author: WATSON, District Judge.

text:
    WAGNER v. MITCHELL et al.
    Civil Action No. 1869.
    District Court, M. D. Pennsylvania.
    July 30, 1945.
    Frank P. Lenahan and Nelson A. Bryan, both of Wilkes Barre, Pa., and Clement J. Reap, of Honesdale, Pa., for petitioner.
    Frederick V. Follmer, U. S. Atty., of Scranton, Pa., Joseph M. Friedman, Sp. Asst. to Atty. Gen., and Tobias G. Klinger, Atty., Department of Justice and Lawrence V. Meloy and Charles F. P. Crawley, Attys., United States Civil Service Commission, all of Washington, D. C., for respondents.
   WATSON, District Judge.

This is an action commenced against the members of the United States Civil Service Commission seeking a review pursuant to Section 12(c) of the Act of August 2, 1939, as amended July 19, 1940, 54 Stat. 767 et seq., 18 U.S.C.A. § 61i(c), popularly known as the “Hatch Act,” of an order of the Commission entered March 8, 1945 denying Wagner’s “Motion Challenging Jurisdiction of the United States Civil Service Commission,” and asking that said order be modified or set aside. Respondents have moved to dismiss the petition on the ground that the Court lacks jurisdiction thereof.

On February 9, 1945, plaintiff filed a motion with the Commission challenging the jurisdiction of the Civil Service Commission over him. Oral arguments on the question were heard by the Commission’s Chief Hearing Examiner on February 16, 1945. On March 8, 1945, the Commission denied the motion and found that elective officials, such as the petitioner, Wagner, were subject to the prohibitions contained in the first sentence of Section 12(a) of the Hatch Act, and that the petitioner’s principal employment was such as to subject him to the Act.

It is this order which petitioner, Wagner, seeks to have this Court review, and which, by his petition filed April 4, 1945, pursuant to Section 12(c) of the Hatch Act, he asks this Court to modify or set aside.

The sole issue raised by the instant motion, as the respondent correctly stated, is: “Is the Order of March 8, 1945 entered by the United States Civil Service Commission appealable?”

The Order of the Civil Service Commission merely finds that, subject to the introduction of evidence at such future hearing on whether petitioner’s principal employment is in connection with any activity financed in whole or in part with Federal funds, the Civil Service Commission has jurisdiction under the Hatch Political Activities Act to proceed with its investigation and with the hearing on the charges filed against Wagner. It does not determine whether petitioner has violated any section of the Act itself.

A review is sought by petitioner under the authority of subsection (c) of Section 12 of the Act. Subsection (c) provides: “Any party aggrieved by any determination or order of the Commission under subsection (b) may * * * institute proceedings for the review thereof by filing a written petition it) the district court of the United States * * And subsection (b) to which subsection (c) refers discloses that nowhere in the statute is provision made for appeal from a determination by the Commission that it has jurisdiction. Appeal lies only (1) from determination whether any violation has occurred ; or (2) from a determination whether such violation, if any, warrants the removal of the officer or employee; or (3) from an order requiring the appropriate Federal agency to withhold funds from a State or local agency. Therefore, there can be found no statutory grounds for support of petitioner’s argument.

However, it has been uniformly held that preliminary and interlocutory orders of administrative bodies are not appealable. In Federal Power Commission v. Metropolitan Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 967, 82 L.Ed. 1408, the Federal Power Commission issued an order fixing a hearing and requiring the respondent corporation to appear and produce certain information and documents, and also an order granting a rehearing of the first order. Respondent, becoming dissatisfied, petitioned and obtained from the Circuit Court of Appeals an order defining the scope of the rehearing and restraining proceedings by the Federal Power Commission under the original order until the questions raised by the petition for rehearing were determined. The question raised by respondents’ motion for rehearing was whether they were public utilities within the definition of the Federal Power Act, 16 U.S.C.A. § 791a et seq.

In holding that these interlocutory orders of the Federal Power Commission were not reviewable, and that the Circuit Court of Appeals had no jurisdiction to enter the decree-, the Supreme Court, speaking through Chief Justice Hughes, declared: “The argument (of the respondent corporations) proceeds on the view that the order of January 26, 1937, despite its preliminary character, was a reviewable order subject only to the requirement that an application for rehearing should first be made. Reliance is placed on s 313(b) of the Federal Power Act that ‘Any party to a proceeding under this Act * * * aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the Circuit Court of Appeals.’ But neither this language, nor that of s 313(a), should be construed as authorizing a review of every order that the Commission may make, albeit of a merely procedural character. Such a construction, affording opportunity for constant delays in the course of the administrative proceeding for the purpose of reviewing mere procedural requirements or interlocutory directions, would do violence to the manifest purpose of the provision.”

“There are persuasive analogies in the construction of provisions for the review of the orders of other administrative bodies. The Urgent Deficiencies Act of October 22, 1913 [28 U.S.C.A. § 47], provides for cases brought to enjoin, set aside, or suspend ‘any order’ of the Interstate Commerce Commission. But this Court has held that ‘there are many orders of the Commission which are not judicially reviewable under (this) provision.’ See United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 309, 47 S.Ct. 413, 414, 71 L.Ed. 651, and cases cited. In United States v. Illinois Central R. Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007, the Interstate Commerce Commission had made an order for a hearing upon an issue of reparation. The Railroad Company contended that the Commission had no jurisdiction to award damages in the case presented. A decree of the District Court, enjoining the Commission from proceeding with the hearing was reversed by this Court with directions to dismiss the petition. The ‘order’ was not of the sort which brought it within the purview of the statute. It was a mere step in procedure. See, also, New York, O. & W. Ry. Co. v. United States, 14 F.2d 850, affirmed 273 U.S. 652, 47 S.Ct. 334, 71 L.Ed. 823.”

It must be clear that the motion of G. Harold Wagner for an order by this Court setting aside the order of the Commission should be dismissed and the hearing on the Letter of Charges against G. Harold Wagner as ordered by the Commission should be allowed to proceed.

The motion of Harry B. Mitchell et al. is granted, and the motion of G. Harold Wagner to modify or set aside order of the Commission is hereby dismissed.


source: Caselaw Access Project

author: KENNEDY, District Judge.

license: Public Domain

text:
    UNITED STATES ex rel. MARINO v. HILDRETH, Colonel, U. S. Army.
    No. 1007.
    District Court, E. D. New York.
    July 28, 1945.
    James F. Ryan, of Brooklyn, N. Y., for relator.
    Miles F. McDonald, U. S. Atty., and Vine H. Smith, both of Brooklyn, N. Y., for respondent.
   KENNEDY, District Judge.

Relator applies on behalf of Matthew Marino for a writ of habeas corpus against Col. Edward E. Hildreth, U. S. A., respondent. Pasquale Marino, the relator, is the father of Matthew Marino. The latter is held as a prisoner by the United States at Mitchel Field, Long Island, N. Y. Since he is not technically the relator, I shall refer to the prisoner as “Marino.”

Marino enlisted in the United States Army on February 18, 1944. He was stationed at Mitchel Field for a time, and was then transferred to Fort Dix, N. J., where, on January 30, 1945, he was honorably discharged. On May 14, 1945, Ma-rino, while living with his father in Jersey City, was arrested and placed in confinement at the guard house at Mitchel Field, Long Island, N. Y. On July 6, 1945, Marino was served with charges and specifications. He now claims that the Army has no jurisdiction over him, and that he is held illegally in custody, because ever since his discharge from the Army he has not been subject to the rules and regulations of the military authorities.

The return alleges that Marino was inducted on February 18, 1944, into the Army of the United States, and that he is held by the military authorities to answer formal charges against him for violations of the 58th, 94th and 96th Articles of War. The 58th Article of War, 10 U.S.C. A. § 1530, concerns itself with the offense of desertion. The 94th Article of War, 10 U.S.C.A. § 1566, denounces as crimes various types of fraud on the United States. (It will be necessary for me to make a further and more extended reference to this article.) The 96th Article of War, 10 U.S.C.A. § 1568, is a very general grant of jurisdiction to courts-martial over “disorders and neglects to the prejudice of good order and military discipline.”

I turn to the charges and specifications. Annexed to the return are two “charge sheets.” The first is dated May 18, 1945. It charges Marino with violations of the 58th Article of War and of the 96th Article of War. The specification under the first charge is that Marino deserted the service of the United States on June 30, 1945. The specification under the second charge is that Marino procured his discharge from the Army of the United States on the ground that he was below minimum physical induction standards, although he well knew that he had not been found to be below these standards.

The second charge sheet is dated June 22, 1945. It charges Marino with violations of the 94th Article of War. The first specification under the charge is that on January 26, 1945, he procured a certain “special order,” the effect of which was to enable him to obtain mustering-out pay on the pretext that he was below minimum physical standards, although actually he knew that he was not below these standards. The second specification alleges that Marino conspired with others for the purpose of fraudulently obtaining mustering-out pay by the method which I have already described.

As I understand the argument supporting the application, it is that the Army-authorities must prove all the facts, not only of Marino’s discharge, but also of the-offenses for which he is being held. Counsel urge that under United States v. Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636, it has been held that enlistment in the Army is a contract. It is then asserted that the converse must be true, and that an honorable discharge from the Army, like-enlistment, has the same legal consequence-as a contract.

I do not think it is necessary for me to-discuss at length the effect of a discharge from the Army. I say this because one of the charges against Marino is brought under the 94th Article of War, 10 U.S.C.A. § 1566, which specifically provides that the-jurisdiction of the military authorities-shall survive the discharge of the person-charged. Therefore, unless there is some-reason why the Army authorities cannot invoke this statute against Marino their jurisdiction is complete.

I cannot, however, leave the subject of discharge without mentioning that petitioner’s counsel is under a complete misapprehension on one point at least. They say that United States ex rel Harris v. Daniels, 2 Cir., 279 F. 844, 845, sheds some light on the effect of discharge, and that in this case the Court sustained a writ dismissing the relator from custody. Actually, the decision was the other way. The jurisdiction of the Navy court-martial was ultimately upheld, as reported in the volume cited.

The Daniels case arose in this Circuit, in fact, in this District. The relator, an enlisted man in the Navy, was tried on March 18, 1920, by a summary court-martial. He' was sentenced to receive a bad-conduct discharge. Prior to review of the sentence it was carried out, and on March 25, 1920, the relator was in fact discharged. Later, and on June 1, 1920, he received a letter declaring that the sentence of the court-martial had been disapproved and directing him to report to the recruiting office at Scranton, Pa. He did this (under protest) and resumed his duties until July 26, 1920. On that day he returned home, and remained away from -the Navy for 61 days thereafter. He then surrendered himself and was charged with desertion during the 61 days of his absence. Relator sued out a writ, which was sustained in the District Court because it was thought that the Navy authorities at the relator’s station had the right to carry out the sentence, and that the Secretary of the Navy had no power of review. The Circuit Court of Appeals reversed, saying that while there was some inconsistency among the statutes governing the power of the Secretary of the Navy to review, it was plain that in the case before the Court that power of review did exist. Hence, the original sentence was void and the Court upheld the jurisdiction of the court-martial to try relator on the charge of desertion. This was a case where no specific statute protected the jurisdiction of the military authorities after relator’s discharge. In the matter at bar, there is a statute specifically providing that the jurisdiction of the military authorities survives discharge.

There are certain general principles applying to courts-martial which should be mentioned. On a review of this sort, the function of the civil court is purely to determine whether the court-martial has jurisdiction, and if so, whether it exceeded its power. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640. Since courts-martial are inferior tribunals, it is true their judgments may be attacked collaterally. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. But even on a collateral attack, civil courts are limited to the inquiry whether the court-martial whose judgment is being assailed was constituted according to law, whether it had jurisdiction, whether it complied with all the statutory regulations governing it, and whether its sentence conformed to the law. Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167.

Counsel for Marino cites two very recent cases relating to the surrender of civilians to military courts, McCune v. Kilpatrick, D.C.E.D.Va., 53 F.Supp. 80; In re Di Bartolo, D.C.S.D.N.Y., 50 F.Supp. 929. The McCune case involves the construction of the Second Article of War, 10 U.S.C.A., § 1473. The relator had signed articles of agreement with the master of a steamship in the service of the United States as chief cook. After a dispute between himself and the major in charge of Army troops, the relator quit the ship. The question was whether he could be tried for this offense by court-martial, and the Court limited its inquiry to the question of jurisdiction citing among other cases Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692.

It is quite obvious that the Court had doubts whether the relator was really guilty of the offense of desertion. It nevertheless denied the application for the writ of habeas corpus because jurisdiction was found to exist.

In the Di Bartolo case, the petitioner was a civilian employee of Douglas Aircraft Company, Inc. He was charged with the theft of a diamond ring at Asmara, Eritrea, in violation of the 93rd Article of War, 10 U.S.C.A. § 1565. It was urged in opposition to the application that the military authorities had jurisdiction under the Second Article of War. Judge Rifkind said the underlying question on these matters is whether the relator “has been properly brought to justice in a military tribunal.” [50 F.Supp. 932.] The inquiry, he said, must be painstaking. However, Judge Rifkind concluded that the petitioner came within the scope of the Second Article of War, and was, therefore, triable by a military tribunal.

Counsel for Marino in this matter seem to think that the last two cases which I have discussed should be read to mean that the military authorities, when their jurisdiction is challenged by the writ, of habeas corpus must, in effect, prove the guilt of the relator. I believe these cases demonstrate exactly the opposite. I think they mean that even where a civilian relator held for trial by military authorities sues out a writ, the principal inquiry is whether jurisdiction exists.

But counsel for Marino go further. They point to the fact that under the 94th Article of War (which, as I have said, protects the jurisdiction of the military authorities even after the discharge of the offender) that the following language is used “and if any person, being guilty of any of the offenses aforesaid while in the military service of the United States, receives his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not received such discharge nor been dismissed”. (Emphasis mine.) Counsel say that the meaning of this portion of the statute is that the military authorities must demonstrate the guilt of the person under arrest before they have a right to hold him. The counsel for Ma-rino urge that all statutes denouncing acts as crimes are to be strictly construed, and I have no doubt that this is so.

But I do not believe that the word “guilty” must necessarily be construed in the manner suggested. If the sentence which I have quoted be read as a whole, it is quite clear that the statute, or this part of it, contemplates that the person charged (“guilty”) shall be given a trial, i.e., that his guilt shall be established. It is therefore, I submit, absurd to suppose that the military authorities must demonstrate the guilt of the offender not only at a court-martial, but also at every stage of the proceeding in which the offender avails himself of the writ of habeas corpus. It is quite obvious that if Congress meant the latter, then it was framing a statute which would serve no purpose at all.

One meaning of the word “guilty” is “justly chargeable with, or responsible for, a delinquency, crime, or sin”. Webster’s New International Dictionary, Second Edition, Unabridged, p. 1114. I acknowledge that words more apt for the purpose could have been chosen. But the meaning of the sentence taken as a whole is quite clear. To adopt the construction contended for by the counsel for Marino would be not only to put a strained construction on the language — it would also be to produce an absurd result.

I conclude that the jurisdiction of the military authorities over Marino has been established.

I asked counsel on the argument whether there was any contention about the constitutionality of the 94th Article of War, and counsel answered in the negative.

The writ is dismissed.

       The Second Article of War makes amenable to court-martial certain persons who are not technically members of the armed forces such as “retainers and persons accompanying or serving with the Armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these Articles.” The question in the McCune case was whether the relator came within the purview of this Article.

       See also Com. ex rel. Attorney General v. Walter, 83 Pa. 105, 108, 24 Am.Rep. 154.

       While I am on this subject I call attention to the fact that nearly every section of the Articles of War defining military crimes uses language which, if Marino’s counsel are right in their argument about the word “guilty,” would put upon the military authorities the burden of proving the commission of the crime as part of the return of a writ. Thus, for example, the 93rd Article of War, 10 U.S.C.A. § 1565, provides for punishment by court-martial of a person who “commits” a number of criminal acts thereafter enumerated. If the language of the 94th Article of War, 10 U. S.C.A. § 1566, is to be construed in the manner suggested, and the military authorities must prove the defendant “guilty,” then obviously the same construction must be put upon the 93rd Article of War, 10 U.S.C.A. § 1565, and the military authorities must prove that the person in custody has committed the crime charged, before it is entitled to hold him. Ineidently, although the point was not raised, Judge Rifkind, In re Di Bartolo, D.C., 50 F.Supp. 929, was dealing with the 93rd Article of War, and dismissed the writ on proof of jurisdiction, and in the absence of proof of the commission of the crime. I make this observation to explain more fully what I mean by the statement that to adopt the construction contended for would be to produce an absurd result.


author: CHESNUT, District Judge.

text:
    UNITED STATES ex rel. GOODSTEIN v. MALLON, Commanding General, Ft. George G. Meade, Md.
    No. 2556.
    District Court, D. Maryland.
    July 18, 1945.
    R. Palmer Ingram and Carroll F. Fitz-simmons, both of Baltimore, Md., for complainant.
    Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for respondent.
   CHESNUT, District Judge.

In this habeas corpus case the relator, William B. Goodstein, seeks release from military service in the Army of the United States. Having been inducted into the Army on December 12, 1944, in consequence of an order of Selective Service Board No. 7 of New York City, he is presently stationed at Ft. Meade, within the District of Maryland. His petition for the writ was filed in this court on April 28, 1945.

The ground for the petitioner’s release as stated in the petition is that at the time of the order for his induction by the Selective Service Board he was a theological student preparing for the Rabbinate in a duly recognized Rabbinical Seminary (Me-sifta Talmudical Seminary). The Selective Service Act, § 305(d) of title 50 U.S. C.A. Appendix provides:

“Regular or duly ordained ministers of religion, students who are preparing for the ministry in theological or divinity schools recognized as such more than one year prior to the date of the enactment of this Act, shall be exempt from training and service (but not from registration) under this Act.”

The petition further alleges that the action of the Local Board in classifying the petitioner in Class 1-A and ordering his induction into the Army was contrary to the uncontradicted evidence submitted by the petitioner to the Local Board and was therefore an arbitrary, capricious and illegal act by the Board.

When the petition was filed in this court a show cause order was at once passed by the Court directed to the respondent returnable on May 2, 1945. The respondent, Major General Mall on, then Commanding General at Ft. Meade, Maryland, promptly filed a brief answer and on May 3, 1945, a supplemental return which reviewed at great length and in detail the procedure before the local New York Board which finally resulted in the induction order. On May 18, 1945, a hearing was had in. the case, and after the introduction of much ■oral testimony the case was postponed for further hearing in order to give the respondent an opportunity to produce further ■evidence, particularly the testimony of the Local New York Board either by deposition or personal appearance in court. This postponed hearing was held on June 14, 1945, and very extended testimony of Col. Craig, Chairman of the Local Board, was heard in court. I

From the evidence in the case I make the following findings of fact:

1. The relator was born in New York City June 12, 1926, and became 18 years of age and therefore subject to the Selective Service law on June 12, 1944. He filed his selective service questionnaire with Local Board No. 7 on July 5, .1944, and therein claimed exemption from military service on the ground that he was “a student preparing for the ministry in a theological or ■divinity school and attending the Mesifta Talmudical Seminary.” He was later found to be physically fit for military service and it is not contended that the order of the Board for his induction was erroneous in any respect other than on account of the exemption claimed. On July 18, 1944, the Local Board sent the relator’s file to the New York Director, and Goodstein was notified to appear before a so-called ■“theological panel” on July 26, 1944 for ■examination.

2. On August 16, 1944 the Local Board received a letter from the New York City Headquarters stating that the relator had been afforded a hearing by the theological panel on theological classification, enclosing a typewritten statement from the panel reporting its advice and conclusion as a result of the examination of Goodstein, accompanied by a stenographic transcript of his examination. The text of the report was the following:

“Registrant’s claim for exemption is predicated upon his status as a student of the Mesifta Talmudical Seminary. That institution is one of several talmudical academies in this area offering courses based upon intensive study of the talmudical tractates, commentaries and codes. While these courses embrace the subject matter upon • which candidates for traditional rabbinic certification are examined, students taking such courses are not necessarily preparing for the ministry.
“Orthodox tradition has always encouraged advanced study of talmudic literature, both privately and at academies instituted for that purpose, irrespective of the specific occupational objectives of those engaged in such study, and all courses offered by these academies are open to qualified students without regard to the individual student’s specific intention to prepare for a career in the service of the rabbinate.
“Thus, a student ultimately intending to enter business or a profession, or some non-rabbinic activity in the field of religion, may be enrolled in the same courses attended by other students who are specifically concerned with preparation for the rabbinate. It is, therefore, essential for purposes of Selective Service classification to determine in each individual case the purpose which the registrant has in mind in pursuing his course of study.
“Moreover, the fact that the religious tradition in question does not attempt to distinguish between the serious student of talmudic literature and the student preparing for a professional career in the rabbinate, tends to make it extremely difficult for school officials, ministers, and others identified with that tradition, to have and express an objective judgment in such matters.
“To the extent that the distinction is understood, there is a tendency to accept at face value assertions made by the registrant and members of his family and to resolve any doubt in his favor, where it is at least apparent that he is a serious and pious talmudic student.
“Accordingly, this panel is of the opinion that the proper evaluation of the registrant’s status must take into' consideration the character of the institution he is attending and the relevant circumstances presented on the record and disclosed at the examination before this panel. Furthermore, in seeking to assess the sincerity of the registrant’s declared purpose, due weight must be given to the registrant’s manner of answering questions, his demeanor, and, in general, the total impression accruing relative to registrant’s candor, trustworthiness and integrity.
“Upon all the information presented and our examination of the registrant, the panel is convinced that registrant is not preparing in good faith for a carrer of service in the practicing rabbinate. The panel is also convinced that he does not aspire to enter the rabbinate as a matter of spiritual conviction and that his professed aspirations in this regard are prompted by the desire to secure a basis for exemption from training and service in the Armed Forces.”

3. Goodstein was classified in Class 1-A by the Local Board August 16, 1944. On August 21, 1944, he requested a hearing on this classification. He was permitted to examine the file in his case, including the report of the panel and the stenographic transcript of his hearing before the panel. He made some objections to the accuracy of the stenographic transcript in certain minor respects which, however, I find were immaterial. From time to time thereafter Goodstein submitted numerous other papers to the Board protesting against his classification in 1-A, including some 19 letters from persons purporting to be acquainted with him and certifying generally to their information and belief that he was in good faith studying for the Rabbinate. He stated also that he was assisted in preparation of his several protests by the Registrar of Mesifta Talmudical Seminary and also by the lawyer for the school. Subsequent to the receipt of the report from the theological panel and in response to several protests and requests from Goodstein, he was given three separate hearings (August 30, September 13 and October 4, 1944) with regard to his proper classification. On one or more of these occasions the Local Board reviewed at least in part with him specifically the answers to his questions as stenographically reported in his examination by the panel. Col. Craig, Chairman of the Board, testified without successful contradiction or impeachment of his testimony, that the Board carefully and independently considered Goodstein’s case and unanimously reached the conclusion as a result of the-several hearings accorded him, that he was not in good faith actually preparing for the ministry. Col. Craig stated that this conclusion was reached by the Board as a result of Goodstein’s answers to questions, by his appearance and manner in answering them, and as a result of all the proceedings and hearings before the Board including but not based exclusively on the report of the theological panel. Particularly it was his testimony that the conclusion as to the ultimate fact as to the good faith of -the relator was reached independently by the Board and not merely by an adoption by the Board of the panel’s conclusion. The Board adhered to the classification of Goodstein as 1-A.

4. Goodstein then noted an appeal to the Local Selective Service Board and conferred with the Government’s appeal agent with respect to his case. The appeal agent filed a statement of his interview with Goodstein on October 16, 1944. This is set out in full in the supplemental return in this case by the respondent. After a careful review of the procedure in the case, the statement of the appeal agent continued :

“The Local Board took additional testimony and evidence into consideration which was not before the Panel. The Local Board has had occasion frequently to deal with claims for exemptions by students of the rabbinical school of which Rabbi Quinn is the Registrar and apparently in active control and Rabbi Quinn has frequently been before the officials of the Board in connection with claims for deferred classification. Following the three hearings referred to and the presentation of additional documentary evidence, the Board, on October 4, 1944, continued the Class 1-A classification and indicated agreement with the conclusion of the Advisory Panel.
“We accordingly have a situation of a registrant proving his attendance at a recognized school of divinity, not all the students of which enter the Rabbinate; we have a substantial number, nineteen (19) certificates and written statements, of various kinds testifying to the declared intention of the registrant to become a Rabbi; we have the undisputed fact that at least four years additional study will be necessary before the registrant attains his goal. And, as against this, we have the expressed unanimous belief of the Advisory Panel, specially created and presumably disinterested,, declaring that it has taken into consideration the character of the school, and the registrant’s manner of testifying and his demeanor and that the Advisory Panel then declared its disbelief in the sincerity professed by the registrant. Subsequently after three hearings the Local Board, also familiar with the head of the school, unanimously concurs in the conclusion reached by the Advisory Board.”

Goodstein also filed his statement for consideration of the appeal board.

5. The Local Appeal Board unanimously confirmed petitioner’s classification as 1-A. Subsequently on one or more occasions before his actual induction the petitioner requested Local Board No. 7 to reopen and reconsider his case which the Board declined to do. On December 8, 1944 the relator addressed a letter to the New York Director of Selective Service alleging bias and prejudice on the part of the Advisory Panel in recommending that he be not classified in Class IV-D.

6. Jewry is divided into three separate and distinct classes, orthodox conservative and Reformed. Goodstein is an Orthodox Jew. The report of the theological panel as transmitted to the Local Draft Board by the City Director did not contain the names of the three members of the panel and Goodstein complained at the hearing here that he was prejudiced thereby. The evidence showed that the three members of the panel were Judge Goldstein of the New York Court of General Session; Judge Wm. S. Evans of the New York City Court, and Rabbi Morris Max, vice president of the Rabbinical School of America of Orthodox Jews. While the names of the particular members of the theological panel who examined Good-stein were not given to him before the hearing, he learned during or in the course of the hearing, or shortly thereafter, who they were. I do not find that he was in any way prejudiced by not knowing their names at the time.

7. I find that Mesifta Talmudical Seminary is a duly recognized and qualified school in which rabbinical courses are given. Goodstein had attended the lower school of this Seminary for some years prior to his reaching 18 years of age and shortly before his induction he had entered the upper school where many of the students are in fact preparing for the Rabbinate. The enrollment of the school has increased largely in recent years but I find that this, as testified by Rabbi Quinn, vice president of the school, to be due at least in part to normal growth and not only to the existing condition of war. I find also that there was very much affirmative written evidence before the Board to the effect that Goodstein was believed by Rabbi Ouinn and many others, in accordance with his pronounced statement, to be in good faith a student preparing for the Rabbinate. I am unable to find, however, that the action of the Local Board in determining to the contrary was not reached in good faith and as the result of the exercise of its independent judgment.

“§ 310. * * * Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe.”

I conclude therefore as a matter of law that the action of the Local Board and of the Appeal Board was not arbitrary or capricious even though on the record in the case this court might have reached a different conclusion as to the proper classification of the petitioner.

Opinion

This case presents very sharply the scope of judicial review of the administrative action under the Selective Service Act. The Act expressly provides, 50 U.S.C.A. Appendix § 310, that the action of the Local Boards in classifying registrants shall be “final”, subject to the right of appeal to an Appeal Board and, on certain conditions (not here present) a further appeal to the President of the United States.

No provision for judicial review is contained in the Act; but it is now well established by numerous federal judicial decisions that, after the administrative process has been exhausted and the registrant has been inducted into the Military or Naval Service, he may, in a habeas corpus proceeding, raise the question whether his induction has been in accordance with the constitutional requirement of due process. What constitutes due process in this connection has been stated in different phraseology by different courts. The test has been stated to be whether in the administrative process there was “substantial evidence” to justify the order for induction. In the Second Circuit the test is said to be whether there was “any evidence”. United States v. Cain, 2 Cir., 144 F.2d 944, certiorari denied Trainin v. Cain, 323 U.S. 795, 65 S.Ct. 439. In still other cases the test is stated to be whether there was a fair hearing and not whether the Board reached a correct conclusion; that is, whether there was procedural due process. In many cases the legal formula used to test the result is whether the administrative action was arbitrary and capricious and so unreasonable as to amount to a denial of a constitutional right. And this is apparently the stated test in this Fourth Circuit.

Counsel for the relator in this case earnestly contends that the induction order was arbitrary, capricious and unreasonable and therefore lacking in due process because the Local Board abdicated its own judgment in adopting the opinion of the theological panel without independent consideration. If this were clearly established by the evidence in the case I think the relator should be released; but as above stated in the findings of fact, I have not been able to reach that conclusion. It is apparently true that the Local Board did attach weight to the report of the Panel in the Board’s consideration of the whole case; but I cannot say on the whole evidence that the Board abdicated its own independent judgment in the matter as the record shows that after the receipt of the Panel report, the relator was given an opportunity to review the report and state his objections thereto, and was given three successive subsequent hearings at which he personally appeared before the Board. He also took an appeal to the Appeal Board and filed for its consideration a written statement of his position and criticism of the Local Board’s action. The decision of the Appeal Board, as also of the Local Board, was unanimous against him.

It affirmatively appears that it was thoroughly understood that the opinion of the theological panel was advisory only. And it cannot be successfully disputed that the Local Boards under the Selective Service Act have the right to obtain outside advisory information although, when it is a material basis for action, fairness to the registrant would seem to require that he be apprized of its nature and given an opportunity to correct or criticize it. This oportunity was in fact given to the petitioner in this case.

The use of a theological panel seems to be peculiar to the special situation existing in New York City where a very large majority of the registrants in some Local Boards are of the Jewish faith and there have been many applications for exemption from Military and Naval Service by alleged students for the Rabbinate. In many such cases the question has arisen whether the course of studies being pursued by the registrant are such that it should be determined by the Local Boards that the students are in good faith actually preparing for the Rabbinate. In New York there are a number of schools for Jewish people which give courses both in general Jewish education and also specially for the Rabbinate. It is not easy and may not be possible for the members of the Local Board to determine without expert theological advice whether the course of studies pursued by the registrant fall in one or the other category of religious instruction. To meet this special problem the New York City Headquarters under the Selective Service Act has formed a large panel of theological experts to whom, or some of whom from time to time, particular cases are referred for expert opinion in an advisory way to the Local Board. This form of aid to the Local Boards has been approved in a number of judicial decisions in New York and elsewhere. But in the latest decision in the Second Circuit involving the subject, the scope of the use by the Local Board of the report of a theological panel was limited to two conditions — '“the personnel of the ‘panel’ must be disclosed to the registrant so that he may effectively challenge it; and the answers must be limited to ecclesiastical questions.” Speaking for the court Circuit Judge Learned Hand said (United States ex rel. Levy v. Cain, 2 Cir., 149 F.2d 338, 341):

“Such ‘panels’ are properly helpful to local boards only upon subjects as to which the boards need specialized information; .they must not be made a substitute for the boards themselves. Despite any categorical form in which their opinions are received, they have only the function of expert witnesses, who, like them, give, their opinions.”

In the present case counsel for the relator relies strongly upon this latest Circuit Court decision. It is true that in some respects the facts of that case are very similar to those in the instant case; and by reason of the high regard that I have for the opinions of that court, and its special familiarity with the local conditions in New York City where the practice regarding these theological panels prevails, I have considered the case very carefully for its bearing on the case here. The result of that case was that the relator was released from custody “without prejudice to further proceedings of the Local Board in conformity with the foregoing opinion”. But there are important differences in the facts of the two cases. In the Levy case the release of the relator was principally grounded on the use which the Local Board made of the Panel’s report. It was said “we cannot accept the result because of the use which the Board made of the ‘panel.’" As I read the opinion the court based its criticism of the Panel report in the Levy case on three grounds: (1) that the members of the Panel were anonymous and the registrant therefore did not have the opportunity to show to the Local Board possible objections based upon their personal bias or prejudice against him; (2) the adverse report of the Panel did not specify on what ground it was based and (3) apparently the Local Board’s action was too largely based on the Panel report. The opinion also noted the absence of any evidence in the record to impeach the relator’s claim to exemption. Commenting thereon, it was said:

“Nevertheless, .in spite of the absence of any such evidence, we might hesitate to reverse the Board’s finding, for a registrant’s appearance may be enough to justify distrust in the good faith of his professions; especially upon that issue, comportment and general appearance are often the best index of sincerity.”

These objections to the use of the Panel report in the Levy case do not apply in the instant case. Although the Panel report was not signed by its members when transmitted to the Local Board, the registrant ascertained the personnel of the Panel and did have the opportunity to attack the report on the ground of bias of its members. Again the Panel report in this case did distinctly state the grounds on which the conclusion of the Panel was based. It is true the. conclusion (by the nature of the case) resulted from a blend of both factual impressions and ecclesiastical knowledge; but the advisory report frankly so stated, and in transmitting it the New York Headquarters particularly cautioned that the ultimate decision, largely factual as to the registrant’s sincerity, must be made independently by the local board; and the testimony of the Chairman of the Board in this case is to the effect that -the Board did make its own decision based on its opinion as to the sincerity and good faith of the registrant fro-m its observations of his comportment and general appearance at his several hearings before the Board. It is true that there was some evidence in this case tending to the contrary given by the relator and by Rabbi Quinn, vice-principal of the Theological Seminary; but I do not think it was sufficient to overcome the presumption of official regularity and fairness appearing from the registrant’s cover file showing the hearings accorded him by the Local Board and the affirmative testimony of the Chairman of the Board.

In the Levy case the court in effect remanded the case to the Local Board because under the particular circumstances the Panel report constituted wholly inadmissible evidence which should not have been considered at all by the Board. But the circumstances here are so different both as to the character of the report itself, and the subsequent treatment of the registrant’s case, that I do not think the case requires or permits similar judicial action.

Counsel for the relator vigorously contends that both the theological panel and the Local Board were biased and prejudiced against him. The basis for this contention is the relator’s own testimony to the effect that at each of the hearings his objections were summarily overruled and he testified as to certain casual remarks made by one or more members of the Board tending to that effect; and there was also some evidence by Rabbi Quinn that in a number of cases this and other local boards in New York City had rejected some claims for exemption from other students at his Seminary. But this evidence is not weighty or convincing that there was any personal prejudice by any of the members of the theological panel or of the Local Board against the relator personally. The further contention is however made that in the absence of such personal prejudice both the theological panel and the Local Board were prejudiced against the relator as one of a class. This was more specifically stated in a letter dated December 8, 1944 from the registrant to Col. McDermott of the New York City Headquarters, set out in the margin. However, this contention -is not supported by convincing factual evidence. It was largely a matter of personal opinion or inference of the relator and Rabbi Quinn. And there is certainly no evidence of any kind in the case that the members of the Appeal Board, who were unapimous in confirming the classification by the Local Board, were in any way prejudiced or biased.

As I have said, this case presents sharply the scope of judicial review. Briefly summarized, the situation is this. The registrant was properly classified in 1-A unless he was in good faith preparing for the Rabbinate. On this issue the Local Board requested the advisory view of a theological panel consisting of two New York State Judges and a prominent Orthodox Jew. They gave the registrant a hearing and concluded for the reasons already stated that he was not in good faith preparing for the Rabbinate. The registrant challenged the report before the Local Board and was given full opportunity in three subsequent hearings to state his objections and to submit affirmative evidence contrary to the advice of the Panel. He did submit a considerable volume of opinion evidence to the contrary. The Board had the opportunity to observe his demean- or and comportment at these hearings and to form its own independent judgment, of which there is evidence that the Board did. The relator took an appeal and in writing stated his case on appeal. The Appeal Board independently affirmed the decision of the Local Board. On the case made here in this court, on the issue of good faith of the relator, the written evidence other than that of the theological panel is uncontradicted in favor of the relator. For him it may also be said that the stenographic report of his examination before the theological panel on which the report of the Panel was based, is not intrinsically of itself convincing to the non-theological layman that the relator was not personally sincere in his professions. And also his examination on the witness stand at the hearing for more than an hour likewise did not convince me of his bad faith. But also it should be observed that both ¡the Panel and the Local Board were necessarily much more familiar with the whole local conditions in New York than I could be here in Baltimore.

But however that may be, it is clear that this case must be determined by the evidence before the Local Board. It is not a hearing de novo. The issue was succinctly stated by the Government Appeal Agent for consideration by the Appeal Board: “The situation is not dissimilar to a jury trial in which a witness gives uncontradicted evidence and yet the judge may charge the jury that i't has the right to disbelieve the witness although uncontradicted.” The Local Board did disbelieve the witness’ professed sincerity. The question of fact was within their province and jurisdiction; and the scope of judicial review here does not permit this court to substitute what might have been its judgment in the case for that of the Local Board affirmed on appeal. As was said by the Circuit Court of Appeals for this Circuit in Smith v. United States, 148 F.2d 288, 292, it was certainly for the Board to say whether the student was preparing for the ministry within the Selective Service Act.

In conclusion I find no constitutional defect in the administrative process in this case. It results that the writ must be dismissed. Counsel may prepare the appropriate order in due course.

      The full provision reads:

       See Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917; Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Johnson v. United States, 8 Cir., 126 F.2d 242; Smith v. United States, 4 Cir., 148 F.2d 288, 292; United States v. Rinko, 7 Cir., 147 F.2d 1; United States v. Kanten, 2 Cir., 133 F.2d 703; United States v. Downer, 2 Cir., 135 F.2d 521.

       Crutchfield v. United States, 9 Cir., 142 F.2d 170; United States v. Grieme, 3 Cir., 128 F.2d 811; Ex parte Stanziale, 3 Cir., 138 F.2d 312, certiorari denied Stanziale v. Paullin, 320 U.S. 797, 64 S.Ct. 267, 88 L.Ed. 481.

       In Goff v. United States, 4 Cir., 135 F.2d 610, 612, the court said: “That action is to be taken as final, notwithstanding errors of fact or law, so long as the board’s jurisdiction is not transcended and its action is not so arbitrary and unreasonable as to amount to a denial of a constitutional right.” And in the later case of Smith v. United States, 4 Cir., 148 F.2d 288, 292, it was said: “It was certainly for the board to say whether a college student eighteen years of age, majoring in engineering, and claiming to be a minister of religion merely because he distributed Bible literature and conducted Bible studies, was a minister of religion within the meaning of the Selective Service Act. See Smith v. Richart, D.C., 53 F.Supp. 582, 583, 584. The decision of the board was affirmed by the appeal board and by the President; and there was nothing offered to show that in any of the proceedings defendant was denied any constitutional right.”

       United States v. Cain, D.C.N.Y., 57 F.Supp. 715; United States v. Graham, D.C.Ark., 57 F.Supp. 938; United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944; Cf. United States v. Magruder, D.C.R.I., 55 F.Supp. 947. In Cramer v. France, 9 Cir., 148 F.2d 801, the court apparently approved the use of the expert opinion of an Agricultural Board ■with respect to an agricultural exemption claimed by a registrant.

       “I believe that I am the innocent victim of the difference that exists in the Jewish community at the present time. I believe the panel is prejudiced against a student of my type. * * * Furthermore, the panel is not and has not been interested in finding out whether or noí I am a bona fide student. The panel is motivated by extraneous considerations. They are afraid that at some future date, say some ten years from today, if a checkup were made to find out how many of the students at present studying for the rabbinate actually completed their courses and became rabbis, it might be found that a substantial number did not do so and that this might bring discredit upon the name of Jewry. That is their sole motive, as I understand it, and for that reason they disqualify and refuse to recommend as many students as they possibly can.”


author: GALSTON, District Judge.

text:
    UNITED STATES v. WARSHAW et al.
    Civ. No. 3301.
    District Court, E. D. New York.
    June 20, 1945.
    Miles F. McDonald, U. S. Atty., of Brooklyn, N. Y., and Eli Resnikoff, Sp. Asst. to U. S. Atty., of New York City, for plaintiff.
    George Green, of New York City, for defendant.
   GALSTON, District Judge.

This is a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The action arises under the National Housing Act.

The complaint alleges that the defendants on or about September 1, 1936, executed and dcTvered a promissory note in the sum of $551.90 to the order of B. F. Gilbert Co., Inc.; that the instrument was thereafter, through mesne assignment, assigned to the Morris Plan Industrial Bank of New York; that the defendants defaulted when a balance of $314.79 was due and owing. Thereafter, pursuant to the provisions of the National Housing Act, the Morris Plan Industrial Bank of New York was reimbursed by the plaintiff, which is now the owner and holder of the note and seeks judgment against the defendants for the sum of $314.79.

The answer is a general denial, which also sets up two separate defenses: First, that the plaintiff is not a holder in due course; and secondly, that the plaintiff is barred by the statute of limitations.

Plaintiff’s motion is supported by an affidavit of a Special Assistant United States Attorney for the Eastern District of New York. From the affidavit it appears that the note was delivered by the defendants to the Gilbert Company in connection with the application of the defendants for a loan, the proceeds of which were to be used for the purchase and installation of an oil burner and other heating equipment in defendants’ premises in Brooklyn. The transaction was in accordance with the provisions of the National Housing Act, 12 U.S.C.A. § 1701 et seq. A photostatic copy of the note and of the credit statement are annexed and made part of the affidavit. At the time of the execution of the note, the proceeds were paid by the Morris Plan Bank, after obtaining from the defendants a certificate of installation dated July 18, 1936, a photostatic copy of which is also annexed to the affidavits. Thereafter the defendants, on January 1, 1938, defaulted in their obligation under the note, and it thereupon matured according to its terms. On July 12, 1938, the Bank was reimbursed by the United States of America under the contract of insurance customary in such cases, and the note was assigned to the United States of America. The complaint was filed on June 9, 1943.

The opposing affidavit of Sadie War-shaw recites that there were many complaints made to the contractors and to the Bank about the defective condition of the oil burner by her husband, and that the Bank was not a holder in due course, and that on June 9, 1943, when the complaint was filed, seven years had elapsed before the commencement of the action by the plaintiff. It moreover appears that Sadie Warshaw is now a widow. When her husband died is not set forth in the affidavit.

The first affirmative defense, that the Bank was not a holder in due course, is not tenable under the provisions of Sec. 96 of the Negotiable Instruments Law of the State of New York, Consol.Laws, c. 38. See also United States v. Hansett, 2 Cir., 120 F.2d 121; and United States v. McCulloch, D.C., 26 F.Supp. 7.

As to the second defense, that the plaintiff must be defeated by the statute of limitations, that likewise is not good against the United States. A statute of limitations will run against the Government only when it assents upon conditions prescribed. Lucas v. Pilliod Lumber Co., 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829, 67 A.L.R. 1350. Nor is the United States bound by a statute of limitations unless the Congress so provides. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289.

Plaintiff’s motion is granted as against Sadie Warshaw. Where an instrument containing the words “I promise to pay” is signed by two or more persons, they are deemed to be jointly or severally liable thereon. New York State Negotiable Instruments Law, Sec. 36, subdivision 7. Apparently the action has abated as against Joseph Warshaw.


text:
    THE L. & W. B. C. CO. NO. 8. THE NEW YORK CENTRAL NO. 18. THE NEW YORK CENTRAL NO. 67. THE NOTTINGHAM.
    Nos. 17062, 17122.
    District Court, E. D. New York.
    June 16, 1945.
    Mahar & Mason, of New York City (Frank Mason, of New York City, of counsel), for Cullen Transp. Co.
    C. Austin White, of New York City (Gerald E. Dwyer, of New York City, of counsel), for the New York Central.
   GALSTON, District Judge.

These cross-suits involve a collision that took place on the night of November 2, 1943 in the North River, in the vicinity of Pier No. 40.

The steamtug Nottingham had the barge L. & W. B. C. Co. No. 8 on her port side, bow first, bound from Red Hook Flats to Weehawken, New Jersey. The steamtug New York Central No. 18 had its tow, carfloat New York Central No. 67, on her starboard side, bound from Weehawken, New Jersey, to Long Island City.

Captain Broderick, who was master of the Nottingham, in giving his version of the collision, said that on entering the North River he was proceeding about 250 yards off the New York side. When he sighted the New York Central tug and tow he saw only her red light and the two towing lights. A distance of one-eighth of a mile separated the two tows. Brod-erick blew one whistle. He then said that the Central changed her course and showed both running lights, and that he had an answer of two whistles to his one whistle signal. Broderick answered with three long blasts and one full speed astern. At that time, according to the Nottingham version, the Central tow swung more to port, i.e. towards the New York shore. The boats came together, the contact being between the stem of the barge No. 8, striking amidships of the carfloat.

The version given by Captain Langley of the New York Central No. 18 differs in important respects. He testified that each of the tugs was showing its green light to the other, not their red lights, and that if both vessels had kept their courses they could have passed starboard to starboard with a clearance of about 300 feet; but as the vessels approached each other, and when about 700 feet apart, the Nottingham, according to him, veered toward New York and blew a one whistle signal, which the Central answered with an alarm signal and three backing whistles, going astern at the same time. In backing, the New York Central swung to port, towards the New York shore, and the collision then took place.

Thus the not unusual situation is presented of irreconcilable versions of the happening of the collision. To resolve the resulting doubt recourse must be had to the surrounding circumstances.

There was the testimony of one disinterested witness offered by the New York Central. Captain Freer had the Erie tug, Scranton, in charge while towing a car-float from Pier 48, North River, to the Erie bridges, Jersey City. They were opposite New York Pier 29. He took a course down the middle of the North River, and having come abreast of the Erie bridges, came around so as to be half way between the middle of the river and the Jersey piers. While lying there, he observed the Nottingham coming up the river somewhat favoring the Jersey shore. The Nottingham passed about 200 or 300 feet off the stern of his tug, heading up the river; and he also saw the New York Central tug coming down the river, somewhat favoring the New York side. Confirming the Nottingham 'captain, he said he heard the Nottingham blow a one whistle signal, and at that time the respective boats were on courses which if continued would have enabled them to pass starboard to starboard, as testified to by the Central captain. The vessels were then about 800 feet apart. After the Nottingham blew a one whistle signal she changed her course to port, heading toward New York. Again confirming the New York Central captain, he said that the Central did not blow two whistles, but responded to the Nottingham one whistle signal with an alarm and three backing whistles.

Generally speaking, the testimony of a disinterested competent witness, who apparently is testifying honestly, should resolve the doubt, and I would unhesitatingly accept Freer’s version were it not for one important contradiction between his testimony and that of Langley, whom he was endeavoring to support. This contradiction relates to the place of collision, which is of consequence in determining credibility. Freer said that the collision took place around Pier 34, North River, very close to where he was lying. On the other hand, Langley himself said the collision took place opposite Pier 40, “above 32.” Though the visibility was fairly good, there was a light drizzle at the time of collision, and Pier 29, where the Scranton was lying, is a considerable distance south of Pier 40. Of course, Freer may just have guessed, but nevertheless the inaccuracy of a guess and his placing the collision only a short distance from Pier 29, must lead to questioning the accuracy of his entire testimony. Moreover, if as he testified the vessels were in position to pass starboard to starboard with 200 or 300 feet separating them, it is hard to understand why the Nottingham should have blown one whistle, calling for a port to port passage. There was no circumstance described which would explain why the Nottingham suddenly veered to the right. The Nottingham was proceeding against the tide, and the Central tug, with a heavily laden float, had the tide underfoot.

On the whole, I think that the version given by the Nottingham’s witness, despite the apparent disinterestedness of the Erie captain, presents that of greater probability.

Accordingly the Cullen Transportation Co. is entitled to a decree against the steamtug New York Central No. 18, and the cross-libel will be dismissed.

Concurrently with this opinion, appropriate findings of fact and conclusions of law will be filed.


text:
    AMERICAN CORK SPECIALTIES CO., Inc., v. ROBBINS.
    Civil Action No. 4638.
    District Court, E. D. New York.
    June 21, 1945.
    Sidney M. Spero, of New York City (W. Lee Helms, of New York City, of counsel), for plaintiff.
    Briesen & Schrenk, of New York City (Gustav Drews and Fred A. Klein, both of New York City, of counsel), for defendant.
   GALSTON, District Judge.

The question for decision in this case is the validity of Claim 1 of Patent Nq. 2,160,517, issued May 30, 1939, to Harry Rabinowitz and Murray Rabinowitz, for a combination metal cap and dauber. If the claim is valid, infringement is conceded. So also, novelty and utility are conceded. There remains, therefore, only the question of invention.

The claim describes an article of manu-facturé and reads as follows:

“1. A device including a one piece metallic screw cap having a top disc-like portion and a depending threaded skirt portion, a liner of relatively soft material in the cap disposed against said top portion, the latter and the liner having alined perforations, a one piece wire member adapted to carry a dauber at one end and having its other end laterally bent and formed into a closed coiled portion of round wire in register with said perforations, and a rivet extending snugly through said perforations and said coiled portion and having a closed head externally sealingly engaging the top portion, the rivet having a hollow portion expanded over the coiled portion for securing the wire member, the coiled portion clamping the liner against said top portion about the perforation therein, and the rim portion of said perforation being downwardly deformed to provide an annular seat for the said head of the rivet.”

There is no prior art to set up in the answer; and at the trial, but brief reference was made to certain articles and patents to show the state of the art.

In the specification, the patentees point out that theretofore container closures and wires for holding tools or daubers that are disposed in the containers consisted of wires forced into a cork body or stopper, or into a bore formed in a projection of a Bakelite cap. It is stated that the cork dauber was an expensive contrivance; and that Bakelite is very brittle and comparatively low in tensile strength. The inventors assert that it was not known prior to their invention how to provide a practical, cheap way of securing a wire to a metal closure. They believed welding or soldering would be unduly expensive. In consequence they sought a device which would meet the limitations of the known art while at the same time securing a closure that would be fluid tight.

The problem as presented in the specification was clearly one for solution by anyone skilled in the art of taking three elements making up this device, to wit, a metallic screw cap, a liner of relatively soft material, and a wire member adapted to carry a dauber at one end, and fashioning them together effectively.

The specification recites that:

“In assembling, the closure and liner may have been initially formed with the perforations 17 and 18. The rivet and coil 22 may then be disposed in coaxial relation and may be brought together to be assembled into the complete device of Fig. 1, in a single operation.”

In passing it may be observed that there was no suggestion that the method employed involved any invention. To secure a riveted connection between the metal cap with its flexible lining and the eye of the depending wire member, was well within the range of any mechanic who knew how to use a riveting device. The provision of eyelets at the ends of wires for receiving fastening elements was an old expedient, as is shown in the Leistner and Fortes patents. By following the usual and customary riveting operation employing the usual riveting machine, such a union could have been effected. Of necessity, the operation would result, if competently performed, in securing a tight slit or union of the members sought to be joined.

It was suggested during the trial that not only did the patented device effect a fluid-tight joint, but also a vapor sealing not obtainable with the known forms of the prior art. As to that asserted advantage, the proof afforded is not convincing. Other advantages, such as low cost of production, under well established principles, cannot be accepted as evidence of invention. This article of the patent is not proved to have met a long felt want. The problem that the inventors set themselves is not unlike that disclosed in Fink v. V. Foscato, Inc., 2 Cir., 79 F.2d 842; and I have to conclude, as did the court in that case, that the experiments or trials of the patentees were well within the range of the skill of any competent mechanic in the field.

It is urged by the patentees, however, that even simple inventions which provide solution of standing problems in the industries have been frequently sustained, citing Kurtz v. Belle Hat Lining Co., 2 Cir., 280 F. 277; David v. Harris, 2 Cir., 206 F. 902; Greenwald Bros. v. La Vogue Petticoat Co., 2 Cir., 226 F. 449; Western Electric Co. v. LaRue, 139 U.S. 601, 11 S.Ct. 670, 35 L.Ed. 294; Kimball Co. v. Noesting Pin Ticket Co., 2 Cir., 262 F. 148; Van Heusen Products v. Earl & Wilson, D.C., 300 F. 922; Bossert Electrical Construction Co. v. Pratt Chuck Co., 2 Cir., 179 F. 385; Bestwall Mfg. Co. v. U. S. Gypsum Co., 7 Cir., 270 F. 542; Krementz v. Cottle Co., 148 U.S. 556, 13 S.Ct. 719, 37 L.Ed. 558.

So much may be conceded, but, of course, it cannot be argued from these cases that in the specific circumstances disclosed in the record in this case, there was a standing problem. To defeat the patent it is not necessary to apply the rigid tests suggested in the current trend of decisions, as, for example, Cuno Engineering Corporation v. Automatic Devices Corporation, 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58. Long before that case was decided, it was said in Atlantic Works v. Brady, 107 U.S. 192, 2 S.Ct. 225, 231, 27 L.Ed. 438:

“To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences. * * *”

The patent in suit is, therefore, invalid for lack of invention. The complaint for a declaratory judgment will be sustained and the counterclaim of the defendant dismissed.

Appropriate findings of fact and conclusions of law will be filed concurrently with this opinion.


text:
    Petition of WEBER.
    No. 427113.
    District Court, E. D. New York.
    June 21, 1945.
    Petitioner not represented by counsel.
   KENNEDY, District Judge.

The petition for naturalization here is filed under 8 U.S.C.A. § 720a, Act of July 2, 1940, 54 Stat. 715, which provides in substance that an alien who at the time of “entering” the United States is less than sixteen years of age may be naturalized upon “full and .complete compliance with all the requirements of the naturalization laws”, provided (1) that no declaration of intention is required and (2) the petition must be filed within one year after the alien attains the age of 21 years.

I am called upon to decide whether the petitioner meets these requirements. She had not entered the United States as an immigrant until November 21, 1944, at which time she was over 21 years of age (she was born on May 6, 1923). Her petition is based upon the fact that she entered the United States as a visitor on January 19, 1925. She argues from this fact that she has satisfied the requirements of the statute, since it does not in terms restrict its benefits to those who have lawfully entered the United States for permanent residence (although this is what the Immigration and Naturalization Service says the statute means, 8 C.F.R. 325.1). In other words, there is here for decision the question whether the Congress when it used the word “entering” in the statute meant lawfully entering for lawful permanent residence on the one hand, or any kind of entry, legal or illegal, on the other. I say this because I take it that if I decide the petitioner is eligible for citizenship (she having entered only as a visitor) then it follows, as a natural consequence, that applicants must be naturalized under this statute, no matter how they got here. For if the word “lawfully” is not to be interpolated by implication before the word “entering” in the statute, and the words “for permanent residence” after it, then it is impossible, as I see it, to put any limitation upon the type of entry which will entitle applicants to the privilege conferred by that statute.

I confess I am unable to satisfy myself that the statute survived the passage of the Nationality Act of October 14, 1940, 8 U.S.C.A. § 501 et seq. It has had a chequered career. It was first codified as 8 U.S.C.A. § 375a. It then was set out in the form of a footnote to 8 U.S.C.A. § 731. The chronological table (1944 U.S.C.A.) traces the statute into 8 U.S.C.A. § 720a (chronological table, page 113). In re Naturalization of Serlin, D.C., 45 F.Supp. 774, it was held that the statute was not repealed by the Nationality Act of 1940. In the 1941-43 supplement to the United States Code (Ed.1940), the section is given a new number (8 U.S.C.A. § 720a), with the notation that it is not part of the Nationality Act of 1940. However, I shall assume that the statute is in force and that its meaning is, as I have outlined above, to be decided. >

Petitioner’s position I have stated in substance. But she elaborates upon it. She argues that where Congress, in the statutes dealing with naturalization, uses words like “reside” and “entering”, without qualifying them by words like “lawful” or “permanent residence”, it is presumed to negate any such limitation. To support this proposition she cites a dictum in United States v. Shapiro, D.C., 43 F.Supp. 927, 929. However, the judgment in the Shapiro case was that the certificate under attack be canceled. And the Court quotes with approval the case of United States v. Goldstein, D.C.E.D.N.Y., 30 F.Supp. 771, 773, which is a square holding that “residence” means “legal residence”. The dictum in the Shapiro case upon which petitioner relies is as follows: “There seems to be no specific statute which provides that lawful entry is, in every instance, prerequisite to naturalization.” [43 F.Supp. 929] It can be just as forcefully argued that no such specific statute exists because it is unnecessary, as it can be argued that the nonexistence of such a statute puts the duty on Congress to specify.

Among the authorities cited in the Gold-stein case, supra, is the case of Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585. In that case the Court had before it for construction language which was formerly found in the statute dealing with rights of citizenship acquired by minors, Rev.Stat. § 2172, now 8 U.S.C.A. § 714. At the time of the decision the statute contained the language “if dwelling in the United States.” The Court held in the Kaplan case that the appellant did not bring herself within the purview of the Act unless she was lawfully dwelling in the United States. In United States v. Manzi, 276 U.S. 463, 48 S.Ct. 328, 72 L.Ed. 654, which curiously enough is cited by the petitioner here, the question before the Court was whether a widow lost her right to avail herself of her deceased husband’s declaration of intention. The statute before the Court for construction was the Act of June 29, 1906, 34 Stat. 596, 8 U.S.C.A. § 375. The sixth paragraph of one section of the statute gave the widow of a deceased alien the privilege of using a decedent’s declaration of intention, but there was no limitation specifically upon the time over which this privilege extended. The second paragraph of the same section imposed a seven-year limitation upon the alien’s right to use the declaration. The Circuit Court of Appeals for the First Circuit had ruled in the Manzi case that absent any specific limitation the widow could avail herself of the declaration of intention, even at a time when her deceased husband, if he had lived, would have lost this right. The Supreme Court reversed this holding and said that the time limitation imposed in terms upon the husband was to be interpolated into the section dealing with the right of the widow. Apparently the canon of construction which it applied was that, citizenship being a high privilege, doubts must be resolved in favor of the United States and against the claimant, citing Swan & Finch Co. v. United States, 190 U.S. 143, 146, 23 S.Ct. 702, 47 L.Ed. 984.

I said it was curious that petitioner cited the Manzi case, because to sustain an argument that the word “lawfully” is not to be implied before the word “entering” in the statute here under consideration, 8 U.S.CA. § 720a, she cites a case which clearly holds that a much more onerous limitation will be read into a naturalization statute. Manzi case, supra.

Another argument advanced by petitioner is that wherever Congress eliminates the necessity of a declaration of intention it also by implication eliminates the requirements of lawful entry for permanent residence. This conclusion is based upon the claim that one section of the Nationality Act, 8 U.S.C.A. § 729, forbids the filing of a declaration of intention until lawful entry for permanent residence has been shown and another section of the Nationality Act of 1940, 8 U.S.C.A. § 732, provides that persons arriving after June 29, 1906, must file a declaration of intention with the petition for naturalization. Petitioner says in substance that since the statute which she invokes, 8 U.S.C.A. § 720a eliminates the necessity for a declaration of intention, it eliminates the necessity for lawful entry, and also for entry with the intention of permanent residence. I cannot find any support for this argument either in the statute itself or in the general principles which, as I understand it, govern the construction of such statutes.

Really, the statute which the petitioner invokes, 8 U.S.C.A. § 720a, was enacted to cure a very specific situation, which demanded correction. At the time of its passage there were in the State of Massachusetts many families of foreign origin. They had arrived in the twenty years preceding the summer of 1940. There were numerous children who could not understand that they were not citizens because of the mere neglect of their parents. Many of these children had been in the United States since infancy. Congress felt that it was neither necessary nor fair to require such persons to go through the same procedure for citizenship as was required of an adult. These are the facts which appear in the reports of the committees on Immigration and Naturalization which recommended the passage of the bill. S.Rept.1928, H.Rept. No. 1277, 76 Cong., accompanying H.R. 6443. The reports themselves contain nothing to indicate that the bill would apply to visitors. In fact, read as a whole, they indicate that the statute was intended to apply to children of immigrants who had entered regularly and lawfully under the quota, but who had neglected to become citizens.

Petitioner puts much stress also on what she considers an analogous statute, Act of March 27, 1942, 56 Stat. 182, 8 U. S.C.A. § 1001. Prior to its amendment in 1944, 58 Stat. 886, 8 U.S.C.A. § 1001, this statute, which confers exceptional privileges upon persons serving in our armed forces, contained a requirement that the benefit of the statute would extend only to those “lawfully admitted”. Petitioner points out that the construction put upon the words “lawfully admitted” by the Immigration and Naturalization Service was that this language covered students, seamen, and visitors. Monthly Review, Immigration and Naturalization Service, September, 1943, Vol. 1, No. 3, p. 7. Petitioner says that the Immigration and Naturalization Service has no right to put one construction on the word “entering” under the statute which she invokes, 8 U.S.C.A. § 720a, and another on the words “lawfully admitted” in a statute which confers somewhat similar privileges upon persons serving in the armed forces, 8 U.S.C.A. § 1001. There is no very close analogy between the two statutes. I can see why the Immigration and Naturalization Service can consistently take the position that the words “lawfully admitted” apply to visitors, whereas the word “entering” does not. The word “enter”, when used in immigration and naturalization statutes, even without qualifying adjectives, has acquired a significance of its own. Moreover, the Congress later struck from the statute, 8 U. S.C.A. § 1001, the requirement that members of the armed forces must be lawfully admitted to become eligible to the benefits of the statutes, Act of December 22, 1944, 58 Stat. 886, 8 U.S.C.A. § 1001. This is some indication that the interpretation put upon the statute in its original form by the Immigration and Naturalization Service was in accord with the intention of the Congress, but that it was felt advisable to modify the statute so that its meaning was clearly expressed, and interpretation and construction became unnecessary.

My conclusion is that no alien becomes entitled to the benefits of this statute, 8 U.S.C.A. § 720a, unless .there is a demonstration of lawful entry with intention permanently to reside in this country. I may say, for the possible benefit of any reviewing court, that the applicant is unquestionably a person of good character and otherwise fully eligible for citizenship. It is with reluctance that I impose on her the requirement that she proceed under the general statute. I do not believe, however, that the statute which she invokes, if it is still in force, was intended to apply to such a case as hers, and I accordingly dismiss the petition.


author: LEDERLE, District Judge.

text:
    In re DETROIT LELAND HOTEL CO.
    No. 21141.
    District Court, E. D. Michigan, S. D.
    July 10, 1945.
    Beaumont, Smith & Harris, of Detroit, Mich., for debtor.
    Clark, Klein, Brucker & Waples, of Detroit, Mich., for Russell F. Knapp.
   LEDERLE, District Judge.

This is a corporate reorganization proceeding filed in accordance with the provisions of 77B of the National Bankruptcy Act, Section 207, 11 U.S.C.A. At the date the petition was filed, March 28, 1936, the petitioner had been in default for non-payment of principal and interest in a bond issue since 1931. After due notice in accordance with the provisions of the statute an order was entered August 5, 1937, approving and confirming a Plan of Reorganization. This order provided for the cancellation of all outstanding bonds and the discharge of the mortgage given as security for the bonds and enjoined the creditors and stockholders from bringing any action against the debtor or against any of the property of the debtor.

This order also provided for a general adjournment to November 4, 1937, for the purpose of passing upon applications for fees for services rendered and for the consideration of the documents incidental to the execution and consummation of the Plan. In addition to these matters the Court specifically reserved jurisdiction solely for the purpose of entering such orders as “ * * * may be deemed necessary and proper in connection with carrying out the terms and provisions of said Plan * * * and for properly terminating this cause.”

As a part of the program for carrying out the Plan of Reorganization an order was entered December 17, 1937, providing for the issuance of new securities to the holders of outstanding bonds and directing the persons entitled to the new securities to accept them on or before December 30, 1942. This order also provided for an additional notice to the bondholders and directed the Trustees appointed in accordance with the Plan to cancel all of the new securities that had not been accepted on December 31, 1942. Upon a showing that all of the orders of the Court had been complied with by the Trustees the final decree was entered April 10, 1939, after due notice.

Russell F. Knapp claiming to be the owner of bonds of the bankrupt corporation filed a petition to reopen the proceedings on March 6, 1945, and a motion to intervene on April 5, 1945. The reorganized debtor filed a motion to dismiss the Knapp petition on March 28, 1945. Briefs have been filed by both parties and a hearing was held in open Court. As heretofore pointed out the orders entered confirming the Plan and directing the method to be followed in carrying out the Plan and the final decree were all entered after due notice to all of the parties concerned in accordance with the provisions of the statute. There is no claim that any of the proceedings were irregular, except that the petitioner Knapp contends that the limitation placed upon the time within which the bondholders could surrender their old bonds and demand the new securities constituted an amendment to the Plan made without proper notice to the parties. In this respect he is in error. The subsequent hearing with reference to the details relating to carrying out the terms of the Plan was held at the adjourned dates as provided for in the order of August 5, 1937, and the notice given with reference to the hearing on August 5th was sufficient for the adjourned hearings.

One of the reasons for the adoption of Section 77B was to expedite the reorganization of insolvent debtors. The limit fixed for the surrender of the old securities and the delivery of new was slightly over five years. This was a reasonable provision for carrying out the Plan. If some limit is not placed upon the time within which creditors’ rights are barred, a bankrupt estate could never be settled. The orders confirming the Plan of Reorganization and the final decree entered herein terminated this proceeding. The Court does not have general jurisdiction to reopen the proceedings but may retain jurisdiction only for the purpose of protecting its decree and preventing interference with the execution of the Plan. Chicot County District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329; Prudence Corporation v. Ferris, 323 U.S. 650, 654, 65 S.Ct. 539; In Re Flatbush Avenue-Nevins Street Corporation, 2 Cir., 1943, 133 F.2d 760; Clinton Trust Co. v. Elliott Leather Co., 2 Cir., 1942, 132 F.2d 299; In re Peyton Realty Co., 3 Cir., 1945, 148 F.2d 771; Tom Moore Distillery Co., D.C.W.D.Ky., 1943, 52 F.Supp. 938.

The motion to intervene must be overruled and the petition to reopen denied.