whatever is essential thereto. Without agriculture, manufacture, mining', etc., commerce could not exist but this fact does not suffice to subject them to the eon-trol of Congress. Kidd v. Pearson, 128 U. S. 1, 9 S. Ct. 6, 32 L. Ed. 346.
“Elections of Senators by state Legislatures presupposed selection of their members by the people; but it would hardly be argued that therefore Congress could regulate such selection. In the Constitutional Convention of 1787 when replying to the suggestion that state Legislatures should have un-. controlled power over elections of members of Congress, Mr. Madison said: ‘It seems as improper in principle, though it might be less inconvenient in practice, to give to the state Legislatures this great authority over the election of the representatives of the people in the general Legislature as it would be to give to the latter a like power over the election of their representatives in the state Legislatures.’ Supplement to Elliot’s Debates, vol. V, p. 402.
“We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by. the grant of power to regulate the .manner of holding elections. The fair in-tendment of the words does not extend so far; the framers of the Constitution did not ascribe to them any such meaning. Nor is this control necessary in order to effectuate phe power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the state and infringe upon liberties reserved to the people.
“It should not be forgotten that, exercising inherent police power, the state may suppress whatever evils may be incident to primary or convention. As ‘each house shall be the judge of the elections, qualifications and returns of its own mémbers,’ and as Congress may by law regulate the times, places and manner of holding” elections, the national government is not without power to protect itself against corruption, fraud or other malign influences.”

Three of the judges concurred in an opinion dissenting from these views of the four judges, and stated:

“It is contended that Congress has no power to regulate the amount of money that may be expended by a candidate to secure his being named in the primary election; that the power ‘to regulate the manner of holding elections,’ etc., relates solely to the general elections where Senators or Representatives are finally chosen. Why should ‘the manner of holding elections’ be so narrowly construed? An election is the choosing of a person by vote to fill a public office. In the nature of things it is a complex process, involving some examination of the qualifications of tliose from whom the choice is to be made and of those by whom it is to be made; some opportunity for the electors to consider and canvass the claims of the eligibles; and some method of narrowing the choice by eliminating candidates until one finally secures a majority, or at least a plurality, of the votes. For the process of elimination, instead of tentative elections participated in by all the electors, nominations by parties or groups of citizens have obtained in the United States from' an early period. Latterly the processes of nomination have been regulated by law in many of the states, through the establishment of official primary elections. But in the essential sense, a sense that fairly comports with the object and purpose of a Constitution, such as ours, which deals in broad outline with matters of substance and is remarkable for succinct and pithy modes of expression, all of the various processes above indicated fall fairly within the definition of ‘the manner of holding elections.’ This is not giving to the word ‘elections’ a significance different from that which it bore when the Constitution was adopted, but is simply recognizing a content that of necessity always inhered in it. The nature of that instrument required, as Chief Justice Marshall pointed out in McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L. Ed. 579; ‘That only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.’ * * *
“But if I am wrong thus far — if the word ‘elections’ in article 1, section 4, of the Constitution must be narrowly confined to the single and definitive step described as an election at the time that instrument was adopted — nevertheless it- seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and their proper regulation so essential to effective regulation of the latter, so vital to representative government, that power to regulate them is within the general authority of Congress. It is matter of common knowledge that the great mass of the American electorate is grouped into political parties, to one or the other of which voters adhere with tenacity, due to their divergent views on questions of public policy, their interests, their environment, and various other influences, sentimental and historical. So strong with the great majority of voters are party associations, so potent the party slogan, so effective the party organization, that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations, and constrained to consider their eligibility, in point of personal fitness, as affected by their party associations and their obligation to pursue more or less definite lines of policy, with which the voter may or may not agree. As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made. Hence, the authority of Congress to regulate the primary elections and nominating conventions arises, of necessity, not from any indefinite or implied grant of power, but from one clearly expressed in the Constitution itself (article 1, § 8, cl. 18): 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ This is the power preservative of all others, and essential for adding vitality to the framework of the government. Among the primary powers to be carried into effect is the power to legislate through a Congress consisting of a Senate and House of Representatives chosen by the people — in short, the power to maintain a law-making body representative in its character. Another is the specific power to regulate the ‘manner of holding elections for Senators and Representatives,’ conferred by section 4 of the first article; and if this does not in literal terms extend to nominating proceedings intimately related to the election itself, it certainly does not in terms or by implication exclude federal control of those proceedings. EVom a grant to the states-of power to regulate the principal matter, expressly made subject to revision and alteration by the Congress, it is impossible to imply a grant to the states of regulatory authority over accessory matters exclusive of the Congress. And it is obvious that if clause 18 adds nothing to the content of the other express powers, when these are literally interpreted, it has no efficacy whatever and must be treated as surplusage. It has not, heretofore,.been so regarded. The subject was exhaustively treated by Chief Justice Marshall, speaking for the court in the great ease already referred to, McCulloch v. Maryland, 4 Wheat. 316, 411-424, where he pointed out, pp. 419, 420, 4 L. Ed. 579: ‘1st. The clause is placed! among the powers of Congress, not among the limitations on those powers. 2d. . Its terms purport to enlarge, not to diminish-the powers vested in the government. It purports to be an additional power, not a restrict tion on those already granted.’ According to the conclusive reasoning adopted in that case, whatever meaning may be attributed to section 4 of article 1, there is added by clause 18 of section 8 everything necessary or proper for carrying it into execution — which means, into practical and complete effect.” •

Chief Justice White also disagreed with the views of the four judges, and said: “Under these conditions I find it impossible to say that the admitted power of Congress to control and regulate the election of Senators does not embrace, as appropriate to that power, the authority to regulate the primary held under state authority.” Justice McKen-na' concurred in the opinion of the four judges, as applied to the statute in question, as enacted prior to the adoption of the Seventeenth Amendment, but reserved his opinion, as to the power of Congress, after the adoption of that amendment. ' .

In view of the decision in the Newberry Case, the defendant in this case contends that Congress could enaet no valid legislation, as to which the testimony given by the defendant could be of any assistance. Section 4 of article 1 of the United States Constitution authorizes Congress to make or alter regulations as to the times and manner of- holding elections for Senators and Representatives in Congress. The decision in the Newberry Case dealt with a specific statute, which directly undertook the regulation of primary elections where United States Senators were nominated for election. The inquiry in'this ease has a much broader scope. The usual manner of holding elections for United States Senators and Representatives in recent years in the United States has been bjr the use of written or printed ballots, east by' qualified voters at a designated time, and before qualified election officers. Since the adoption of the system ;known as the Australian ballot law, it has been provided by statutes -that the only manner ip which an election could be conducted in many of the states for the election of a Senator or Representative has been by the use of..a printed official ballot, furnished to the voters by public officers, and that upon such ballots no names of nominees for Representative or Senator could be printed, unless such nominees had been regularly chosen, as provided by other statutes, at a primary election preceding the general election. See Corp. Jur. 140, 141. It has further been a part of the maimer of holding such general elections in many states that the names of those who have been otherwise regularly nominated for public office could not be printed upon the ballots'to be used by the voters at the general election unless such nominees should first file a sworn statement of the amount of money which had been received and expended by such nominees in procuring their nominations. Other statutes require similar statements as to money contributed to or disbursed by any campaign committee or others acting on behalf of such nominee. The provisions of some statutes of this nature may be found in the following decisions, where they have been cited and applied: State v. Board of Ballot Com’rs, 82 W. Va. 752, 97 S. E. 284; State v. Patterson, 67 Fla. 499, 65 So. 659; Hays v. Combs, 177 Ky. 355, 197 S. W. 788; State ex rel. Maxson v. Brodigan, 37 Nev. 488, 143 P. 306; State v. Walker, 122 Okl. 95, 251 P. 497.

In Ex parte Siebold, 100 U. S. 371, 383, 386, 388, 393, 25 L. Ed. 717, the court said:

“The clause of the Constitution under which the power of Congress, as well as" that of the State legislatures, to regulate the election of senators and representatives arises, is as follows: ‘The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators.’
“It seems to us that the natural sense of these words is the contrary of that assumed by the counsel of the petitioners. After first authorizing the States to prescribe the regulations, it is added, ‘The Congress may at any time, by law, make or alter such regulations.’ ‘Make or alter:’ What is the plain meaning of these words? If not under the prepossession of some abstract theory of the relations between the State and national governments, -we should not have any difficulty in understanding them. There is no declaration that the regulations shall be made either wholly by the State legislatures or wholly by Congress. If Congress does not interfere, of course they may be made wholly by the State; ¡but if it chooses to interfere, there is nothing in the words to prevent its doing so, either wholly or partially. On the contrary, their necessary implication is that it may do cither. * * *
“So in the case of laws for regulating the elections of representatives to Congress. The State may make regulations on the subject, Congress may make regulations on the same subject, or may alter or add to those already made. The paramount character of those made by Congress has the effect to supersede those made by the State, so far as the two are inconsistent, and no farther. * * *
“It is the duty of the States to elect representatives to Congress. The due and fair election of these representatives is of vital importance to the United States. The government of the United States is no less concerned in the transaction than the State government is. It certainly is not bound to stand by as a passive spectator, when duties are violated and outrageous frauds are committed. It is directly interested in the faithful performance, by the officers of election, of their respective duties. Those duties are owed as well to the United States as to the State. This necessarily follows from the mixed character of the transaction — State and national. A violation of duty is an of-fence against the United States, for whieh the offender is justly amenable to that government.”

See, also, Ex parte Clarke, 100 U. S. 399, 25 L. Ed. 715; United States v. Gale, 109 U. S. 65, 3 S. Ct. 1, 27 L. Ed. 857; Ex parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274.

Congress at different times has exerted the power of controlling the manner of holding elections for members of Congress. In the ease of Ex parte Siebold, the court was considering the provisions of sections 2011, 2012, 2016, 2017, 2021, 2022, 5515, and 5522 of the Revised Statutes of the United States providing for federal supervisors of elections and the duties imposed upon them and upon officers of elections and forbidding interferences with such elections. Other acts of Congress have provided for the election of representatives by districts, and that election should be by ballot, or by voting machine. See 2 U. S. Code, §§ 3, 7, 9 [2 USCA §§ 3, 7, 9].

In view of these decisions, it is not perceived why Congress may not enact valid legislation providing that the manner of elections for Senators and Representatives shall be by the use of a printed official ballot; that upon such ballot there shall be printed the names of those nominees only for such offices as shall have duly made and filed with some public officer a sworn statement of all contributions and expenditures wbieb have been made by or for the benefit of such candidate, to his knowledge, in obtaining the nomination for such office, and the names of those contributing and of those to whom money was paid; also requiring as a prerequisite to the printing of such nominee’s name upon the ballot that the officers of a campaign committee acting on behalf of such candidate should file a similar statement. As has been indicated, such legislation would be in harmony with the legislation of many states and with other statutory restrictions as to names of candidates upon the printed ballots. See 9 Rul. Cas. Law, pages 1054, 1055, 1056. It would relate directly to the manner of holding the elections for Senators and Representatives. As an aid to the advisability and to the scope of such legislation, the testimony of the defendant in this case as to contributions alleged to have been made by W. M. Stebbins as an alleged candidate for nomination for United States Senator, and to alleged agents of George W. Norris of Broken Bow, Neb., as an alleged candidate for nomination, for United States Senator, was pertinent to the inquiry which was directed to be made by the resolution of the United States Senate. It would be difficult to say that such testimony was pertinent to no other possible legislation that Congress could enact, and it is not necessary to assert such a sweeping negative. In view of the conclusion reached, it is not necessary to consider whether the inquiry directed by the resolution was authorized by clause one of section 5 of article 1 of the Constitution, as an investigation of the qualifications of candidates, one of whom might thereafter become a member elect of the Senate.

Some other objections have been urged to the indictment, which relate to the form of the allegations in the indictment. There is no direet allegation that Gerald P. Nye was ever elected or chosen as the chairman of the Senate committee, but there are allegations such as “Gerald P. Nye who was the Chairman of said Special Committee”; “Gerald P. Nye, the chairman of said Special Committee;” “Gerald P. Nye, United States Senator and a member and chairman of said Special Committee.” In Markham v. United States, 160 U. S. 319, 323, 16 S. Ct. 288, 290, 40 L. Ed. 441, an indictment for perjury was challenged, and in that case the court said, after referring to the laws relating to pension examiners: “In view of these enactments, the averment that the oath, charged to have been willfully and corruptly taken was taken ‘before G. C. Loomis, then and there a special examiner of the pension bureau of the United States, and then and there a competent officer and having lawful authority to administer said oath,’ was sufficient, in connection with the statute, to inform the accused of the official character and authority of the officer before whom the oath was taken.”

Under the authority of this case, the description of Gerald P. Nye in the pending indictment as chairman of the special committee would seem to be a sufficient allegation that he was such chairman.

It is also claimed that there is no sufficient allegation that there were any candidates for United States Senator at the time of the giving of this testimony. The Senate resolution directed an investigation of the contributions to and the campaign expenditures of the candidates for the United States Senate. This resolution was adopted on April 10,1930, and this testimony was given on July 21,1930.

The portion of the indictment, which has been quoted, alleges that there had been filed in the office of the secretary of state of Nebraska, on behalf of George W. Norris of Broken Bow, Neb., an application requesting that his name be placed on the official ballot of the Republican Party for the primary election to be held on August 12, 1930, as a candidate for United States Senator; this application is alleged to have been filed “pri- or to the aforesaid primary election,” but no date is alleged for this filing. It has been held that the portion of the Nebraska statutes (Comp. Stats. 1929, 32-1124) which reads as follows: “The name of no candidate shall be printed upon an official primary ballot unless at least forty days prior to- such primary, either he, or twenty-five qualified electors of the party with which said candidate affiliates shall have filed a written application with the proper authority and in substantially the following form,” is mandatory in the requirement that the filing be made at least forty days prior to the primary election. State v. Marsh (Neb.) 232 N. W. 99; State v. Marsh (Neb.) 232 N. W. 103.

The indictment also alleges that a statement in writing had been filed by W. M. Stebbins of Gothenburg, Neb., as provided by law, accepting a written application filed by sufficient voters of Nebraska, requesting that W. M. Stebbins’ name be placed upon the official primary ballot of the Republican-’Party, for the primary election to be held August 12, 1930, as a candidate for the office of United States Senator. The indictment also alleges that this acceptance was filed prior to the primary election, but alleges no date for the filing, either of the application or acceptance. If the fact of the candidacy of the two men mentioned depended upon these allegations, the indictment would ,be defective, because of failure to state sufficient facts showing a substantial compliance with the Nebraska statutes requisite to obtaining a place upon the printed official ballot for candidates at. a primary election. The Senate resolution did not limit the investigation of its committee to candidates who were entitled to have their names printed upon official ballots at primary elections for nomination for the office of United States Senator, but referred to candidates in the broad sense of that term. Under the laws regulating primary elections in Nebraska, as well as under its laws regulating general elections, one may be a candidate, for United States Senator, capable of receiving votes, and of being chosen, although his name is not printed upon the ballot. The facts alleged in the indictment show the assertion of a candidacy in fact of each of the two men mentioned, for nomination for the office of United States Senator before the date of the primary election, and, if the alleged facts were true, either could have been legally nominated and elected as United States Senator from Nebraska, whether or not he was entitled to have his name printed upon the official ballot.

In an indictment for perjury, it must appear on the face of the indictment that the statements alleged to have been falsely sworn to by the defendant were material to the matter in issue. This materiality may be directly alleged, or it is sufficient if the facts alleged are such as show that the statements were material as a matter of law. Markham v. United States, 160 U. S. 319, 325, 16 S. Ct. 288, 40 L. Ed. 441.

In an indictment for perjury, it is usual to allege directly in the charging part that the testimony alleged to have been given was material to. the matter under inquiry, and such was the allegation in Markham v. United States. See 2 Bishop Crim. Proc., § 921.

In each count of the indictment it is alleged that the questions asked of -the ■ defendant were material to the matters under inquiry, but there is no allegation that the answers or testimony given by the defendant were material to the matters under inquiry exeept that, in the concluding part of each count, it is alleged, in substance, as follows: “And so the grand jurors aforesaid, upon their oaths aforesaid, do present, that he, the said Victor Seymour * * * ” did “testify and declare and state material matters as aforesaid.” This allegation does not allege what statements of the defendant were material. It does not allege that all of the statements, or that each- of them, was material, or that any definite one of them was material, or that any definite part was material. The allegations in the concluding part of each count therefore fall under the condemnation of the rule stated in Pettibone v. United States, 148 U. S. 197, 202, 13 S. Ct. 542, 545, 37 L. Ed. 419: “The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly, and not inferentially, or by way of recital.”

If the allegation in the concluding portion of the counts may be regarded as a direct charge of materiality, then such allegations fail to inform the defendant of the definite portions of his testimony which were material to the inquiry. United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588; United States v. Simmons, 96 U. S. 360, 362, 24 L. Ed. 819; United States v. Hess, 124 U. S. 483, 487, 8 S. Ct. 571, 31 L. Ed. 516; State v. Crocker, 106 Me. 369, 76 A. 703; Weinstein v. State, 146 Md. 80, 125 A. 889.

Because of the defect in failing to allege what specific portions of the defendant’s testimony were material to the inquiry, an order will be entered sustaining the demurrer of the defendant to each count of the indictment.


text:
    In re R. S. McCONNELL LUMBER CO., Inc.
    No. 44764.
    District Court, S. D. New York.
    June 22, 1931.
    Swiger, Scandrett, Chambers & Landon, of New York City (J. Anthony Panuch, of New York City, of counsel), for Seward Nat. Bank.
    Murray, Aldrich & Webb, of New York City, for Equitable Trust Co.
    A. Donald MacKinnon, of New York City, and Arthur J. Keeffe and Andrew Jackson, both of New York City, opposed.
   WOOLSEY, District Judge.

The petition to review is dismissed, and the order of the referee is affirmed.

I. On May 10, 1927, the bankrupt secured from the American Credit-Indemnity Company a credit indemnity policy in the sum of $50,000 to cover it for a year from March 1 to February 29, 1928, against losses from credit extended to certain preferred firms according to table of ratings of the National Lumber Manufacturers’ Credit Corporation.

The provisions of this policy, relevant to the question before me are—

“10. — Collateral Benefits — This policy is not assignable, bnt the Company may provide, upon written request of the Indemnified, that any excess loss, ascertained to be due and payable as provided in Condition No. 8, shall be paid to any Bank, Trust Company, or other payee designated by, and for the account of, the Indemnified.”
“2. — Coverage—No loss is covered by this Policy, unless the debtor to whom the goods were shipped and delivered shall have in the latest published book of the Natl. Lbr. Mfrs. Cr. Corp. Mercantile Agency, at the date of shipment, a capital rating and its accompanying credit rating, as tabulated below, nor is any loss covered on any account sold on longer terms than 90 days including dating.”

After clause 2 followed a schedule of the credit ratings.

II. The bankrupt, borrowed from the Equitable Trust Company on January 31, 1928, on its note, the sum of $25,000, and gave the Equitable Trust Company as security for the loan: (1) An assignment of certain claims which had already accrued against the Credit-Indemnity Company; and (2) Secured for it a rider to the policy providing that “any excess loss shall become due and payable from The American Credit-Indemnity Company of New York to the Indemnified under and pursuant to the terms and provisions of said Policy, the amount so becoming due shall' be paid by said The American Credit-Indemnity Company of New York to Equitable Trust Co. of New York as their interest may appear, for account of the Indemnified.”

This rider was annexed to the policy under the collateral benefits provisions of clause 10,' above quoted.

III. Other banking interests, among them the Seward National Bank, petitioner here, had given credit acceptances which turned out badly, and which would have been covered in favor of the bankrupt by the credit indemnity policy. Apparently, however, they did not have knowledge of that policy, and certainly did not secure any riders in their favor under clause 10.

IV. Owing to the fact that the insurance contract was by its terms nonassignable, the cause of action thereunder was irrevocably vested in the trustee, except in so far as by riders under clause 10, above referred to, other parties might be given a locus standi.

V. Losses accrued under the policy totalling in all $39,200, but.in order that the trustee might bring suit under the policy, it was necessary for him to have possession of the outstanding negotiable paper involved, that he might surrender it, or at least tender it, on the trial. It was necessary, therefore, to secure these negotiable instruments from the several banking interests. These interests delivered their paper to the trustee under various conditions. But however phrased, these conditions of deposit were effectual only to prevent the negotiable paper itself from becoming part of the bankrupt’s estate, and did not divest the trustee in bankruptcy, as such, of his cause of action for the estate in bankruptcy on the insurance policy and create him merely a trustee to bring suit for the several banking interests, nor did it change their status from that of general unsecured creditors to that of secured creditors.

VI. Suit was, accordingly, brought against the American Credit-Indemnity Company of New York in the Supreme Court of New York county by the trustee in bankruptcy on or about July 23, 1929> claiming losses in the sum of $39,200.

After protracted negotiations, the details of which need not be considered here, the American Credit-Indemnity Company paid to the trustee in settlement of this action the sum of $15,000.

VII. It is the disposition of this sum, which is the subject-matter of the present controversy. The contention is that it never came into the possession of the trustee in bankruptcy as such, but that it was recovered by him, not in his official capacity, but as a fiduciary for the several banking interests who had deposited with him the negotiable paper above mentioned.

Under the rider issued for collateral benefits pursuant to clause 10 above quoted, the Equitable Trust Company I think was directly insured in respect of the credits which it had granted, and I think probably it could have brought an action against the Credit-Indemnity Company to the extent of its own loss on its own account if it had wished to do so. But the trustee certainly owned any residual claim against the Credit-Indemnity Company over and above the claim of the Equitable Trust Company.

It was a better course, therefore, having' the whole situation in view, to bring suit on behalf of the bankrupt for all its losses. The result of the suit could not, of course, have-been, foreseen, and if a full recovery had been had, there would have been an excess above the $25,000, due to the Equitable Trust Company in the sum of $14,200, which would have gone to augment the bankrupt estate, of which the other banking interests were only general creditors, unless their deposit of their negotiable paper is deemed to have been for their individual benefit, and not for the general benefit of the estate.

It is not necessary, however, to go into this interesting question because the Equitable Trust Company had, by its foresight in getting the rider in its favor annexed to the policy, put itself into a position in which it was insured against credit losses jointly with the bankrupt up to the amount of the bankrupt’s indebtedness to it.

As it is clear that the interest of the Equitable Trust Company covered the entire amount paid by the Credit-Indemnity Company, it follows that the referee’s decision was correct, not only on the jurisdictional question, cf. In re Rochford, 124 F. 182, 186, 187 (C. C. A. 8), but also on the merits.

Settle order on two days’ notice.