author: RAYMOND, District Judge.

text:
    UNITED STATES v. SMITH.
    No. 5036 Criminal.
    District Court, W. D. Michigan, S. D.
    Sept. 18, 1945.

      Joseph F. Deeb, U. S. Atty., of Grand Rapids, Mich., for the United States.
    Benjamin T. Smith (in pro. per.) of Grand Rapids, Mich., for defendant.
   RAYMOND, District Judge.

Defendant’s motion to quash the information rests upon the claim that the Act upon which the prosecution is based, 26 U.S.C.A. Int.Rev.Code, § 3540(i), is unconstitutional. This Act provides a penalty by fine and imprisonment for use of a motor vehicle before payment of the use tax, and also provides a penalty by fine for using a motor vehicle without having a tax stamp affixed thereto.

Defendant concedes that the tax in question is an excise tax and that Congress had the power to lay it. See Hylton v. United States, 3 U.S. 171, 3 Dall. 171, 1 L.Ed. 556. He urges, however, that by the prescription of penalties for failure to pay the use tax, he is deprived of his liberty without due process of law, in violation of the Fifth Amendment to the Constitution. He contends that Congress has no power to declare the use of a motor vehicle without payment of the tax, a misdemeanor, and that the government must content itself with resort to the vehicle or other assets of the individual by means of civil process for collection of the tax. He also urges that the provision for criminal prosecution authorizes imprisonment for debt and therefore violates the due process clause of the Constitution.

It is elementary that every statute regularly enacted by Congress is presumed to be constitutional, and that no statute is to be declared unconstitutional unless it appears to be so beyond a reasonable doubt. The Constitution clearly vests, in Congress the power to tax, and the power to tax includes the power to say what shall be taxed, who shall pay the tax, and what the tax shall be. Larabee Flour Mills Co. v. Nee, D.C., 12 F.Supp. 395.

Judge Cooley, in vol. 1 of his works on Taxation, Third Edition, page 9, says:

“Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, or possession, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes; and not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits, and may be carried even to the extent of exhaustion and destruction, thus becoming in its exercise a power to destroy. If the power be threatened with abuse, security must be found in the responsibility of the legislature that imposes the tax to the constituency which must pay it. The judiciary can afford no redress against oppressive taxation, so long as the legislature, in imposing it, shall keep within the limits of legislative authority, and violate no express provision of the constitution. * * * ”

The power of Congress to impose penalties for failure to pay taxes, and to prescribe the mode of enforcing payment has been frequently upheld. See License Tax Cases, 72 U.S. 462, 5 Wall. 462, 18 L.Ed. 497; Nicol v. Ames, 173 U.S. 509, 19 S.Ct. 522, 43 L.Ed. 786.

The prohibition of the Act against the use of an automobile without payment of the use tax, and the provision for penalties for disobedience have reasonable relation to the collection of the tax, and are therefore within the power of Congress. It is also clear that taxes are not debts, and hence penalties for non-payment, including imprisonment, do not constitute “imprisonment for debt.”

In any event, in consideration of the constitutionality of a statute, all presumptions are in favor of constitutionality, and courts have nothing to do with the wisdom of the law or with the motives which may have actuated its enactment. Young v. City of Ann Arbor, 267 Mich. 241, 255 N.W. 579. Moreover, a trial court should not annul an Act of Congress, unless it is in conflict with some plain mandate of the Constitution, and the determination of constitutionality should generally be left to the appellate courts. Mather v. MacLaughlin, D.C., 57 F.2d 223.

An order will be entered denying defendant’s motion to quash.


source: Caselaw Access Project

author: CONGER, District Judge.

license: Public Domain

text:
    JEWEL MUSIC PUB. CO., Inc., v. LEO FEIST, Inc.
    District Court, S. D. New York.
    July 30, 1945.
    Leonard Zissu, of New York 'City, for plaintiff.
    Julian T. Abeles, of New York City, for defendant.
   CONGER, District Judge.

Suit for copyright infringement. Plaintiff complains that defendant by its musical composition “Drummer Boy” has infringed the copyright of plaintiff’s musical composition “Carnival in Cotton Town.” Defendant denies the infringement.

The words and music of “Carnival in Cotton Town” were written some time pri- or to December 30, 1936, by Jules Loman and Lou Ricca, who transferred all their right, title and interest in and to said song to the plaintiff who had the song copyrighted under the copyright laws of the United States on or about December 30, 1936.

From that date on plaintiff has been the sole proprietor of all rights, title and interest in and to the copyright in said musical composition.

Defendant’s song was written and composed by Roger Edens at Los Angeles, California, in the early part of 1940.

At that time Roger Edens was in the employ of Metro-Goldwyn-Mayer Corporation as an arranger and composer. As originally written this song was to be and was included as a musical number of a picture put out by Metro-Goldwyn-Mayer entitled “Strike up the Band.” The leads in this picture were Judy Garland (who sang the song) and Mickey Rooney (who did a drum specialty in connection therewith) .

Subsequently and some time during the year 1940, defendant published and had the song “Drummer Boy”, copyrighted and defendant is now the owner of said copyright.

Both by deposition and by testimony at the trial, Roger Edens denied that he ever knew the authors of plaintiff’s song or that he had ever seen or heard the song, “Carnival in Cotton Town.”

Both plaintiff and defendant are music publishers.

Both compositions are of the popular variety.

Plaintiff’s song has a verse and a chorus. Defendant’s song has only one verse or one chorus. Defendant insists that it has neither verse or chorus; plaintiff insists that it has a chorus only. It seems to me that it does not make any difference what it is called. It is at least the entire composition with which we are concerned. It is only the chorus of plaintiff’s song which it is claimed was infringed. This chorus and defendant’s composition follow the usual pattern for popular pieces of this type. It is of the A.A.B.A. structure. Each letter represents an eight bar part. The melodic theme as contained in the first A part is repeated in the other A parts. The B part is different and is interposed as a variation by way of contrast to the A parts. The chorus of plaintiff’s song has 32 bars of which 24 are A parts and 8 bars of the B variety.

Defendant’s composition has 36 bars, the first 32 of which follow the conventional A.A.B.A. structure with a coda (additional ending) of six bars.

Plaintiff’s contention is that defendant’s composition infringes both the words and music of the chorus of plaintiff’s.

As far as the lyrics are concerned, I hold that there has been no infringement. There is nothing in the evidence to indicate that the writer of defendant’s song copied the lyrics of “Carnival in Cotton Town” and used them in his song. There is not even sufficient similarity of words to create a suspicion. The real question centers around the music.

Plaintiff’s contention is that the A parts of defendant’s composition are the infringing parts. There is no claim that the B part of defendant’s composition infringes or is even similar to the B part of plaintiff’s chorus.

For the purpose of inquiring into the similarity of the pertinent parts of these two songs, it will only be necessary to compare the first A part, in as much as the other A parts are practically identical with the first A.

First, however, I should refer to the over-all similarity.

Both compositions are in the same key— C minor.

Both are written in the same tempo— 4/4 fox trot.

There is a similarity in rhythm. When these compositions are played, the similarity is marked and quite apparent, even to one with no particular musical ability.

Briefly I will now compare the first A part of each composition.

Melody

1st bar

The first two notes are not similar. The third and fourth are similar.

'2nd bar

The four notes are identical.

3rd bar

Identical with first bar.

4th bar

Identical with second bar.

Sth bar

Identical except for a slight difference in syncopation.

6th bar

The first note is different. The second two notes are the same. The last beat and a half is different.

7th and 8th bars

The melodies in both songs return again to C minor, the first notes in both seventh bars and the last of both eighth bars being the same.

As to the actual identity of the first A part (repeated in the others), there is an identity of melodic notes in the 2nd, 4th and Sth bars; the 4th bar being a repetition of the 2nd bar and the Sth contains one note repeated.

Harmony

The harmonic structure in both songs is basically the same. It is a rather common harmony structure. Nothing unusual about it. It is nothing more than one would expect, in as much as the harmony follows the melody.

As I look at the over-all picture, the similarities and identities in the component parts which go to make up the music of a song, and the effect of similarity when the two pieces are played, I have arrived at the conclusion expressed by one of plaintiff’s experts (Greenfield) : “There is enough similarity throughout to warrant questioning.”

With this in mind I have examined the issue of access. This is always most important in these cases. Similarity, even a striking similarity, may be arrived at honestly. It is extremely difficult for one to say that similarity alone spells piracy or theft. This is very well illustrated in Haas v. Leo' Feist, Inc., et al., D.C., 234 F. 105, 107. In that case the court decided that there was infringement proved because of

(1) a parallelism between the two songs, which to the ear of the judge, passed the bounds of mere accident, (2) a real and actually proven opportunity for access.

Judge Hand in writing the opinion stated:

“It is said that such similarities are of constant occurrence in music, and that little inference is permissible.”

He then proceeded to state that perhaps he should not take them (the similarities) as enough except for the opportunity proved, the habits of the writer of the infringing song shown in other instances, and the serious question of his credibility.

Plaintiff’s song was published in December, 1936. 4,000 professional copies were printed and were distributed to various broadcasting stations, artists, etc.

6.000 copies were printed for sale of which 5,626 were sold.

1.000 orchestrations were printed and 168 sold. 198 band arrangements were sold through a third party.

Plaintiff’s song was written to be used in connection with the Cotton Carnival held at Memphis in December, 1938. The testimony is a bit hazy as to just what publicity the song got in connection with that event. There is testimony that the song was put out too late to associate with the Cotton Carnival in 1938, and that the phonograph companies refused to record it.

The song was used on a number of occasions in broadcast performances of the Columbia Broadcasting system and the National Broadcasting Company. Most of this was in 1938. In most instances these broadcasts were country wide. There were electrical transcriptions made for General Motors (Chevrolet) and Coca Cola and these were used in broadcasts on some occasions.

In addition one may conclude from the-evidence that shortly after its publication, a copy of plaintiff’s song was sent to the music department head of the motion picture studio, in whose employ the writer of defendant’s song was, and to whose musical library he resorted frequently in arranging and adapting music for pictures.

This is a general picture of the activity of plaintiff’s song. After all it was not a success. Certainly it was not a financial success. Practically all of the pianaforte-copies were sold in 1938. In 1939 there were only 11 copies sold.

After 1938 there was no real demand for the song. The president of plaintiff corporation testified that they started to “work”' the song in 1938 a little but after that they made no effort to do so.

The burden of proof on this issue-of access is upon the plaintiff. I feel that the plaintiff has not met this burden. The proof of actual access falls far short of that which I believe is required. The writer of defendant’s song has testified that he has no recollection of ever having heard' plaintiff’s song and that he never saw it prior to composing “Drummer Boy”. There is nothing in plaintiff’s evidence to convincingly indicate otherwise. As I said in Allen v. Walt Disney Productions, D.C., 41 F.Supp. 134, 136, to so find “I would again: have to indulge in speculation, conjecture- and suspicion.” Of course, having so-found against plaintiff on this question of access, that does not end the matter.

Access may be inferred. For a discussion of this point, see Allen v. Walt Disney Productions, supra. After all this brings us back to the fundamental issue of this case. Is the similarity of the two so-great and so convincing that one may say that piracy exists and is found ? If the answer is in the affirmative, then of course it necessarily follows that access may be inferred.

We have a situation here which does not merit the conclusion reached by Judge Hand in Fred Fisher, Inc., v. Dillingham, D.C., 298 F. 145, 147. There we find the composition “Dardanella,” a most popular number. The infringing song was written by one “who had necessarily known it,. as a musician knew it.” Further the similarity between the two pieces was in the accompaniment of the chorus or refrain of the infringing song which had in part an absolute identity with the accompaniment of the verse though not the chorus of “Dardanella.” The court stated:

" * * * Not only is the figure in each piece exactly alike, but it is used in the same way * * *. Further, the defendants have been able to discover in earlier popular music neither this figure, nor even .any ‘ostinato’ accompaniment whatever.”

In that case there was no proof of actual .access, but it was inferred by reason of the ■facts which I have set forth above.

The relationship of the two songs here are not in any way comparable with the •two songs in the Dardanella case. Plaintiffs song never had any real vogue. There is no reason to infer that the writer of defendant’s song ever heard “Carnival in Cotton Town.” There is nothing unique about plaintiffs song. There is nothing unusual or out of the ordinary in plaintiff’s ■composition. As a matter of fact there is ■no particular musical skill displayed in either of these compositions. It seems to me that the two songs here involved are in the category of the two songs involved in Darrell v. Joe Morris Music Co., 2 Cir., 113 F. .2d 80.

I quote from that case for the reason that it is most pertinent because of similarity of facts and because the conclusion reached and the reasons therefor coincide with my views here:

“The strength of the plaintiffs case lies •in the substantial identity of a sequence of eight notes in his song and theirs; and indeed, that hardly does justice to the similarity between the two, because the sequence reappears in each song so frequently as to constitute the greater part of each. This makes the two, when rendered, so ■much alike to the ear, that the supposed •piracy appears almost inevitable. Nevertheless, we are not convinced that that conclusion is inescapable. The showing of access was not very persuasive. * * * We have already said in Arnstein v. [Edward .B.] Marks Music Corporation, 2 Cir., 82 F.2d 275, that such simple, trite themes as these are likely to recur spontaneously. * * * It must be remembered that, while •.there are an enormous number of possible -permutations of the musical notes of the :scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagarism.”

The above question expresses in better language than I have at my command, just how I feel about the two songs before me. See also Arnstein v. Edward Marks Music Corporation, 2 Cir., 82 F.2d 275, quoted above.

Similarity or identity must create more than a suspicion of piracy. They must establish piracy with reasonable certainty. The evidence here of similarity and identity has not so convinced me.

Each of these compositions has its own personality. Plaintiffs composition is of the swing type. The words and music are indicative of a happy carnival spirit.

Defendant’s song is really a drum specialty. Roger Edens has testified that he was instructed to prepare a composition for Mickey Rooney, so that he could use his dr-um specialty. The composition of the piece so indicated. In the melodic line 22 bars are a repetition of the same note, to indicate the beat of a drum and the piece is to be played “with steady tempo.”

I am unable to arrive at a definite conclusion as to the source of defendant’s composition. On the examination before trial, Edens testified that it was hard to state from what source he got his inspiration. He rather intimated it might be from a negro jubilee song.

On the trial, however, he stated his composition was patterned after an old Indian ceremonial dance “Hako.”

I was not too favorably impressed by this latter explanation of the source of defendant’s song. At any rate it is not material to definitely find just where Edens got his inspiration, as long as it was not from plaintiff’s piece. All that one might say is that defendant’s composition is written in the minor mode and resembles in character and rhythm a number of the negro jubilee and spiritual type of songs that were played before me during the trial.

I was very much impressed with the similarity between the two songs here involved and an old, and at one time very popular song “Lulu’s Back in Town.” Testimony on the part of defendant tended to show that certain parts of this composition were substantially similar to the basic part of plaintiff’s composition. When played before me in court the similarity between all three songs was marked and apparent. I mention this not for the purpose of suggesting that this song “Lulu’s Back in Town” might have been the source of either plaintiff’s or defendant’s song, but to indicate how similarity in songs of this type may easily and innocently be arrived at. '

Defendant is entitled to a judgment dismissing the complaint and for judgment in its favor to be settled on notice.


author: MORRIS, Justice.

text:
    UNITED STATES v. NEUFIELD et al.
    Cr. No. 52890.
    District Court of the United States for the District of Columbia.
    May 2, 1945.
    Edward M. Curran, U. S. Atty., and John P. Burke, Asst. U. S. Atty., both of Washington, D. G, for plaintiff.
    Denny Hughes, of Washington, D.C., for defendants.
   MORRIS, Justice.

These defendants were indicted on February 1, 1933, charged with robbery, alleged to have been committed in the District of Columbia on June 10, 1932. The defendant Foley was arraigned June 19, 1939, and defendants Neufield, Flynn and Rubin September 21, 1939. The long lapse of time between indictment and arraignment is accounted for by the incarceration of the defendants in a penal institution in the State of New York for other offenses committed in that jurisdiction. The defendants were jointly tried, a justice of this Court now retired presiding, and on November 17, 1939, they were found guilty as indicted. Several motions on behalf of the defendants were made and denied, and on December 15, 1939, each of the defendants was sentenced to imprisonment in the penitentiary for a term of from three to fifteen years. An appeal was taken to the United States Court of Appeals and the judgment of this Court was affirmed. The defendants are now serving the sentences imposed.

On the 10th day of March, 1945, the defendants filed a motion in this Court, asking that the sentences imposed be set aside as void on the ground that, at the time of the commission of the offense for which they were convicted, the law provided that the punishment for such offense should be imprisonment for not less than six months nor more than fifteen years, whereas the sentence actually imposed was, as above stated, for a term of from three to fifteen years. Upon this motion a hearing was had.

It is the contention, and in this I think the defendants are correct, that the sentence imposed was pursuant to the Act of Congress providing for the imposition of indeterminate sentences in the District of Columbia, which, in so far as it is relevant here, is quoted in the margin. That Act contained a section which provided that, for any felony committed before July 15, 1932, the penalty, sentence or forfeiture provided by law for such felony at the time such felony was committed shall remain in full force and effect and shall be imposed.

It should also be noted that prior to the passage of the Act of July 15, 1932, just mentioned, under the law applicable to parole, a person convicted of crime in the District of Columbia (as elsewhere in the Federal jurisdiction), serving a sentence of more than one year, if such person’s record of conduct showed that he had observed the rules of the institution in which he was confined, could be released on parole by the parole authority after having served one-third of the total of the term for which he was sentenced. At the time of the commission of the offense here being considered such authority was vested in the Federal Board of Parole. By the Act of July 15, 1932, there was established in the District of Columbia a Board of Indeterminate Sentence and Parole for the penal institutions for said District. To this Board was transferred all powers of the Federal Parole Board existing on July 15, 1932, over prisoners confined in the penal institutions of the District of Columbia, and it was expressly provided that in the case of a prisoner convicted of felony committed prior to July 15, 1932, the Board of Indeterminate Sentence and Parole may parole said prisoner after said prisoner had served one-fifth of the sentence imposed.

It has been definitely held by our Court of Appeals that “an indeterminate sentence is one for the maximum period imposed by the court, subject to termination by the Parole Board at any time after service of the minimum period.” (Italics supplied.) Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, 187. Quoting from United States ex rel. Paladino v. Commissioner, 2 Cir., 43 F.2d 821, the Court stated: “Indeterminate sentences have long been held sentences for the maximum term for which the defendant might be imprisoned. * * * [Citing numerous authorities.]”

From the foregoing, it seems clear that, not only is the maximum sentence imposed on each of the defendants in the present case one which was clearly authorized by the law applicable at the time of the commission of the offense for which he was sentenced, but also that the minimum sentence imposed by the court, being one-fifth of the maximum sentence imposed, was the period he would be required to serve before he could be released on parole, even though he had been given a straight sentence of fifteen years and no minimum sentence had been articulated. See note 7, supra. Since, then, the sentences imposed were in no way in excess of that authorized by law, I fail to "see how such sentences can be said to be void. The defendants rely upon the authority of De Benque v. United States, 66 App.D.C. 36, 85 F.2d 202, 106 A.L.R. 839, and the Government concedes that, if that case controls, the sentences here should be set aside as void. In that case it was held that in a criminal case, in the Federal courts, a sentence not imposed in strict accordance with the penalty statute is void. There, as here, an indeterminate sentence was imposed when the law applicable at the time the offense was committed required a straight sentence. In that case this Court (then the Supreme Court of the District of Columbia) set aside the indeterminate sentence as void and imposed a straight sentence for such term as would make the total confinement substantially the same, but somewhat less than, the defendant would have been required to serve under the maximum of the indeterminate sentence imposed. The Court of Appeals affirmed the imposition of the straight sentence. I could not, of course, rule contrary to the principles accepted in that case, if it were clear that its authority is unimpaired. However, in the case of Jones v. United States, App.D.C., 151 F.2d 289, decided subsequent to the hearing on the motion being considered, the Court adhered to the principle laid down by the Supreme Court in United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 751, 38 L.Ed. 631: “Without undertaking to review the authorities in this and other courts, we think the principle is established that, where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may he in excess open to question and attack. In other words, the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess, when such excess is separable, and may be dealt with without disturbing the valid portion of the .sentence.”

Under that authority, this Court clearly having jurisdiction of the person of each defendant and of the offense, and the sentences imposed being not in excess of that .authorized by law, such sentences should not be disturbed.

It was asserted in argument at the hearing of this motion that much has come to light which would show that these defendants are innocent of the crime for which they are now serving sentence. These are matters which should be considered by appropriate authorities, certainly not in the determination of this motion.

The motion will be denied.

       Title 6, Sec. 34, D.C.Code 1929. “Robbery. — Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than six months nor more than fifteen years. (Mar. 3, 1901. 31 Stat. 1322, c. 854, see. 810.)”

       Title 6, Sec. 453, Supp. V, D.C.Code 1929. “Imposition of indeterminate sentences authorized; parole of life prisoners. —In imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence: * * *. (July 15, 1932, 47 Stat. 697, c. 492, § 3 * * *.)”

       Title 6, Sec. 457, Supp. V, D.C.Code 1929. “Repeal provision. — All Acts or parts of Acts inconsistent with the provisions of sections 451-458 of this title are hereby repealed: Provided, however, That for any felony committed before July 15, 1932, the penalty, sentence, or forfeiture provided by law for such felony at the time such felony was committed shall remain in full force and effect and shall be imposed, notwithstanding sections 451 — 458 of this title. (July 15, 1932, 47 Stat. 698, c. 492, § 7.)”

       Title 18, U.S.C.A. § 714. “Parole of prisoners; conditions. Every prisoner who has been or may hereafter be convicted of any offense against the United States and is confined in execution of the judgment of such conviction in any United States penitentiary or prison, for a definite term or terms of over one year, or for the term of his natural life, whose record of conduct shows that he has observed the rules of such institution, and who, if sentenced for a definite term, has served one-third of the total of such term or terms for which he was sentenced, or, if sentenced for the term of his natural life, has served not less than fifteen years, may be released on parole as hereinafter provided. (June 25, 1910, c. 387, § 1, 36 Stat. 819; Jan. 23,1913. c. 9. 37 Stat. 650.)”

       Title 18 U.S.C.A. § 723a. “[Parole of prisoners]; creation of single Board of Parole; membership; appointment; salary. In lieu of all boards of parole at Federal penal and correctional institutions existing on June 12, 1930, there is created as of that date a single Board of Parole to consist of three members to be appointed by the Attorney General, at a salary of $7,500 each per annum. (May 13, 1930, e. 255, § 1, 46 Stat. 272.)”
      Title 18 U.S.C.A. § 723b. “[Parole of Prisoners] ; power, authority and duties of Board of Parole; prisoners in State reformatories. All power and authority on June 12, 1930 vested in, and all duties on that date imposed upon, the Attorney General and the several boards of parole existing on that date with respect to the parole of United States prisoners are as of that date transferred to the Board of Parole created by section 723a of this title: Provided, however, That this section and sections 723a and 723c of this title shall not affect the method, terms, or conditions under which United States prisoners confined in any State reformatory are paroled, except that the power to approve the release on parole of such prisoners is conferred upon the Board of Parole created by section 723a of this title. (May 13, 1930, c. 255, § 2, 46 Stat. 272.)”

       Title 6, Sec. 451, Supp. V, D.O.Code 1929. (July 15, 1932, 47 Stat. 696, e. 492, See. 1.)

       Title 6, Sec. 458, Supp. V, D.O.Code 1929. “Powers of prior Board transferred ; application of law to prisoners sentenced before parole law became effective. —Upon the appointment of the members of said board, the powers of the parole board existing on July 15, 1932, over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powers of said existing parole board under the authority of sections 714-723, Title 18, U.S.Oode, over said prisoners confined in the penal institutions of the District of Columbia shall be transferred to and vested in said Board of Indeterminate Sentence and Parole: Provided, however, That in the case of a prisoner convicted of felony committed pri- or to July 15, 1932, and in the case of any prisoner convicted of misdemeanor when the aggregate sentence imposed is in excess of one year, said Board of Indeterminate ■Sentence and Parole may parole said prisoner, under the provisions of sections 451-458 of this title, after said prisoner has served one-fifth of the sentence imposed. (July 15, 1932, 47 Stat. 698, c. 492, § 9.)”


author: KALODNER, District Judge.

text:
    BURNS v. UNITED STATES et al.
    No. 91.
    District Court, E. D. Pennsylvania.
    Sept. 28, 1945.
    Dorfman & Levitan, of Philadelphia, Pa., for libellant.
    Krusen, Evans & Shaw, of Philadelphia, Pa., for respondents.
   KALODNER, District Judge.

This action was instituted by libel in admiralty seeking maintenance and cure. Trial was by the Court without a jury. The facts subsequently stated were agreed to by stipulation.

A single question is presented:

Should maintenance and cure be allowed to a seaman who, at the time of his employment, failed to disclose a prior existing hernia, and whose incapacitation during the voyage was due solely to the fact that he “forgot to bring his truss along” ?

In accordance with the stipulation and the exhibits annexed thereto, I make the following findings of fact:

1. The libellant, an experienced seaman, joined the S.S. Philip Livingston on April 15,1943 at Philadelphia as a utility messman at $87.50 per month plus maintenance and war bonus.

2. The said libellant was paid off from the said vessel June 25, 1943 at Freemantle, Australia, for the purpose of securing medical or surgical care.

3. The S.S. Philip Livingston at all times herein mentioned was owned by the United States of America and was operated by the American-Hawaiian Steamship Company under a general agency agreement with the War Shipping Administration.

4. At the time of joining said vessel, li-bellant was suffering from a hernia which he had contracted while employed at the Philadelphia Navy Yard on January 30, 1943, as a shipfitter’s helper. Claim for compensation under Section 39 of the Compensation Act of September 7, 1916, 5 U.S. C.A. § 789, was filed by the libellant on January 17, 1944 (some six months after the termination of his employment as a seaman) based on his injury while employed at the Philadelphia Navy Yard.

5. The libellant, upon joining the said vessel, forgot to take along a truss which he wore for his rupture during the voyage.

6. During the course of said voyage, li-bellant’s hernia began to trouble him.

7. On June 25, 1943 the libellant made the following statement on a “Report of 111-ness” given to the Master of the S.S. Philip Livingston, said statement reading as follows: “In January I was working in the Philadelphia Navy Yard as a shipfitters Helper. My job was tightening bolts. I was given a truss and when I sailed I was awaiting an operation. I forgot to bring the truss on this voyage. I was ruptured in the Philadelphia Navy Yard sometime in January. The rupture began to bother me more while on this ship. I requested to see a doctor in Fremantle who examined me and I was payed off the ship on June 25, 1943.”

8. The libellant performed his duties as a messman in a satisfactory manner from the time of joining the vessel until he was paid off on June 25, 1943.

9. Upon arrival of the said vessel in Fremantle, Australia, libellant was examined by Dr. F. H. Uther Baker, employed by R. G. Lynn, Ltd., agents for American-Hawaiian Steamship Company.

10. Libellant entered St. Helen’s Hospital at Fremantle, Australia, on June 25, 1943 and was operated upon for his hernia on July 2, 1943. He left the said hospital July 24, 1943, and was thereafter treated as an outpatient at the said hospital until August 3, 1943, when he was discharged; all of which appears by reference to the report of Dr. F. H. Uther Baker, attending physician.

11. Libellant returned to the United States aboard the S.S. James Guthrie as a passenger arriving at the Port of New York on October 4,1943.

12. The said S.S. Philip Livingston completed its voyage upon its arrival to the United States at the Port of New York on October 19, 1943.

13. If the said respondents are liable, it is agreed that libellant’s damages amount to the sum of $529.45 as follows:

a. Wages — June 25, 1943 to October 5, 1943 or three months and twenty-four days @ $87.-50 per month $291.70

b. War Bonus — August 24, 1943 to . October 3, 1943 or forty-one days at $100.00 per month 136.53

c. Maintenance and Cure- — July 24, 1943 to August 24,1943 or thirty days at $2.75 per day 82.50

d. Overtime — As adjusted upon termination of voyage 18.72

Total $529.45

14. • The said libellant departed this life January 14, 1945 from causes unconnected with this claim.

15. On February 23, 1945 letters of administration on the estate of the said libel-lant were issued by the register of wills of Philadelphia County to his widow, Phyllis Burns, who has been substituted as the li-bellant herein.

Discussion

At the outset it may be stated that libel-lant rests his claim on the contention that a seaman who becomes ill while engaged in maritime employment is entitled to maintenance and cure and wages, at least until the termination of the voyage, under the doctrine of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, and that the libel-lant’s failure to bring along and wear his truss for his hernia condition was, at most, an act of negligence on his part, which could not adversely affect his right to maintenance and wages. Further, the libellant stresses that despite his hernia and his failure to wear a truss he was able to satisfactorily perform his duties on the vessel from the time of joining it on April 15, 1943 until he was paid off on June 25, 1943, in accordance with his desire to obtain surgical treatment.

Thus, the libellant contends that it was his labor on the vessel “acting on the hernia” which effected his incapacity. Additionally, libellant contends that under the decision in Neilson v. Laura, 17 Fed.Cas. pages 1305, 1306, No. 10,092, it was not nec.essary “that the sickness of the seaman should have originated during the voyage; it is only necessary that it occur during the voyage, without fault or misconduct on his part. * * * ”

The respondents concede that where a seaman has a latent physical condition and is without reasonable ground to suspect its disabling effect during the voyage, he should be entitled to maintenance and cure and wages. However, the respondents contend that where a seaman has a condition which, as a reasonably prudent person, he knows, or should know, may result in disability during the intended voyage, he should not be entitled to recovery of maintenance.

The respondents urge that their contention is in accord with the principles stated in Lindquist v. Dilkes, 3 Cir., 127 F.2d 21, and that under that decision the libellant here cannot recover. Libellant similarly insists that under the Lindquist decision he is entitled to recovery.

After consideration of the arguments of counsel and analysis of the cases relied upon by both sides, particularly of the Lindquist case, I am of the opinion that the libellant cannot recover.

In The Bouker No. 2, 2 Cir., 1917, 241 F. 831, at page 833, the general rule was enunciated as follows: “ * * * a seaman ‘falls sick, or is wounded, in the service of the ship,’ if such misfortune attacks him while he is attached to the ship as part of her crew. It is not necessary that the wound or illness should be directly caused by some proven act of labor; it is enough that he was, when incapacitated, subject to the call of duty as a seaman, and earning wages as such.” (Emphasis supplied.)

Thus, in The Bouker case recovery was permitted to a libellant who contracted pneumonia during his employment. However, in the instant case the fact situation is different. Here misfortune did not attack the libellant while attached to the ship as part of her crew; it attacked him two and a half months before he became a member of the crew of the Philip Livingston.

Further, as stated by the libellant (paragraph 7 of Findings of Fact) he was “awaiting an operation” when he obtained his employment on the vessel. Thus, here the li-bellant was not only aware of his disability when he signed Articles, but was also cognizant of its seriousness and the fact that surgical treatment was necessary to effect a cure. He was also aware of the fact that it was necessary for him to wear a truss appliance to protect himself from further aggravation of his condition. Too, he must have known the disabling effect of his condition. In these respects the situation here is different than in Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, and in Lindquist v. Dilkes, supra. In the Calmar case recovery was permitted to a seaman incapacitated during the voyage from a prior existing disease of which he had no knowledge prior to joining the vessel. Similarly, in the Lindquist case recovery was allowed to a seaman who knew of a prior existing prostate condition but Was found by the Trial Court to have considered his condition as an incident of advancing years and was without realization of its seriousness.

In my opinion the rule as stated in Lindquist v. Dilkes, supra, is dispositive of the issue here. Said the Court (page 24 of 127 F.2d): “ * * * the sailor’s duty is to disclose whatever he as an ordinarily prudent person should have known is material to the risk. * * * ”

The Court came to this conclusion after an exhaustive review of related cases and the entire subject matter of maintenance and cure.

Applying the rule stated in Lindquist v. Dilkes, supra, I am of the opinion that since the libellant was fully aware of his disability and its gravity at the time he signed Articles, and failed to disclose his condition at the time, that he cannot recover in the instant case.

In view of the fact that there is an amount admittedly due of $18.72, constituting overtime due the libellant, which was not calculated until the end of the voyage, an award is made to him in this amount only and the claim for wages, bonus, maintenance and cure must be, and is hereby denied.


author: LEIBELL, District Judge.

text:
    THE STEEL RANGER.
    District Court, S. D. New York.
    April 10, 1945.

      John F. X. McGohey, U. S. Atty., of New York City (Nicholas J. Healy, 3rd, Sp. Asst, to the U. S. Atty., of New York City, of counsel), for libelant.
    Kirlin, Campbell, Hickox & Keating, of New York City (Robert S. Erskine, of New York City, of counsel), for claimant-respondent.
   LEIBELL, District Judge.

The United States brings this suit in admiralty for damages caused by the SS Steel Ranger, owned by respondent, Isthmian Steamship Company, to the cable, coils and appurtenances of a magnetic channel range laid out in the navigable waters of Bolivar Roads Channel, in the harbor of Galveston, Texas. The respondent served a notice of motion returnable February 2, 1945, asking for—

“(1). An order dismissing the libel herein and cancelling all bonds and stipulations for costs and value on the ground that the libel fails to allege a cause of action within the admiralty and maritime jurisdiction of the Court; or, in the alternative, for
“(2). An order dismissing the libel in rem against the Steel Ranger and cancelling all stipulations for costs and value filed by claimant-respondent thereunder and transferring the libelant’s suit in personam against Isthmian Steamship Company to the common law side of the Court in order that the Government’s alleged cause of action and the issues 'of negligence raised therein may be tried by a jury in accordance with the principles governing actions at law; * *

The libel filed March 25, 1943, was both in rem against the vessel, the SS Steel Ranger, and in personam against the Isthmian Steamship Company, the owner of the vessel. The original libel alleged that the libelant “is a corporation sovereign and owner of certain submarine cables of the Magnetic Channel Range located in Bolivar Roads channel, Galveston Harbor, Galveston, Texas, used as aids to navigation, which, until the occurrence herein described, were at all times in good order and condition” and that the Steel Ranger negligently dropped her anchor in the area of libelant’s submarine cables and fouled and damaged them. No particulars were set forth in the libel of the manner in which the submarine cables were used as “aids to navigation”. In the course of the argument of the respondent’s motion the proctor for the libelant stated that he would serve and file an amended libel setting forth the particulars to support the allegation that the magnetic cables were an aid to navigation.

The amended libel was filed April 3rd, 1945, and contains, among others, the following allegations:

“Second: Af all the times herein mentioned, the libelant was the owner of a certain magnetic channel range, lawfully constructed in Bolivar Roads Channel, in the harbor at Galveston, Texas.
“Third: * * * The primary purpose for which the said magnetic channel range had been constructed was as an aid to navigation by checking the magnetic field of vessels passing over it, thus disclosing the effectiveness with which such vessels had been degaussed, that is, protected against magnetic mines. Upon completion of the installation of the instruments in the control station, the magnetic channel range was to be used to determine whether such vessels could safely navigate in certain magnetically mined areas. It could also have been used to detect the presence of submarines and to assist in fixing the positions of ships navigating through the channel in fog, although it was not used for such purposes between the time it was finally repaired and put into operation and the time of its destruction by a hurricane about seven weeks later. During said period the magnetic channel range was, however, frequently used to check the degaussing equipment of vessels.”

It was understood by counsel that the respondent’s motion in respect to the original libel should apply also to the amended libel.

The question here presented is this: Was the injured thing — the magnetic cable, its coils and appurtenances — an instrument of navigation or an aid to navigation and maritime in nature, having no other purpose or function? On the answer to that question depends the answer to the basic question raised by respondent’s motion: Does the libel state a maritime tort over which the District Court has jurisdiction as a court of admiralty? Cleveland Terminal R. R. v. Steamship Co., 208 U.S. 316, at page 320, 28 S.Ct. 414, 52 L.Ed. 508, 13 Ann.Cas. 1215.

The fact that the tubes were imbedded in the channel bottom or that the control station was built on pilings, so that there was thus an "attachment to the soil” of the river bottom, would not be “a peremptory bar” to admiralty jurisdiction if “the injured thing was an instrument of navigation, and no part of the shore, but surrounded on every side by water, a mere point projecting from the sea.” The Blackheath, 195 U.S. 361, at page 365, 25 S. Ct. 46, at page 47, 49 L.Ed. 236, opinion by Mr. Justice Holmes.

In commenting on the Blackheath case Chief Justice Fuller in Cleveland Terminal R. R. v. Steamship Co., supra [208 U.S. 316, 28 S.Ct. 416], stated that in the Blackheath case “The damage was to property located in navigable waters, solely an aid to navigation, and maritime in nature, and having no other purpose or function.” In the Cleveland R. R. case the damage was caused by vessels adrift coming into contact with a shore dock, a bridge with a swinging span, an abutment piling and a pier. The court stated that “None of these structures were aids to navigation in the maritime sense, but extensions of the shore and aids to commerce on land as such.” In The Raithmoor, 241 U.S. 166, 36 S.Ct. 514, 516, 60 L.Ed. 937, Chief Justice Hughes applied the doctrine of the Blackheath case to a claim for damages caused by a vessel colliding with an unfinished beacon, in the course of construction in navigable waters, which was “simply to serve as an aid to navigation” but not yet in use as such. In the present case the fact that the magnetic field installation had not been entirely connected and in operation at the time of the accident would not be a bar, if admiralty jurisdiction otherwise existed.

In Doullut & Co. v. United States, 268 U.S. 33; 45 S.Ct. 411, 69 L.Ed. 832, the Supreme Court held that a vessel colliding in the Mississippi River with a piling cluster, consisting of five wooden piles firmly driven in and attached to the river bottom and fastened together, which during bad weather was “used by vessels to tie up, to, so as to avoid anchor dragging and likewise to lessen the dangers of collision with other vessels whilst navigating in said river”, was subject to the maritime jurisdiction of the District Court, since the damaged piles “were used exclusively as aids to navigation”, citing the Blackheath and the Raithmoor cases, supra.

The above and other cases were discussed in an opinion by Judge A. N. Hand of the Circuit Court of Appeals, Second Circuit, in the case of United States of America, as owner of Cable No. 555 v. Tug John R. Williams and Great Lakes Dredge and Dock Co., 144 F.2d 451, which involved damage caused by the tug’s wire rope to “a submarine telephone cable designated as No. 555 extending across the Narrows at the entrance to New York Harbor and connecting Fort Wadsworth and Fort Hamilton.” The District Court had enforced a maritime lien against the tug and entered a judgment in personam against the respondent, as owner of the tug, thus following a number of District Court decisions upholding “admiralty jurisdiction with respect to damage done by vessels to submarine telephone and telegraph cables.” Judge A. N. Hand pointed out the fact that the cable was connected with the shore and that there was “no evidence that the cable was to be used as an aid to navigation, even if that fact would have been sufficient to sustain admiralty jurisdiction.” Judge Hand held that the facts did not sustain admiralty jurisdiction, but affirmed the judgment in personam, because respondent had not timely demanded a jury trial.

The amended libel states that “the primary purpose for which the said magnetic channel range had been constructed was as an aid to navigation by checking the magnetic field of vessels passing over it, thus disclosing the effectiveness with which said vessels had been degaussed, that is, protected against magnetic mines” and thus determining “whether such vessels could safely navigate in certain magnetically mined areas”. In my opinion such a purpose and use would not warrant a classification of the magnetic channel range apparatus as “an aid to navigation in the maritime sense”. The same is true of a certain potential use, which the amended libel ascribes to the magnetic channel range apparatus, i. e., its use “to detect the presence of submarines”.

The designation of this apparatus as a magnetic channel range might suggest that one of its purposes was to mark the course of a navigable channel, to be used by vessels requiring a certain depth of water. That is not the case. As the amended libel alleges, the apparatus was located on the channel bottom, across the northerly half of the dredged channel. In having the effectiveness of their degaussing equipment checked the vessels passed over the apparatus of the magnetic channel range.

The amended libel also alleges that the apparatus in the magnetic channel range could have been used “to assist in fixing the positions of ships navigating through the channel in fog”. Assuming, as we must on this motion, that such a use is practicable I do not believe that that fact would be sufficient to bring this case within the maritime jurisdiction of this Court under the decisions above cited. Those decisions allow the assumption of admiralty jurisdiction only where the injured thing was “solely” or “exclusively” an aid to navigation in the maritime sense. The possible but incidental use of the apparatus by vessels as an aid to navigation would not be sufficient, under the decisions, to confer admiralty jurisdiction. Indeed, the amended libel frankly states that the apparatus had not been used either to detect the presence of submarines or to assist vessels in fixing their position while navigating through the channel in a fog, “between the time it was repaired and put into operation and the time of its destruction by a hurricane about seven weeks later”. But during said period the magnetic channel range was “ * * * frequently used to check the degaussing equipment of vessels”. That of course was the real purpose for which it had been constructed, and it was not as an aid to navigation in the maritime sense under the rule established by the decisions of our highest court.

My attention has been called to a decision by Judge Hulbert in The Transfer No. 3, D.C., 58 F.Supp. 422, involving a similar question of admiralty jurisdiction arising from the damage caused by a vessel to certain submarine cable of a magnetic loop in New York Harbor. Judge Hulbert held that the allegations of the libel, that the magnetic loop was constructed, installed and maintained by the libelant for harbor defense purposes in time of war and as an aid to navigation, were binding on him in deciding the motion addressed to the libel. Later it was shown to him by a letter, on a motion to reargue, that the magnetic loop in question could be used for two purposes, to check the effectiveness with which a given vessel had been degaussed, and as a submarine detecting device. There does not appear to have been any change in his original decision. The questions presented on the motion before me involve those two possible uses and also a third, the alleged availability of the magnetic channel range as an aid to vessels navigating the channel in a fog. But the latter is only an incidental use. The primary purpose for which the apparatus had been designed and installed was to test a ship’s degaussing apparatus. That I hold should not be classified as “an aid to navigation in the maritime sense”, under the rulings of the United States Supreme Court.

My decision in granting the motion will enable the libelant to present the question promptly to the appellate courts. Personally, I would like to see the rule broadened, so as to include a device of this kind in the class of aids to navigation in the maritime sense. But as the rule now stands and as I construe it, this court has no maritime jurisdiction of the claim presented by the amended libel herein.

The respondent’s motion is accordingly granted as to item 2 thereof hereinabove quoted. Settle order on two days’ notice.


author: BONDY, District Judge.

text:
    SECURITIES AND EXCHANGE COMMISSION v. BENNETT et al.
    District Court, S. D. New York.
    Aug. 20, 1945.
    Louis Loss, of Philadelphia, Pa., Irving J. Galpeer and Gerald J. O’Brien, both of New York City, and Arden L. Andresen, of Philadelphia, Pa., for Securities and Exchange Commission.
    William Biel, of New York City, for defendants.
   BONDY, District Judge.

This is a motion for a preliminary injunction in - an action brought by the Securities and Exchange Commission under the Securities Exchange Act, §§ 21(e) and 27, 15 U.S.C.A. §§ 78u(e), 78aa, to enjoin the defendants from violating Sec. 9(a) (2) of that act, 15 U.S.C.A. § 78i(a) (2). If provides that it shall be unlawful to effect alone or with one or more other persons a series of transactions in any security registered on a national securities exchange, creating actual or apparent active .trading in such security, or raising or depressing the price of such security for the purpose of inducing the purchase and sale of such security by others.

The material facts alleged in the complaint and moving affidavits upon which the plaintiff seeks relief are that the defendant Bennett is the president of and interested in the defendant Federal Corporation, Bennett & Company, Inc., and the Red Bank Oil Company; that during one hour on June 12, 1945, Bennett bought 3,800 shares of the common stock of the oil company, a substantial part of all the common stock traded on the New York Curb Exchange, a registered national securities exchange, on that day, on terms which were offered at the time, for the defendant Federal Corporation, at prices varying from 1% to 2; that Bennett & Company, Inc., and its predecessors have owned or been entitled to receive approximately 409,000 shares of the common stock of the oil company; that on or about May 31, 1945, the oil company filed a registration statement signed by Bennett, as chief executive officer, director and president of the oil company, relating to a proposed public offering of approximately 990,000 shares of common stock of the oil company ; that the registration statement names Bennett & Company, Inc., as principal underwriter and sets forth that these securities in excess of 400,000 shares are proposed to be offered from time to time to the public by Bennett & Company, Inc., and that 100,000 shares are proposed to be purchased by Bennett & Company, Inc., as underwriter and also to be offered to the public by Bennett & Company, Inc., from .time to time, at prices varying in accordance with the price at which the stock sells on the Curb Exchange at the time when the sale is made, estimated to be $2 per share; that these purchases created actual and apparent active trading and raising the market value on said stock from 1% to 2; that the oil company had outstanding at the time 947,182 shares, and that out of the 990,793 shares being registered for sale, 459,970 are not to be issued at the present time; .that the Bennett interests owned and are to receive a substantial portion of the common stock outstanding and to be outstanding and that the purpose of registration is to ready the shares for public sale; that the purchase of said 3,800 shares on June 12 was not needed for investment but intended to raise the market price from 1% to 2, an increase of $100,000 in the market value of the Bennett interests.

In the opposing affidavits Bennett and his attorney set forth that the Federal Corporation is an investment company and has acquired substantial stock in a number of companies, including the Standard Oil Company of New Jersey, Humble Oil Company, Murray Body Corporation and Red Bank Oil Company; that before making the purchases for Federal of any shares of stock of the oil company the defendant Bennett was advised by his counsel that there could be no objection .to such purchases if they were made for investment purposes by the Federal Corporation in the usual and ordinary course of business and were made approximately at one time, because otherwise if the stock was purchased in small lots these purchases might appear so continuous that they may conceivably affect the price of the stock on the Curb Exchange, especially in view of the fact that there is a registration statement pending which has not yet become effective; that the stock was purchased and sold many times on many days prior to June 12 at similar prices and that from the 1st of June to and including the 12th of June the stock was selling between 1% and 2; that it closed at 1% on the day before Federal Corporation made any purchases and that during that time it never sold lower than 1% or higher than 2; that thereafter and up to the end of June it reached a high of 3% but that the Federal Corporation, which could have sold for a profit of approximately 33%%, did not sell or dispose of a single share so acquired; that the fact that no purchase was made by the Federal Corporation before or after that date is an indication that neither the company nor Bennett was interested in the daily market fluctuations but that it was purchased for an investment and is still retained as an investment; that the registration statement was filed because in the opinion of some of those connected with the Commission it was required in case shares owned by the defendant’s interests should be sold to the public.

There is very little dispute, if any, as to the material facts stated other than the conclusion that the purchases were made for the unlawful purpose of rigging ,the market. The mere fact that purchases were made by largely interested persons while the registration statement was pending is not in itself sufficient evidence of any unlawful purpose. That the 3,800 shares were all bought within an hour, while such registration statement was pending, which registration in itself may have been considered as tending to increase the value of the stock, does not establish that the stock was bought with the intent to create an actual and apparent active trading for the purpose of increasing or depressing the prices so as to induce the purchase or sale by others. See Securities and Exchange Comm. v. Andrews, 1 S.E.C. Jud.Dec. 265, 269. The fact that the prices paid were within the range at which the stock sold for some time, both before and after the purchases, and that none of the stock was bought or sold by any of the defendants since the time of the purchases, tend strongly to show that the purchases were not made for manipulative purposes. See opinion of General Counsel of Commission, Release 3056, October 27,1941; ’41-44 C.C.H. Dec. 75,214.

The possibility that the filing of the registration statement and extensive purchases would cause a rise in the market price of .the stock did not suffice to constitute a violation of the act. The evidence does not establish that either of the defendants contemplates any future violation of the law, for which the act provides adequate redress. See Securities and Exchange Commission v. Otis & Co., D.C., 18 F.Supp. 100; Securities and Exchange Commission v. Federal Compress & Warehouse Co., ’41-44 C.C.H. Dec. 90, 106; Securities and Exchange Commission v. Saphier, District Court, Southern District of New York, 1936; ’41-’44 C.C.H. Dec. 90, 107; Securities and Exchange Comm. v. Torr, 2 Cir., 87 F.2d 446.

The motion accordingly is denied.