author: ALSCHULER, Circuit Judge.

text:
    HARVEY v. AMERICAN COAL CO. et al.
    No. 4468.
    Circuit Court of Appeals, Seventh Circuit.
    June 27, 1931.
    Rehearing Denied July 23, 1931.

      Bernard Stroyman, of Indianapolis, Ind., for appellant.
    Frederick Van Nuys, of Indianapolis, Ind., and E. L. Greever, of Tazewell, Va., for appellees.
    Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
   ALSCHULER, Circuit Judge.

The appeal is from a decree awarding appellees an injunction as prayed in their bill. The suit was brought by 23 nonresident producers and sellers of coal known as “Pocahontas” coal against 18 retail dealers in coal at Indianapolis, Ind., to restrain them from handling or selling coal to which a name is given containing the word “Pocahontas,” unless the coal is produced in the Pocahontas coal field as described in the bill, and possesses the properties of “Pocahontas” coal as in the bill alleged.

The bill charges, and the court found, and the evidence abundantly sustains the finding, that Pocahontas coal is a semibituminous, low volatile, smokeless coal, produced exclusively in the Pocahontas coal field, specifically described in the bill, and shown by the evidence to be certain portions of named counties in Virginia and West Virginia, served by certain named railroads; that such coal possesses properties which make it particularly valuable for steam, domestic, and byproduct uses, and that nowhere else is produced coal of like properties and value; that since 1883, when the production of such coal began, its use has constantly and rapidly increased, with constantly increasing market, reaching in 1929 nearly 30,000,000 tons — all produced in said field, and all sold under the name of “Pocahontas” coal; and that in Indianapolis there has for many years been a large and valuable trade in this coal, aggregating many thousands of tons annually; It was further alleged and shown that defendants were advertising and offering for sale various coals of a grade inferior to Pocahontas, and not produced in the Pocahontas coal field, under such names as “Semi-Pocahontas,” “Pocahontas Fractured,” “Banner Pocahontas,” and “Wonder Pocahontas,” the last named being the name under which appellant was advertising and selling coal. It was alleged'and shown that this practice of the defendants tended to induce the buying public to believe that the coal thus offered and sold under such names was in fact genuine Pocahontas coal, produced in the Pocahontas coal field, and that thereby the public was and would continue to be deceived, and the plaintiffs, and others engaged in producing and selling genuine Pocahontas coal, he greatly and irreparably damaged.

The decree ran against the employment of the word “Pocahontas” by any of the defendants in the sale of any coal which was not produced in the Pocahontas field and did not have the properties described. Appellant secured an order of severance, and alone prosecutes the appeal.

These allegations of the bill, and the court’s findings sustaining them, were so indubitably sustained at the hearing that we do not feel called upon to discuss the evidence.

The contentions of appellant are set forth in a voluminous brief under eight heads and twenty-eight subheads, and it goes without saying that not all of these require discussion.

It is contended that the court had no jurisdiction over the subject-matter because the statutory amount does not appear to be involved. It was alleged that by defendants’ conduct plaintiffs have been damaged more than $3,000. Beyond this it appears that each of the plaintiffs had built up a large trade in Indianapolis in genuine Pocahontas coal — collectively, from 20,000 to 30,000 tons monthly for a number of years next pri- or to the filing of the bill. If it appears anywhere in the record that the jurisdictional amount is involved, it will satisfy the statutory requirement. United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290, 17 S. Ct. 540, 41 L. Ed. 1007; Leitch v. City of Chicago, 41 F.(2d) 728 (C. C. A. 7); Lee Line Steamers v. Robinson, 232 F. 417 (C. C. A.).

It is urged that the statutory amount must appear to he involved as to each of the parties plaintiff, and against each of the defendants. What is here involved is the value of the right sought to be protected. In this^ case it is the trade-name — a thing common to each of appellees and indivisible among them, and of as large value to one alone as to the group. Board of Trade v. Cella Commission Co. et al., 145 F. 28 (C. C. A. 8); Coca-Cola Co. v. Brown & Allen (D. C.) 274 F. 481. It is the good will — the right to the exclusive use of the name — which is endangered, and the hare statement of the facts conclusively indicates a value many times larger than the jurisdictional amount.

It is contended that in such an action there may not be a joinder of plaintiffs who are separate and independent of each other in their business relations. For answer we refer to the opinion of this court in Pillsbury-Washburn Flour Mills Co. et al. v. Eagle, 86 F. 608, 41 L. R. A. 162, where there was an action brought by various flour manufacturers of Minneapolis to restrain the defendant from falsely branding his flour, made in Wisconsin, with the name “Minneapolis.” The reasoning of the court in sustaining the right of several parties similarly situated to join in the action is so cogent that without further discussion we adopt it by reference. The same logic applies as well to the contention that defendants who have severally wrongfully appropriated a trade-name may not he joined together in one action.

Under the pleadings and facts appearing, the various defendants are charged with conduct of the same general nature, as constituting unfair competition in trade, in transgressing the rights of the various plaintiffs in and to the same trade-name. We believe that in these circumstances, in the interest of justice and the avoidance of a multiplicity of actions, the single action may be brought by those similarly though severally interested in the same subject-matter against a multiplicity of transgressors who similarly offend.

The contention of nonjoinder of parties is based on the fact that others than the plaintiffs are producers of Pocahontas coal within the described coal field, and that the failure to join these others in-the action is fatal. In this we cannot agree. The rights and interests of those who were made parties are in no manner prejudiced by the failure of these others to join in the action. The case of Pillsbury-Washburn Flour Mills Co. v. Eagle, supra, is applicable likewise to this contention.

The insistence that appellees are chargeable with laches in the bringing of the action is not well founded. While it is true that for about three years the name “Wonder Pocahontas” was used, there is nothing in the pleadings or evidence which lends support to this claim beyond this mere delay, and this ordinarily is not sufficient. Menendez v. Holt, 128 U. S. 514, 9 S. Ct. 143, 145, 32 L. Ed. 526; United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 39 S. Ct. 48, 51, 63 L. Ed. 141, affirming (C. C. A.) 226 F. 545; Donner v. Walgreen Co. et al. (D. C.) 44 F.(2d) 637; Stearns-Rogers Mfg. Co. v. Brown, 114 F. 939 (C. C. A. 8). As stated in Menendez v. Holt: “The intentional use of another’s trade-mark is a fraud; and when the excuse is that the owner permitted such use, that excuse is disposed of by affirmative action to put a stop to it. * * * Mere delay or acquiescence cannot defeat the remedy by injunction in support of the legal right, unless it has been continued so long, and under such circumstances as to defeat the right itself.”

Appellant asserts that the registration in Indiana of the trade-name “Wonder Pocahontas” protects appellant. in selling coal bearing that name. It appears that in 1926 one Morris procured registration in Indiana of the words “Wonder Pocahontas” „in connection with the sale of “a bituminous coal mined and produced in Trammel and Honey-branch, Dickinson County, Virginia”; and that appellant procured his coal from Morris, but it was not the genuine Pocahontas coal, either in origin or properties.

It is unquestioned that for many years preceding this registration the name “Pocahontas” had been applied to coal of the quality and place of origin as described in the bill. By the hundreds of millions of tons it had been sold throughout the United States —millions in and about Indianapolis.

In the Encyclopedia Britannica (11th Ed.) 1911, vol. 28, p. 119, under the article “Virginia,” it is stated: “In Tazewell County is the famous Pocahontas bed, which produces one of the most valuable grades of coking and steam coal to be found in the United States.” The article names no other coal. The Supreme Court, in a case decided May 21, 1900, in an exhaustive opinion quotes from a comment on Pocahontas coal: “ ‘The good quality of this coal has been well established by numerous tests, both in the laboratory and in actual practice.’ ” The opinion proceeds: “It is patent that the word Pocahontas, prior to the formation of the coal producers’ combination on January 1, 1885, indicated all the coal coming from a particular seam of coal known as the Pocahontas vein. * * 1 It is manifest that * *' A the name Pocahontas indicated the region from which the coal in question came and the natural quality thereof, and applied indiscriminately to the product of all the mines in that region, producing that character of coal.” Castner v. Coffman, 178 U. S. 168, 20 S. Ct. 842, 845, 44 L. Ed. 1021.

The Indiana registration could not withdraw from the producers and marketers of this coal the exclusive right they had long theretofore enjoyed to this trade-name as applied to coal of such properties and origin. If this were not so, one haying valuable property in a trade-name might be readily deprived of it through ex parte registration of the name by another in some jurisdiction for a different product.

The employment of the term “Pocahontas” in connection with coal of such properties and from such place having long antedated this registration, the language of the Supreme Court in United Drug Co. v. Rectanus Co., supra, is particularly applicable: “There was nothing to prevent the state of Kentucky (saving, of eourse, what Congress might do within the range of its authority) from conferring affirmative rights upon Reetanus, exclusive in that commonwealth as against others whose use of the trade-mark there began at a later time than his. * * * ”

Appellant makes the contention that plaintiffs do not come into equity with clean hands, (a) because Pocahontas is not smokeless, as,stated to be, and (b) because one of appellees, Central Pocahontas Coal Company, had also marketed an inferior coal, having a different origin, under the name “Arrow Pocahontas,” and was therefore not entitled to the injunction, and that thus none of the appellees were entitled to it. It is true that the commonly stated and generally understood properties of Pocahontas coal are that it is semibituminous, low volatile, and smokeless. The evidence was that the term “smokeless” was used in the comparative sense — that there is more or less .pf smoke in all coal, but that, compared with that vast amount of bituminous coal, which emits large volumes of smoke, Pocahontas may properly be termed smokeless. This explanation of the word “smokeless,” as applied to Pocahontas coal, is reasonable, and is evidently well understood by the trade, and we do not think that deception or bad faith inheres in its use.

As to appellee Central Pocahontas Coal Company, it appears that it was not a producer, but a dealer in coal of various kinds, and, in addition to genuine Pocahontas, it did handle an inferior coal which was called “Arrow Pocahontas.” This might well be considered inequitable conduct on the part of this plaintiff, but it would not serve to deprive the other plaintiffs of their rights. It further appears that before the decree this party, at the request of his coplaintiffs, definitely discontinued the handling of “Arrow Pocahontas” coal and the use of that name.

It is argued that the registration was public, and that buyers in Indianapolis could have ascertained in the state house there that “Wonder Pocahontas” coal was not produced in the Pocahontas field, and that therefore buyers of it were not deceived. It occurs to us that about the only “wonder” in connection with the matter would be as to how many buyers of coal would or might reasonably be expected to examine the records at the state house to ascertain whether “Wonder Pocahontas” originated from a place different from that of Pocahontas, or was of inferior quality. The contention is too far-fetched to have any bearing.

We are referred to a number of cases wherein such relief was denied. Perhaps the leading ease is French Republic v. Saratoga Vichy Spring Co., 191 U. S. 427, 24 S. Ct. 145, 48 L. Ed. 247. The French government sought to restrain the use of the word “Vichy” because calculated to deceive the public into the belief that the product was of the famous Vichy springs of France, which, under the name “Vichy,” had long enjoyed an extensive trade in the United States. While the court pointed out that twenty-five to thirty years of acquiescence in the use of the name complained of might indicate such laches as would defeat recovery, it did not decide the ease upon that ground, but upon the proposition of the manifest difference in the waters, one being a still water and the other efferverseent, as well as in the appearance of the labels under which the-respective waters were sold, concluding that the public could not have been deceived into buying the domestic article upon the belief that it was the imported Vichy water.

It might be added that Saratoga was a place in this country widely known for its potable mineral waters, and that the qualification “Saratoga” would tend to indicate to the American public that the waters were in fact domestic and not imported.

Here there was no question of similarity in appearance of product or of commercial dress of packages. Coal is not packed or labeled, and to the average person it all looks quite alike, though differing widely in properties. The word “Wonder” does not tend to indicate a different place of origin nor an inferiority of properties. If it tended to in-, dicate any difference at all, it would be that the coal which appellant sold was in fact a genuine Pocahontas coal in all respects save only that it was a superior article even for that variety.

We are satisfied that the words “Wonder Pocahontas” are calculated to deceive the buying public not less than if the word “Pocahontas” had been alone employed as a trade-name for coal which had not the properties nor the origin of the genuine, and we see no reason for disturbing the decree, which is accordingly affirmed.


source: Caselaw Access Project

author: SAWTELLE, Circuit Judge.

license: Public Domain

text:
    COPELAND v. ARCHER, Warden of U. S. Penitentiary.
    No. 6407.
    Circuit Court of Appeals, Ninth Circuit.
    June 25, 1931.

      J. J. Copeland, in pro per.
    Anthony Savage, U. S. Atty., Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash., and John T. McCutcheon, Asst. U. S. Atty., of Tacoma, Wash., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   SAWTELLE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Western District of Washington, Southern Division, denying a writ of habeas corpus.

Appellant, J. J. Copeland, on December 8, 1928, was sentenced by the United States District Court for the District of Colorado to the United States Penitentiary at Leavenworth, Kan., on three separate counts of an indictment charging the acceptance of a bribe as a witness, which offense is punishable by. imprisonment for a term not exceeding two years (18 USCA § 240). On each of the three counts, a different briber was alleged. On count one defendant was sentenced to one year and a day, on count two to- six months, and on count th-ree to six months, the sentences to run consecutively. Prior to the expiration of the year and a day sentence on count one, appellant was transferred to the United States Penitentiary at McNeil’s Island, the legality of which sentence and the legality of which transfer he does 'not question, and he has served the full sentence of one year and a day -on said count one. He has also served the six months required by the sentence on count two, and has served two months (on June 16) of his sentence under count three.

Appellant based his application for the writ on the ground that the sentences of six months each on counts two and three of the judgment were void and illegal “for the reason that the district court of Colorado was without legal authority or jurisdiction to sentence appellant to the United States Penitentiary at Leavenworth to serve six-month sentences as the law creating and establishing the Leavenworth Penitentiary specifically provided that only prisoners sentenced to serve more than one year shall be admitted to that institution.”

The lower court refused to grant the writ, saying that appellant had had ample time to perfect a direct appeal, and that therefore sentence was not open to collateral attack. From that decision comes this appeal.

The fact that appellant had the recourse of direct appeal during the time that he was serving the admittedly legal sentence under count one does not prohibit his making application for a writ of habeas corpus at the present time. We are not concerned with his motives for delaying the plea, whether they arose from simple ignorance of his rights under counts two and three or merely the desire to wait until he felt that ho might secure a summary writ which would secure his freedom.

When the writ is applied for, the court must consider if the prisoner is serving under a sentence beyond the power of the court to impose; there is no question of punishment of the applicant because he chose a method of review in which it seemed to him the rights of the government were least protected. “The jurisdiction of courts of the United States to issue writs of habeas corpus is limited to cases of persons alleged to be restrained of their liberty in. violation of the Constitution or of some law or treaty of the United States, and cases arising under the law of nations.” Matters v. Ryan, 249 U. S. 375, 39 S. Ct. 315, 63 L. Ed. 654.

The writ of habeas corpus is a summary means of obtaining justice, but it is a real guarantee of the rights of the individual citizen. The appellant had the right of direct appeal, but it is a well-established rule in similar cases that where the sentence is found to be void, the original court may reassume jurisdiction at any time after the sentence has been imposed, and issue a judgment in accordance with the law.

“Where there is a conviction, accompanied by a void sentence, the court’s jurisdiction of the ease for the purpose of imposing a lawful sentence is not lost by the expiration of the term at which the void sentence was imposed. The case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence.” Hammers v. U. S., 279 F. 265, 266 (C. C. A. 5).

But if the prisoner were to be released on a writ of habeas corpus, and the court lose jurisdiction over him, it were better to release several prisoners from serving their just punishment than so to weaken the efficacy of the writ that it would be without force when invoked by some one whose real rights were substantially infringed.

If the sentences on counts two and three are void, then the prisoner “is confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the writ of habeas corpus, in such a case, is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, — equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals.” In re Bonner, 151 U. S. 242, 14 S. Ct. 323, 326, 38 L. Ed. 149.

It is too well settled to need further discussion that a person cannot be sentenced to the penitentiary for one year or less and the point before us here is whether or not the three sentences in the instant ease, for one year and a day, six months, and six months, respectively, were in legal contemplation one sentence for two years and a day. We cannot so hold.

In the instant case there were three separate offenses, three acceptances of bribes from as many different persons. It is true that the three were violations of the same statute and were combined into one indictment, but that does not necessarily make them inseparably joined.' It could not be contended that if there had been only two counts the prisoner could have been sentenced to the penitentiary for six months on each count.

Appellee, the government, relies upon the ease of Thompson v. United States, 204 F. 973, 976, a former decision of this court, but we do not think the reasoning there controlling here. There the plaintiff in error had been sentenced on two counts of an indictment charging violation of the White Slavery Law (18 USCA §§ 397—404) “The first count of the indictment charged the plaintiff in error with transporting and causing to be transported, and aiding and assisting in obtaining transportation for, a woman from Hot Springs, Ark., to San Francisco, for the purpose of prostitution. The second count charged him with procuring * * * a railway ticket for the woman to travel from Hot Springs, Ark., to San Francisco. Both counts charge substantially the same acts,' and the commission of the same offense.”

There the court held that there was only one offense, and in legal effect a single sentence of eighteen months for that offense.

In the instant aease, however, there were different circumstances. The acceptances of bribes from three different people were not so inseparably bound together as were the “aiding and assisting in obtaining transportation for” a woman and “procuring a railway ticket” to aid in that transportation.

This ease cannot be sustained on the theory upon which the case of Thompson v. United States, supra, was decided for the reason hereinbefore stated, see Roselle v. Bres-hears, 35 F.(2d) 934 (C. C. A. 9), and it would seem desirable to pass definitely upon the question here involved for the future guidance of the district courts, especially those within this circuit.

We hold that in all cases where the defendant enters a plea of guilty or is convicted on two or more counts of an indictment, or upon two or more separate indictments charging crimes of the same or different character growing out of distinct and separate'transactions, judgment for confinement in a penitentiary may be entered only if the specified term of imprisonment on any one count is for more than a year. In other words, if the court imposes several sentences upon a defendant, one for a term exceeding one year, and another or others for a period of one year or less, the latter sentences may not be to confinement in a penitentiary, notwithstanding the fact that the sentences of less than one year may have been erroneously ordered to run concurrently. If, on the other hand, the lesser sentences- are consecutive, they should be served in an institution other than a penitentiary.

In view of the wording of the statute regulating the types of persons who may be admitted to a penitentiary (18 USCA §§ 695, 762), in view of the nature of. the three counts, and in view of the words of the trial judge’s sentences, we cannot but hold that the sentences on counts two and three of the indictment are void.

However, despite the fact that the sentences are void, and the prisoner entitled to the writ, for at the present time he is under no legal sentence, the interests of the government are not thereby defeated. In considering an application for a writ of habeas corpus the court is 'required to “proceed in a summary way to determine the facts of the case by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.” Herein, the appellant’s contention -amounts simply to the fact that he claims the place of his confinement to be illegal. The whole question of release of a prisoner on habeas corpus, where there was no error in the trial, but where the sentence was void, has been exhaustively treated in the ease of In re Bonner, 151 U. S. 242, 14 S. Ct. 323, 326, 38 L. Ed. 149, where the court, speaking through Mr. Justice Field, said:

“Much complaint is made that persons are 'often discharged from arrest and imprisonment when their conviction, upon which such imprisonment was ordered, is perfectly correct; the excess of jurisdiction on the part of the court being in enlarging the punishment, or in enforcing it in a different mode or place than that provided by the law. * *- * Thg judges of all courts of record are magistrates, and their object should be, not to turn loose upon society persons who have been justly convicted of criminal offenses, but, where the punishment imposed, in the mode, extent, or place-of its execution, has exceeded the law, to have it corrected by calling the attention of the court to such excess. * * *
“He [the prisoner] complains of the unlawfulness of his place of imprisonment. He is only entitled to relief from that unlawful feature, and that he would obtain if opportunity be given to that court for correction in that particular. * * * In a vast majority of cases the extent and mode and place of punishment may be corrected by the original court without a new trial, and the party punished as he should be, while relieved from any excess committed by the court, of which he complains. In such ease the original court would only set aside what it had no authority to do, and substitute directions required by the law to be done upon the conviction of the offender.”

Ordered, that the writ of habeas corpus is-, sue, and that the petitioner be discharged-from the custody of the warden of the United States Penitentiary at McNeil’s Island in the state of Washington; but without prejudice to the right of the United States to take any lawful measures to have the petitioner sentenced in accordance with law upon the verdict against him. It is further ordered that the said warden do notify the United States District Attorney of the District of Colorado of the day and the hour of the day when he will discharge the said J. J. Copeland from imprisonment, and that such notice be given at least ten days before the release of the prisoner.

Reversed, and case remanded to the District Court, with instructions to issue the writ.


author: HUTCHESON, Circuit Judge.

text:
    CITY OF SOUTH JACKSONVILLE v. JACKSONVILLE TRACTION CO.
    No. 5933.
    Circuit Court of Appeals, Fifth Circuit.
    June 26, 1931.

      James Royall, of Jacksonville, Fla. (Edgar W. Waybright, of Jacksonville, Fla., on the brief), for appellant.
    J. L. Doggett and W. McL. Christie, both of Jacksonville, Fla. (O. O. McCollum, C. C. Howell, and J. L. Doggett, Jr., all of Jacksonville, Fla., on the brief), for appellee.
    Before FOSTER, SIBLEY, and HUT-CHESON, Circuit Judges.
   HUTCHESON, Circuit Judge.

This ease comes here by appeal from the finding and judgment of the court below, in a case tried without a jury upon an agreed statement of facts.

Appellant, defendant below, devotes a large part of its brief to the point made wholly immaterial by the stipulation of the facts, that appellee’s declaration which began the suit was a suit upon the dishonored cheek, and not upon the debt which the check was given to pay. The case was submitted, not upon the pleadings «(appellant in fact filed none whatever), but upon an agreed statement of facts which reads: “The plaintiff and defendant agree that the stipulated facts constitute all the facts and all the evidence material and pertinent in the above ease> and do hereby waive a jury, * * * ” and further: “The parties do hereby further agree that the Court shall determine whether under the law as applied to the following stipulated facts and evidence, the defendant herein is liable to the plaintiff.”

This form of agreement effected submission to the court below of the question whether upon the facts stipulated plaintiff should or should not, as a matter of law, have judgment,. and it is to these facts, and not to the pleadings, that this court must look in determining whether the judgment rendered may stand. Reduced to the briefest compass, they are: That the city of Jacksonville, owing the Jacksonville Traction' Company for track extension work, mailed it a check for the sum of $5,769.89 drawn by the city on the Bank of South Jacksonville, hereafter referred to as the “South Bank.” This check was received on the morning of January 11, 1927, and was about noon of that day, in accordance with the established custom of handling such eheeks, deposited with other cheeks and cash in the Atlantic National Bank, of Jacksonville.

The Atlantic Bank acted as general corresponding and collecting bank for the South Bank, and that bank carried an account with the Atlantic. In accordance with the established custom between the Atlantic and the South Bank and all other banks in Jacksonville after banking hours, this cheek, together with some two hundred or more cheeks and items of equal dignity with, but unrelated to, the traction company item, reached the South Bank in due course of mail on January 12; that bank refused a few of the items, and on the same day accepted the rest, including the city cheek, which it marked “Paid,” and returned to the city, and in payment of the accepted items it mailed to the Atlantic its own draft, drawn on that bank for $14,718.73. At that time the city had a paper balance with the South Bank in excess of its cheek. The draft on the Atlantic reached that bank in due course on the morning of January 13. The account of the South Bank being at that time overdrawn, the Atlantic by telephone declined the draft, and demanded cash. In reply the South Bank, advising insufficient funds, closed its doors at 1 p. m. the same day. At no time on January 13 did the South Bank have credit with the Atlantic equal either to the amount of its draft on Atlantic or the city cheek alone.

The Atlantic debited the traction company account in the amount of the city check, which the South Bank had not paid, and the city has failed to take up and make good the cheek which it gave to be cashed in payment of the track extension work, and still refuses to do -so, and thereby, for the above reasons only, refuses to pay for the track extension work.

The stipulated facts show that for the purpose of paying checks the South Bank had, at the commencement of business January 11,1927, $10,770.06; that it had for the same purpose at the close of business on that day, and its commencement on the day following, $9,379.37; at the close of business on January 12 and its commencement on January 13, for the same purpose, $11,281.-56; when it closed its doors it had $3,553.59. To its credit in the Atlantic Bank there was on January 11, $3,531.50; on January 12, $1,305.53; and on January 13 it was overdrawn.

The South Bank is located within a distance of three-fourths of a mile from Atlantic Bank, a mile from the traetion company office in the city of South Jacksonville) a borough of Jacksonville, connected with that city by a bridge, a ferry, and a street ear line.

Upon these facts the defendant below, appellant here, contended there, and contends here, that its check was negligently handled in that the Atlantic Bank, as the agent of the drawee, instead of making proper efforts to collect the cheek through a proper agent of its selection, selected the Bank on which the cheek was drawn as its agent to make collection. That had it not done so, but, on the contrary, had selected some other agent, one of its own messengers, or some other bank, the check would have been paid, and the city would not have suffered loss.

The trial court made the following finding : “I find that the Atlantic National Bank, in collecting or endeavoring to collect the cheek involved and sued upon in this case as agent for the plaintiff was not negligent in sending the check directly to the Bank of South Jacksonville for collection, or negligent in any other way under the definition of due diligence contained in the Florida statute Chap. 5951, Laws of Florida 1909,— Sec. 6834 C. G. L. 1927—Sec. 4748 R. G. S. 1920. I further find that under the pleadings and the stipulation of facts the plaintiff is entitled to a judgment for the full amount of its elaim with interest.”

Appellee meets appellant’s contention that there was negligence in the handling of the cheek with the preliminary proposition that, plaintiff having sued upon the debt, which by the stipulation admittedly had not been paid, the judgment must be affirmed, irrespective of the question of negligence, because the defendant has wholly failed to sustain the burden imposed on it by law of either pleading or proving that, as a result of the claimed negligence of plaintiff, it has sustained loss to the amount of the debt. Cleve et al. v. Craven Chemical Co. (C. C. A.) 18 F.(2d) 711, 52 A. L. R. 980; Bradford v. Fox, 38 N. Y. 289; Rosenbaum v. Hazard, 233 Pa. 206, 82 A. 62, 38 L. R. A. (N. S.) 255, Ann. Cas. 1913A, 1291; Spink v. Ryan, 72 Minn. 178, 75 N. W. 18, 71 Am. St. Rep. 477.

We think appellee’s position correct that the stipulation does not contain, nor is the omission there supplied by other proof, facts from which it could be found that the action of the Atlantic National Bank has caused loss to defendant, and that, since the suit is upon the debt which admittedly has not been paid, the judgment for plaintiff, which was only for the amount admittedly due, must stand.

Further, however, we concur in the view of the court below that the presentment of the cheek was not attended with negligence. We think this both because of the cited statutes of Florida and because of the view which we entertain that under modem banking and business conditions it is an arbitrary classification which holds to be negligence per se that which is uniformly done by those engaged in the banking business, under statutory sanction.

The rule that it is negligence to select the drawee bank as agent to collect checks and drafts upon itself, however reasonable and valid it may have been in earlier days when banking was still largely a private business, and cheeks drawn on a bank were in reality cheeks drawn on. individuals engaged in the banking business, has under modem conditions little of reason to commend it.

The theory then developed that it was negligence per se to select a debtor as agent to collect the debt from himself has little basis to rest upon now when more complete state supervision, and wide stock distribution have emphasized the distinction between the institution and its owners. We think that, while upon special facts it may still be found to be negligent to select a drawee bank as collection agent, it is unreasonable to generalize that the mere fact that cheeks are sent in accordance with the customs and the statute laws of the state where the transaction occurred direct to the drawee bank for collection and remittance is negligence per se, and that the authorities holding otherwise state the correct rule. Capital Grain & Feed Co. v. Federal Reserve Bank of Atlanta (D. C.) 3 F.(2d) 614; Cleve et al. v. Craven Chemical Co. (C. C. A.) 18 F.(2d) 711, 52 A. L. R. 980; Chicago, Milwaukee & St. Paul Ry. Co. v. Federal Reserve Bank, 70 Utah, 310, 260 P. 262, 61 A. L. R. 456; Morse on Banks and Banking (5 Ed.) § 220; Davis v. First National Bank, 118 Cal. 600, 50 P. 666; Kershaw v. Ladd, 34 Or. 375, 56 P. 402, 44 L. R. A. 236; Waggoner Bank & Trust Co. v. Gamer (Tex. Sup.) 213 S. W. 927, 6 A. L. R. 613; Bank of Dunnellon v. Marlow (Fla.) 129 So. 604.

■Believing that, both because of the fact that there was no negligence established, and that if there was the proof failed to show any resulting loss, the judgment of the Court below is correct, that judgment is affirmed.

       Chapter 5951 Laws of Florida 1909 (Comp. Gen. Laws 1927, § 6834): “ ‘Due diligence? by Bank. When a check, draft or other negotiable instrument is deposited in a bank for credit, or for collection, it shall be considered due diligence on the part of'the bank in the collection of any check, draft,- note or other negotiable instrument so deposited, to forward en route the same without delay in the ustfal commercial way in use according to the regular course of business of banks, and the maker, endorser,.guar-» antor or surety of any check, draft, note or 'other negotiable instrument, so deposited, shall be liable to the bank until actual final payment is received, and when a bank receives for collection any check, draft, note or other negotiable instrument and forwards the same for collection, as herein -provided, it shall only be liable after actual final payment is received by it, except in case of want of due diligence on its part as aforesaid. (Ch. 6951, June 8, 1909, § 1.)*'


author: THOMPSON, Circuit Judge.

text:
    BROWN v. COMMISSIONER OF INTERNAL REVENUE.
    No. 4580.
    Circuit Court of Appeals, Third Circuit.
    June 23, 1931.
    Reynolds D. Brown, of Philadelphia, Pa., for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., and John H. McEvers and Sewall Key, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Robert L. Williams, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
    Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
   THOMPSON, Circuit Judge.

This ease is brought here upon petition for review of an order of redetermination entered by the Board of Tax Appeals.

Henry W. Brown on December 31, 1924, executed a deed of trust conveying and transferring a large part of his property to the Provident Trust Company and three of his sons as trustees. In the pertinent parts of the deed of trust, it was provided as follows:

“At the decease of the Settlor said Trustees shall pay over the capital or principal of said Trust as follows, to wit: * * *
“IX. The balance of the capital or principal of said Trust shall be distributed in such way or manner, and at such time or times, and in such proportions and upon such conditions as said Trustees or the survivors of them may, in'the exercise of their sole and uncontrolled judgment, deem to be wise and best, bearing in mind the ideals of said Settlor with reference to the ownership of money and to the ideas on the general subject as expressed by him from time to time.”

The settlor died on December 22, 1925. During his lifetime he had in mind and had expressed a desire to erect a church near his home upon property owned by him, as a memorial to his wife. The trustees had all been consulted and- had taken part in conferences concerning the building of the church with the settlor and the rector of the church.

After the death of the settlor, the trustees spent the sum of $220,805.98 in cash plus the value of the land of the settlor necessary for the purpose, in erecting a Memorial Church of the Good Shepherd near the home of the decedent in memory of him and his wife. This was done in accordance with conclusions reached immediately after the set-tlor’s death at a conference of the trustees with the rector and vestry of the church.

Reynolds D. Brown, as administrator of the estate of the decedent, claimed that the amount expended by the trustees for the erection of the church was deductible from the value of the gross estate ascertained under the provisions of section 301 and 302 of the Revenue Act of 1924 (26 USCA §§ 1092 note, 1093 note, 1094 note “as a transfer.” under section 303 (a) (3) of - that Act (26 USCA § 1095 note):

“ * * !? In contemplation of or intended to take effect in possession or enjoyment at or after the decedent’s death, to or for the use of * * * any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes. * * * ”

The Commissioner of Internal Revenue refused to allow the deduction, whereupon an appeal was taken to the Board of Tax Appeals. The board, after taking testimony, decided against the appellant’s contentions, and held that he was not entitled to such deduction in the calculations of the estate tax. The Board of Tax Appeals held that the language under which the discretion of the trustees was to be exercised was not such that a court could lay hold of and execute as a charitable trust. In their findings of facts and opinion, they state:

“The instrument before us contains nothing which would restrict the discretion of the trustees to any charitable trust. Testimony was received to show that the decedent in his lifetime had spoken of the erection of a memorial church. But whether this constituted one of his ideals as to the ‘ownership of money’ and was in line with his ‘ideas on the general subject’ is not.shown by the evidence. What were the decedent’s ideals as to the ownership of money and did the building of a church have anything to do with them? It is difficult to see the connection and in our opinion the evidence falls short of establishing it.”

The first question to be determined is, What were the powers conferred upon the trustees? There can be no doubt that there was vested in them a very broad discretion, for the settlor directed distribution of the balance of the principal of the trust estate “in such way or manner and at such time or times and in such proportions and upon such conditions as the said trustees may in the exercise of their sole and uncontrolled judgment deem to be wise and best.” Up to that point, there is nothing in the language indicating power of distribution to charities, but the settlor follows that by the language, “bearing in mind the ideals of said settlor with reference to the ownership of money and to the ideas on the general subject as expressed by him from time to time.”

While that language is lacking in definiteness, it was for some one to determine what were the ideals of the settlor and what were his ideas on the general subject, as expressed by him from time to time. The trustees in the exercise of the power of appointment took into consideration what they knew were the ideals of the settlor and his ideas on the general subject. That knowledge was derived from conversations of the settlor in his lifetime with the trustees and the rector of the church, and they applied it in determining, in the exercise of their sole and uncontrolled judgment, that the church should be erected in- accordance with the settlor’s wishes.

-' ■ They reached their conclusion as to the settlor’s intention from uneontradieted facts within their knowledge established through the testimony of witnesses called on behalf of the petitioner at the hearing before the Board of Tax Appeals upon December 9, 1929.

' : Rev. William Y. Edwards testified that he had been rector for over two years of the Memorial ■ Church of the Good Shepherd, Germantown. That he knew the decedent, Henry W. Brown, who was not a communi.eant member of the church of the Good Shepherd, but lived about five minutes walk from the.original location of that church. That, prior to - the' erection of the new church, it seated only eighty people, so that the congregation was crowded. He had about twelve talks with Henry W. Brown, beginning May 13, 1924, and ending December, 1925 (which ■Was the month of the settlor’s death). Such .talks were generally, though not always, at 'the request of Henry W. Brown, who desired him to call and discuss the erection of a church in memory of his wife, on the Oak road. That topic was diseussed during practically all of the dozen visits paid to Mr. !Brown. On April 25,1925, he took dinner at ■Mr. Brown’s house with him and Reynolds D. Brown, the petitioner. Before dinner they looked at lots on the Oak road and then returned to dinner and diseussed the possibility of erecting such a memorial church. There was no change in the settlor’s attitude 'with reference to the possibility of building the church on the Oak road. It was quite 'definite'that he wanted to erect such church ■in'memory of his wife. During the last few ■.tiidiiths of his life, he was mentally unable, at triads',1 to carry out definite plans or ideas.

' íhe day after his death, Mr. Edwards called at his house and Henry I. Brown, one of the trustees, told him that his brothers and he intended to carry out their father’s wish 'to erect a memorial church. About a week ■afterward, he met, at the settlor’s house, the three sons-and a. committee of the vestry, and the .question of getting the church presented it), the vestry was discussed, and the location; 'arid--it was accepted and agreed upon. That shortly afterward, a lot was set apart, the architect chosen, plans submitted to the vestry, approved by them, and the work begun.

Henry I. Brown, one of the trustees and a son of the settlor, testified that the decedent talked of a number of things after his wife’s death, having always in mind some memorial for her. That the last year or two before he died the only thing that he talked about was the memorial church on Oak road. This was the last thing he had in mind, and the only thing he had in mind to such an extent. . After his death, the three sons never thought of anything else except this one particular thing as carrying out his particular wishes as they understood them. He recalled his saying that that was a matter in which he was interested, and it was the logical thing to do, and it was the thing he had in mind. The witness, who was a vestryman of the Church of the Good Shepherd, corroborated Mr. Edwards in the statement that the previous church was crowded and that, at the time of the decedent’s death, it seemed to be the most logical thing in the world to carry out his wishes, not only in memory of the decedent’s wife, but also to help the congregation in which he was so much interested. He corroborated Mr. Edwards’ testimony as to the meeting at the decedent’s house at which the trustees and the vestry were present, when the sons made a formal offer to present the church, and stated they thought it was decedent’s wish, and that he would rather have them do it than anything else in the world.

Theodore E. Brown, one of the trustees, testified that for approximately two years previous to the decedent’s death he spent a great deal of time at his father’s house, and on numerous occasions his father diseussed the building of a memorial, which became more gradually defined into the building of a church, with the lot in mind. That, if the church could be built, the decedent determined it should be built on Oak road. That decedent told him that he was planning to get hold of Mr. Edwards, the rector, for the purpose of discussing with him the practicability of getting a church on Oak road and replacing the smaller church. That the decedent told him that he had arrived at no definite conclusion as to the lot on which the church should be placed. That he was hoping to take-up aggressively the building of a church when he got better, but he did not get better, and, therefore, did not take it up. ■After his death, the three brothers agreed that they would at once proceed with the building of a church, because it had been clearly stipulated by the decedent that a memorial should be built, and with that end in view.they called a meeting with the rector and the vestry for the purpose of going into details and to get down to just what kind of a church to build and where to build it. That the trustees agreed to set aside a sum of money sufficient to build the kind of church the decedent had in mind, adequate to hold a larger congregation than was possible in the old location.

On cross-examination, the witness testified that the three brothers acted in collaboration ‘with the Provident Trust Company and were continually in contact with its representative. It was definitely fixed in his mind that the decedent had stipulated a memorial should be built. That he used the word “stipulated” meaning it was the decedent’s desire, ambition, or intention.

Reynolds D. Brown, the petitioner, corroborated his brothers’ and Mr. Edwards’ testimony that about two years before de■cedent’s death he talked to him, not once, but many times about his plan of building this memorial church on the Oak road. It was a favorite subject of discussion on the decedent’s part after his wife’s death. He remembered distinctly in April, 1925, when he and the decedent were talking about the matter and decedent asked him to call up Mr. Edwards and see whether he could come down and take supper and look at the lots, and “see if we can’t reach a conclusion.” The decedent spoke of the subject afterward, perhaps a dozen times between the spring in 1925 and his death in December. The decision to build a church was reached immediately after the decedent’s death. There was never, from the first, any difference of opinion between the trustees as to the desirability or necessity, in order to perform their duties as trustees, of carrying out this plan. The witness testified to the meeting of the trustees with the rector and vestry at decedent’s house with the result that the church was proceeded with and built.

Robert D. Geiger, assistant trust officer of the Provident Trust Company, testified that he was fairly familiar with the deed of trust and the things done by the trustees under the deed of trust. That he attended meetings of the trustees and the president of his company, and recalled the discussion with reference to the building of the church. That there was no difference of opinion between the trustees as to the importance of building the church, which was perfectly agreed to.

The testimony, which was uneontradieted, we deem amply sufficient to establish the fact that the building of the memorial church did constitute one of the settlor’s ideals as to “the ownership of money,” and that it was in line with his “ideas on the general subject.” The officers of the Provident Trust Company, through which all of the business and dealings in connection with the settlor’s estate were transacted, were familiar with the things done by the trustees under the deed of trust, with the terms of that trust, and Mr. Geiger attended meetings of the trustees with the president of the company and recalled the 'discussion with reference to the building of the church. Under the deed of trust, the trust company was custodian of the investments, securities, and properties of the trust. With knowledge of the ideals and ideas of the settlor, it could lawfully have refused to pay out or transfer the funds or property for other purposes, which would diminish the trust estate to an extent which would have prevented the settlor’s purpose Being carried out.

We think the Board of Tax Appeals was in error in holding that the appointment to the church, under the power vested in the trustees, was void for uncertainty. That conclusion is based upon the alleged ground that there is nothing whatever in the trust instrument to indicate any charitable intent on the part of the decedent. We deem it immaterial that clause IX does not specifically name charities, for there is in our judgment sufficient to show that the ideals of the settlor, with reference to the ownership of money and his ideas on the general subject as expressed by him from time to time, were those known by him to have been communicated in his lifetime to his sons, the trustees. Having knowledge of the ideals and ideas of the set-tlor, it was for them to determine from the facts within their knowledge what these ideals and ideas were and to make certain, in the exercise of their judgment, that they were putting them into effect.

The cases in Pennsylvania, the domicile of all the parties and the situs of the trust property, are thoroughly discussed by Mr. Chief Justice Mitchell in Dulles’ Estate, 218 Pa. 162, 67 A. 49, 50, 12 L. R. A. (N. S.) 1177. In his opinion he said:'

“Upon the question of want of certainty or definiteness the distinction between the purposes of any lawful trusts is not part of the ratio decidendi. The decisions rest on the maxim ‘id eertum est quod eertum reddi potest,’ and so long as there is a tribunal authorized, either expressly or by reasonable implication, to define and make certain the objects, the trust is not void for uncertainty. It is not necessary that the courts unaided should be able to define the specific objects. It is sufficient if the general purpose is made clear enough for the court to perceive and prevent such a diversion as would be a fraud on the testator’s intent. * * *
“The' practical questions, therefore, in such eases are: First, is the testator’s general intent ascertainable; and, second, is there any tribunal provided to ascertain the specific objects to which such intent is to be applied? If so, the trust is not void for uncertainty, whether it is for a technical charity or not.”

" In Beck’s Appeal, 116 Pa. 547, 9 A. 942, the decedent’s will provided, after the payment of legacies, bequests, and expenses:

“I do hereby give and grant unto my executor hereinafter named full and unlimited power and authority to appropriate or dispose of all the rest, residue, and remainder of my estate, real and personal, or the proceeds arising from the sale thereof, to such objects, persons, or institutions as in his discretion shall be best and proper, as I have full confidence in his judgment, ability, and integrity in the premises.”

Judge Penrose, the auditing judge held, and was sustained in a per curiam by the Supreme Court:

“The power given was ‘full and unlimited.’ It was to ‘appropriate or dispose’ of the residue to such persons, objects or institutions as the executor should name. The gifts to the persons, objects or institutions thus selected were direct; and when the selection was made, they would take precisely as if the testator had himself made the selection, and their names had been set forth in the will.”

In the instant ease, the tribunal, authorized expressly to define and make certain the objects, consisted of the trustees. They had the broad power of appointment under the will in the exercise of their sole and uncontrolled judgment in what they deemed to be wise and best, bearing in mind the ideals of the settlor with reference to the ownership of money and to the ideas on the general subject as expressed by him from time to time. Those ideas and ideals being known to them at the time the trust deed became effective, were valid for the purpose to which the power was applied, and had precisely the same effect as if they had been made directly by the settlor in the deed of trust.

It is contended, however, by the Commissioner of Internal Revenue that the appointment under the power was void because contingent and, therefore, under the authority of Humes v. United States, 276 U. S. 487, 48 S. Ct. 347, 72 L. Ed. 667, was not deductible. This contention is based upon the terms of the trust deed which leave the disposition of the trust estate subject to the uncontrolled judgment of what the trustees deem to be wise and best, etc.

But where a power of appointment is discretionary, the power being exereised relates back to the period of time of the settlement of the power. That is, in this case, to the date of the testator’s death. Therefore, when the power was once exereised, the church took the gift from the settlor, the creator of the power, and not from the trustees themselves, for the reason that the deed created no estate in any one except through the exercise of the power to appoint under the terms of the deed. The tribunal, authorized to appoint, having exereised the power, their act relates back to the settlor and the estate passed from him, as the creator of the power, and not from the trustees. Beck’s Appeal, supra.

We conclude that the Board of Tax Appeals was in error in disallowing the deductions claimed by the petitioner of .the amount expended and the value of the land conveyed by the trustees under the power contained in the deed of trust in and about the erection and construction of “the Memorial Church of the Good Shepherd, Germantown.”

As to the finding of deficiency in the estate tax imposed on the money so expended and land so conveyed, the order and decision of the Board of Tax Appeals is reversed.

There was no evidence that other gifts made by the trustees for religious or charity ble purposes were intended by the settlor tó be with'n the terms of the power of appointment. Therefore, in all' other respects the order and decision of the board is affirmed.


author: SIMONS, District Judge.

text:
      Ex parte DE ANGELO.
    No. 5868.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    P. M. Herbert, of Columbus, Ohio (H. A. Toland, of Columbus, Ohio, on the brief), for appellant.
    R. H. Hildebrant, of Dayton, Ohio (Ha-veth E. Mau, of Cincinnati, Ohio, on the brief), for appellee.
    Before DENISON and HICKENLOOPER, Circuit Judges, and SIMONS, District Judge.
   SIMONS, District Judge.

The appellant was jointly indicted with two others for conspiracy to violate the National Prohibition Law. On June 22, 1928, he withdrew a plea of not guilty and entered a plea of guilty. Subsequently, on June 27, 1928, his eodefendants were tried, found guilty, and sentenced. Sentence upon the appellant was deferred without designation of any specific date in the then or any succeeding term upon which sentence would be imposed. Nothing further is shown in the record relative to the disposition of appellant’s plea until July 15, 1930, when he was called into court and sentenced, such sentence being imposed in the fourth term following that in which his sentence was deferred. A final commitment being issued against him, appellant filed application for a writ of habeas .corpus, which was dismissed. At the hearing upon the writ the court records were produced in evidence, and were supplemented by oral testimony, and a statement of the sentencing judge read into the record. From such evidence it appears that at the time the appellant pleaded guilty his eodefendants had not yet been tried; that upon entering his plea the defendant, or his counsel, represented to the court that the defendant would like to have some time to arrange his business affairs; that subsequently the appellant went to the District Judge and asked that he be given a chance.' In September, 1928, he called the United States attorney to ascertain when he would be wanted for sentence, and was told that when wanted he would be called. Subsequently the sentencing judge had further conversation with the appellant while in the pursuit of some investigation in relation to his two eodefendants. Appellant was later indicted upon a narcotic charge, and pending trial nothing was done in respect of sentence on his former plea. After appellant’s acquittal on the narcotic charge he was brought into court to be sentenced on the conspiracy indictment.

It is now contended that the sentence of the appellant was invalid because the court having deferred the sentence indefinitely, and the then and next succeeding terms of court having expired, had lost jurisdiction to impose any sentence.

Prior to the passage of the Federal Probation Law, 43 Statutes, 1259, Act of March 4th, 1925 (18 USCA §§ 724-727), it had been held that: courts have no power to suspend sentence except for short periods pending the determination of other motions or considerations in the cause after verdict, and that when the court has by order indefinitely suspended sentence it cannot thereafter, and especially at a subsequent term, revoke such order and proceed to judgment by sentencing the defendant, United States v. Wilson (C. C.) 46 F. 748; .that a court may, by appropriate action, retain jurisdiction of a criminal cause for a lawful purpose beyond the term of the conviction, and may-impose .such sentence at a later term, but (in the absence of a statute or accepted practice) the mere silent postponement of sentence in effect postpones sentence indefinitely, and precludes the court from pronouncing sentence at a subsequent term, Ex Parte Singer, 284 F. 60 (C. C. A. 3); Mintie v. Biddle, 15 F.(2d) 931 (C. C. A. 8); that jurisdiction to impose sentence at a -term after the trial term is retained where the court’s purpose in postponing sentence is not to pardon or parole, but is inei-dent to the administration of justice within its powers, and its orders of postponement are unconditional and for a definite period, Miner v. United States (C. C. A.) 244 F. 422; Musick v. United States (C. C. A.) 2 F.(2d) 711. In Ormsby v. United States (C. C. A.) 273 F. 977, it was thought by this court to be competent for the trial court to postpone the imposition of sentence after conviction to give opportunity for the consideration of a motion for a new trial, or to enable the judge to better satisfy his own mind as to what the punishment ought to be.

Much might be said of the indications contained in the present record that there was here no intention to postpone sentence indefinitely, nor to use such postponement for an unlawful purpose, such as an exercise by the court of the power to pardon, or parole, within the condemnation of Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355 (the Killits Case), and that the postponement here was to enable the judge to better satisfy his own mind as to what the punishment ought to be. Such indications áre found in the fact that at the time of postponement appellant’s eodefendants had not yet been tried, that later the District Judge was pursuing an investigation in respect' to them, and that still' later appellant was awaiting trial upon another charge, but we are not called- upon to decide the ease upon such grounds. - -

When the appellant’s sentence was pbstponed the Federal Probation Law was in force. This statute conferred upon courts of the United States having original jurisdiction of criminal actions the power to suspend' the imposition or execution of sentence. Granted that in the instant ease the sentencing judge did not specifically indicate that the postponement of sentence was a suspension of-its imposition under the Probation Law. We are dealing with the question of judicial power. If what the court did, by whatever name it may be called, operated as a suspension-of the imposition of sentence, it was clearly within the power of the court to do it. The decisions in the Singer Case, the Mintie Case, and others, were predicated on the absence of a statute conferring upon eourts the power to suspend sentence. We now have the statute. Granted also that' the Probation Law limits the period of suspension to five years, and that an indefinite suspension may be invalid, yet under the rule of the Killits- Case (Ex Parte United 'States), supra, -the judge might be required by mandamus to eliminate such suspension, or to make it definite, and it follows that without mandamus he could, as he later did, the defendant being present, eliminate suspension and order commitment to the penitentiary. United States ex rel. Campbell v. Bishop, Morale Officer, 47 F.(2d) 95 (C. C. A. 5).

This court in Evans v. District Judge, 12 F.(2d) 64, indicated that in its judgment the act does not- contemplate that request to be put on probation should be the subject of formal applications, hearings, and orders. The same may, of course, be said with respect to suspending the imposition of sentence. The Courts of Appeals of the Eighth and the Fourth Circuits have held that much latitude is allowed District Judges in enforcement of the Probation Act. Reeves v. United States, 35 F.(2d) 323; Riggs v. United States, 14 F.(2d) 5. The court in Mintie v. Biddle, supra, was of the opinion that the Probation Law had no bearing on the case there considered, because it was not enaeted for more than two years after the sentence dealt with was postponed. It suggested however, that it would be time enough to construe the aet as to its effect on1 an indefinite suspension of the imposition of sentence when the court in some future ease should meet the point face to face. We have here met it, and it results from what is said that the order of the District Judge in dismissing the writ is affirmed.


author: PARKER, Circuit Judge.

text:
    BOWLES v. UNITED STATES.
    No. 3149.
    Circuit Court of Appeals, Fourth Circuit.
    June 17, 1931.

      John Philip Hill, of Washington, D. C. (Hill, Boss & Hill, of Washington, D. C., on the brief), for appellant.
    Wm. Baxter, Asst. U. S. Atty., and Simon E. Sobeloff, U. S. Atty., both of Baltimore, Md.
    Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN, District Judge.
   PARKER, Circuit Judge.

This is the second appeal in this cause, the first opinion, which sets forth the facts very fully, being reported in (C. C. A.) 44 F.(2d) 115. We there held that the con-tempts charged against the respondent, Bowles, were not of the class punishable summarily, and that there was error in imposing punishment without giving him opportunity to answer or to produce witnesses in his defense. The ease was remanded in order that he might be given this opportunity and that the charges might be then passed upon in the light of all of the evidence, including the knowledge of the judge below of the acts committed in his presence and the statements made to him, as well as any evidence which the respondent might offer in explanation or contradiction of the charges.

After the mandate of this court was received, the court below entered an order and issued a rule against respondent, reciting the charge against him, and directing that he appear before the court on December 20, 1930, and show cause why he should not be attached for contempt. The recitals of the order are substantially the same as those of the order of December 3, 1929, set forth in full at (C. C. A.) 44 F.(2d) 115, 116, except that they omit the charge that respondent failed to comply with the order of court to appear and explain his conduct. The order recites, however, just as did the former order, that he falsely represented himself to the court to be a practicing attorney of the District of Columbia, whereas the truth was that he had been disbarred, and that, by making this false representation, he obtained permission to represent a prisoner at the bar of the court.

The order was served on respondent on November 22d. On December 16th, he filed an affidavit of prejudice against the judge and also a motion that the cause be certified to another judge for hearing. On December 20th, the return day of the rule, this motion, was denied, and the affidavit of prejudice was ordered stricken from the record. Respondent then moved to dismiss the rule on the ground, among others, that it failed to charge any act constituting contempt. This was overruled, as was also a motion for a bill of particulars. The respondent then filed answer to the rule in which he denied under oath making the representations charged, but admitted that he had been disbarred in the District of Columbia. He demanded a jury trial, which was denied, and then moved for a continuance on the ground that he desired to produce witnesses, but without showing what the witnesses would testify, why they were not. present, or how they would be material to his defense. This motion also was denied. The court gave respondent the opportunity to offer evidence, but he neither took the stand himself to explain his conduct, nor did he offer other testimony to explain it. He was then adjudged in contempt, and punishment was imposed upon him.

The assignments of error raise seven questions, viz.: (1) whether there was error in striking from the record the affidavit of prejudice and refusing to certify the cause to another judge for hearing; (2) whether the charge against respondent constituted contempt; (3) whether the answer of respondent purged the contempt charged; (4) whether there was error in denying the bill of particulars asked; (5) whether respondent was entitled to a jury trial; (6) whether it constituted error to proceed with the hearing on the return day of the rule instead of setting the cause down for hearing in the future; and (7) whether the court was justified in adjudging the respondent guilty of contempt and imposing punishment without hearing additional evidence. We think that all of these questions must be answered against respondent. -

There is much doubt as to whether section 21 of the Judicial Code (28 USCA § 25), under which the affidavit of prejudice was filed, has any application to contempt proceedings, particularly where, as here, the contempt is committed in the presence of the court. The affidavit there provided for is allowed in any action or proceeding, “civil or criminal,” whereas contempt proceedings are sui generis, being neither civil actions- nor prosecutions for offenses within the ordinary meaning of those terms. Myers v. U. S., 264 U. S. 95, 103, 44 S. Ct. 272, 68 L. Ed. 577; Bessette v. W. B. Conkey Co., 194 U. S. 324, 326, 24 S. Ct. 665, 48 L. Ed. 997. And there is strong reason to think that Congress did not intend by the section relied on to require the judge of a court which has been affronted by a contempt to pass over the trial of the question to some other court or judicial officer. As said by Judge Killits in the case of In re Ulmer (D. C.) 208 F. 461, 466:

“The federal courts hold, without qualification, that the power to punish for con-tempts is inherent in all the courts of the United States, its existence being essential to preserve order in judicial proceedings and the enforcement of the court’s judgments, and, consequently, to the due administration of justice; that it inheres in the dignity of the court itself, and is an attribute as essential and indispensable to the due administration of justice as the person of a judge. In re Nevitt, 117 F. 448, 54 C. C. A. 622; Ex parte Robinson, 86 U. S. (19 Wall.) 505, 22 L. Ed. 205; Bradley v. Fisher, 80 U. S. 340 (13 Wall.) 20 L. Ed. 646. This being the necessary power of the court, with the right to summarily exercise it inherent in the fact itself, we hold that Congress cannot embarrass a court in the exercise of this duty by providing for the disability of the particular judge the dignity of whose court was affronted by the conduct under consideration, and that no attempt was made to do so by the act in question. Such construction of section 21 of the Judiciary Act would lead to'manifest absurdities; it would tend to weaken the proper power of the courts to duly administer justice by requiring an individual judge who is, as Mr. Chamberlyne says, the ‘percipient witness’ of the transaction to pass over the question whether or not the dignity of his court was affronted to some other tribunal or judicial officer of merely co-ordinate powers, who, as the Supreme Court in the ease of a removal from the bar said, could not decide ‘with the same means of information as the court itself.’ We hold, then, that this statute cannot be applied to the ease of a direct and criminal contempt, because of the very nature of such a matter.”

But, without deciding that the section does not apply, we think that it cannot avail the respondent here, because the affidavit upon which he relies was not filed in time. The statute requires that it be filed not less than ten days before the beginning of the term of court. In Chafin v. U. S. (C. C. A. 4th) 5 F.(2d) 592, 595, we held that: “When the indictment is found less than ten days before such term begins, the affidavit must be filed as soon as practicable before the term begins or good cause shown for the delay; when the indictment is found after the term has begun, the affidavit must be filed as soon as the disqualifying facts are known or good cause shown for delay.”

The respondent here failed to comply with the provisions of the statute or the rule laid down by this court in the Chafin Case. The rule was served upon him on November 22d, just ten days before the commencement of the December term of court. He did not file his affidavit until December 16th, four days before the return day of the rule. It thus appears that he did not file it either ten days before the term or ten days before the return day of the rule, whichever be taken as the crucial date. To apply the rule of the Chafin Case, he did not file it as soon as practicable or as soon as the disqualifying facts became known to him, and he did not show any cause whatever for the delay in so doing.

On the second question, we think there can be no doubt that the rule or order served upon respondent sufficiently charged a contempt of court. The brief of respondent assigns no ground of insufficiency, except that no affidavit was made supporting the charges and no information was filed by the United States attorney as contemplated by the Act of Oct. 15, 1914, c. 323, §§ 21, 22, 38 Stat. 738 (28 USCA §§ 386, 387). That act, however, has reference to acts constituting contempt which are also criminal offenses under the laws of the United States or of the state where committed. It has no application to the contempt here, which was properly proceeded against under section 268 of the Judicial Code (28 USCA § 385).

As to the sufficiency of the charge, it is uniformly held that for one to hold himself out as a practicing attorney after he has been disbarred is a contempt of the court which disbarred him. Bowles v. Laws, 59 App. D. C. 399, 45 F.(2d) 669; In re Lizotte, 32 R. I. 386, 79 A. 960, 35 L. R. A. (N. S.) 794; In re Duncan, 83 S. C. 186, 65 S. E. 210, 24 L. R. A. (N. S.) 750, 18 Ann. Cas. 657. The contempt here, however, is of a different character. It consists in the imposition practiced upon the court by the false statements of respondent. Attorneys at law bear an important relation to the courts before which they practice. They are in a very real sense officers of the court; and the proper and orderly administration of justice depends in a very large measure upon their character and fidelity. Under our system, it is not unusual for attorneys practicing in one jurisdiction to have business in another; and in such eases it is eustomary for the court, upon this fact appearing, to permit them to appear pro hae vice with all the privileges of attorneys regularly practicing at its bar. Respondent- obtained this privilege by falsely representing his status; and the imposition thus practiced on the court was clearly a contempt committed in its presence. As said in our former opinion, “a contempt of this sort is analogous to false swearing, which is punishable as contempt under proceedings had under rule to show cause.” See In re Ulmer, supra; also U. S. v. Ford (D. C.) 9 F.(2d) 990, where an attorney was held guilty of contempt in presenting false documents for the preparation of a bill of exceptions; Chicago Directory Co. v. U. S. Directory Co. (C. C.) 123 F. 194, where an attorney was held guilty of contempt in presenting to the court fabricated testimony; and Ex parte Steiner (C. C. A. 2d) 202 F. 419, where persons were held guilty of contempt in swearing to false affidavits for the purpose of misleading the court.

Little need be said as to the position of respondent that the contempt was purged by the answer. It is well settled in the federal courts that, with the possible exception of cases where the contempt inheres in the intent with which an ambiguous act is done, a person may not purge himself of the contempt charged by mere denial under oath. U. S. v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; Id., 214 U. S. 386, 405, 29 S. Ct. 637, 53 L. Ed. 1041; Oates v. U. S. (C. C. A. 4th) 233 F. 201; Bowles v. Laws, 59 App. D. C. 399, 45 F.(2d) 669, 671.

As to the bill of particulars, the granting of this was a matter resting in the sound discretion of the trial court; and there is nothing to show that the discretion was abused. On the contrary, it is difficult to see how the charges could have been made more specific. Respondent was apprised of the date, time, place, and nature of the acts •complained of; and it is inconceivable that, with all that had taken place in the ease, 'he was not fully advised of all of the circumstances of the charge against him.

The demand for a jury trial and that the cause be set down for hearing on a future date were based upon the mistaken ■assumption that the procedure was governed by the provision of the Act of Oct. 15, 1914, -e. 323, §§ 21, 22, 38 Stat. 738 (28 USCA §§ 386, 387). As we have seen, the contempt charged did not constitute a crime, and the provisions of that act have no application. Michaelson v. U. S., 266 U. S. 42, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451. 'The contempt was one committed in the presence of the court (see Ex parte Savin, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150); .and it is expressly provided by the act of 1914 that its provisions shall not be construed to relate thereto. Section 24 (28 USCA § 389). It was properly proceeded against under section 268 of the Judicial Code (28 USCA § 385); and it is expressly held that in proceedings under that section the re-spondent is not entitled to a jury trial. Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 10 S. Ct. 424, 33 L. Ed. 801; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489, 14 S. Ct. 1125, 38 L. Ed. 1047; Cooke v. U. S., 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767.

There was no necessity for the taking of additional testimony as a prerequisite to adjudging the defendant guilty and imposing punishment. The representations were made to the judge in open court, and the falsity of the representation as to respondent’s professional status was established by the written answer which he filed under oath. There can be no question as to the right of the judge to consider what has occurred in his presence without taking testimony with regard thereto. In re Terry, 128 U. S. 289, 309, 9 S. Ct. 77, 32 L. Ed. 405; Ex parte Savin, supra, 131 U. S. 267, 277, 9 S. Ct. 699, 33 L. Ed. 150; Cooke v. U. S., supra, 267 U. S. 517, 535, 45 S. Ct. 390, 69 L. Ed. 767. And the statement signed and filed by him as to matters occurring in court in his presence imports absolute verity. In re Ulmer, supra; Mahoney v. State, 33 Ind. App. 655, 72 N. E. 151, 104 Am. St. Rep. 276. Respondent was given ample opportunity to produce evidence in contradiction or explanation of the charges, if he desired to do so; and the learned judge below has complied in all other respects with the requisites of due process as laid down in our former decision.

There was no error, and the judgment appealed from will be affirmed.

Affirmed.


text:
    BLEASE et al. v. SAFETY TRANSIT CO.
    No. 3137.
    Circuit Court of Appeals, Fourth Circuit.
    June 17, 1931.

      Pinckney L. Cain and Cordie Page, both of Columbia, S. C. (John M. Daniel, J. Ivey Humphrey, and Thomas & Lumpkin, all of Columbia, S. C., on the brief), for appellants.
    - P. F. Henderson, of Aiken, S. C. (Edgar A. Brown and Brown & Bush, all of Barn-well, S. C., and Hendersons & Salley, of Aiken, S. C., on the brief), for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and MeCLINTIC, District Judge.
   PARKER, Circuit Judge.

The Safety Transit Company, a North Carolina corporation, is engaged in operating a bus line between Washington, D. C., and Miami, Fla., through the state of South Carolina. On November 26th it applied to the railroad commission of South Carolina for a certificate of publie convenience and necessity authorizing it to render motor bus service in interstate and intrastate commerce in and through the state of South Carolina over and along the publie highways of that state. The commission denied the application for the certificate; and the transit company, thereupon, abandoned all effort to operate in intrastate commerce but continued to operate in interstate commerce. The members of the commission then instituted this suit in the Supreme Court of South Carolina and secured a temporary restraining order enjoinirig the transit company from operating any of its buses over the roads of the state. The suit was removed by the transit company into the court below, where the restraining order was modified so as to permit the operation of buses in interstate as distinguished from intrastate commerce. At the final hearing of the cause, upon its appearing that defendant was not attempting to operate its buses in intrastate commerce, the court dissolved the restraining order and dismissed the bill, and complainants have appealed.

No question is raised as to any failure on the part of defendant to comply with the tax laws or police regulations of the state. On the contrary, it appears that it has complied or offered to comply with all of these. The questions presented axe: (1) Whether the defendant had the right to remove the case into the federal court; and (2) if so, whether the complainants were entitled to enjoin defendant from operating its buses in interstate commerce because it had been refused a certificate of public convenience and necessity by complainants. We think that the court below correctly answered both of these questions in favor of defendant.

Defendant contends that it had the right to remove the case both on the ground of diversity of citizenship and because the ease presented was one arising under the Constitution of the United States. As to the first ground, the suit was instituted by the members of the railroad commission, not as individuals, but in their official capacity. It appears, however, that the relief sought would inure, not to the benefit of the state as an artificial person (Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 390, 14 S. Ct. 1047, 38 L. Ed. 1014), but to those interested in operating buses over the roads of the state. It is in effect a suit to enforce the order of the railroad commission with respect to the use of the roads by competing bus lines. The persons interested are complainant and competing bus lines and the publie which patronizes them. The state of South Carolina has no interest in the litigation except the governmental interest of compelling obedience to the legal order of its officials and in securing compliance with its laws. “But such general governmental interest is not that which makes the state, as an organized political community, a party in interest in the litigation.” Missouri, etc., Ry. Co. v. Missouri Railroad & Warehouse Commissioners, 183 U. S. 53, 60, 22 S. Ct. 18, 21, 46 L. Ed. 78.

But, even if the state be considered the real party in interest, the right of removal would nevertheless exist, because the ease is one arising under the Constitution of the' United States, the point presented being the right of a state to require a bus line engaged in interstate commerce to obtain, as a condition of carrying on such commerce, a certificate of publie convenience and necessity. It is well settled that a suit arising under the Constitution or laws of the United States is removable, even though it be brought by one of the states. Ames v. Kansas, 111 U. S. 449, 4 S. Ct. 437, 28 L. Ed. 482. And we think that there can be no question that the suit here is one so arising.

A ease is said to arise under the Constitution and laws of the United States “ ‘whenever its correct decision depends upon the construction of eitheF * * * or when ‘the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction.’ ” Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. Ed. 656; Cohens v. Virginia, 6 Wheat. 379, 5 L. Ed. 257; Osborn v. Bank, 9 Wheat. 822, 6 L. Ed. 204; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713; Bellaire, Benwood & Wheeling Ferry Co. v. Interstate Bridge Co. (C. C. A. 4th) 40 F. (2d) 323. And a suit which asserts the right on the part of a state to regulate interstate commerce raises a question under the Constitution of the United States; for the exclusive power to regulate such commerce is vested by the Constitution in Congress. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Wabash, St. Louis & Pac. Ry. Co. v. Illinois, 118 U. S. 557, 7 S. Ct. 4, 30 L. Ed. 244; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286.

It is true, as contended by complainants, that to justify the removal of a cause on the ground that it arises under the Constitution, the fact that it so arises must appear upon the face of plaintiff’s pleading, and the fact that defendant may rely upon some constitutional provision does not warrant the removal. Great Northern Ry. Co. v. Galbreath Cattle Co., 271 U. S. 99, 46 S. Ct. 439, 70 L. Ed. 854; Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713; Postal Telegraph Cable Co. v. State of Alabama, 155 U. S. 482, 15 S. Ct. 192, 39 L. Ed. 231. We think, however, that the fact that this ease involves the right of the state to regulate interstate commerce, and thus presents a question arising under the constitution, clearly appears from the face of plaintiff’s pleading. The bill shows that defendant applied for a certificate of convenience and necessity to operate motor buses not only in but “through” the state of South Carolina. The order denying the applica.tion, which was attached to the bill as an exhibit, shows that the application of defendant was for a certificate authorizing it to operate buses between the North Carolina-South Carolina line and the South Carolina-Georgia line along a certain designated route. And the conduct of defendant against Which injunction is asked is that it is operating motor vehicles for hire within and “through” the state of South Carolina.

Without invoking the rule that pleadings are to be construed most strongly against the pleader, it is clear from the face of the bill that complainants are seeking to restrain commerce which is interstate in character as well as that which is intrastate. There are no cities on the respective state lines which could serve as termini for a bus line on the routes in question; and, when it is alleged that defendant is operating its vehicles for hire “through” the state of South Carolina, the only fair inference is that it is operating them from a state or states on one side to a state or states on the other, for “through” is defined by Webster as meaning “into at one point and out at the opposite, or at another point.” There is no question but that defendant is, as a matter of fact, operating in interstate commerce and, for the reasons stated, we think that this fairly appears from the face of the bill.

It is contended that the judge below had no jurisdiction to pass upon the case without calling to his assistance two other judges ' so as to constitute a court of three judges as provided by section 266 of the Judicial Code (28 USCA § 380). That section, however has no application to a ease such as this. It applies only where an interlocutory injunction is sought to restrain the action of an officer of the state. Ex parte Public Nat. Bank of New York, 278 U. S. 101, 104, 49 S. Ct. 43, 73 L. Ed. 202; Suncrest Lumber Co. v. N. C. Park Com. (C. C. A. 4th) 29 F.(2d) 823, 824; Henrietta Mills Co. v. Rutherford County (D. C.) 26 F.(2d) 799. Here injunction is not sought against officials of the state, but those officials themselves are seeking the injunction against a private corporation. As we said in the Sunerest Lumber Co. Case, supra, section 266 of the Judicial Code was enacted “because it was thought unseemly that one District .Judge should stop the officers of the state in the enforcement of its laws.” Here it is the officers of the state who are invoking the jurisdiction of the court to stop the action of a private person.

On the merits, the case requires little discussion. As heretofore stated, no question is raised as to any failure of defendant to comply with the tax laws or police regulations of the state. It has complied with all of these. Nor is there any question as to the power of the state to regulate the intrastate business of defendant. It'has been granted a certificate to operate buses in intrastq.te commerce on one of its lines and is not seeking to operate in intrastate commerce on the other. The sole question is whether the state can require defendant to obtain a certificate of public convenience and necessity as a condition of operating its buses in interstate commerce through the state; and this question has been so repeatedly answered in the negative as not to justify further discussion of the principles involved. Interstate Transit Co. v. Lindsey, 51 S. Ct. 380, 75 L. Ed. -; Sprout v. South Bend, 277 U. S. 163, 48 S. Ct. 502, 72 L. Ed. 833, 62 A. L. R. 45; Hammond v. Schappi Bus Line, 275 U. S. 164, 48 S. Ct. 66, 72 L. Ed. 218; Interstate Busses Corporation v. Holyoke Street Ry. Co., 273 U. S. 45, 47 S. Ct. 298, 71 L. Ed. 530; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 326, 69 L. Ed. 623, 38 A. L. R. 286; George W. Bush & Sons Co. v. Maloy, 267 U. S. 317, 45 S. Ct. 326, 327, 69 L. Ed. 627. What was said by the Supreme Court in Buck v. Kuykendall, supra, as to the attempted regulation by the state of Oregon' of the operation of buses in interstate commerce, is applicable here: “Its primary purpose is hot regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines, not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons, while permitting it to others for the same purpose and in the same manner. Moreover, it determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of the federal action — the existence of adequate facilities for conducting interstate-commerce. * * * Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden, but to obstruct, it. Such state action is forbidden by the commerce clause.”

It is insisted 'that the injunction should have been granted to restrain defendant from operating its buses in intrastate business; but there is no evidence that it was attempting to operate in intrastate business except on the route as to which, the certificate of public necessity and convenience had" been granted, and, so far as the record shows, no ground to apprehend that it would attempt to operate in intrastate business elsewhere. Under such circumstances, the injunction was properly denied; for it is elementary that a court of equity will not grant an injunction to restrain one from doing what he is not attempting and does not intend to do.

There was no error, and the decree denying the injunction and dismissing the bill will be affirmed.

Affirmed.