author: SWEENEY, District Judge.

text:
    NEW ENGLAND FOUNDATION CO., Inc., v. RUGO CONST. CO., Inc.
    No. 1037.
    District Court, D. Massachusetts.
    April 23, 1945.
    Bingham, Dana & Gould and Albert T. Gould, all of Boston, Mass., for libellant.
    Charles A. McCarron and Thomas H. Walsh, both of Boston, Mass., for respondent.
   SWEENEY, District Judge.

This is a libel in admiralty by the New England Foundation Company, Inc., owner of Lighter -No. 1, against the Rugo Construction Company to recover .for damage sustained by the lighter while under charter to the respondent.

Findings of Fact

On July 5, 1941, the respondent, Rugo Construction Company, entered into a contract with the Navy Department, Bureau of Yards and Docks, to perform certain construction work at the Naval Air Station, Squantum, Massachusetts.

On August 28, 1941, the libellant demise chartered Lighter No. 1 to the respondent on the following terms: “One derrick lighter, $800 a month rental, no fuel, transportation or personnel”. In these negotiations the Rugo Construction Company acted through William H. Curley, a civilian employee of the Navy Department.

On November 5, 1941, the lighter was again demise chartered to the respondent. The terms of this contract of hire were the same terms as those which had governed the August charter except that the hiring was to be by the month with no “split months”. The lighter was delivered to the respondent on November 5, 1941, by turning her over to a tug of the Hall Tug & Barge Corporation which had been dispatched on behalf of the respondent to take the lighter to Squantum. The lighter was then used by the respondent in pulling piles at Squantum.

On December 3, 1941, Curley ordered the lighter tied up outside of another boat jn the crash boat slip. I find that this was a dear berth. On that same evening the lighter was sunk and on the bottom at the berth in Squantum.

I find that on November 5, 1941, when Lighter No. 1 was chartered to the respondent, she was seaworthy, in good condition, and properly fitted for the work in which she was expected to engage. There is some evidence that the hull was “leaking slightly” on September 2, 1941, but this did not make her unseaworthy. The lighter was used almost continuously by the respondent until the day she sank. Furthermore, the respondent re-chartered the lighter in November, 1941, without making any representations of unsound condition to the libellant. Although a showing of continuous use by the charterer does not establish seaworthiness at the time of the charter, it does serve to buttress other testimony on this issue. I further find that when Lighter No. 1 was sunk she was in the possession and control of the respondent during the charter period. No evidence of negligence on the part of the respondent has been introduced.

Conclusions of Law

The parties are in agreement that this is a demise or bare-boat charter. This constitutes a bailment of the vessel, and the charterer or bailee is responsible for any damage to the demised vessel caused by the negligence of the charterer, or of those to whom the charterer entrusts the vessel, or of those whom the charterer permits to exercise dominion over the vessel. Howard v. Dobbins-Trinity Coal Co., Inc., 2 Cir., 111 F.2d 571.

The burden of proving negligence is initially on the libellant. However, if the libellant shows delivery in good condition and return by the charterer in damaged condition a presumption of fault on the part of the charterer is raised. Moran Towing & Transportation Co. v. Raritan Copper Works, D.C., 41 F.2d 255. The burden then rests on the charterer to go forward with exculpatory evidence of sufficient weight to overcome the presumption of negligence. Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., 3 Cir., 40 F.2d 249; Howard v. Dobbins-Trinity Coal Co. Inc., supra.

In the instant case the charterer has introduced no evidence either to explain the cause of the sinking of Lighter No. 1, or to show that no negligence on his part was causally connected therewith. Furthermore, the respondent has brought forward no evidence of non-negligent conduct in his entire relation to the vessel over the period of the charter.

Since the burden of rebutting the presumption in favor of the libellant has not been sustained by the respondent, a decree is to be entered for the libellant. Application may be made for reference of the cause to a commissioner for the determination of the question of damages.


source: Caselaw Access Project

author: REEVES, District Judge.

license: Public Domain

text:
    UNITED STATES v. 600 UNITS CONTAINING “NUE-OVO,” etc.
    No. 2148.
    District Court, W. D. Missouri, W. D.
    March 23, 1945.

      Maurice M. Milligan, U. S. Dist. Atty., and David A. Thompson, Asst. U. S. Dist. Atty., both of Kansas City, Mo., for plaintiff.
    Harry G. Hoy, of Portland, Or., and Frank H. Terrell, of Kansas City, Mo., for defendant.
   REEVES, District Judge.

On the first day of March 1945 this court entered an order removing and transferring the above-entitled cause to the district court of the United States sitting at Portland, Oregon, for trial. This is the place where the intervenor’s business is located. The order was made upon motion filed by the intervenor for removal and transfer of the libel proceeding pursuant to provisions of 21 U.S.C.A. § 334 (a). The language of the motion conforms to the statutory requirements, as follows: “In any case where the number of libel for condemnation proceedings is limited * * * the proceeding pending or instituted shall, on application of the claimant, seasonably made, be removed for trial to any district agreed upon by stipulation between the parties, or, in case of failure to so stipulate within a reasonable time, the claimant may apply to the court of the district in which the seizure has been made, and such court (after giving the United States Attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant’s principal place of business, to which the case shall be removed for trial.”

At the time the order was made the United States Attorney appeared with counsel for the intervenor or claimant and then insisted that the only order that could be properly made was one transferring and removing the case to the Western District of Washington, being a district of reasonable proximity to the claimant’s principal place of business. The court was then of the opinion 'that the statute contemplated a place for holding court as near to the principal place of business of the claimant as practicable. Such a place of holding court was at Portland, Oregon. A hurried interpretation of the statute seemed to warrant the court in removing the case for trial to that point. The District Attorney did not agree to the order, and, as indicated, has subsequently filed a motion to vacate the order of removal. The parties have favored the court with briefs and suggestions in support of their respective contentions.

Congressional records showing the history of the legislation indicate that the Senate attempted to provide that a case of this kind might be removed and transferred to the district court in which claimant’s principal place of business was located, while, on the other hand, the House of Representatives attempted to provide that the removal could be made only to a district court of a state contiguous to the state of claimant’s principal place of business. Both the Senate and House receded from their several extreme positions. The Senate no longer contended that the transfer should be made to a state contiguous to that of the claimant’s domicile. The compromise involved the use of the words “a district of reasonable proximity to the claimant’s principal place of business.” In order to give a proper meaning to the statute, in view of the concessions made by the two legislative bodies, a district of reasonable proximity would mean a district other than that of the domicile of the claimant, whether in the same state or a contiguous state. Oregon has but one district, whereas the State of Washington has two districts. The Western District of Washington, Southern Division, is a district of “reasonable proximity to the claimant’s principal place of business.”

1. A statement of the facts and the law, as above, suggests a proper interpretation of the statute and what order should be made in the case. This is not a case of first impression.

In the case of United States v. 6 Dozen Bottles, etc., D.C., 55 F.Supp. 458, 459, Judge Duffy of the District Court of the Eastern District of Wisconsin presided. It was a similar case. That case, however, had been transferred to his district from one of the district courts in the State of Washington. The claimant in that case had originally applied to one of the district judges in one of the districts of Washington to transfer the case to the Northern District of Illinois for the reason that the claimant’s principal place of business was in Chicago. The District Judge declined to transfer the case to the Northern District of Illinois. but did order its removal or transfer to the Eastern District of Wisconsin, being a district of reasonable proximity to the claimant’s place of business. After the transfer to that district {of reasonable proximity) the claimant renewed its motion for a transfer to the Northern District of Illinois. While District Judge Duffy ruled that the claimant had exhausted his rigjit of removal as accorded by statute, nevertheless he took occasion to say: “Manifestly, claimant’s application for removal to the district court in Illinois was not granted by the district court in Washington, because the same would not have been and is not authorized. In the absence of stipulation between the parties, the power of removal of the court of original jurisdiction is limited and restricted. Such court is required to order removal to ‘a district of reasonable proximity to the claimant’s principal place of business.’ Accordingly, it would have been beyond the power of the district court in Washington to have removed this proceeding to the designated district court in Illinois.”

2. Moreover, in this case, the claimant apparently so interpreted the statute for the reason that, in its motion to transfer, it said:

“Intervenor further states that the United States District Court next closest to Intervenor’s place of business is the District Court of the United States for the District of Washington, Western District, Southern Division, sitting at Tacoma, Washington, which said district court is approximately 150 miles from Portland, Oregon.

“Wherefore, Intervenor prays that said cause be transferred and removed from this Court to a district of reasonable proximity to Intervenor’s principal place of business.”

It will be observed that the intervenor does not ask that the case be transferred to the district in which the claimant’s principal place of business is located.

In view of the above, the order of removal transferring the case for trial to the District Court of Oregon, sitting at Portland, should be amended so that the order of removal will be to the Western District of Washington, Southern Division, at Tacoma, Washington, and it will be so ordered.


author: PICARD, District Judge.

text:
    ANDERSON et al. v. MT. CLEMENS POTTERY CO. et al.
    No. 2582.
    District Court, E. D. Michigan, S. D.
    June 30, 1943.

      Edward Lamb, of Toledo, Ohio, for plaintiffs.
    Beaumont, Smith & Harris, of Detroit, Mich., for defendant.
   PICARD, District Judge.

This is an action brought by certain employees for claimed violation by defendant óf the Wages and Hours Act. Plaintiffs, who are piece workers, allege in part that defendant required them to report for work at 14 minutes previous to the hour designated for starting; that invariably they began their labors shortly thereafter but were paid only from the official hour for the opening of the plant. Then in addition to being required to come early it is their claim that they would work 14 minutes after the morning closing hour and only get paid up to noon; 14 minutes before the official time for starting work after noon lunch, being paid from the official hour only and that this same practice prevailed at the closing hour — so that in all plaintiffs allege that they worked about 56 minutes every day for which they received no compensation in computing their overtime.

There are also other differences more or less of a minor nature or individual, a’mong those being the custom of the art, seemingly from time immemorial, that workers engaged in certain features of pottery making must furnish their own sponges and tools; that the company made a profit on the items so sold to help take care of its overhead; and that certain employees, commonly called jiggermen, were required to contribute to the pay of helpers who would take the culls or the blemished work of the jiggermen and by polishing would deliver a piece of pottery acceptable to the standard set by the company.

The matter was referred to a master whose report was entirely in favor of defendant and the question now is simply whether this court will approve that report.

In the meantime, following argument and before this court had an opportunity to pass on the question, plaintiffs voluntarily discontinued as to co-defendant Kresge Company which they sought to hold as sole stockholder of defendant, The Mt. Clemens Pottery Company.

Conclusions of the Court

We will discuss the vital issues categorically and enumerate our reasons briefly for our position.

1. Extra Time not Computed.

. The first question is whether or not defendant required its employees to report for work at 14 minutes to seven o’clock, for example, starting them practically immediately and then computing their hours from seven o’clock, continuing this practice throughout the day as above enumerated, so that in fact the employees worked approximately 56 minutes every day which were not computed in figuring overtime. It may be explained here that such computation is essential even on piece work since the amount of compensation to piece workers for overtime — according to the Administrator’s interpretation — is arrived at by dividing the total amount received in piece work by the number of hours worked in a given work week to get an average hourly wage rate, and then paying time and one-half at this wage to piece workers for all time over 40 hours. See Interpretative Bulletin No. 4, Wage and Hour Division, United States Department of Labor.

Naturally if the above claim of plaintiffs is true, some would be working almost 5 hours additional every week which would have brought many of them into the overtime bracket.

On the other hand the response of the company is a complete denial with the explanation that it usually opened its time clocks for punching at 14 minutes prior to some designated hour so that all employees might have an opportunity to punch the clock, prepare themselves for work (such as wearing special gloves) and so that all would be ready to begin work when the official time arrived.

It further claimed that pottery in the main is made through the working of groups or crews and by requiring the employees to be ready for active work before the appointed hour each member of the crew would be there at the starting time, work would not be delayed nor an injustice done to the rest of the crew because of some tardy employee’s negligence.

This court, therefore, because of the importance of the issue, instructed that evidence be carefully taken, since if plaintiffs’ charge was correct we were face to face with'a method of employer domination and unfairness that, to say the least, would be most reprehensible, while if defendant’s contentions were true this court would hold that such a rule of the company would not be unreasonable. It must be borne in mind, however, that under no circumstances would it justify defendant in starting, or permitting these employees to work before the scheduled hour. This conclusion is fundamental because it must be apparent that to hold otherwise would permit employers of piece workers to circumvent the objectives of this law and the purpose of the Wages and Hours Act might be entirely frustrated.

On this first point the Master held with the employer and found that the allegations of plaintiffs were not true. Nevertheless, and while in the main agreeing with him, there is sufficient evidence to require more careful scrutiny by this court of the foundation for this report and therefore we have re-examined the evidence, paying particular attention to the time cards. Here we noticed what we deem to be significant, to-wit, we found that whenever the starting hour was seven o’clock the punching of the clock did begin at 14 minutes to seven and by nine minutes to seven o’clock 75 percent of that shift had registered for work. By eight minutes to seven but a few stragglers were left. Undoubtedly those who were unable to punch the clock in the first four minutes could be preparing themselves for work but the preparation even after punching the clock wouldn’t take more than one or one and a half minutes and to the farthest point in the plant from the time clock wouldn’t take more than 2 minutes. It is apparent, therefore, that practically every member of the entire shift was ready to work at from 5 to 7 minutes before the hour and it does not seem probable that with compensation set by piece work, and the crew ready, that these employees didn’t start to work immediately. In fact, it appears that this was encouraged by the company as being mutually beneficial.

It was also required by defendant company that certain changes of clothing were necessary at the plant before the employees went to work and on their own time. This is a questionable practice but for the individual in the case at' bar this didn’t take long — probably one minute to make the change. It appears to this court, however, that if the company requires certain specified clothing and practically prohibits the employee from preparing for his work at home, that any such rule should be met on company time because the one minute or two minutes it takes is just as valuable to the employee as it is to defendant company.

Going further into the record we find that the evidence was not seriously controverted that the foremen told the employees when work would start in the morning and when to get there, and when they told them that work would start at 6:45 o’clock they likewise mentioned the hour of 6:31 or if 7:00 A, M. was the starting time then 6:46 was also designated in some manner.

With this picture before us we cannot help but believe that there was a method in this formula beyond that expressed by defendant’s witnesses.

With one thousand employees working every day minutes could grow into hours and hours into days of overtime. To the individual employee it may have meant little or nothing for each day but in the period of a year it meant hours and to the company a few minutes taken from each employee each day would mean a great deal financially. But in this connection may we not add that there is no evidence, as contended for by plaintiffs, that if the employee didn’t get there by 14 minutes to seven he was fired and there is much testimony to prove that stragglers came in as late as one minute to seven. And even defendant’s witnesses admitted that at times when a crew was ready to work they might jump the gun. In the experience of this court that’s just exactly what would happen 99 times out of 100 on piece work and it was one of the practices that the Wages and Hours Act sought to discourage both on the part of employer and employee. To us it is obvious that in this particular action an attempt was made either by the company itself or by certain foremen in currying favor with the employer, to circumvent the spirit of the Wages and Hours Act.

We are then confronted with the question of whether this court should lend its aid to a practice that deprives any working man of that which is the only thing he has to sell — his hours or minutes of labor.

We think not — and we hold, therefore, that allowing 5 minutes for punching the clock plus an additional 2 minutes to go from the clock to their place of employment, or a total of 7 minutes should be allowed to defendant as not an unreasonable provision but that all minutes over that time as shown by the time cards in the morning and all over 5 minutes at the beginning of the afternoon work should be computed as part of the hours worked by these employees.

As to punching out at noon and in the evening, we find no evidence that -the employees worked after the closing hour either at noon or at night for which they were not paid. This may have happened, but if so it didn’t seem to be prevalent and it further appears that both at noon and at night many personal duties might and did occupy the employee’s time before he actually punched out.

We cannot hold with plaintiffs that they are entitled to pay right from the minute they punched the clock. Even in the case of Tennessee Coal, Iron & R. Co. v. Muscoda Local 123, 5 Cir., 1943, 135 F.2d 320; Id, 5 Cir, 1943, 137 F.2d 176, where portal to portal pay was allowed the coal miners, no attempt is made to compensate the miners for changing their clothes and getting their picks and shovels ready for work — all of which took at least 10 minutes. As a matter of fact, if this court is to rely upon that decision plaintiffs might not be entitled to anything here.

2. Furnishing Tools.

The second point relates to the company practice of requiring employees to buy their own tools, particularly sponges, following out an old custom in the pottery industry. The claim of plaintiffs that this practice is unlawful is based upon Section 3(m) of the Fair Labor Standards Act, 29 U.S.C.A. § 203(m), and regulations of the Administrator of the Wage and Hour Division pursuant thereto. Section 3(m) states:

“(m) 'Wage’ paid to any employee includes the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.”

The Administrator has promulgated elaborate regulations as to what constitutes “facilities” within the meaning of this section and the standards and methods for determining “reasonable cost” when the section is applicable. Official Regulations, Part 531. Section 531.1(d) of the said regulations states that tools and other materials used in the employer’s business-are not “facilities” which can be considered in computing wages under Section 3(m) of the Act. But sponges and whatever other tools plaintiffs bought for their own use were not “customarily furnished by such employer to his employees”' —as the act provides. On the contrary, these employees have been furnishing their own sponges and tools for years as we are informed.

This court is sympathetic with the position of the employees on this issue, since it seems only fair that the employer furnish the working appliances used by employees in the operation of his business. Doubtless, the trend in industry is in this-direction, and when such practice becomes, universal no employer will suffer a competitive disadvantage by following it. While it may be true, as claimed by the company, that employees are less inclined to waste sponges when they must furnish them, still the expected life of a sponge is so well known that employees guilty of abuse of the employer’s property can be-detected and discharged for cause or otherwise punished. In any event, the possibility of abuse by the laborer is no greater-than the possibility of some employers taking advantage of the laborer if so permitted, as is gleaned from the well known fact that a few years ago in some industries the laborer at times had to buy so much back from his employer at the company store that he owed it money above his, wages at pay time.

However, the court is not here ■ faced with a problem of economic policy, but rather with that of interpreting and. applying the Fair Labor Standards Act; and careful study of the Act fails to reveal any basis upon which the practices . of defendant in making deductions for tools and equipment used in its business , can be found to be prohibited. Section 3(m) is not applicable. That section relates to a situation where wages are paid-. partly in cash and partly in food, lodging, or some other thing for the personal benefit of the employee. Where that section applies, the cash wages may be less than the minimum, as long as the reasonable cost of the facilities makes up° the difference. This court, however, agrees with the Administrator in holding that tools of the trade are not “facilities” within the meaning of Section 3(m) and that deductions for such items cannot be made by the employer if they cause the wages to go below the statutory minimum. However, since it appears here that the pay received by defendant’s employees after the deductions for tools and equipment equalled or exceeded the statutory minimum, no violation of the minimum wage requirements is involved. And, since it appears that the employees worked with full knowledge and understanding of the company’s practice with respect to their being charged for tools, their regular rate of pay for purposes of computing overtime was the pay after deductions.

No claim is made that the company manipulated the deductions so as to take them only during overtime weeks and thus evade liability for overtime. There appears to be no separate prohibition of deductions in the Fair Labor Standard Act, apart from the minimum wage and overtime requirements, and, for the reasons stated, no violation of those requirements appears. In the case of Walling v. Peavy-Wilson Lumber Co., D.C.La.1943, 49 F.Supp. 846, relied upon by defendant, it appeared that the great majority of the employees were receiving bare minimum wages; and, while the opinion is not entirely clear on the point, it would seem that the court’s holding that the laborers should be furnished tools free of charge was based upon the fact that the charges therefor cut the empolyees’ wages below the minimum.

We wish to add that our decision upon this issue is not based upon the fact that it has been customary practice in the industry to make such deductions, since it is clear that any custom inconsistent with the requirements of the Act must yield to the latter.

3. The Jiggermen.

The next question before us is that of the jiggermen. Ordinarily we would feel that the jiggerman should not be compelled to contribute towards the wages of another worker were it not for the following facts.

These laborers do the work that the jiggerman should have done. It is work that does not require great experience, nor the adeptness and touch of the jiggerman who is admittedly the highest paid among pottery workers and an artist in his line. It is only the culls and. the possible defective pottery that is turned over to the laborer. He finishes the work. The jiggerman gets paid for it. We believe he should contribute part of the compensation to the man who helps do his work for him. It’s an old practice coming down through the years and almost makes the jiggerman an independent contractor. We don’t see why we should interfere with this custom or that its continuation is an abuse of either the letter or spirit of the law. '

4. Other Claims.

Many other miscellaneous claims are raised by plaintiffs but to us they appear to be without merit and in these we hold with the Master.

5. Double Damages.

To the plaintiffs’ contention that this court should give double damages on a prior settlement between the parties we cannot consent. This claim came out of a blue sky without any direct plea being made in the pleadings or at any time in the argument until just before this court was ready to write its opinion. That settlement was not at issue here. It had been agreed upon long ago and if this court is to give double damages on a settlement it knows nothing about, the merits of which were never presented to the court at all and which may have been an entirely voluntary gesture on the part of defendant to avoid litigation, we are opening the door to a lot of prospective trouble. But if this decision results in any additional compensation to the plaintiffs or any of them, of course, double damages will be allowed therefor.

The question of the attorney fees for plaintiff and payment of costs is a matter for settlement by this court on motion of the parties.

An order consistent with this opinion approving the report of the master may be prepared for this court’s signature.


author: VAUGHT, District Judge.

text:
    BOWLES v. MADL et al.
    Civ. No. 4953.
    District Court, D. Kansas, First Division.
    April 16, 1945.
    James B. Nash, Dist. Enforcement Atty., Lawrence J. Wetzel, Litigation Atty., and E. E. Sattgast, Enforcement Atty., all of Office of Price Administration, all of Wichita, Kan., for plaintiff.
    A. J. Harrod, of Kansas City, Kan., for defendants.
   VAUGHT, District Judge.

The plaintiff brings this action against the defendants alleging among other things that from and including June 25, 1943, to and including December 4, 1943, the defendants, dealers in farm equipment in Baldwin City, Douglas County, Kansas, sold and delivered farm equipment as follows to-wit:

One used Allis-Chalmers 1940 Model WC tractor to Ralph H. Pohl, on or about June 25, 1943, for the sum of $1050 when the maximum price permitted to be charged under the Regulation was $734.25.

One used 60 inch Allis-Chalmers all-crop harvester on rubber to Leonard Travelute, on or about December 4, 1943, for the sum of $500 when the maximum price permitted under the Regulation was $443.-50.

One used New-Idea two-row corn picker to Reed Carsten, on or about December 4, 1943, for the sum of $820 when the maximum price permitted under the Regulation was $616.25.

One 40 inch 1941 used Allis-Chalmers' all-crop harvester to Harold Springer, on or about January 25, 1944, for the sum of $350 when the maximum price permitted under the Regulation was $280.

The plaintiff prays for treble damages on behalf of the United States pursuant to the provisions of Section 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S.C.A. Appendix § 901 et seq., in the sum of $1938, or three times the amount of the excess sales price over and above the ceiling price.

The defendants, by leave of court granted, have filed their motion to dismiss as to paragraph 5, Count I,, paragraph 1, Count III, and that portion of the prayer of the complaint which seeks for judgment in the sum above stated.

Section 205(e) of the Emergency Price Control Act, 50 U.S.C.A. Appendix § 925 (e), provided: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States.”

As amended by the Stabilization Extension Act 'of June 30, 1944, 58 Stat. 640, 50 U.S.C.A. Appendix § 925, Section 205(e) now provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the over-charge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period.”

It is clear that since the acts alleged in the complaint were committed prior to June 30, 1944, the amendment would not apply but that the Act as it existed prior to June 30, 1944, would apply.

It is the contention of the defendants in their motion to dismiss that the Administrator of the Office, of Price Administration has no power to bring this action, for if a right of action exists, it is a right belonging to the purchasers of the farm machinery above described and the action must have been instituted by them before the court would have jurisdiction.

The language of the statute, “the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action”, requires the court’s attention. The consideration of this motion involves proper consideration of the phrase “for use or consumption” in connection with the phrase “in the course of trade or business.”

It is admitted that the farm machinery in question was purchased by the farmers, for their own use or consumption, but it is contended by the plaintiff that this use or consumption was in the course of trade or business, while the defendants contend that this use or consumption was for and by the ultimate consumer and was not used or consumed in the course of any trade or business.

“Use or consumption” are words which define themselves and “trade or business” are equally clear as to meaning. In ordinary parlance to use an article is to utilize or employ it for the purposes for which it was intended. For instance, to use a plow is to cultivate the ground with the plow. To use a wagon is to haul with the wagon or drive it for the purposes for which a wagon is ordinarily used. To use a refrigerator is to place it in one’s home to preserve food and kindred articles. “Consumption” also might have a more immediate termination. For instance, if a farmer buys fertilizer and uses it on his crops, or seed corn and plants it, or wheat and sows it, or feed for his livestock and feeds it, or food for his family use and so uses it, it could be said that he consumes these articles on his farm. If his use of the plow, the wagon or the refrigerator depreciates the value of these articles until they no longer have value except for scrap iron, it could as reasonably be said that he has used or consumed these articles on his farm. On the other hand, if he purchased the plow, the wagon, the refrigerator, the fertilizer, the corn, the wheat, the feed, or the food to sell to some one else, no use or consumption would be involved and he would not be the ultimate consumer but would be engaged in a “course of trade or business.”

Trade or business as used in the Act means buying, selling, exchanging, or handling articles in any manner for profit. Technically, it might be said that farming is a trade or business but the generally accepted designation is occupation. I see no reason why even if one were engaged in a trade or business and bought articles for use or consumption therein, he would not come under the use or consumption clause. The Act uses the phrase “course of trade or business,” clearly indicating that it was the intention of Congress to recognize as one class those who use or consume as ultimate consumers, and as another class those who trade, traffic, exchange, buy or sell for profit. Under the theory urged by the plaintiff, the farmer is engaged in a course of trade or business, and therefore any article that he might buy whether it be a pound of bacon, a loaf of bread, a pound of sugar, a plow, or any other article which he might use on the farm, could not be considered as used by the farmer as the ultimate consumer but must be considered as used in the course of trade or business.

The New York Supreme Court, in Lightbody v. Russell, 45 N.Y.S.2d 15, 16, said: “The complaint alleges that the plaintiffs in the capacity of ultimate consumer purchased the commodity in question, which was a Mack tractor. The purpose and intent of the statute are clear. Merchandise sold to an ultimate consumer such as the plaintiffs is a commodity bought for use and consumption and not in the course of business or trade. The plaintiffs are the proper and real parties in interest and authorized to bring this action.”

In Bowles, Administrator, O.P.A., v. Joseph Denunzio Fruit Company, D.C. Ky., 55 F.Supp. 9, 13, the court, referring to the statute under consideration here, said: “* * * The provision is in no way ambiguous and needs no judicial construction to ascertain its meaning. Where a retailer sells to a purchaser for use or consumption the purchaser can sue for the damages authorized by the Act; but where a wholesaler sells to a retailer who buys for resale in the course of trade or business and not for use or consumption, such retailer has no authority to institute the suit, but the right of action in such cases is vested in the Administrator. * * *”

In Bowles, Administrator, O.P.A., v. Chew, D.C.Cal., 53 F.Supp. 787, 791, the court said:

“It is not subject to dispute that a ‘person who buys * * * for use or consumption,’ means, in the ordinary sense, the consumer, i.e. the general public buying over the counter, for its own use. In order that there might be no doubt that Congress intended this description to be in the ordinary sense, it added the excluding clause: ‘other than in the course of trade or business.’ Thus the tradesmen, i.e., merchants engaged in business, buying and selling between themselves, were not given the right to sue.

“It is clear to me that what Congress said and meant is that members of the general public who buy commodities, to use or consume themselves, may sue for treble damages, but that tradesmen, who deal and buy and sell between themselves in the course of business, may not sue one another.

“The rationale backgrounding this enforcement program is quite obvious. The consumer (member of the general using and consuming public) cannot in his daily life keep abreast of the ceiling prices of the countless articles on the market which he needs. He can easily be advantaged, since a small overcharge cannot readily be detected.

“* * * On the other hand, • Congress clearly indicated that merchants and dealers, trading with one another, presumably for profit, should not engage in inter-commercial litigation to enforce the Act or prevent violations. Hence the right to sue for such violations was reserved to the Administrator, inasmuch as he has licensing authority under the Act, and may, by virtue of the record-keeping requirement (§ 202(b) [50 U.S.C.A. Appendix § 922(b)] readily assemble the data for enforcement.”

The defendants cite the case of Brown, Price Adm’r, v. Glick Brothers Lumber Company et al., D.C.Cal., 52 F.Supp. 913, 917. That case covered a number of questions but on the question at issue here, the court said: “My view of the correct construction'of the law is as I announced from the bench: The right to sue for treble damages against any one regularly engaged in business, who has overcharged, either as a producer, wholesaler, or retailer is exclusively the right of the individual or concern having to pay the overcharge, and the Administrator has no right to sue in such instance, but is limited in his right to bring actions for treble damages to suits against black market operators and boot-leggers and others not regularly engaged in business.”

This case was reversed by the Circuit Court of Appeals, Ninth Circuit, Bowles, Adm’r, O.P.A., v. Glick Brothers Lumber Company et al., 146 F.2d 566, 568, and in that opinion the court not only passed on the other questions involved but analyzed Section 205 (e) as follows:

“* * * But one who buys for use or consumption other than in the course of trade or business — the ordinary non-commercial consumer — is not declared a violator. He is apparently thought to possess no choice in the matter. Hence he is the only member of the buying public empowered under § 205(e) to bring suit for treble damages. In all other cases the right vests in the Administrator for the use and benefit of the Nation as a whole.

“Such is the legislative policy charted by the statute with reasonable clarity. That the phrase ‘trade or business’ was intended by Congress to carry the meaning here ascribed to it is amply borne out by the legislative history of the Act. Senate Report, 931, p. 8 (77th Cong., 2d Sess.), states that § 205(e) ‘will permit private purchasers who buy for personal use or consumption rather than in the course of trade or business, to protect themselves against violations of the Act.’ Again, on p. 26 of the Senate Report it is said that ‘if a buyer, whose seller has violated a maximum price regulation or price schedule is not entitled to bring such action, because he is a buyer in the course of trade or business, or for other reasons the Administrator may bring such action against the seller on behalf of the United States.’ The Senate draft of § 205(e) was not changed in Conference, and was enacted as it originally stood. The Conference Report (No. 1658) states at p. 26 that ‘non-commercial consumers might institute treble damage suits.’ ”

The court further stated in the indicated footnotes as follows:

With reference to the footnote last above quoted, the official interpretation of the Office of Price Administration as stated in OPA Service 11:1105 reads in full: “The phrase ‘in the course of trade or business’ applies to purchases by industrial and commercial consumers as well as to purchases for resale. In general it applies to buyers engaged in commercial activity for profit. A county government purchasing for use in carrying out non-commercial functions is not a purchaser ‘in the course of trade or business.’ Official Interpretation, 7-3-42.”

Since the Circuit Court case last quoted is cited by the plaintiff the analysis by the court becomes highly material.

The plaintiff cites two cases in support of his contention. Speten v. Bowles, Adm’r., O.P.A., 8 Cir., 146 F.2d 602, which is in direct conflict with the case of Bowles v. Glick Brothers Lumber Company, supra, by the Ninth Circuit. The plaintiff, also, cites Bowles, Adm’r, O.P.A., v. Rock, D.C. Neb., 55 F.Supp. 865, and other District Court decisions.

I cannot bring myself to agree with the reasoning or the conclusions of the Eighth Circuit Court nor the District Court of Nebraska in the cited cases for the reasons hereinbefore set out. It seems to me that the turning point in this line of cases is whether the purchaser is the ultimate consumer or whether he is engaged in a strictly commercial enterprise, that is, engaged in purchasing for resale.

The motion to dismiss as to those portions of the complaint hereinbefore set out is sustained. An exception is allowed.

      “1 This appears to have been the interpretation of the Act adopted by the district courts in the bulk of the cases so far decided, cf., for example: Bowles v. Chew, D.C.N.D.Cal., 53 F.Supp. 787. According to the Administrator there have been more than a hundred cases in which those courts, either directly or by implication, have upheld the construction heretofore indicated. A dozen or more of the decisions are cited, but they do not appear to have been reported as of the date of the filing of the briefs.

      "2 The contemporaneous administrative interpretation (OPA Service 11:804) defines the phrase as having relation to purchases by industrial and commercial consumers as well as to purchasers for resale, that is, in general, to buyers engaged in a commercial activity for profit.”


author: HEALEY, District Judge.

text:
    OFFICE OF PRICE ADMINISTRATION v. GEORGIAN HOTEL CO.
    Civil Action No. 2615.
    District Court, D. Massachusetts.
    March 29, 1945.

      Cornelius J. Moynihan, Regional Enforcement Executive of OPA., and William B. Sleigh, Regional Litigation Atty. of OPA., both of Boston, for plaintiff.
    Henry M. Leen, of Boston, Mass., for defendant.
   HEALEY, District Judge.

This action is brought by the Administrator of the Office of Price Administration pursuant to the provisions of Section 205 (a) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix § 925(e)

The plaintiff seeks to enjoin the defendant from violating section 4(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 904(a), by demanding or receiving rents in excess of those established by the applicable Maximum Rent Regulation. The plaintiff also seeks a mandatory injunction requiring the defendant to make restitution to persons from whom the defendant has received rent in excess of the maximum legal rent.

The defendant has consented to a decree enjoining future violations. The defendant has also admitted the allegations of past violations.

The only question raised by the defendant is the narrow one of whether or not this court has the power to enter a decree ordering restitution.

This narrow question presents considerable difficulty, and there is a dearth of authority on the point.

Section 205(a) of the Emergency Price Control Act of 1942 provides that under certain circumstances which are admittedly present in this case, the Administrator may apply for “an order enforcing compliance * * * and * * * a permanent or temporary injunction, restraining order, or other order shall be granted without bond.”

The question to be decided is whether or not this language grants to the court the authority or power to order restitution.

Various judges in unreported decisions have granted relief in the nature of restitution.

Section 205(a) authorizes the Administrator to apply for an “order enforcing compliance.” In my opinion, such an order could embrace the rectification of a situation caused by past noncompliance, as well as the prevention of future noncompliance. The language used is broad, and the purposes of the Act are more nearly effectuated by such an interpretation. Furthermore, Section 205 (a) provides that the court shall grant “a permanent or temporary injunction, restraining order, or other order.” It would seem from this language, that the relief which may he granted is not limited to enjoining future violations. In my opinion, the order for restitution sought is such an “other order.”

As pointed out above, the language of the Emergency Price Control Act is very broad. Section 17 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 217, is much narrower. That section merely gives to the district courts jurisdiction “to restrain violations of section 15” of the Fair Labor Standards Act of 1938. However, the United States Circuit Court of Appeals for the Second Circuit in Walling v. O’Grady, 146 F.2d 422, held that Section 17 of that Act authorized the district courts to order the payment of back pay in a case of discriminatory discharge in violation of Section 15(a) (3), 29 U.S.C.A. § 215(a) (3). In that case the defendants had discharged an employee because he had sued the defendants under Section 16(b) of the Act, 29 U.S. C.A. § 216(b). The Administrator of the Wage and Hour Division of the United States Department of Labor then brought suit to enjoin the defendants from continuing to violate the provisions of Section 15(a) (3) of the Fair Labor Standards Act, and to require them to reinstate the employee and make him whole for loss of wages. The trial court issued a mandatory injunction requiring the defendants to offer the employee reinstatement, but held that it was without authority to order payment of back pay. The Circuit Court of Appeals reversed the judgment of the trial court in part, holding that the court had authority to order the payment of back pay. During the course of its opinion, the Court said:

“The trial judge held that he could not grant back pay because there was nothing in the Act providing for back pay or allowing damages for a discriminatory discharge. But such a discharge was unlawful by Section 15(a) (3) and an injunction to prevent its continuance would have been proper under Section 17 as soon as the discharge took place. It seems unreasonable to suppose that the failure immediately to prevent it left the employee without remedy for loss of wages in the meantime and that the provisions for an injunction and for fines for disobedience of the Act are to be taken as nullifying any other remedy for the wrong. It is probable that the employee could have brought an individual action for loss of wages but such an action would not furnish a remedy adequate for such cases. The amount involved ordinarily would be small and the expense of recovery disproportionate and it seems more in accord with the spirit of sound labor legislation to allow the Administrator to restore all the rights of an employee in a single action instead of requiring one action for an injunction and reinstatement by the Administrator and another by the employee for loss of ad interim wages. We can see little difference between giving reparation to an employee for loss of wages as ancillary to injunctive relief against withholding employment and giving back pay where an injunction for reinstatement has been violated as the court did in Texas & N. O. R. Co. v. Brotherhood of Ry. [& S. S.] Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. * * * In each case such reparation is necessary to restore the status quo interfered with by the unlawful conduct of the employer and in neither case is there a statutory mandate spelling out all the details of relief necessary for the purpose in hand.”

And again:

“There can be no doubt that the right of the Administrator to enforce payment of wages lost by the discharge would promote the purposes of the Act * *

It seems to me that, if such relief may be granted under Section 17 of the Fair Labor Standards Act of 1938, a fortiori, the relief sought by the plaintiff in the instant case may be granted.

A decree shall be entered in the form of Exhibit B, annexed to the “Stipulation” filed in this case.

       Section 205 (a) provides:
      “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.”

       Section 4(a) provides:
      “It shall be unlawful, regardless of any contract, agreement, lease, or other obligation. 'heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity, or to demand or receive any rent for any defense-area housing accommodations, or otherwise to do or omit to do any act, in violation of any regulation or order under section 2, or of any price schedule effective in accordance with the provisions of section 206, or of any regulation, order, or requirement under section 202(b) or section 205(f), or to offer, solicit, attempt, or agree to do any of the foregoing.”

       Section 17 provides:
      "The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 20 (relating to notice to opposite party) of the Act entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes’ approved October 15, 1914, as amended (U.S.O., 1934 edition, title 28, sec. 381), to restrain violations of section 15.”


author: BORAH, District Judge.

text:
    THE VULCAN. RIVERSIDE TRAWLING CO., Inc., v. THE VULCAN et al. RIVERSIDE PACKING CO., Inc., v. SAME.
    Nos. 624, 625.
    District Court, E. D. Louisiana, New Orleans Division.
    April 7, 1945.
    Richard B. Montgomery, Jr., of New Orleans, La., for libelant.
    John D., M. A. & Edwin H. Grace, of New Orleans, La., for Sabine Towing Co., Inc.
    Lemle, Moreno & Lemle, of New Orleans, La., for River Terminals Corporation.
   BORAH, District Judge.

On the afternoon of December 5, 1942 the fishing boats, Racketeer and Gertrude, were moored alongside the wharf of the Riverside Packing Company, Inc., at Berwick, Louisiana. This wharf is located on the west side of Berwick Bay immediately south of the Southern Pacific Railroad bridge. The Gertrude was moored higher upstream partly protected by the west fender of the draw which lay on her starboard hand and the Racketeer was moored immediately behind her.

At this time the tug Vulcan, with barges 93, 44 and 91, owned by the River Terminals Corporation, in tow, was proceeding up the Atchafalaya River bound on a voyage to Baton Rouge, Louisiana. Before rounding a bend in the river which screened the bridge from view and when within about one mile of the bridge, the mate, who was then at the wheel of the tug, signaled for a passage through the bridge and received an all-clear signal in response. On reaching a point within three-quarters of a mile from the Southern Pacific Company’s bridge across Berwick Bay connecting Berwick and Morgan City, the speed of the tug was reduced to slow or about two and a half miles per hour. Under a slow bell with the current running at the rate of about two and a half miles an hour and with a strong wind out of the southwest, the tug proceeded on a general northerly course and came within sight of both of the bridge spans when 'the latter were about 1200 or 1500 feet away. When the bridge came into view the tug was lined up to pass through the east span, which is on the Morgan City side of the bridge, but the mate and the master, who was standing on the bridge nearby, observed that a pile driver and some barges were blocking its passage. When about 1500 or 1600 feet distant from the bridge they received a warning that the east span was closed to navigation when one of the bridge tenders out on the center span signaled them to pass through the west span. Upon receipt of this warning the tug changed course and headed for the west span.

The master of the Vulcan described the maneuvering of the tug and tow in this fashion: “Well, the current was running in, as I say, and when I swung up to the left, that threw a swing in my barges, putting the current on the left hand side of the tow. Naturally that sent them down a little, and when I swung into the bridge, the middle barge struck the center pier of the bridge. I was going at slow speed when the barge struck the bridge. Then I rang for full speed, to pull them on through, and the line parted between the lead barge and the second barge. I went on through with the lead barge and the other two barges glanced on and struck this fishing boat on the left hand side.”

At this juncture we encounter a variance between the verified answers of the Sabine Towing Company, Inc., and the testimony of the master of the tug. The answers set forth that the “rubbing” of the second barge against the bridge fender was accidental. The master’s testimony, however, is that the “rubbing” was intentional. Other inconsistencies will be adverted to later on.

There is no controversy here as to what happened to the two barges after they had broken loose from the lead barge. It is conceded by all that they swung over to the west bank and crashed into the Gertrude and Racketeer with great force, causing each vessel to sink.

As a result of this collision two separate libels were filed against the tug Vulcan and the River Terminals Corporation barges 93, 44 and 91, one libel being instituted by the Riverside Trawling Company, Inc., the owner of the Gertrude, and the other by the Riverside Packing Company, Inc., the owner of the Racketeer. The River Terminals Corporation, as the owner of the barges 93, 44, and 91, and the Sabine Towing Company, Inc., as the owner of the tug Vulcan, appeared separately in each case claiming their respective vessels and each separately posted release bonds. Thereafter the River Terminals Corporation filed petitions under the 56th Admiralty Rule, 28 U.S.C.A. following section 723, against the Sabine Towing Company, and the latter filed similar petitions against the former. By stipulation of the parties it was agreed that these cases should be consolidated for trial insofar as the question of liability is concerned, separate decrees to be rendered in each case. The questions for decision are: Whether the libelants are entitled to recover their damage or any part thereof for the sinking of the two fishing boats which they own; and if so, what is the liability therefor between the Sabine Towing Company as the owner of the tug Vulcan and the River Terminals Corporation as owner of the three barges.

Too well settled to require extended citation of authorities is the principle of admiralty that in a collision between a moving vessel and a vessel moored in a proper place there is a presumption of negligence on the part of the moving ship. The Waterford, 2 Cir., 6 F.2d 980, 981.

In the instant case the libels allege that the Gertrude and the Racketeer were moored to the dock where they had a right to be at the time of the collision. On the other hand, the respondent claimant asserts that these two vessels were moored “in an improper and unsafe place, and unnecessarily and negligently exposed to danger, * * * and should take the consequences of said collision.” There was evidence introduced to the effect that the owners of the two fishing boats “had no official license for a wharf at the particular point at which these boats were moored.” However, the president and general manager of the two Riverside companies testified that they had been operating their vessels from that wharf since 1935, and that, prior to that time, the Norman Breaud Lumber Company, from which the wharf was purchased, had done likewise.

Assuming without deciding that the wharf was not authorized by law and that the Gertrude and Racketeer were illegally moored thereto, it does not follow that libelants are ipso facto barred from recovering damages. Under the authorities it is plain that libelants may be permitted to show that the existence of the unauthorized wharf not merely might not have been one of the causes of the collision or that it probably was not, but that it could not have been. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726.

In my opinion libelants have discharged this burden. In its answers the Sabine Towing Company, Inc., alleges that “the collision * * * was occasioned solely as a result of the breaking of the couplings * * * for which claimant denies liability * * *” And this allegation finds support in the testimony of the master. It follows therefore that if the parting of the ropes was the sole cause of the accident, the allegedly illegal mooring of the fishing boats could not have been one of the causes. It is not necessary, however, to base this conclusion solely upon these admissions. The entire record shows the parting of the coupling lines and the subsequent collision were caused by 'the negligent manner in which the tug Vulcan was handled.

The evidence in this case is all one way and to the effect that it was the port coupling line between the lead barge and barge No. 2 that broke first, and all of the witnesses on the tug testified that the line did not break until the engine on the tug had been put full speed ahead. Now what happened and the reason for its happening is obvious. When barge No. 2 came to rest against the bridge fender approximately amidship of the barge and the tug was put full speed ahead this pulled the lead barge to the right putting the' starboard after corner of No. 1 barge against the forward starboard corner of No. 2 and placed the entire strain on the coupling line between the after port corner of barge No. 1 and the forward port corner of No. 2 barge. There was therefore on the port coupling line between No. 1 and No. 2 barges all of the strain of the pull of the tug, the weight of No. 1 barge, all of the force exerted on the No. 1 barge by the current and also the weight of No. 3 barge plus the force of the current on the No. 3 barge. The pull of the tug, the weight of the loaded oil barges and the force of the current put an inordinate strain upon the coupling lines. It was never intended that any such strain should be put on those coupling lines, and the fact that the port coupling line parted and that the entire pull was pht on the starboard coupling line causing it to break does not under these circumstances raise any presumption that they were unfit for use as coupling lines under normal conditions.

If the master’s testimony that he intentionally permitted the second barge to strike the fender is accepted, it follows that he was further negligent, for the “Rules and Regulations to Govern - the Use, Administration and Navigation of all Waterways Tributary to the Gulf of Mexico (except the Mississippi River and its tributaries), from St. Marks, Florida, to the Rio Grande,” Section 5, Subsections c and d, provide “That tows designed to pass a bridge shall approach the opening along the axis of the channel so as to pass through without danger of striking the bridge or fenders. * * * ”

The tug owners seek to justify its maneuvering on approaching and passing through the bridge on the ground that those in charge of her navigation did not know that the east span was closed until it was too late to turn around and take the tow back down the river. I cannot agree. The master, of the tug knew that the mate had come through the west span of the bridge several days before on the Trojan and he had been told that the east span was then closed. If those in charge of the navigation of the tug did not actually know that the east span was closed to navigation they at least had knowledge of facts sufficient 'in themselves to place a prudent navigator on notice that there was a likelihood that the east span would be closed and that he should approach the bridge with his tug and tow under control and be prepared to line them up to pass through either span. This they did not do; and, failing in this, they also neglected to take into account the known existing conditions of wind and tide. The coupling lines were broken in a vain effort to overcome the master’s own negligence, and I am convinced from the evidence that the coupling lines yielded to a strain that was more than should have been put upon them.

Immediately after the accident the master of the Vulcan furnished the Coast Guard with a written statement in which to the extent here pertinent he described the accident in this language:

“While approaching Southern Pacific Bridge at Morgan City from down stream with a strong southwest wind and strong flood tide, tow sheared to the left causing barges to strike center approach on bridge, breaking tow lines on lead barge causing two stern barges to go into two fishing boats on west bank of river, sinking both of them, one being the Gertrude and the other the Racketeer, also damaging approach to bridge slightly. * * *”

According to this statement the tow-lines parted as a result of the barges coming into contact with the bridge. Thus again the evidence shows that the parting of the tow lines was the sole cause of the accident.

The towage agreement between the claimant tug company and the River Terminals Corporation provided that the latter should “furnish connecting or coupling lines”, and that the former was to act “solely as an independent contractor” and was to “have exclusive control in every particular of the method and manner of performing the towage operations”. Under the terms of the foregoing provisions the Sabine Towing Company maintains that the River Terminals Corporation is chargeable for any responsibility that may attach as a result of the parting of the coupling lines and the consequent collision. The River Terminals Corporation, on the other hand, insists that since the Sabine Towing Company had exclusive control over the tow-age operations, it had the duty to reject the barge company’s ropes if they were defective, which the River Terminals Corporation denies, and the further duty to furnish its own lines, charging the River Terminals Corporation for the expense.

It is well recognized in admiralty that, if a hawser is subject to an extraordinary strain because of a sudden ma-neuvering made necessary by the prior negligence of the master of the tugboat, the latter is responsible for the resulting parting of the coupling lines and the consequent collision. City of Philadelphia v. Gavagnin, 3 Cir., 62 F. 617, 618; The Edmund Moran, 2 Cir., 180 F. 700, 701-702; Calzavaro v. Planet S. S. Corporation et al., 4 Cir., 31 F.2d 885, 888.

This responsibility for the parting of a hawser occasioned by a maneuver that in turn is made necessary by the tug master’s prior negligence has been recognized even in cases where the hawser is furnished by the tow. The Alpha, 27 F. 759, 761. See also Calzavaro v. Planet S. S. Corporation et al., supra.

Similarly, it has been repeatedly held that it is the tug master’s duty to inspect hawsers before starting out on a trip, whether they are furnished by tug or tow In The Quickstep, 9 Wall. 665, 76 U.S. 665, 671, 19 L.Ed. 767, the court said:

“It was the duty of the tug, as the captains of the canal-boats had no voice in making up the tow, to see that it was properly constructed, and that the lines were sufficient and securely fastened. This was an equal duty, whether she furnished the lines to the boats, or the boats to her. In the nature of the employment, her officers could tell better than the men on the boats what sort of line was required to secure the boats together, and to keep them in their positions. If she failed in this duty she was guilty of a maritime fault.” (Emphasis supplied)

In the instant case there were no crewmen aboard the barges. A fortiori, the rule announced in The Quickstep should apply. Again, in The Margaret, 94 U.S. 494, 495, 496, 24 L.Ed. 146, when a tug was about to take on a tow, “the linesman on the tug called for a line, and it was handed to him over the starboard bow.” The tow, a brig, was grounded on a bar. In the maneuvering that followed, first the port line and then the starboard line broke. The court said: “If the port line was too weak, the tug should have called attention to it. Silence was a fault.”

The master of the Vulcan testified that following the accident his crew took what it “could salvage of those lines, spliced them together, and made up the tow” and that the Vulcan then proceeded to Baton Rouge, where he arranged for the obtaining of two additional lines. .The evidence shows that the vice president of the River Terminals Corporation started an investigation to find the broken coupling lines, asking its proctor to get in touch with the tug company’s proctor “and have him ask his client to endeavor to help * * * to get the lines”. The lines have never been found, according to this witness, and his testimony stands uncontradicted.

In other words, the parted coupling lines were last in the possession of the respondent tug company, which has not produced them. This failure to come forward with the best evidence as to the damaged ropes gives rise to the presumption that the lines, if produced, would constitute mute evidence unfavorable to the tug company. In Interstate Circuit v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610, the court said:

“The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse. Clifton v. United States, 4 How. 242, 247, 11 L.Ed. 957. Silence then becomes evidence of the most convincing character.” (Many cases cited).

This doctrine has been adopted in this circuit and has been applied in a rope case. In Colvin v. Kokusai Kisen Kabushiki Kaisha, 5 Cir., 72 F.2d 44, 46, the court used this language:

“We think it cannot be doubted that the failure to produce the rope was a matter for the serious consideration of the District Judge, and that it is to be considered by us in connection with all the other evidence, in reaching our conclusion whether the decree must be reversed.”

In its answer the tug company alleges that “while said lines were dirty and oily and appeared to have had considerable pri- or use, in the opinion of the master of the tug Vulcan, and from his many years of experience in towing, said coupling lines appeared to be good and sufficient for the use to which they were to be put * * *” Since the testimony is undisputed that coupling lines were not used by the Vulcan for more than two or three trips, it might well be argued that the master was negligent in using lines so unpropitious in appearance.

The tug company is confronted with this situation: Either the lines showed evidence of “considerable” prior use and the Vulcan’s master was negligent in using them without having first subjected them to a more careful examination; or the lines were sound and staunch, and parted only because of the extraordinary strain to which they were subjected as a result of the Vulcan’s negligent maneuvering. This record in my opinion fully supports the latter conclusion.

I am persuaded that the fault of the collision lies solely with the claimant tug company and that the two barges were but passive instrumentalities in the hands of the tug. Where as here the tugboat supplying the power is in control and the tow inert and helpless, the towing vessel alone is liable for fault and errors in navigation. Sturgis v. Boyer, 24 How. 110, 16 L.Ed. 591; The Eugene F. Moran, 212 U.S. 466, 29 S.Ct. 339, 53 L.Ed. 600; The Liverpool etc. Navigation Co. v. The Brooklyn Terminal, 251 U.S. 48, 40 S.Ct. 66, 64 L.Ed. 130.

It follows that the libels should be dismissed as to the barges and their claimant, River Terminals Corporation; that the petitions filed by the Sabine Towing Company against River Terminals Corporation should likewise be dismissed, and that the Riverside Trawling Company and the Riverside Packing Company are each entitled to a decree against the tug Vulcan and her claimant, the Sabine Towing Company, for full damages and a reference to compute the amount.


author: KALODNER, District Judge.

text:
    UNITED STATES v. BAUR.
    No. 4431.
    District Court, E. D. Pennsylvania.
    April 19, 1945.

      Gerald A. Gleeson, U. S. Atty., and James P. McCormick, Asst. U. S. Atty., both of Philadelphia, Pa., for plaintiff.
    J. Hibbs Buckman, of Philadelphia, Pa., for defendant..
   KALODNER, District Judge.

This is an action for a preliminary injunction brought by the United States of America to prevent and restrain violations of the Act of Congress of June 28, 1940, 54 Stat. 676, entitled “An Act To expedite national defense, and for other purposes”, as amended by the Act of Congress of May 31, 1941, 55 Stat. 236, herein referred to as the “National Defense Act”, 50 U.S. C. A. Appendix, § 1151 et seq., and as amended by the Act of Congress of March 27, 1942, 56 Stat. 176, entitled “An Act To further expedite the prosecution of the war”, herein referred tó as the “Second War Powers Act, 1942”, 50 U.S.C.A.Appendix, § 631 et seq., and of regulations and orders issued thereunder as hereinafter more fully set forth.

The jurisdiction of this court is based upon Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), and the Second War Powers Act, 1942, mentioned above.

The sole question for determination is whether defendant delivered milk, cream and butterfat-in-cream, in excess of the quotas established by the said Food Orders Nos. 79 and 79.33 contrary to the provisions of the said Orders.

After consideration of the testimony and pleadings and the arguments of counsel, I make the following

Findings of Fact

1. The defendant, Philip Baur, doing business as Witchwood Dairy, was, and still is, engaged in the handling of milk, milk by-products and cream, at Spring House, Montgomery County, Pennsylvania, and is a “handler” as that term is defined in paragraph (a) (2) of War Food Order No. 79.

2. The War Food Administrator, pursuant to authority vested in him, issued War Food Order No. 79, effective September 10, 1943, The Director of Food Distribution, pursuant to authority vested in him, issued War Food Order No. 79.33, effective October 10, 1943, and War Food Order No. 79.102, effective December 1, 1943.

3. War Food Orders Nos. 79, 79.33 and 79.102 were and still are in full force and effect.

4. That between March, 1944, and November, 1944, the defendant, in violation of War Food Orders Nos. 79 and 79.33, delivered milk, cream and butterfat-in-cream, in excess of the amounts authorized by the aforesaid War" Food Orders.

Discussion

The testimony clearly established the delivery, by the defendant, of milk, cream and butterfat-in-cream, in excess of the quotas established by the said Food Orders Nos. 79 and 79.33 contrary to the provisions of the said Orders.

It is clear that the issuance of a preliminary injunction is necessary to prevent immediate and irreparable damage, for the reason that if the defendant continues to violate Food Orders No. 79 and 79.33, the plaintiff will be prevented from properly controlling and insuring an adequate supply and efficient distribution of milk, cream and butterfat-in-cream to meet war and essential needs, according to the necessity of national defense and the war effort and the conserving the supply thereof.

Accordinglly, I state the following

Conclusion of Law

The delivery by the defendant, of milk, cream and butterfat-in-cream, in excess of the quotas established by the said Food Orders Nos. 79 and 79.33 is contrary to the provisions of the said Orders.

An injunction may' issue and an order may be submitted in accordance with this opinion, the order to be effective as of April 1, 1945, in accordance with ruling made at time of hearing on March 20, 1945.


author: WELSH, District Judge.

text:
    KNIGHT v. PEOPLE et al.
    Civ. No. 5059.
    District Court, N. D. California, N. D.
    April 12, 1945.
    Harry Knight, in pro. per.
    Robert W. Kenny, Atty. Gen., and James O. Reavis, Deputy Atty. Gen., for respondents.
   WELSH, District Judge.

Facts.

Petitioner is in the California State Prison at Folsom. His petition recites that he was committed thereto pursuant to a commitment issued by the Superior Court of 1 lie State of California, in and for (he County of Los Angeles. A jury in said court found him guilty on one count for robbery, another for assault to commit murder, and a third charge of being an habitual criminal.

Petitioner claims that he is being unlawfully restrained of his liberty in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States. His claim of lack of due process is predicated upon three points: (1) that he was convicted upon perjured testimony; (2) misconduct of the District Attorney; and (3) misconduct of the trial judge.

Petitioner has raised the same points heretofore in a similar petition for a writ of habeas corpus in the courts of the State of California. He filed such petition on or about the 23rd day of January, 1943, in the California Supreme Court. It was transferred to the District Court of Appeal for the Third Appellate District, Ex parte Knight, Civ.1849, which court issued an order to show cause; the Attorney General of California filed an answer to said order on behalf of the Warden of Folsom State Prison; a hearing was had and briefs were filed. The writ was discharged. A petition for a re-hearing was filed and denied.

Petitioner herein referred to said proceeding in the State court and stated that he was unable to include all of his supporting documents. This court has, therefore, examined the files in said matter. The testimony therein consists of 815 pages which have been read.

Said files disclose that petitioner raised the same points in the State court that he raises here, and based them on the same exhibits. His principal reliance is based on an affidavit of one Alvin Cowart, who was a witness for the prosecution. Said affidavit purports to repudiate his testimony given at the trial. Affiant sets forth that the defendant did not commit the crime, that affiant was persuaded to testify to defendant’s guilt by the Deputy District Attorney and that said attorney paid him the sum of approximately $100 as an inducement for his testimony.

The Deputy District Attorney filed a counter-affidavit wherein he specifically denied the charges. A clerk in the District Attorney’s office who had charge of the financial division made an affidavit wherein she set forth the dates on which six checks totaling $56 were issued to said witness for the purpose of enabling him to subsist until the date of the trial. Counter-affidavits of deputy sheriffs and others also appear in the record.

It is significant that petitioner made a motion for a new trial in connection wherewith the same affidavit of the same witness Cowart was used. His motion for a new trial was denied and an appeal taken. The transcript of said appeal in Re Knight, Criminal No. 3429, in the District Court of Appeal of the State of California, discloses that the same questions as were subsequently. raised in the same court on habeas corpus and now raised herein, were fully argued and considered in connection with said appeal.

The opinion in People v. Knight, 44 Cal.App.2d 887, 113 P.2d 226, disposed of the defendant’s appeal on its merits. The opinion in Ex parte Knight, 62 Cal.App.2d 582, 144 P.2d 882, disposed of petitioner’s contentions with reference to unlawful restraint of his liberty.

Questions

Should this court now grant a writ of habeas corpus to petitioner when he

(a) as a defendant in a trial court of the State of California, was convicted by a jury, made a motion for a new trial based on the same grounds and supported by the same documents as urged and presented herein, which motion for new trial was denied ?

(b) appealed from his judgment of conviction in the State Court, and his conviction has been affirmed by the highest court in said State?

(c) filed a petition for writ of habeas corpus in the Appellate Court of the State, again on the same grounds and based on the same documents, which court denied his petition ?

(d) has been denied certiorari by the Supreme Court of the United States.

These questions can all be answered in the negative.

The petition recites specifically: “That prior to the date hereof * * * petitioner applied to and invoked the original jurisdiction of the District Court of Appeal of the State of California, Third Appellate District, for a writ of habeas corpus on the same grounds as set forth in this petition * * * which said application was denied by said Court * * * thereafter * - * * your petitioner made application to the Supreme Court of the State of California for a writ of habeas corpus on the same grounds as set forth in this petition * * * which said application was denied by said Supreme Court * * * whereupon petitioner made application to the Supreme Court of the United States, for a writ of certiorari * * * and said application was denied by the Supreme Court of the United States.”

It thus appears from the face of the petition itself that the writ prayed for should not be granted by this court. Petitioner has had the same material as that now submitted herein considered- by the justices of two California Appellate Courts and of the Supreme Court of the United States. It would be contrary to sound and well-established policy for this court to hold otherwise than has already been held with reference to petitioner’s claims.

Mr. Justice Brewer, sitting on the Circuit, said of applications of this kind that the federal courts “ * * * should not be covetous, but miserly, of jurisdiction. * * * Especially is that true of cases in which the state is attempting, in its own courts, to enforce its statutes, designed for the peace and good order of its citizens.” State of Kansas v. Bradley, C.C., 26 F. 289, 292.

Petitioner has filed an affidavit wherein he recites that it has been necessary to refer to testimony contained in the reporter’s and clerk’s transcripts on appeal in People v. Knight, Criminal No. 3429, in the District Court of Appeal of the State of California, 2nd District, and requests this court to issue an order directing the clerk of said District Court of Appeal to forward the record of said case. He states in his petition for a writ herein that the originals of affidavits made a part of said petition are in the files of said District Court of Appeal. Said petition also refers to criminal proceeding No. 1849 in the District Court of Appeal of the State of California, 3rd Appellate District.

This court has examined the records in both of said actions so referred to by petitioner. It has also analyzed carefully the opinions of said courts in said matters.

In People v. Knight, 44 Cal.App.2d 887, 113 P.2d 226, the conviction of petitioner herein was affirmed. Mr. Justice Wood sets forth therein the facts with particularity which shows a careful analysis of the testimony. He concludes (page 891 of 44 Cal.App.2d, page 228 of 113 P.2d): “The contention of defendant that the evidence is insufficient to justify the conviction is devoid of merit. Defendant was identified as the robber by two witnesses, whose testimony is supported by a number of circumstances, including circumstances in addition to those above set forth, from which inferences of guilt could be reasonably deduced.”

Regarding the charge of prior conviction of a felony the court said (page 893 of 44 Cal.App.2d, page 229 of 113 P.2d): “The court discharged its duty as required by section 1078 of the Penal Code and in doing so presented the issues to the jury in a manner which was fair to defendant.”

The court further said (page 894 of 44 Cal.App.2d, page 230 of 113 P.2d): “A number of instances are cited by defendant in which he claims that the prosecutor was guilty of prejudicial misconduct.” With reference to one such it said: “In view of the court’s admonition we are satisfied that no prejudice was suffered by defendant.”

As to others, the court said (page 895 of 44 Cal.App.2d, page 230 of 113 P.2d): “Some of the instances of alleged misconduct resulted directly and naturally from statements which had been made by defense counsel. Other assignments of misconduct on the part of the prosecutor were, except in instances where they were without merit, followed by the admonition of the trial court to the jury to disregard them. They are not of such nature as to furnish grounds sufficient to justify a reversal of the judgment.”

Said court answers the contention that the trial judge was guilty of misconduct by saying: “The record fails to bear out this assertion but it discloses a commendable effort on the part of the judge to conduct the trial in an orderly manner.”

This phase of the case was thus given ample consideration by the District Court of Appeal at Los Angeles. We agree with the views expressed by said court.

The District Court of Appeal of the State of California, 3rd Appellate District, at Sacramento, rendered an opinion Ex parte Knight, 62 Cal.App.2d 582, 144 P.2d , 882, 884, wherein it passed on the same questions which petitioner raises herein. This court concurs with the following views of said State court:

“Also the trial court, which had heard the testimony of this witness (Alvin Cow-art) at the trial, apparently was not impressed by it when it was presented on motion for a new trial. * * *

“A presumption of regularity applies to a judgment of the trial court when it is attacked on habeas corpus, and the writ may not be used to serve the purposes of an appeal. * * *

• “We are of the opinion that petitioner has failed to show that he was convicted upon perjured testimony, or, if Cowart’s testimony was perjured, then it was knowingly employed by the prosecution, as is charged. It is not the province of the writ of habeas corpus to retry issues already passed upon by the trial court and reviewed by the District Court of Appeal.

“Giving the affidavits filed by petitioner their fullest weight, he has not sustained the burden of proof cast upon him in this proceeding. His allegations are denied by the affidavit of George H. Johnson, Deputy District Attorney in charge of the prosecution of Knight, and by the seven other affidavits which were presented on petitioner’s motion for a new trial. These affidavits deny that any suggestions, promises or threats were made to Cowart to influence his testimony. They also present a statement made by Cowart prior to the trial in which he identified Knight as the person who committed the robbery and assault of which he was convicted, and in which he asserted that he was not making his statement because anyone had threatened him, or made him any promises. * * * Petitioner has failed to show that at his trial he was not accorded due process of law. He has not shown by any substantial or credible evidence that the testimony given by Cowart at the trial was false, and he has signally failed to show if such testimony was, in fact, false, that its falsity was known to the officials who prosecuted him.”

Claims comparable to those of petitioner herein with reference to perjured testimony have been disposed of adversely in the Mooney cases.

Thomas J. Mooney, subsequent to conviction of murder at the time of the Preparedness Day Parade in San Francisco in 1916, repeatedly sought his release from San Quentin Penitentiary, claiming that the verdict of the jury, judgment of conviction, commitment and restraint were without due process of law because of perjured testimony known to the District Attorney to be such.

The Supreme Court of California said, In re Mooney, 10 Cal.2d 1, 14, 73 P.2d 554, 561: “Therefore, proof of perjury alone, without satisfactory substantial proof of knowledge thereof or connivance therein by the prosecuting officials, can avail the petitioner nothing in this proceeding. * * * We conclude that petitioner has not established by substantial, credible evidence that his conviction was the result of perjury on the part of prosecution witnesses or that the prosecuting officers caused or suffered to be introduced at petitioner’s trial any testimony which they knew, or had reason to believe, was false.” In the earlier case of People v. Mooney, 178 Cal. 525, 529, 174 P. 325, 327, the same court took the view: “ * * * the truth or falsity of the testimony of the witnesses Oxman and Edeau was a part of the issue submitted to the jury, and that issue, upon the return of the verdict, became an adjudicated issue of fact, .which cannot now by the writ of coram nobis be readjudicated.”

The District Court of Appeals said in Re Mooney, 6 Cal.App.2d 730, 45 P.2d 388, 389: “The remedy in such a case, says the Supreme Court, rests only with the Governor of the state under his pardoning power, and he alone can afford relief.”

The Honorable A. F. St. Sure, District Judge, Northern District of California, said in Mooney v. Holohan, D.C., 7 F.Supp. 385, 387: “Whether the matters alleged by petitioner as grounds for the issuance of a writ of habeas corpus constitute a denial of ‘due process of law’ presents a question which this court may not consider upon the merits.' * * * Whether the laws of a state or the procedure of its courts in a criminal case is in violation of the constitutional rights of a convicted defendant will not be considered by a federal court on petition for a writ of habeas corpus, but petitioner will be left to his remedy in direct proceedings * * *, through which the question may ultimately be presented to the Supreme Court of the United States.”

A petition for a certificate of probable cause brought the matter before the Honorable William H. Sawtelle, Circuit Judge, In re Mooney, 9 Cir., 72 F.2d 503, 506, 508, wherein he said: “Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction * * * and that there shall be notice and opportunity for hearing given the parties. * * * The state courts had jurisdiction of the petitioner and of the subject-matter or offense, and that jurisdiction was never lost during the course of the proceedings in said courts. Under the facts as stated, the judgment of the state courts cannot be reviewed on habeas corpus.”

How rarely writs of habeas corpus have been issued pursuant to petitions in the Federal courts by persons imprisoned under judgments in the state courts is shown in Ex parte Roberts, D.C., 10 F.2d 163, 165:

“There have been but few cases of this character in which the Supreme Court of the United States has affirmed the issuance by federal courts of a writ of habeas corpus. I have been able to find but three cases. In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55; In re Loney, 134 U.S. 372, 10 S.Ct. 584, 33 L.Ed. 949; and Wildenhus’ Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565.

“These cases emphasize the ‘exceptional circumstances of peculiar urgency’ which the Supreme Court holds justifies the issuance by federal courts of the writ. Two of these cases raised the question of the interference by the state with the operations of departments of the federal government, and the other concerned 'the delicate relation of that government with a foreign nation.’ ”

Other decisions bearing on the situation presented herein are the following:

Kauffman v. Mount, 5 Cir., 131 F.2d 112: “Except under unusual and extraordinary circumstances a Federal Court will not entertain a petition for habeas corpus in respect of custody resting on State proceedings.”

United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138: “The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist.”

Ashe v. U. S. ex rel. Valotta, 270 U.S. 424, 426, 46 S.Ct. 333, 334, 70 L.Ed. 662: “In so delicate a matter as, interrupting the regular administration of the criminal law of the State by this kind of attack too much discretion cannot be used, and it must be realized that it can be done only upon definitely and narrowly limited grounds.”

Hawk v. Olson, 8 Cir., 130 F.2d 910, 913: “The exhaustion of state judicial remedies in a case which is not exceptional will not justify the issuance of a writ by a United States District Court or by a federal judge. This is because the necessary forbearance which the courts of a state and the courts of the United States exercise toward each other in the interest of harmony and to avoid conflicts (Frank v. Mangum, 237 U.S. 309, 329, 35 S.Ct. 582, 59 L.Ed. 969) will not sanction what would amount to a review by a District Court of the United States or by a single federal judge of a decision of the highest court of a state holding that the applicant is lawfully held in custody by the state authorities.”

Ex parte Lynch, D.C., 18 F.Supp. 673, 674: “It is as much the duty of the state court to enforce the provisions of the Constitution of the United States as of the federal courts. The judges in both courts are required to take an oath to support the Constitution of the United States. This court must presume that the judges of the several state courts will be as jealous of the constitutional rights of the accused as the federal courts.”

Urquhart v. Brown, 205 U.S. 179, 181, 27 S.Ct. 459, 460, 51 L.Ed. 760: “In view of the relations existing, under our system of government, between the judicial tribunals of the Union and of the several states, a Federal court or a Federal judge will not ordinarily interfere hy habeas corpus with the regular course of procedure under state authority.”

People ex rel. Albanese v. Hunt, D.C., 34 F.Supp. 444, 445: “A writ of habeas corpus is not a vehicle for a correction of errors on a trial as on an appeal.”

This court agrees with the expression in United States ex rel. Parker v. Carey, 7 Cir., 135 F.2d 205, 207: “To ask a Federal court to grant the writ of habeas corpus under the circumstances of this case would be indelicate.” Also that in Johnson v. Wilson, 5 Cir., 131 F.2d 1, 2: “The state and federal courts are equally bound to protect rights secured by the federal constitution, but there is a discretion vested in the federal courts as to the time and manner in which they will exert the powers conferred upon them by the federal statute commanding them to issue writs of habeas corpus forthwith on the presentation of a petition, to hear the case summarily, and thereupon to dispose of it as law and justice require. That discretion should be exercised in the light of the relation existing between state and federal courts under our dual form of government, which relation should not be disturbed by unnecessary conflicts between state and national tribunals that are equally bound to guard constitutional rights.”

Furthermore, while the doctrine of res judicata is inapplicable to successive applications for a writ of habeas corpus, the Honorable Stephen J. Field said in Ex parte Cuddy, C.C., 40 F. 62, 65: “The officers before whom the second application is made may take into consideration the fact that a previous application has been made to another officer and refused; and in some instances that fact may justify a refusal of the second.”

This statement of the former Chief Justice of the Supreme Court of California, who was elevated to the Supreme Court of the United States, was quoted approvingly in Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989, wherein a prior refusal to discharge on a like application was mentioned as a matter, “which may be considered, and even given controlling weight.”

The Honorable Justin Miller, Associate Justice, United States Court of Appeals, District of Columbia, has reviewed the law relative to habeas corpus, and vitalized it up-to-date with his rare sagacity, wisdom and vision in Dorsey v. Gill, App.D.C., 148 F.2d 857.

Judge Miller’s interpretation of Section 755, R.S., 28 U.S.C.A. § 455, applies . with especial force here: “It is apparent, therefore, that the words of the statute — from the petition itself — include information, available to the judge by judicial notice, to which the allegations of the petition refer, or upon which they depend; it is the duty of the judge to look through the petition, to the record, in order that he may discover such information; having done so, the exercise of sound judicial discretion may require that the petition be dismissed or leave to file it denied. In fact, this power and duty of the judge extends not only to the records of his own court, but to those of other courts as well.”

Not only does the present petition show that petitioner was regularly convicted in the courts of the State of California, and his conviction affirmed on appeal, but that he has made previous applications for writs of habeas corpus to said State courts, which applications have been denied, and that the Supreme Court of the United States has declined to review the denial.

The examination of all information available to this court by judicial notice and the records of all the courts just mentioned leads to the conclusion that the petition for writ of habeas corpus herein should be denied, and it is so ordered.