author: GALS TON, District Judge.

text:
    UNITED SHOE MACHINERY CORPORATION v. BROOKLYN WOOD HEEL CORPORATION.
    No. 6511.
    District Court, E. D. New York.
    May 11, 1934.
    Charles Neave, of New York City (Hector M. Holmes and H. L. Kirkpatrick, both of Boston, Mass., of counsel), for plaintiff.
    Macleod, Calver, Copeland & Dike, of Boston, Mass. (George P. Dike and Cedric W. Porter, both of Boston, Mass., of counsel), for defendant.'
   GALS TON, District Judge.

This is a patent infringement suit in which infringement is alleged of letters patent granted to Willard N. Sawyer, May 31,1932, No. 1,860,789, on an application filed January 12,1927.

The patent relates to a wood heel grooving machine and is concerned with the making of wood heels of the Louis type, as distinguished from the Cuban heel. The latter is relatively simple. The former is more difficult to manufacture, is more highly contoured, and is concave transversely.

On the front the heel has what was referred to at the trial as a “shank lip,” or at times just a “lip,” which projects forward at the attaching face of the heel at the point where the heel is affixed to the shoe. With this type of heel it is necessary to have a long attaching face in order to give the heel sufficient bearing on the shoe to keep it from being turned or damaged. In fitting the heel to the shoe, the leather of the sole of the shoe is split at the heel end and the split flap is turned down. There is a metallic fastening of some kind, whether of screws or nails, projecting from the inside of the shoe into the wood heel.

In practice, the shank lip is curved circularly and merges with the shank of the shoe so that they come together. The split flap is secured down over the breast face of the heel. It is then trimmed off to fit the breast and to form the breast covering of the finished shoe.

A cross-section of the shank of the shoe at the place where the lip fits, if taken vertically and transversely, discloses a substantial circular .are; and the shank lip of the heel should have the curvature' of the shank of the shoe in order to effect a proper fit.

The patent in suit refers to a prior invention of Harley W. Russ, patent No. 1,-846,615', which describes a wood heel grooving machine; and Sawyer refers likewise to the art which preceded Russ. He says: “Pri- or to the invention of Harley W. Russ, described in his application Serial No. 587,-893, filed Sept. 13, 1922, the surface formed by the grooving operation was merely such a cylindrical surface composed of an aggregate of horizontal straight lines, and included a straight horizontal lip portion where the heel merged into the shank of the shoe.. This lip had to be rounded by hand in a second operation to bring it to the transverse curvature of the shank.”

The Russ invention, while an improvement on the then understood prior art, did not avoid the necessity of the second operation referred to in the last sentence of the foregoing quoted paragraph.

In the manufacture of heels, the first operation is that known as “blocking,” and involves sawing through the rough block. Four or five operations have to be performed on the block in forming the Louis heel: First, the sides and back are turned or rounded; next, a concave hollowed-out portion which rests against the sole of the shoe has to be shaped. The heel must be sawed to give the top lift surface and the heel seat surface the proper angle in relation to each other. In addition, the front, or breast of the heel must be grooved, that is, curved; and, finally there is the necessity, heretofore referred to, of shank lip scouring, that is, rounding the shank lip of the heel to fit the rounded instep of the shoe smoothly.

The plaintiff offered some evidence as to how the grooving operation was performed in the earlier art.

The first of these machines referred to was described as the push groover, and is shown in the Kinney patent No. 1,839,228. There were two objections to this groover: Frequently there was a sudden splintering of the block. This resulted from the cutting operation. In this machine a blade on each revolution cuts only part way across and not the full width of the block, and cuts substantially at right angles to the direction of the wood fibres, not diagonally across them. Each cut is a cut across all the fibers along the height of the breast face. This kind of cut is’referred to as a “hard” cut. As the cutters leave the block at the following edge, while that portion of the cutter blade-of the greatest diameter emerges before the rest of the blade, all that portion of the blade, except the widest part, comes out at once. To prevent the splintering of the block, it became necessary to use “backers” to support the fibers at the following edge.

Moreover, since the blade of this push groover cuts straight across the breast face of the block, the lip is left straight. This condition necessitated a rounding-off operation, so as to bring conformity to the curvature of the top face of the lip'. This rounding-off operation was done by hand, the operator engaging the lip with a sandpaper-covered wheel.

The Russ machine effected an advance over the push groover, though it retained some of the characteristics thereof. As in the push groover, the cut is substantially of the shape of the profile of the edge of the cutter blade, and different sets of cutter blades in consequence had to be used for a particular style of heel. Also, the blade leaves the following edge in the same way as in the push groover, with a resultant tearing or splintering, and necessitated the use of backers. The operation of the Russ machine, however, rounded the lip and merged it with the breast with a single cutting operation.

The Sawyer machine avoids the splintering of the block heel, and the consequent use of “backers.”

So far as the grooving operation is concerned, the following description of the machine will be sufficient: A rotating head carries the heel. The heel block rotates about an axis to carry the breast face of the block in a circular path through the surface of revolution of a whirling cutter designated 104. As in the Russ machine, there is a relative revolution between the cutter and the block about an axis. The result is a circular cut. The portion of the cutter which forms the lip will round the lip off, as shown at 105, Fig. 15. The degree of the curvature of the lip ean be regulated by using different size blocks on which the heel blank is damped, thus producing a different radius of curvature. At the sanie time the cutter head is adjusted on its slides to locate the cut at the right place in the heel breast.

The plaintiff stresses in the Sawyer machine, as an element of -novelty, the angular relation between the cutter axis 103 and the shaft 32, the axis of relative revolution, around which the work revolves. It is obvious that the angle indicated is oblique. Sawyer stressed this as an important factor, for his specification recites: “I have found that the advantages of the invention referred to above ean be retained, and additional advantages (including better work and increased production) secured, by placing the axis of rotation of the cutter at an oblique angle to the axis of relative revolution of the cutter and heel blank.”

The result is that in the Sawyer machine, if the two axes do not actually intersect, the cutter axis will move relatively to the work axis in what is referred to by Mr. Packard as a hyperboloid of revolution. If, however,there is an intersection, then the cutter axis generates a perfect cone. The machine, however, functions precisely the same way, whether the cutter axis generates one way or the other.

Thus Sawyer, by his arrangement of parts, avoided the disadvantages of the Russ machine, and by securing what is described as the finest kind of cut, an increase in speed and smoothness, avoided the hard cut of the Russ machine; and also by reason of the angular relationship the cutter leaves the following edge so gradually that there is no tearing or splintering, and hence no backers are necessary.

The claims in issue are as follows: 1, 2, 3, 7, and 31.

The defenses are that Sawyer was not the first inventor of the machine described, but was anticipated by Pope and Mann; secondly, that the defendant does not infringe; and, thirdly, anticipations in the art.

The main contention of the defendant is that Pope and Mann were prior inventors. The application for the Pope and Mann patent was filed September 29, 1925, as against January 12,1927, Sawyer’s filing date. The burden, therefore, is on the plaintiff to prove an earlier date of invention, since the machine shown in the Pope and Mami patent is that which the plaintiff claims infringes the patent in suit. Alexander Milbum Company v. Davis-Bournonville Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651.

The plaintiff carries the conception of the Sawyer invention to April, 1923. Hubbell, an officer of the plaintiff, testified that Sawyer had disclosed the invention in suit to him soon after the negotiations had been started for the purchase of the business of Baxter D. Whitney & Son, Inc. That purchase was effected in 1922. He produced a letter dated April 26, 1923, which authorized the Whitney Company to begin preparations of finished drawings for the building of the Louis curved groover invented by Sawyer. Preliminary drawings of the machine had been shown him prior to the letter authorizing the Whitney Company to proceed with the finished drawings. Hubbell saw the machine from time to time in process of construction. He saw the machine in operation prior to June 16,1924.

Williams, a draftsman with the General Electric Company, at the time that his deposition was taken, testified that he had been an employee of Baxter Whitney & Son, Inc.; that he worked under the direction of Sawyer in drafting a wood heel machine; that Sawyer disclosed to- him how he planned to hold the heels' and cutters, and the principle of the machine: “He planned to hold the heels on a revolving head about 2 or 3 inches from the center. The heels revolved around the axis, passing high speed cutters. The cutter head fastened directly to the motor shaft had three adjustments, — endwise, crosswise and an angular adjustment which was swung from a pivoting point. The cutter motor was set on an angle, an oblique angle.” This disclosure was made at or about the time that Williams returned to work for the Whitney Company in February, 1923.

Two drawings of Sawyer bearing Sawyer’s signature and the date of April 26,1923, show the rotating heel block carrier. Williams identified drawings, Exhibits 5-5D, as showing the same machine illustrated in Fig. 1 of the patent in suit. These are dated April 26, 1923, the date when the Whitney Company was authorized to begin full time charges on the machine. In May, 1923, these drawings, with others, were taken by Sawyer to Boston, and shown and explained by him to Mr. Packard.

The reduction to practice proceeded without delay. Throughout the summer of 1923, Williams made detailed drawings for the purpose of manufacturing and building the machine. Patterns, as the invoices show, were also made.

Another witness, Cahill, while employed by the Whitney Company, testified that he built parts and assembled them continuously until the spring of 1924; and that the machine was tested in the spring of 1924, and thereafter shipped to Newburyport, consigned to the Maple Wood Heel Company. The shipping order bears the date January 19, 1925.

From the foregoing, I conclude that Sawyer conceived the invention and disclosed it to others as early as May, 1923, and reduced the machine to practice as early as May in the spring of 1924.

Now as to Mann: J. Daniel Hodgman, of the Hodgman Wood Heel Company, testified that Mann had worked for him as a wood heel operator and hand shank scourer beginning in December, 1921, and that Mann told him that he had been developing a machine that would eliminate hand shank scouring. He gave Mann' some heels to take home and try on his machine. Hodgman suggested Lyman B. Pope as a machinist. This was done some time in November or December, 1922.

Mann testified that he had an idea of making a machine to scour heels to take the place of hand scouring, some time in .February, 1917. His first experiments were with cones and a rasp. He made a model, which was received in evidence as Exhibit E. This is a very crude affair and of doubtful practical use. It is said to have been constructed some time in January of 1921. I find no convincing proof that the axis of the cone in respect to the axjs of the rasp shown on this model was its position at the time that the model was constructed; and Mann, in answer to the questions asked him in respect to the relative positions of these axes, showed no understanding of the questions, nor did he show any conception of means for changing the angle of intersection to- produce different forms with the same cutter.

Mann then built a second machine, or as he said, a new jack and stand, illustrated in Defendant’s Exhibits F-l, E — 2, and F-3. That machine was not shown to any one until he met Pope in the fall of 1922. Pope took the machine from Mann’s home, and thereafter Pope showed him, some drawings. Mann’s first machine had been dismantled before Mann met Pope. If Exhibit E had been dismantled prior to Pope’s visit, and then used to build up the machine shown in Exhibits F-l, F-2, and F-3, it must follow that Exhibit E has been put together again for the purposes of the ease. The appearance of this exhibit with the numerous bolt holes and slots makes it doubtful as to whether it accurately represents the relative position of parts in its original condition. The machine shown in photographs, F-l, F-2, and F-3, was not produced.

That machine was taken by Pope from Mann’s home in January, 1923, shortly after Pope’s visit to Mann. Mann, who took the photographs, said they were taken at his home “in March, I believe it was somewhere along the fore part.”

Hart, an employee of Pope, identified Exhibit E as that which was brought to Pope’s machine shop in March, 1923, though the testimony of Pope and Mann is that it was the machine shown in the photographs, F — 1, F-2, and F-3 which was brought to the shop.

Nobody testifies as to the adjustability of the angular relationship of the axes; and Mann admitted that it required more than one type of cutter “although I had only one cutter.”

The testimony concerning Defendant’s Exhibit E and the machine, Exhibits F-l, F-2, and F-3, is not persuasive that they disclose a conception of the invention defined in claims 1, 2, 3, 7, and 31, in issue.

The angular relationship of the axes, which is fundamental to the Sawyer invention, was conceived by Sawyer in April, 1923; and the evidence offered by the defendant in respect to the Mann conception fails to prove an earlier date. In this respect Mann’s ease is made no stronger by the drawings made by Pope, Exhibits Q, P, and R.

The first machine, in accordance with Mann’s “ideas,” he saw running in the mill of the United Wood Heel Company in April, 1924. That machine did not have the breast gauge, but had one similar to the gauge shown on Exhibit E. The back of the heel came in contact with this gauge. It is this, the breast gauge, that is shown on the right-hand side of the drawing, Defendant’s Exhibit R, drawn at a later date.

After the drawings were made, Pope and Hart manufactured the parts and completed them in the fall of 1923. Pope testified that the machine was completed about the 1st of February, 1924, and in March he sent the machine to the United Wood Heel Company. This machine is shown in defendant’s Exhibit C.

However, the machine in the United Wood Heel Company’s plant, as set up, did not work satisfactorily. Defendant’s witness Perrult operated the machine on April 18, 1924. He said that some of the heels “were cut shallow and some were cut too deep. I had to have a pair of calipers to get the distance between them.” The machine, according to Perrult, was laid aside for several months. He told Pope: “The heels varied and they would not work that way with the heel seat gauge on it.” “Put a breast gauge on it so that you could pull the heel towards you.” But the machine remained idle before Pope came up to get it. It was not until Pope had made a change in the machine, in accordance with Perrult’s suggestion, and had made some other change in respect to a cam, that a machine was operated satisfactorily at the United Wood Heel Company. Apparently, however, it was not until March 20, 1925, that the first successful machine was sold by Pope. This was purchased by the Rotterboro Last & Wood Heel Corporation.

From the foregoing it must appear that the date of reduction to practice by Pope and Mann of the device defined in claims 1, 2; 7, and 31 cannot be earlier than March, 1924. This device, however, did not embody “means for changing the angle,” as called for in claim 3.

I conclude, therefore, that Sawyer was the first to conceive the structure defined in the claims in suit, and proceeded with due diligence to reduce his invention to practice; and, as between himself and Mann, shows priority of invention.

In the Pope and Mann patent, No. 1,669,144, which it is agreed describes the defendant’s machine, we find’ the cutter B, a rasp, supported on a shaft or axis of rotation 15; 20- is a shaft with a handle 21 mounted on one end, and on the other end is mounted a platform 22, on which the heel is held between a fixed jaw and a movable jaw. The rotation of the shaft swings the heel in a circle or an are through the surface of revolution of the revolving cutter.

The axis of rotation of the work is at an oblique angle to the axis of rotation of the cutter. Thus there is correspondence between the shaft 20 of Pope and the shaft 32 of Sawyer, and the cutter axis 15 of Pope and the cutter axis 103 of Sawyer. Pope, by means of a bolt 44 which may be loosened, is enabled to swing the shaft 20 to any desired angle to the cutter shaft 15. The correspondence between the machines in these fundamental particulars is marked.

Comparing then the Pope machine with the claims of the patent in suit, we find a rotary tool in the form of a rasp; or cutters which may be substituted therefor, arranged to generate a surface of revolution, having a cross-section in part corresponding to a profile of a heel surface; also a heel blank holder, and means, such as the axis 20 of the work holder, for effecting a relative revolution of the heel blank holder and the tool about an axis which is oblique to the axis of rotation of the tool and which is substantially parallel to the attaching face of a heel blank in the holder. That corresponds with the device defined in claim 1.

Claim 2 differs from claim 1 merely in the limitation that the two- axes intersect at a point on the opposite side of the tool from the heel blank holder. This is seen in the Pope and Mann patent, if the axis 15 is extended until it intersects the axis 20.

Claim 3 includes a provision for “means for adjusting the angle between the two axes.” This is found in the bolt which Pope provides for swinging the shaft 20 to any desired angle to the cutter shaft 15.

Claim 7 differs really only in terms from claim 1. The rotary tool of Pope is constructed and arranged so as to form a curved shank lip surface in a heel blank, and has means to carry the tool relatively over the shank lip portions of the blank. Moreover, the movement of the tool axis, considered relatively to the work, and the axis of the swing, generates the cone about the fixed axis, the axis of the cone being substantially parallel to the attaching face of the heel blank.

Claim 31 is essentially similar to claim 7, but defines the form generated as that of a hyperboloid of revolution, in describing the movement of the cutter axis considered relatively to the work and to- the axis of revolution. The Pope machine does not escape that limitation.

It appears too that the Pope machine functions the same way as the Sawyer machine. It curves or rounds the lip- with the easy cut of Sawyer, as distinguished from the hard cut of Buss. It is a progressive cut, that is, with each revolution the rasp progresses only part way across the width of the block, and the cut is diagonally across the fibers. Apparently, too, the Pope machine does not splinter at the following edge.

In actual use the Pop e machine in the defendant’s plant is not employed for the entire grooving operation; but, so far as infringement is concerned, it is immaterial whether the machine is operated to utilize the full advantages of its organization.

Plaintiff’s expert, Packard, testified that the Pope machine is adapted to operate not only to curve the lip, but with the same operation, to form the whole breast of the heel or heel block; and that he had performed such- an operation on the Pope machine.

Moreover, plaintiff’s witness Buss testified that he had seen a Pope machine used commercially at the factory of the Bray Wood Heel Company, and that it shaped the whole breast face of a Louis heel.

I conclude, therefore, that all the claims are infringed.

The third defense has to do with prior art patents.

Only two- are relied on in the brief. The more important of these is that to Loomer, No. 1,512,882, granted October 21, 1924, on an application filed June 22, 1918. This is for a heel breasting machine. It may be said at once of this patent that the axes of revolution are not oblique to- each other. The axis of rotation of the work holder is at right angles to the cutter shaft in the Loomer device ; but there is no intersection of the axis of the work and cutter on the opposite side of the tool from the work holder. The rotation of the cutter would not form the generating cut defined in the Sawyer patent. Packard believes that the machine is not adaptable to cut wood heels, for in order to cut such heels, it is necessary to have a considerable peripheral speed between the cutting edge and the wood. That is not practicable in the organization of the Loomer machine.

The other patent is that to Sanders, issued January 23, 1917, No. 1,213,271, on an application filed April 11,1914. This patent is for a wood heel grooving machine. In this machine the axis of the cutter 7 is perpendicular to the axis of work 3. The essential construction of the machine is very neatly illustrated in defendant’s model L-l. In this device the Sanders cutter operates like a push groover except that the heel passes through the cutter in a circular path. There is no- provision in the patent for changing the circular path; and it would be necessary to change the size of the table to effect such change in the work. The machine is clearly not adapted for developing a generating cut, such as is called for in the claims in suit.

Neither of these patents is an anticipation of the claims in suit.

Finally, claim 3 is attacked as being a mere adjustment of “the angle between the two said axes.” Authorities are cited to establish the well-understood proposition that mere adjustment cannot be the subject of patentable invention. Peters v. Hanson, 129 U. S. 541, 9 S. Ct. 393, 32 L. Ed. 742; Smyth Mfg. Co. v. Sheridan (C. C. A.) 149 F. 208; Paquette v. Potter Mfg. Co. (C. C. A.) 46 F.(2d) 271; Barkis v. California Almond Growers’ Exchange (D. C.) 17 F.(2d) 327; Houser v. Starr (C. C. A.) 203 F. 264, 273; Doig v. Morgan Mach. Co. (C. C. A.) 122 F. 460; Kalamazoo Loose Leaf Binder Co. v. Wilson Jones Loose Leaf Co. (D. C.) 286 F. 715; Parker Metal Decorating Co. v. Ehramjian (D. C.) 55 F.(2d) 387. But it is sufficient to say that the claim does not rest for its novelty on mere adjustment. The obliquity of the axes cannot be disregarded nor the character of the surface generated by the cutting mechanism.

I conclude, therefore, that the claims of the patent in suit are valid and infringed.

If this opinion is not in sufficient compliance with the rule requiring findings of fact and conclusions of law, submit findings of fact and conclusions of law in accordance therewith.


source: Caselaw Access Project

author: REEVES, District Judge.

license: Public Domain

text:
    JOSEPH H. WEIDERHOFF, Inc., et al. v. NEAL et al.
    No. 584.
    District Court, W. D. Missouri, C. D.
    Jan. 3, 1934.
    In Equity. Suit by Joseph H. Weidorhoff, Inc., and another against Mi's. Myrtle Marie Neal and others. Decree for plaintiffs.
    Leo T. Schwartz, of Kansas City, Mo. (Maurice J. O’Sullivan, of Kansas City, Mo., of counsel), for plaintiffs.
    Franklyn E. Reagan, of Jefferson City, Mo., for defendant Mrs. Myrtle Marie Neal.
    Roy MeKittrick, Atty. Gen., and Franklyn E. Reagan, Asst. Atty. Gen., for defendant Compensation Commission.
   REEVES, District Judge.

This is a proceeding to enjoin the members of the Missouri Workmen’s Compensation Commission from entertaining jurisdiction and determining a question of compensation. The claimant is also enjoined.

The facts are that one Leon P. Neal was employed by the plaintiff in the state of II- ° linois, the residence of both the employer and employee. While the employee was engaged in such employment, and on December 13, 1932, he was killed near Chillieothe, Mo.

Illinois has a Workmen’s Compensation Law (Smith-Hurd Rev. St. Ill. 1931, c. 48; § 138 et seq.), and by means of the usual administrative tribunal created for the purpose, claims are adjusted which arise through the relation of employer and employee. This law automatically affects both the employer and the employee and excludes all other statutory and common-law remedies. It is provided in said law that where the contract of employment is entered into in the state of Illinois, adjustments are made thereunder, notwithstanding the fact that the damage might have accrued outside of the territorial limits of said state.

In this case it was admitted that the employee was killed outside the state of Illinois. It is the contention of the plaintiff that the Workmen’s Compensation Law of Illinois is applicable and that the claimant is required to seek an adjustment of damages under the laws of Illinois.

On the other hand, the defendants say that the claimant is not deprived of her legal remedies because of the circumstance that the accident occurred and the damages accrued in the state of Missouri. It is urged by the defendants that the laws of Illinois would not have extraterritorial force. Moreover, the defendants aver that this court would be without jurisdiction of the subject-matter, and, even if so, it could not restrain the Missouri Workmen’s Compensation Commission because said commission partakes of the nature of a court.

These questions and others will be noted and discussed in the course of this memorandum opinion.

1. The contention of the defendants that this court could not issue an injunction against the Missouri Workmen’s Compensation Commission because of section 379, title 28, U. S. C. (28 USCA § 379), is without support. This section applies to judicial tribunals and its object is to prevent unseemly conflict between courts. The Supremo Court of Missouri has repeatedly ruled that the Workmen’s Compensation Commission of Missouri is not a judicial tribunal. It is construed to be an administrative agency to carry the provisions of the act into effect, and that it is not invested with judicial power in the sense in which the term is used in the Constitution. Oren v. Swift & Co., 330 Mo. 869, 51 S.W.(2d) 59, loc. cit. 61; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen’s Compensation Commission, 320 Mo. 893, 8 S.W.(2d) 897; De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.(2d) 640.

2. The further contention that the plaintiff has an adequate legal remedy under the laws of Missouri is also without merit. When plaintiff and its employee entered into their engagement, the Workmen’s Compensation Laws of Illinois automatically fixed their relationship and the substantial rights of each one. The contract of employment was entered into in view of the law, and the statutes became a part of the contract. It was their engagement therefore that in case of a claim for damages, whether accruing in the territorial limits of Illinois or beyond such limits, such claim would be determined and adjusted under the laws of Illinois. This was a valid undertaking and fixed the substantive rights of the parties, and each one became bound thereby. See Daggett v. Kansas City Structural Steel Co., 65 S.W.(2d) 1036; Supreme Court of Missouri, not yet reported [in State Report].

Claimant seeks to have her claim ascertained and determined by a statutory tribunal expressly forbidden under the Illinois law, and thus, in the contract between the parties. Moreover, a Missouri statute specifically denies jurisdiction to the defendant commission. Section 3310, R. S. Mo. 1929 (Mo: St. Ann. § 3310, p. 8245), is as follows:

“(b) This chapter shall apply to all injuries received in this state, regardless of where the contract of employment was made, and also to all injuries received outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide.”

The words italicized were evidently intended to meet a situation such as appears in this case and make the law inapplicable.

Furthermore, it appears that claimant has interposed a claim before the Illinois Workmen’s Compensation tribunal. Plaintiff, therefore, has a right to resort to this equitable proceeding to avoid a multiplicity of suits and to save it from proceedings that obviously would not give it the full, complete, and entire relief obtainable by an equitable proceeding in this court.

3. The question involved is the matter of a statutory tribunal in Missouri refusing to give full faith and credit to the statutes of the state of Illinois. Upon failure or refusal to do that, it is the duty of this court to protect the rights of plaintiff in its enjoyment of the guaranties of the Constitution. Mississippi Bailroad Commission v. Illinois Central Bailroad Company, 203 U. S. 335, 27 S. Ct. 90, 51 L. Ed. 209; Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 438, 42 L. Ed. 819; Public Service Co. of Northern Illinois v. Corboy, 250 U. S. 153, 39 S. Ct. 440, 63 L. Ed. 905.

The ease of Bradford Electric Light Co. v. Clapper, 286 U. S. 145, 50 S. Ct. 571, 76 L. Ed. 1026, 82 A. L. R. 696, is fully and completely decisive of all of the questions involved here. In that ease, the Bradford Electric Company, as employer, had a contract of employment with one Leon J. Clapper as its employee. The corporation was domiciled in Vermont, as was its employee. The employment engagement required some work beyond the territorial limits of Vermont, viz., in the state of New Hampshire. The employee suffered injuries from which he died, while engaged in his employment in New Hampshire. A suit was filed in New Hampshire, and recovery sought under the laws thereof. The ease finally reached the Supreme Court of the United States, and there it was held that the laws of Vermont controlled the substantive rights of the parties, even though the accident and consequent damages accrued in another state.

The identical situation is present here, and an inspection of the laws of the several states show little or no variance between those of Illinois and Vermont. Each of-the statutes sought to exclude recovery of damages under the common law or by statute other than through the tribunals, and in accordance with the rights fixed by the state where the contract was entered into. Very recently the Supreme Court of Illinois, in Nelson J. Cole et al. v. Industrial Commission et al., 353 Ill. 415, 187 N. E. 520, 90 A. L. R. 116, had before it the same state of facts in a ease arising under the laws of Indiana, but tried in the Illinois courts because the damages were alleged to have accrued in that state. The Supreme Court of Illinois followed the Bradford Electric Light Co. v. Clapper Case, and held that the substantive rights of the parties were in accordance with their contract at the place of employment, and that the statutes of Indiana where the engagement was entered into became a part ■of the contract, and, that in all claims for damages, proceedings should be had in accordance therewith.

The restraining order in this case is proper, and clearly the plaintiff is entitled to a temporary injunction.

Counsel for plaintiff will prepare and submit an appropriate decree.


text:
    In re REID.
    District Court, D. Oregon.
    May 3, 1934.

      V. C. Tomlinson, Naturalization Examiner, for the United States.
   JAMES ALGER FEE, District Judge (after stating the facts as above).

Petitioner claims the right to restoration of citizenship by virtue of an act of Congress permitting “a woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship” to be naturalized “if eligible to citizenship and if she has not acquired any other nationality by affirmative act.” Tit. 8 USCA § 369.

Mrs. Reid is eligible for citizenship. Her good character is proved. She was bom in this country, is attached to the principles of the Constitution of the United States, and intends permanently to reside in this country. Her husband is eligible to citizenship. See Gorman v. Forty-Second St. M. & St. N. Ave. R. Co., 208 App. Div. 214, 203 N. Y. S. 632. She did not acquire any other nationality by affirmative act.

The government admits that there has been no choice of Canadian allegiance by petitioner, either based upon evidence of her residence or marriage to a citizen of that country, and the court so finds. The sole basis of the attempt to prevent petitioner from reclaiming her native allegiance in accordance with the strict letter, of the congressional enactment is the contention that the terms of the statute do not apply to her, since she had already lost her citizenship by the naturalization of her father in Canada while she was still a minor. This construction is narrow and technical in view of the tenor of the other acts of the Congress favoring repatriation of the native bom. 8 USCA §§ 369a, 372a.

If the instant proceeding, however, had the simple result of denying citizenship to petitioner alone, the court might not hold that the result demanded by the bureaus of the government is inequitable. When the exclusion of petitioner is sought, on the other hand, not upon the ground that she had made choice of Canadian citizenship by continued residence, not upon the ground that her marriage showed a preference for that country to her native land, but upon principles which transcend the incidents of isolated eases, and open the road to involuntary exile of native-born citizens of the United States, the rights guaranteed by our basal law to a person bom in this country must be reaffirmed.

The argument for the government proceeds upon the ground that by the terms of the Naturalization Treaty between the United States and Great Britain, proclaimed September 16, 1870, 16 Stat. 775, the United States are required to treat all persons naturalized in the British dominions “in all respects and for all purposes” as British subjects. Since the laws of Canada at that time in force conferred citizenship in that country upon all minors whose fathers were naturalized there, it is urged petitioner could not be accorded rights of citizenship by the United States without violation of the treaty.

This result is demanded neither by the statute nor the treaty. The enactment, Rev. Stat. of Canada, 1906, c. 77, reads: “If the father or the mother, being a widow, has obtained a certificate of naturalization within Canada, every child of such father or mother who, during infancy, has become resident with such father or mother within Canada, shall, mthin Canada, be deemed to be a naturalized British subject.”

Clearly the limitation “within .Canada” indicates an intention to permit the minor to resume his native allegiance in the country of his birth. This deduction appears more logical when it is considered that, by a subsequent statute, the right of a minor to select, in accordance with the principles of international law, between citizenship in Canada and the country of his birth, is affirmed. Statutes of Canada, 1914, c. 44, § 5. But the court is reminded, Rev. Stat. of Canada, 1886, e. 113, § 15, provides that a naturalized alien shall not be deemed to be a British subject “when within the limits of the foreign state to which he was a subject * * * unless he has ceased to be a subject of that state in pursuance to the laws thereof, or in pursuance of a treaty or statute to that effect.” In answer, it may be said that this proviso does not apply. No law of this country broke the tie of citizenship by birth when Mrs. Reid was naturalized in Canada by her father’s act. Nor does the treaty require such a termination of her rights.

The compact itself contains no language which expressly destroys citizenship in the United States of a person naturalized in the British dominions, nor specifically does it attempt to forbid the exercise of the option of a minor at maturity between the country of his birth and the country in which, without his concurrence, he may have been naturalized. The document, by article III, expressly permits in the broadest terms the United States to repatriate nationals who may have been naturalized in the British dominions. Since Mrs. Reid is in this country voluntarily seeking citizenship, the United States may restore her rights on any terms which may be deemed proper without violation of its terms.

The history of our relations with England and the language of this document show that the intent was to establish between the governments the right of expatriation to the citizens of either, and to prevent the imperative imposition of obligations of citizenship by either, upon persons who had renounced allegiance to that country. The treaty places restrictions upon governmental action in imposing burdens upon a former citizen. (See construction of a similar treaty with Bavaria, Mr. Wharton to Mr. Phelps, March 36, 1891, Eor. Rel. 1891, 507.) On the other hand, it permits the other government to confer benefits of citizenship to any person seeking them. The municipal law is, as to this, established as supreme by the compact. The rights of the person who claims citizenship are therefore unfettered by the treaty.

The salient error in the proposed construction of this document by the goveinment is the theory that by naturalization in Canada a minor born in this country loses his citizenship in the United States. The government must insist upon this interpretation or it cannot prevail, because, if citizenship in the United States was not erased by the naturalization of petitioner as a minor, it was “lost” under the terms of the congressional statute by her marriage to Reid." But, during the history of this country, no attempt has been made to cede to an alien power the allegiance of any citizen without an act of expatriation upon his own part.

On the other hand, the law of this country enforced since the inception of the government endowed Mrs. Reid with citizenship here, and from it she could not be divorced except by her own free will. No treaty can accomplish such a result because either of its inherent force or its adoption of foreign municipal law.

At common law and under the early judicial determinations in the United States it was established that birth in a country conferred citizenship. Even under that teaching, although there was no constitutional declaration conferring the right, judicial expression upheld citizenship as inviolable from governmental interference,, without voluntary action by tbe party concerned. “No act of legislation can denationalize a citizen without his concurrence.” Burkett v. McCarty, 73 Ky. (10 Bush) 758. The sovereign cannot discharge the subject from his allegiance against his consent except by disfranchisement as a punishment for crime. Ainslie v. Marlin, 9 Mass. 454, 461. “The constitution does not authorize congress to enlarge or abridge those rights [the rights of citizens].” Osborn v. Bank of U. S., 9 Wheat. 738, 827, 6 L. Ed. 204. Thereafter the right of citizens by birth was confirmed by the Constitution. Section 1, Amendment 14-, to that instrument provides: “All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. * * * ”

The history of the amendment need not be reviewed to prove that it contains a prohibition against the disfranchisement, denaturalization, or exile of a native-born person without voluntary action by him. That is axiomatic.

Although the treaty as properly interpreted does not debar petitioner, it could not in any event prevent Mrs. Reid, therefore, from claiming the privileges and immunities with which she was invested by common law, and by the express terms of the amendment. For, although the treaty making power extends to all subjects which are proper for negotiation between nations, “it would not be contended that it extends so far as to authorize what the Constitution forbids.” Geofroy v. Riggs, 133 U. S. 258, 267, 10 S. Ct. 295, 33 L. Ed. 642.

This limitation is brushed aside by the one case squarely in point. Ostby v. Salmon, 177 Minn. 289, 225 N. W. 158. It holds that, where a minor born in the United States was taken to Canada, of which country, while he was under age, his father became a naturalized citizen and he returned to the United States during minority, he could not resume his native allegiance at majority. Emphasis is placed upon the rights and duties of respective governments under the treaty. The theory of .dual allegiance is summarily dismissed, and the doctrine of election is not in terms mentioned at all. The underlying theory of the ruling appears to be upon the ground of convenience of the governments involved and the election officials. The method used by the court seems empirical. But the reasoning of the opinion does not yield to the distinction that the instant ease is one concerned with the formalities of naturalization, while that dealt with the right to vote without naturalization. Since repatriation by formal act is mentioned therein as the remedy, a diverse result might here be consistent, even if the exigencies of governmental action alone be considered.

This decision cannot be squared with the terms of the amendment as interpreted in the light of its history by the Supreme Court of the United States. In U. S. v. Wong Kim Ark, 169 U. S. 649, 703, 18 S. Ct. 456, 478, 42 L. Ed. 890, the court held that, notwithstanding national .policy and express enactment of Congress required exclusion of the Chinese race, one of its members could not be deprived of his birthright as a citizen of the United States. The history of the Fourteenth Amendment therefore, and its purpose as declared by the courts, void any governmental action denaturalizing a citizen without action unimposed upon him. Unquestionably this principle prevents the forfeiture of citizenship by peremptory conditions imposed after birth. “The fourteenth amendment * * * has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.” U. S. v. Wong Kim Ark, supra. If it were otherwise, members of minority parties might be declared denationalized on aeeotint of their doctrines, and other limitations might bo set, the effect of which would be to destroy the citizenship conferred by the Constitution.

The right of voluntary expatriation granted to citizens of this country in accordance with “the fundamental principles of the Republic” and obtained for the subjects of other powers by enlightened policy is a doctrine of liberty. The right of two governments to bargain away the allegiance of an individual without aetion of-his own accord is a doctrine of absolutism and inconsistent with the primary law of the United States.

A different ground for upholding the denaturalization of a native-born citizen without consent is that the municipal law of the foreign country declared that the person was a citizen thereof and the United States were bound by treaty to respect the declaration.

In Citizenship of Ingrid Therese Tobiassen, 36 Op. Attys. Gen. 535, is a letter to the Secretary of Labor, in which the Attorney General held that a minor who was born in the United States and whose father, after becoming a citizen of the United States by naturalization, took her to Norway, his native country, where he established a permanent residence, acquired Norwegian nationality through the reacquisition by her father of his rights as a Norwegian subject, and therefore she ceased to be an American citizen, notwithstanding the fact that she returned to this country when she attained majority, established a permanent residence, and attempted to claim citizenship in the country of her birth.

The interesting feature of this letter is that it does not mention the paramount right of a native-born citizen under the Fourteenth Amendment. It likewise dismisses without consideration the limitations upon the treaty-making power suggested by the Secretary of Labor. It assumes without discussion that the acquisition of an alien citizenship by a minor of its own force divests his native citizenship, which does not follow according to the principles of international law. It does not mention the doctrine of election. It bases the determination upon the fact that imperative imposition of Norwegian citizenship upon a person destroys his previous nationality. Finally it assumes that the convenience of the governments involved is the transcendent consideration and that the rights guaranteed to native-born citizens are of no consequence. The recent opinion of the Attorney General, In re Citizenship of Mrs. Marie Thorgaard, August 3, 1933, seems to reflect a more liberal disposition, although the questions here discussed are expressly held not to be in point.

But, if a construction given to a treaty by reference to the municipal laws of a foreign country overrides constitutional limitations, a result is accomplished indirectly which could not be brought about directly. The Department of State has always contended that a mandate by a foreign country imposing citizenship therein upon a citizen of the United States could not destroy his rights to the protection of this country on the ground that “transfer of allegiance must be by a distinctly voluntary act.” Mr. Bayard to Mr. Manning, November 20, 1886, For. Rel. 1886, p. 723; The Boisseliers, infra. See, also, Moore Int. Arbitrations, vol. 3, 2479-2482. Where a son was bom in Alsace-Lorraine to a naturalized citizen of this country, and was claimed as a German citizen by virtue of the treaty of 1871, it was said: “The American citizenship inherited by Mr. George and elected by him when of full age cannot be divested, either by the municipal laws of Germany nor by a treaty between Germany and France.” For. Rel. 1886, pp. 317, 327.

It may be taken as settled that no municipal law of a foreign country can, by imposing involuntary citizenship, thereby deprive a citizen of this country of his rights, and that no governmental agency by virtue of the treaty power can divest a native-born citizen of the privileges and immunities without his affirmative action, either as a direct or indirect result of the foreign law. The question is whether petitioner’s rights fall within these protections.

With these limitations in mind then, a review of the rights conferred upon the minor by international law and under decisions of the courts will tend to clarity, and determine whether the destruction of American citizenship by treaty or foreign law is an unwarranted assumption, or is in accordance with the power conferred by the Constitution, for, in order to prevent application of the supremacy of treaty obligations over the rights of citizens from becoming exemplifications of untrammelled power, it' is imperative that such instances be confined to eases for which there is historical and logical warrant. The doctrine of dual nationality is applicable where a father emigrates and acquires a new allegiance. Moore, International Law Dig. vol. 3, p. 518. While in a foreign country and a minor, the child of a father naturalized there takes the nationality and domicile of the latter, and is governed by the municipal laws of that country. For practical purposes in accordance with the phraseology of the statute under consideration, he is deemed a citizen of the foreign, country. Moore, Int. Law. Dig. vol. 3, pp. 541, 542. But his citizenship in the United States is not thereby impaired or lost. Moore, Int. Law. Dig. vol. 3, pp. 539, 540. At maturity the person thus endowed has the right, and it is his duty to make a decision as to which of the two sovereignties he will accept. The choice is final, and thereafter he owes no allegiance to the country which he has rejected.

In Boyd v. Thayer, 143 U. S. 135, 12 S. Ct. 375, 36 L. Ed. 103, it was recognized that there was a dual nationality in the minor son of an alien, where the latter had filed a simple declaration of intention to become a citizen here, and the right of the former to make an election at majority was affirmed.

Inasmuch as birth in a country confers the strongest claim to citizenship there, the universally recognized right of a child bom in a foreign country of American parents to claim citizenship here by election at majority is a cogent argument for permitting like election where a child is bom here and by the act of the parent becomes endowed with rights of citizenship in a foreign country. Under both common and international law, birth in a country confers rights of citizenship. Forfeiture of such right can only be by voluntary act of the citizen. The right to citizenship by virtue of the naturalization of the father, oji the other hand, can only be conferred by special municipal law. This country through the State Department has always recognized the right of a person born abroad of a father who is a citizen of the United States to claim allegiance to and protection of this country when he arrives at majority, although there is not a syllable in the fundamental law which confers such power upon him. Mr. Bayard to Mr. Pendleton, April 27, 1886, For. Bel. 1886, p. 327; Mr. Seward to Mr. Foster July 2, 1879, For. Bel. 1879, p. 815; Case of Hine, For. Bel. 1901, p. 421; Mr. Seward to Mr. Foster, Aug. 13, 1879, For. Bel. 1879, p. 825. The only reason no specific statute has been passed conferring such power upon the minor born in this country is that his rights are guaranteed by the Constitution itself. Where a child was born in Canada and lived there for a considerable time, but claimed American citizenship of his father, it is said: “The citizenship acquired by Samuel Nelson Jackson at birth was a qualified one, and of that peculiar character under the law which required an election on his part upon attaining his majority or within a reasonable time thereafter whether he would conserve the citizenship of the United States or that of Canada. This election, when once made, is binding upon him and the eountrv of his choice. * * * His son, S. Holíister, ° « * was born in Canada in 1875, bom into that same kind of American citizenship which required an election on his part as it had of his father.” State of Vermont ex rel. Chas. A. Phelps v. S. Hollister Jackson, 79 Vt. 504. 65 A. 657, 661, 8 L. R. A. (N. S.) 1245.

A like determination is found in Ludlam v. Ludlam, 26 N. Y. 356, 84 Am. Dec. 193. The specific question, however, is whether the parents of a minor have the power to destroy his rights to the privileges and immunities of citizenship in the United States to which he is entitled by birth. It would seem that the denial of the right to the minor himself is a cogent argument against the existence of such a right in any other person. It was early recognized in this country that a minor has no right of his own accord to expatriate himself and is “totally incapable of making any election in regard to his citizenship.” Ludlam v. Ludlam, 26 N. Y. 356, 376, 84 Am. Dec. 193. This limitation has been reaffirmed recently in U. S. ex rel. Baglivo v. Day (D. C.) 28 F.(2d) 44, where it is said: “A native-born citizen [of the United States], who has not attained the age of 21 years, cannot renounce allegiance to the United States.”

The question of the right of the parent was raised but not determined in U. S. v. Wong Kim Ark, 169 U. S. 649, 705, 18 S. Ct. 456, 478, 42 L. Ed. 890, where the court says: “No doubt he might himself, after coming of age, renounce this citizenship, and beeoiqe a citizen of the country of his parents, or of any other country. * * * Whether any act of himself, or of his parents, during his minority, could have the same effect, is at least doubtful.”

In the case of Steinkauler, 15 Op. Attys. Gen. 17, it is said: “Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright.”

In that ease the minor was by jus sanguinis a subject of the German Empire.

Another expression of this sort is found in Ex parte Chin King (C. C.) 35 F. 354, 356, where it is said: “However, in my judgment, a father cannot deprive his minor child of the status of American citizenship, impressed upon it by the circumstances of its birth under the constitution and within the jurisdiction of the United States. This status, once acquired, can only be lost or changed by the act of the party when arrived at majority, and the consent of the government.”

The United States have strenuously insisted upon the application of this principle and apparently with success in eases where obligations of its citizens by personal adoption were demanded by an alien government. Particular emphasis was placed upon right of a person of dual nationality to cast his lot with this country, where, at the time of the controversy, the person who had chosen allegiance to the United States; the country of his birth as against the country of his father’s nativity, domicile and citizenship, was within -the territorial limits of the former. Mr. Evarts, Secretary of State, writing to Mr. White, Minister to Germany, referring to two persons bom in this country to a naturalized citizen of this country, and who had been taken then to the country of the father’s nativity, but who returned before majority and preferred allegiance to the United States, uttered a ringing declaration, in which he said with reference to the constitutional guaranty:

“It is quite clear that the two young Boisseliers, being native born citizens of the United States, and now subject to the jurisdiction of the United States, cannot be held under any law, municipal or public, to owe military service to the German Government. Their rights rest on the organic law of the' United States. The Constitution declares (Article XIV of the Amendments) 'That all persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ This is the supreme law of the Republic, available alike to all citizens, whether native or naturalized, and binding upon every Department and officer of the Government. The brothers Richard and Caspar Boisselier, in their present political status, fulfil all its conditions. Their father, it is true, took them to Schleswig when they were quite young, one four and the other two years old. They lived there many years, but during all those years they were minors, and during their minority they returned to the United States; and now, when both have attained their majority, they declare for their native allegiance and submit themselves to the jurisdiction of the country where they were born, and of which they are native citizens. Under these circumstances, this Government cannot recognize any claim to their allegiance, or their liability to military service, put forth on the part of Germany, whatever may be the municipal law of Germany under which such claim may be asserted by that Government.

“ * * * Whether or not the father, Carl Gerhard Boisselier, may by his continued residence in Schleswig have resumed his original nationality and renounced his American citizenship is a question which I do not now undertake to determine nor is its determination deemed essential to the present question.” Moore Int. Law Digest. Vol. III, § 430, p. 543.

This case is-exactly in point, except it is now contended a treaty can override the fundamental declaration.

Nor can the fact that the statute under which petitioner forfeited her citizenship by marriage was upheld as constitutional be recognized as establishing an exception. Marriage depends upon an act of volition. Furthermore, the doctrine of loss of citizenship by a woman by marriage to an alien (Madame Berthemy’s Case, 12 Op. Attys. Gen. 7; Mr. Frelinghausen, Secy, of State, to Mrs. Walsh, Jan. 31, 1884, Moore, Dig. Int. Law, 5408) and repatriation after coverture has ended finds explicit warrant in international law (Moore, Dig. Int. Law, 3409). Nor does Mackenzie v. Hare, 239 U. S. 299, 36 S. Ct. 106, 108, 60 L. Ed. 297, Ann. Cas. 1916E, 645, destroy the principle that the consent of the citizen is a prerequisite to denationalization, for it is there said “it may be conceded that a change of citizenship cannot be arbitrarily imposed.”

It is thus firmly established in the law of this country and in the law of nations that a minor bom in this country who is involuntarily naturalized in a foreign country has a right to elect allegiance when he arrives at maturity, and that he cannot be deprived of that right by his own act nor by the act of his parents, nor by the municipal law of the foreign state. Any attempt by circumlocution to deprive him of the right by the treaty making power would be an arbitrary denaturalization inconsistent with the fundamental law. Before majority, Mrs. Reid thus had a dual nationality and was entitled to the benefits which might flow from either citizenship. Ludlam v. Ludlam, 26 N. Y. 356, 377, 84 Am. Dec. 193.

Nor is it in accordance with sound national policy as expressed in the statutes to prevent native-born citizens from repatriation. These children who are raised in a foreign country and disregard alien influences and parental authority at majority to seek allegiance to their native country have proved their belief in the inherent soundness of its institutions. When it is considered that the consequence of a contrary view might, by an extension of the quota acts, amount to virtual exile, that doctrine cannot be too strongly condemned.

The petitioner was a citizen not only by jus soli but also by jus sanguinis, since she was born in this country of native parents. This right she lost by marriage to an alien and not by other affirmative act. The statute confers her a right by express terms to repatriation.

The petitioner is admitted to citizenship.


author: LINDLEY, District Judge.

text:
    JONES et al. v. ALTON & S. R. CO. et al.
    District Court, E. D. Illinois.
    April 30, 1934.
    See, also, 5 F. Supp. 532.
    Jones, Grant & Jones, of Danville, HI., for plaintiff.

      Meeks & Lowenstein, and Gunn, Pen-well & Lindley, all of Danville, Ill., for defendant.
   LINDLEY, District Judge.

This action was brought by plaintiffs under section 16, par. 2, of the Interstate Commerce Act (49 USC A § 16 (2), to recover alleged unreasonable excesses of freight rates charged by defendants for the transportation of coal from certain districts in Illinois to Marshall, Mexico, and Vandalia, Mo., in violation of section 1 of the aet (49 USC A § 1). The charges were made upon rates found by the Commission to be unreasonable in report No. 23424, Milton & Son et al. v. Alton & Southern Ry. Co. et al., 179 I. C. C. 200, decided November 23,1931, which covered in all nine cases, and awarded to plaintiffs here, as wrongfully collected, freight charges of $8,777.72. To recover this amount with interest and attorneys’ fees plaintiffs brought this suit.

Trial by jury was waived in writing, and at the conclusion of the evidence the eourt took the matter under advisement and has since' received and considered voluminous briefs and arguments of the parties.

The defendants insist that assumpsit is not the proper form of action. Clearly under Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, 51 S. Ct. 592, 75 L. Ed. 1333, the collection by a common carrier of exorbitant charges is a tort.

It has always been the law in Illinois that one may waive a tort and elect to sue in assumpsit to recover money tortiously received or retained by defendant. Arnold v. Dodson, 272 Ill. 377, 112 N. E. 79; Donovan v. Purtell, 119 Ill. App. 116, affirmed 216 Ill. 629, 75 N. E. 334, 1 L. R. A. (N. S.) 176; Havana Press Drill Co. v. Ashurst, 148 Ill. 115, 35 N. E. 873. In Stewart v. Brady, 309 Ill. 425, 133 N. E. 319, 318, the court held that assumpsit was the proper form of action in suing to recover a statutory penalty for selling securities in violation of the state law. The eourt said: “An action of assumpsit will lie for money had and received for the use of the plaintiff, wherever, by reason of a contract relation, the- defendant has obtained possession of money which in justice he ought to refund. Arnold v. Dodson, 272 Ill. 377, 112 N. E. 70. Assumpsit may be supported for money accruing due to the plaintiff under the provisions of a statute which does not restrict him to any other remedy.”

In A. L. Jones Co. v. C., M. & St. P. Ry. Co., 213 Ill. App. 283, the eourt approved assumpsit as the proper pleading upon which to recover carrying charges in excess of those authorized by order of the Illinois Commerce Commission. Clearly plaintiffs are entitled to elect to maintain the present action in the form of assumpsit.

Defendants contend further that there is no proof of service of the order of the Commission directing the railroad to pay the said excessive charges required under the section which requires that every order of the Commission shall be served upon the designated agents of defendants in the city of Washington. See 49 USCA § 16 (5).

The evidence in the present case contains the certificate of the secretary of the Commission reciting the fact that service of the order was made on May 11, 1933, upon the Washington representative of defendants and that the receipts for same are now on file in the office of the Commission. It is contended that the certificate of any such ministerial officer proves only the document itself and that there is no competent evidence, therefore, to support a finding of proper service. However, this certificate was not offered to prove facts of record with the Commission, but, as I analyze the same, it was merely a certificate by a ministerial officer that he had performed a duty required of him by law. In other words, it was equivalent to the return of a marshal or sheriff on a subprana or summons, made in the usual course of legal proceedings reciting service upon defendants. I am of the opinion, therefore, that there is sufficient proof of service.

It might well be observed in this connection that section 16, par. 5, of the act makes it mandatory upon the Commission to serve copies of orders upon parties in the proceeding before it and that many courts have held that, in the absence of evidence to the contrary, it is ordinarily presumed that public officers have performed the duties imposed upon them by law. U. S. v. Kinkead (D. C.) 248 F. 141, affirmed (C. C. A.) 250 F. 692; U. S. v. Chemical Foundation (D. C.) 294 F. 309, affirmed (C. C. A.) 5 F.(2d) 191; Williams v. Vreeland (C. C. A.) 244 F. 346, affirmed 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038; Aldis v. South Park Com’rs, 171 Ill. 424, 49 N. E. 565; People ex rel. Stern v. E., J. & E. Ry. Co., 298 Ill. 574, 132 N. E. 204; Philadelphia & Reading Coal & Iron Co. v. Chicago, 158 Ill. 9, 41 N. E. 1102; Mix v. People ex rel. Shaw, 81 Ill. 118; Jackson v. Cummings, 15 Ill. 449; Village of Depue v. Bansehbaeh, 273 Ill. 574, 113 N. E. 156.

The record further shows that defendants were served with the order in the Milton Case wherein it was found that petitioners were entitled to reparation and filed petition for rehearing on April 5, 1933, 33 days before the reparation order was issued, wherein they asked to have the matter reopened and reconsidered by the entire Commission on the question of reparation. A similar petition 25 days later asked for such reopening and for vacation of the order and for consideration by the entire Commission of the question of reparation. Apparently defendants had full notice of what the Commission was doing.

There is a special situation with regard to the Alton Railroad Company. The vice president of that company wrote to plaintiffs’ representative on July 5, 1933, within three months after the orders of reparation were entered, saying that the only reason the company had for refusing at that time to pay the claims was that it was waiting for advice from counsel for the Missouri-Pacific as to proper basis for settlement. This clearly showed notice and waiver of any defect therein.

Defendants contend further that it was necessary that plaintiffs show that they had paid the alleged unreasonable charges under protest, and they rely in this connection upon the decision of the Circuit Court of Appeals for the Seventh Circuit, in Knudsen-Ferguson Fruit Co. v. C., St. P., M. & O. Ry. Co., 149 F. 973, where certiorari was denied by the Supreme Court, 204 U. S. 670, 27 S. Ct. 786, 51 L. Ed. 672. That case had to do with the cost of icing in transit. Plaintiff paid the demanded charge and then sued to recover it, and it was held that he could not recover because he had not paid the same under protest. This case was decided at a time when it was the practice to file suits in court without first obtaining a finding by the Commission.

It is further contended that the Supreme Court of the United States in Louisville & Nashville R. R. Co. v. United States, 267 U. S. 395, 45 S. Ct. 233, 69 L. Ed. 673, established the rule for all time that payment without protest cannot be collected. There the railroad company had filed suit to recover the amount by which the tariff rate charges on shipments of coal received by the United States as consignee were reduced by government land grant deductions, as contended, unlawfully. The court held that, same not having been paid under protest, it could not be recovered.

In reply to this contention plaintiffs very pertinently suggest that, in view of the fact that there is before the court no transcript of the reeord before the Commission upon which the order of reparation was based, but only the final order, it will be presumed that the Commission had before it all the facts necessary to make a valid award. Thus in Spiller v. A., T. & S. F. Ry. Co., 253 U. S. 117, 40 S. Ct. 466, 470, 64 L. Ed. 810, the court said: “Obviously we hardly could sustain a decision rejecting the reparation order upon the ground that there was not sufficient evidence before the commission to support it when the whole of the evidence that was before the commission was not produced.”

The rule thus announced makes it unnecessary to pass upon the closely controverted question of whether payment under actual protest is necessary as a condition precedent to a successful action. In the eight eases involved in No. 23424, Milton et al. v. Alton & Southern, 179 I. C. C. 200, the Commission found the rates unreasonable, and thereafter in pursuance of the statute awarded the reparation now sought to be recovered on May 8, 1933. This finding and order of the Commission and service of notice of the same made out a prima facie ease for plaintiffs entitling them to judgment unless legal defect is shown by the evidence.

The principal defense in this eontro- . versy is that the rates found unreasonable in the Milton Case and as to which reparation was awarded to plaintiffs had been previously approved by the Interstate Commerce Commission, and therefore the Commission could not properly award damages, in view of the holding of the Supreme Court in Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U. S. 370; 52 S. Ct. 183, 76 L. Ed. 348, and Arizona Wholesale Grocery Co. v. Southern Pacific Co., 68 F.(2d) 601 (C. C. A.). In this connection defendants rely upon the reports of the Commission in Illinois Coal Cases, 1920, 62 I. C. C. 741; Id., 64 I. C. C. 751; Reduced Rates, 1922, 68 I. C. C. 676, investigation and suspension- docket No. 2346 (not reported), and Mississippi Valley Farm Equipment Ass’n v. B. & O. R. Co. et al., 159 I. C. C. 46. It does not appear that in any of these cases, the Commission at any time specifically prescribed or fixed by order any of the rates herein involved, or that any of the charges found unreasonable in the Milton Case were involved in the hearings relied upon by defendants. But it is claimed that the ratas from the Illinois coal producing districts in general to destinations in Missouri in general were involved in the eases relied upon and that in them the Commission either expressly or by necessary implication decided that the rates were not unreasonable.

In Corray v. B. & O. R. R. Co., 2 F. Supp. 829, this court held that under the Arizona Grocery Case, as a legislative body, the Commissi on could not declare unreasonable a rate previously fixed by it as a reasonable rate. Though such a fixing of rates is not a judgment, having the effect of res judicata, it is the result of legislative act by the Commission and is a legal act of the carrier. In the absence of a specific finding by the Commission of reasonableness, in pursuance of its legislative capacity, there is no estoppel against it thereafter granting relief against the same, if it finds them in fact unreasonablé. This is upon the doctrine that no legislative act may be retroactive to thp detriment of citizens. It becomes material, therefore, to determine whether there has been a specific finding by the Commission of the reasonableness of the rates herein involved. The test laid down by the Supreme Court for determining whether the Commission has lost jurisdiction to award reparation is whether it has specifically prescribed a specific rate for the future by legislative order. Brimstone R. R. & Canal Co. v. United States, 276 U. S. 104, 48 S. Ct. 282; 72 L. Ed. 487; Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 53 S. Ct. 145; 77 L. Ed. 360, 85 A. L. R. 254.

The rates from the Belleville section to Marshall, Mexico, and Vandalia, Mo*., being the ones in question here, are not mentioned in the report of the Illinois Coal Cases. Nor does that report show that they were the rates in effect between those points, either at the time of the hearing or at the time of the decision of Illinois Coal Cases in 1920. The only destinations considered in that report and the only rates to Missouri mentioned therein are St. Louis, Moberly, Springfield, and Jefferson City and the rates to those points. None of them is the same as the rate to Marshall, Mexico, or Vandalia. The Commission was then dealing with the question of the general rates from the general territory in Illinois to the general territory in Missouri. The language of the report is that the rate from the Belleville districts to points in Missouri are not unreasonable but prejudicial. Inasmuch as it appears that the complaint in the prior ease did not attack the reasonableness of any specific rate; that at the hearing of the Illinois Coal Cases, the complaint raised no question as to the reasonableness of the rates here questioned; that the Commission there made no finding whatever with respect to the reasonableness of any specific rate to any destination; that the report mentioned only destinations such as St. Louis, Moberly, and Springfield; and that the present record does not show the rate from any Illinois district to Missouri at the time of the hearings in those cases — it does not seem reasonable to interpret the order of the Commission in the Illinois Coal Cases as one fixing certain specific rates within the meaning of “finding and fixing” as I interpret the decision of the Supreme Court in the Arizona Grocery Case. That the reasonableness of no specific rate was in question appears from the transcript of evidence in the Illinois Coal Cases, where the witnesses expressly stated that they were not directing their complaint to the reasonableness or unreasonableness of the measure of the rates. It appears clearly that the issue in that case was one of prejudice only.

Later in Shelbina Milling Co. v. C., B. & Q. R. Co., 198 I. C. C. 241, decided December 18, 1933, the Commission expressly refused to hold that it had previously prescribed the rates complained of, and said with regard to the prior hearing that it did not enter an order fixing rates therein and did not pass upon the unreasonableness of the certain specific rates then in controversy. The same is true of the decision of the Commission No. 24899, A. B. Cole & Sons et al. v. Missouri-Pacific R. R. Co., 198 I. C. C. 252; decided the same day.

Defendants contend that in Mississippi Valley Farm Equipment Ass'n et al. v. B. & O. R. R. et al., 159 I. C. C. 46, decided October 17,1929, the Commission passed upon rates to Bowling Green and held that it had not been shown that the rates to that city were unreasonable. Therefore it is urged that in view of such decision, the Commission could not legally award reparations from the Springfield district to Vandalia and Mexico and Missouri, inasmuch as the rates to Bowling Green, an intermediate point, were higher and were found not unreasonable. The report shows that the rates from Springfield to Mexico were not in any manner involved, and the Commission made no finding whatsoever with respect to the same. The rates therein involved were later voluntarily established by defendants, and no order either for the past or for the future was entered, but, on the contrary, the complaint was dismissed.

While it is a violation of the law for carriers to charge higher rates to an intermediate point than to a more distant point, the fact that their rates are so related does not of itself prove the reasonableness or the unreasonableness of the larger rate, for the question of reasonableness is always a question of fact, depending upon the proof in each ease. This fact may be prima facie evidence that the higher rate is unreasonable, but the question of reasonableness involves the exercise of an administrative function as to which the Commission’s decisions are conclusive, if supported by evidence. Mitchell Coal & Coke Co. v. Pa. R. R., 230 U. S. 247, 33 S. Ct. 916, 57 L. Ed. 1472,; South Carolina Asparagus Growers’ Ass’n v. Southern Ry. Co. (C. C. A.) 64 F.(2d) 419. There being no presentation of the evidence submitted to the Commission in the present case, there is a conclusive presumption that the evidence-supports the same.

From what has been said, it seems clear that the award of reparation by the Commission was not wrongful because of any estoppel brought about by any prior fixing of rates involved in this case. In other words, there has been no prior specific finding as to •specific rates involved in this ease or out of which these rates grow. In the absence of such specific finding, therefore, the Commission, under the authorities quoted, was empowered to exercise its discretion. Having had before it evidence which is not submitted here, it eamiot be presumed that the Commission acted otherwise than in the exercise of such authorized discretion.

The Alton Railroad Company was not before the Commission. It is successor to the right and title of the receivers of the Chicago & Alton Railway Company, whose assets it purchased; the sale being approved by the United States District Court for the Northern District of Illinois. Under the decree there, the Alton Railroad Company agreed to pay liabilities incurred by the receivers in their operation, and the court reserved exclusive jurisdiction over such liabilities. Recognizing the validity of such decree, plaintiffs petitioned fop and obtained leave to make the Alton Railroad Company a party defendant in this suit. The court had a. perfect right to grant such permission in order to bring about a settlement of the controversy in another court. The order having been entered and no appeal having been taken therefrom, it follows that tins court has jurisdiction of the Alton Railroad Company.

The liability or nonliability' of the Missouri-Pacific ma.y not be determined, in view of the restraining order heretofore entered, on account of the bankruptcy of that railroad company.

It follows that plaintiffs are entitled to reparation and interest thereon as prayed except as against the Missouri-Pacific. Proper judgment for same showing specific allocation may be submitted.

Plaintiffs contend that there should be allowed, as attorneys’ fees, a minimum of $3,500 for the Chicago counsel and $350 for Danville counsel. The evidence submitted to me indicates a reasonableness of such charges. However, I take it that the court has a right to consider its own experience concerning proper fees. I think the amount suggested too large. The attorneys’ fees will be fixed as follows: To Arvid B. Tanner, $1,750; to John E. Sebat, $200. These amounts may be included in the judgment to be prepared and submitted.


author: BYERS, District Judge.

text:
    NATIONAL MOTOR BEARING CO., Inc., v. CONSOLIDATED MOTOR PARTS CO.
    No. 7181.
    District Court, B. D. New York.
    May 4, 1934.
    Frederick S. Duncan, of New York City, for plaintiff.
    Clarence M. Crews, of New York City, for defendant.
   BYERS, District Judge.

This is an action in equity in which the plaintiff seeks, an injunction and accounting for alleged infringement of reissue letters patent No. 15061.

The defendant is a dealer in the device described, and is an inhabitant of this district.

The bill was filed February 6, 1934; the subpoena was served on February 8th, and notice of appearance was filed on February 27th.

By stipulation, time to answer was extended until March 24th, although that pleading seems to have been filed on April 27th.

In the meantime, the defendant made a motion for a bill of particulars, which seems to have resulted in an order, for such a bill of particulars was filed on May 1, 1934.

Under date of April 12th, the defendant filed an affidavit of a Chicago attorney to the effect that on February 3,1934, a bill of complaint by the same plaintiff was filed against the Victor Manufacturing and Gasket Co., of Chicago, the manufacturer of the device which this defendant is selling.

This motion, based upon that affidavit and a supplemental affidavit made by the same attorney on April 21st, in which the Chicago suit is described as the main suit of these two, is made by the defendant, for a stay of all proceedings in this cause pending the final adjudication of the suit against the manufacturer.

It is to be understood that the manufacturer’s attorneys represent this defendant, and the expenses involved are being assumed by the former.

There is no allegation concerning any other litigation pending in any court involving this reissue patent, and hence this motion has not been justified for the purpose of avoiding a multiplicity of suits.

No ease has been cited by the defendant in which a dealer has been accorded a stay upon the theory that he ought not to be called upon to defend his own alleged infringement because the manufacturer is meeting the same issue in another forum.

For all that appears from the papers, if the defendant in this cause were appearing by its own attorney, the stay would not be sought, because the practical reason advanced in behalf of the motion is that the manufacturer should not be required to assume the additional expense which would be entailed by its participation in the defense of this cause “many hundreds of miles from home where it is necessary to employ additional counsel and * * • either to take testimony by deposition or bring witnesses all the way from Chicago to New York to testify.”

It is further urged that the present suit is an affront to the Illinois District Court.

The plaintiff stands upon its legal right to maintain this action against an alleged infringer of the patent in this district, and disclaims any purpose of harassing the Victor Manufacturing and Gasket Co. by seeking to interfere with the distribution of its product through widespread litigation in which dealers in various parts of the country are made defendants.

There seems to be no dispute that this defendant is a large distributor, having fifteen branches, located at various points in the western end of Long Island. It is easy to understand why the manufacturer should assume the burden of the defense of this case, but the fact that it has done so is not deemed to be a sufficient reason for depriving the plaintiff of its right to try the issues which it has presented, as soon as its ease can be reached on the equity calendar of this court; in ordinary course that would be in June or September next.

It is asserted for the plaintiff and not denied, that the cause against the manufacturer, in the Northern District of Illinois, cannot be reached for a year, and that the patent in suit will expire in 193.6.

A consideration of the arguments leads to the conclusion that the defendant has not shown the pendency or threat of a multiplicity of suits, or other circumstances sufficient to justify the court in granting this motion, even upon the theory that this defendant should be accorded the same status as the manufacturer, for the purposes of this motion.

Among the authorities which have been examined are the following: Sherman, Clay & Co. v. Searchlight Horn Co. (C. C. A.) 225 F. 497; Wagner v. Meccano (C. C. A.) 239 F. 901; Wenborne-Karpen Dryer Co. v. Dort Motor Car Co. (C. C. A.) 14 F.(2d) 378, at page 380; Panoualias v. National Equipment Co. (C. C. A.) 269 F. 630; Marconi Wireless Telegraph Co. v. Kilbourne & Clark Mfg. Co. (D. C.) 235 F. 719.

In none of them was such an application granted, as is here presented, at the instance of a dealer.

Motion denied. Settle order on 2 days’ notice.


text:
    HAZELTINE CORPORATION v. YELLOW TAXI CORPORATION.
    No. 7199.
    District Court, E. D. New York.
    April 30, 1934.
    Pennie, Davis, Marvin & Edmonds, of New York City (W. H. Taylor, Jr., of New York City, of counsel), for plaintiff.
    Nordlinger, Riegelman & Cooper, of New York City (Clyde A. Norton, of New York City, of counsel), for defendant.
   BYERS, District Judge.

Motion to quash service of subpoena in a suit in equity for the alleged infringement of plaintiff’s patent.

Service of the subpoena was made in this district upon the superintendent in charge of one of the two garages operated in Brooklyn by the defendant company in connection with its business.

The statute involved is section 48 of the Judicial Code (title 28 U. S. C. § 109 [28 USCA § 109]) which is as follows :

“Patent Cases. In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought. (Mar. 3, 1897, e. 395, 29 Stat. 695; Mar. 3, 1911, c. 231, § 48, 36 Stat. 1100.)”

The defendant is a New York corporation, and the affidavit of the president filed on behalf of the motion shows that the principal office and place of business is in the borough of Manhattan in the Southern District.

In considering whether the defendant has a regular and established place of business in this district, it is necessary to understand the nature of its business. It is a taxicab company, and its business is that of the transportation of passengers for hire in peripatetic cabs that are operated in the streets of the city of New York; its patrons are secured at regular stands or while the cabs are “cruising” through the streets.

The entire fleet, so-called, of the defendant company consists of 875 taxicabs, and they are housed, when not in operation, in garages, two of which, with a capacity of 125 cabs each, are located in the Eastern District.

The Brooklyn garages are leased by the corporation, and it may therefore be assumed that they are permanent, so far as occupation and operation are concerned.

The staff at each garage consists of a garage superintendent and an assistant, a cashier, dispatcher, two mechanics, and two ear washers, and, as necessity requires, emergency labor is employed.

Erom the foregoing, it is obvious that one-seventh of the defendant’s entire equipment is housed, repaired and kept in condition at each of the Brooklyn garages. The services performed at those garages are necessary for the maintenance of the cabs in suitable condition for the defendant’s activities.

Nothing is said in the affidavits about the supplies of gasoline and motor oil, but it is a necessary inference from the affidavits that, when each cab starts out on its daily rounds, fuel and lubrication are supplied at the garage as needed.

The foregoing makes it plain that the business of furnishing taxicab transportation could not be maintained except through the operation of such garages from which the activities of the cabs are directed and controlled.

The cases cited by defendant have been examined, but will not be referred to at length, because none involves facts comparable to those here presented. It will be sufficient to observe that the defendant’s dealings with the publie in this district involve nothing which requires confirmation or consideration at the business office in the Southern District. A local passenger pays for his transportation here, and his fare finds its way to the financial office in Manhattan, through a Brooklyn establishment.

His order for a cab may be received, and filled according to instructions issued by the superintendent at the Crown Street Garage.

A passenger has no necessary relations with the financial office in Manhattan. There is no distinction shown between status, within the company, of the Brooklyn and the Manhattan garages. They are all operating units of the defendant company, namely, established stations from which the cabs radiate.

They cannot be likened to sales rooms, or local branches of corporations resident or non-resident, which function only in a limited way, and in a subordinate capacity to a central operating office. The president of the defendant deposes that he makes periodic trips to the various garages for purposes of inspection, and to oversee and regulate operation. That is more consistent with local autonomy, so far as operating the business of the company is concerned, than if the various superintendents were required to report to a central operating office for instructions, and for permission to hire and discharge drivers.

It is concluded from these considerations that the Crown Street Garage in Brooklyn is a regular and established place of business of the defendant in this district, and that John Dougherty, the superintendent in charge of the Crown Street Garage, is an agent of the defendant, engaged in conducting its transportation business in this district.

It is next urged that the defendant has not committed an act of alleged infringement within the jurisdiction of this court.

The bill of complaint reveals that the action is for the alleged infringement of patent No. 1,879,863, and that the defendant is alleged to have used, installed and caused to be manufactured, without right or license, within the Eastern District of New York,' radio receiving apparatus embodying the inventions and improvements of said Letters Patent, and has installed and used in its taxicabs radio apparatus known and described under the trade name “Motorola,” manufactured by Galvin Manufacturing Co., of Chicago, Illinois.

The remaining allegations of the bill sufficiently show that the plaintiff, asserts that it is the owner of the patent in question, and that the device used by the defendant within this district as stated, infringes the plaintiff’s patent.

A supplemental affidavit filed by the defendant asserts that, of its 126 cabs using the Crown Street Garage in this district, only 11 are equipped with radios, which were installed in the borough of Manhattan, and that all the service requirements of the said radios are met in' the borough of Manhattan, and that its rules prohibit the use of radios in its cabs except when passengers are in occupancy; that the radios are not permitted to be used when the cabs are stored in the garage.

It is thought that this is not a denial of use by the defendant within this district of the device which the plaintiff asserts infringes its patent.

Perhaps there is opportunity for discussion as to whether the use of the alleged infringing device is by the defendant, or by its passengers who, for’ reasons doubtless satisfactory to themselves, choose to become radio listeners while being transported in the defendant’s cabs. In one sense, the radio Receiving set is part of the cab’s equipment, as much as, for instance, a device for opening a window. It is something supplied apparently in order to render that form of transportation attractive; hence the use of that equipment by the defendant.

It may also be used by the passenger. But that would not be possible, except for the act of the defendant in first using it as an appurtenance of the vehicle.

These matters are not put in issue by the defendant’s affidavits, and perhaps do not justify more than passing reference.

The cases cited by defendant do not seem to go to the extent of declaring that, where the act of infringement is not denied and a regular place of transacting business is shown, within the district in which suit is brought, service of a subpoena must be quashed.

Motion denied.

Settle order.


text:
    TESORIERO v. ERIE R. CO.
    No. 14085.
    District Court, E. D. New York.
    April 30, 1934.
    Horace M. Gray, of New York City, for libelant.
    Davis, Polk, Ward well, Gardiner & Reed, of New York City, for respondent.
   BYERS, District Judge.

The respondent in an admiralty cause in personam moves for judgment, in a death ease, because the libel shows that it was not filed within two years from the decedent’s death, which occurred on May 12,1926. The libel was filed on or about January 24,1934.

Section 130 of the New York Decedent Estate Law (Consol. Laws N. Y. c. 13) provides that the personal representative of a decedent who is survived by a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default by which the decedent’s death was caused, which action must be commenced within two years after that death.

Such a limitation is enforced where the proceeding is brought in admiralty. Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210.

The libelant would avoid the applies tion of that rule by pointing to an action she began in the New York Supreme Court promptly upon her appointment as administratrix, which was dismissed September 15, 1933, under a rule of that court, having been marked “Off calendar” on May 11,1928 —apparently for failure to prosecute or appear on the calendar call.

That default is explained as having been due to inability to learn of any witness who could aid the cause. It is said that, in May of 1933, such a witness was brought to light, and consequently this cause was instituted.

It is argued that the cause in the state court must be regarded as subsisting, because, by section 108 of the Civil Practice Act, the state court may, in its discretion and upon terms, relieve the plaintiff from the order of dismissal; that the existence of such power in effect proves that the alleged cause of action is still alive under the state statute, and hence this court, in the exercise of discretion, may “overrule the respondent’s claim of laches.”

The error in this reasoning is that the respondent pleads, in article 5 of the answer, not laches, but that the cause of action accrued on May 12, 1926, and that this libel was not filed within the time permitted for the bringing of the action within the said provisions of the Decedent Estate Law. The issue, therefore, is one of limitation, not laches.

Again, the possibility of resuscitation of the state court suit depends upon the action of the court in which it was brought; if revival can be achieved, the libelant will be in a position to pursue her cause in the forum of her first choice; if it cannot, then her right of action cannot be said to be subsisting so as to support the argument that this court should entertain the libel, because timely relief was sought in the state court, and the ease is there pending. So far as the record discloses, nothing has been pending in the state court since September 15, 1932.

If the foregoing reasoning is unsound, and it is open to this court to consider whether the circumstances revealed in the opposing affidavits are so unusual that the discretion referred to and exercised in Lincoln v. Cunard S. S. Co. (C. C. A.) 221 F. 622, may operate in libelant’s favor, there is this to be observed: A witness is said to have been found early in May of 1933 who made a statement which was communicated to libel-ant’s-then attorney, who consulted the proctor in this cause. Thus over seven months were allowed to lapse without action to revive the cause in the state court, or other proceeding. That showing is insufficient to quicken an impulse to exercise a discretionary power if one exists, so far as this suitor is concerned.

The libel alleges that the decedent was on a vessel which was in collision with 'the respondent’s ferry boat, and that as the result the decedent jumped overboard from his own craft and was drowned; and that the decedent’s vessel was damaged. It is therefore urged that, so far as damage to the vessel is concerned, the limitation created by the Decedent Estate Law has no application. This is true, of course.

In the exercise of discretion, the cause for vessel damage will be held to have been barred by laches, for lack of a showing that timely notice of such damage was given to the respondent, or that any appropriate steps were taken to establish the same, within a reasonable time after the happening.

The six year limitation of the state statute which applies to actions to recover damages for injury to property (Civil Practice .Act § 48) would indicate the extreme period within which such a cause as this might be entertained, but that period is not hereby adopted as applicable to all causes of collision in admiralty.

The respondent may take a decree of dismissal without costs, to be settled on notice.