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2 F.(20) 765 parts of the returns, the prohibition remains ed and made available to public inspection in effect.

in such manner as he may determine, in the The demurrer to the indictment will be office of the collector in each internal revsustained.

enue district and in such other places as he

may determine, lists containing the name The statutes hereinbefore referred to are

and the post office address of each person as follows:

making an income-tax return in such dis“Returns to be Public Records.

trict, together with the amount of the in

come tax paid by such person.” “Sec. 257. (a) Returns upon which the “Sec. 3167. It shall be unlawful for any tax has been determined by the Commissione collector, deputy collector, agent, clerk, er shall constitute public records; but they

or other officer or employee of the United shall be open to inspection only upon order States to divulge or to make known in any of the President and under rules and regu

manner whatever not provided by law to lations prescribed by the Secretary and ap

any person the operations, style of work, proved by the President: Provided, that

or apparatus of any manufacturer or prothe Committee on Ways and Means of the ducer visited by him in the discharge House of Representatives, the Committee on

of his official duties, or the amount or Finance of the Senate, or a special com

source of income, profits, losses, expendimittee of the Senate or House, shall have tures, or any particular thereof, set forth or the right to call on the Secretary of the disclosed in any income return, or to perTreasury for, and it shall be his duty to mit any income return or copy thereof or furnish, any data of any character contain

any book containing any abstract or pared in or shown by the returns or any of. ticulars thereof to be seen or examined by them, that may be required by the commit- any person except as provided by law; and tee; and any such committee shall have the it shall be unlawful for any person to print right, acting directly as a committee, or by or publish in any manner whatever not proand through such examiners or agents as it vided by law any income return or any may designate or appoint, to inspect all or part thereof or source of income profits, any of the returns at such times and in such losses, or expenditures appearing in any manner as it may determine; and any rele- income return; and any offense against the vant or useful information thus obtained foregoing provision shall be a misdemeanor may be submitted by the committee obtaining and be punished by a fine not exceeding $1,it to the Senate or the House, or to both the 000 or by imprisonment not exceeding one Senate and House, as the case may be: Pro- year, or both, at the discretion of the court; vided further, that the proper officers of any and if the offender be an officer or employee state may, upon the request of the gover- of the United States he shall be dismissed nor thereof, have access to the returns of from office or discharged from employment.” any corporation, or to an abstract thereof

a showing the name and income of the cor

4 č 3 3 4 6 Tu poration, at such times and in such manner

Ctsus as the Secretary may prescribe: Provided HOME FURNITURE Co. et al. 'v. UNITED

STATES et al. * further, that all bona fide shareholders of record owning 1 per centum or more of the (District Court, W. D. Texas, El Paso Divi

sion. December 15, 1924.) outstanding stock of any corporation shall, upon making request of the Commissioner,

No. 146. be allowed to examine the annual income Courts fm 102(1)-When District Judge will returns of such corporation and of its sub- not pass on pleas to jurisdiction alone, stated. sidiaries. Any shareholder who pursuant

Under Act Oct. 22, 1913 (Comp. St. $ 998), to the provisions of this section is allowed enforcement of order of Interstate Commerce

requiring that hearing on application to enjoin to examine the return of any corporation, Commission shall be before three judges, at and who makes known in any manner what. District Judge will not pass on pleas to jurisever not provided by law the amount or diction where counsel desire hearing before source of income, profits, losses, expendi- three judges, and different judge has decided

that court has no jurisdiction. tures, or any particular thereof, set forth or disclosed in any such return, shall be In Equity. Suit by the Home Furniture guilty of a misdemeanor and be punished by Company and others against the United a fine not exceeding $1,000 or by imprison- States, the Interstate Commerce Commisment not exceeding one year, or both. sion, and others, wherein application to en

"(b) The Commissioner shall as soon as join enforcement of an order of the Interpracticable in each year cause to be prepar- state Commerce Commission was made. On motion that court call to its assistance two After the entry of the above order, all of other judges before whom might be heard the defendants filed pleas to the jurisdicpleas to jurisdiction. Motion granted, and tion. case set for hearing.

*Pending in U. S. Supreme Court.

Now, 48 days after the signing of the Sweeney & Wade, of El Paso, Tex., for above order, the complainants again appear complainants.

and ask that this court call to his assistH. R. Gamble, Sp. Asst. U. S. Atty., of ance a Circuit Judge and another District El Paso, Tex., J. H. Tallichet, of Houston, Judge to hear and rule such pleas. Tex., and Kemp & Nagle, W. A. Hawkins,

The defendants suggest that they are not and Del W. Harrington, all of El Paso, asking to have their pleas to the jurisdiction Tex., for defendants.

passed upon at this time; that at some more

convenient date there may be available three ATWELL, District Judge. This bill was judges and at that time action may be takfiled some time in October, 1924. At the en. The complainants, however, insist that time of its filing there was no judge avail- the cause should be speeded to its ultimate able in the El Paso division; Judge Smith

conclusion. being deceased. On October 27, 1924, it was

The Commerce Court which was originally presented to Judge Neblett, who was sitting vested with the jurisdiction to pass upon by designation. After having considered

judgments of the Interstate Commerce Comthe bill, Judge Neblett entered the follow- mission, was abolished on December 31, ing order:

1913, and the jurisdiction was vested in “Be it remembered, that on this day was

District Courts. The Act Oct. 22, 1913 presented to the court the original bill of (Comp. St. $ 998) provides: “No intercomplaint in this cause, and came on to be locutory injunction suspending or restrainheard on the oral motion of the complain

ing the enforcement, operation, or execuants, through E. C. Wade, Jr., Esq., their tion of, or setting aside, in whole or in part, solicitor, that this court call to its assist- any order made or entered by the Interstate ance two other judges that the complain

Commerce Commission shall be issued or ants may make an application to said three granted by any District Court of the Unitjudges for an injunction suspending and ed States, or by any judge thereof, or by any restraining the enforcement, operation, and Circuit Judge acting as District Judge, unexecution of the order of the Interstate less the application for the same shall be Commerce Commission, complained of in presented to a Circuit or District Judge, and the complaint; and the court, having heard shall be heard and determined by three judgsaid bill of complaint read and having es, of whom at least one shall be a Circuit heard the oral motion hereinabove referred Judge, and unless a majority of said three to, together with counsel's argument there- judges shall concur in granting such applicaon, and being fully advised in the premises, tion. When such application as aforesaid is is of the opinion that, it appearing from a presented to a judge, he shall immediately reading of the complaint that the residence call to his assistance to hear and determine of the defendant the Southern Pacific Com- the application two other judges.” pany, a corporation, is in the state of Ken- The act also provides that “the hearing tucky, and the residence of the defendant upon such application for an interlocutory the El Paso & Southwestern Railroad Com- injunction shall be given precedence and pany, a corporation, is in the state of Ari-' shall be in every way expedited.” zona, and the order sought by complainants

At what point-when-shall the one judge to be suspended and its operation, execu- call in the other two judges? Is it imperation, and enforcement restrained, was grant- tive that he call them for every order and ed by the Interstate Commerce Commission preliminary step that is taken in the shapon the application of said two defendants, ing of the case prior to the hearing of the the venue of this suit being in the state of injunction feature? May one judge deterArizona or in the state of Kentucky, the mine, not upon the merits of the bill, but court is without jurisdiction to grant the

as to the parties, that there is no jurisdicapplication.

tion? Or must every step be taken before "It is therefore ordered, adjudged, and the entire court as constituted in the statdecreed by the court that the motion of ute? complainants be and the same is denied; Manifestly, any proceeding or judgment to which ruling of the court the complain- or order which involves the merits of the ants, through their attorneys, in open court bill, which touches the paramount policy that excepted.”

is and was back of the reason for the stat.

2 F.(20) 767 ute, must be considered by the assembled nois Cent. R. Co. v. Railroad Commission of judges that their combined wisdom may ad- Kentucky (D. C.) 1 F.(20) 805; Lambert judge the difficulties.

Co. v. B. & O. R. Co., 258 U. S. 383, 42 S. That sentence of the statute which says Ct. 349, 66 L. Ed. 671. that, "upon the final hearing of any suit The difficulty of the present situation, brought to suspend or set aside, in whole however, is that Judge Neblett, to whom the or in part, any order of said Commission present bill was presented, and who was the same requirements as to judges and the presiding at that time in this court, and same procedure as to expedition and appeal whose decision and order this court has no shall apply," does not seem to refer to the authority or power to review, determined consideration of preliminary questions. that this court had no jurisdiction, and so

While the provisions of section 266 of determining declined to call two other the Judicial Code (Comp. St. § 1243) are judges. Following such announcement and somewhat different to the provisions of the order, all defendants filed the pleas menstatute under consideration, yet the reason tioned. The defendants do not now call of the legislation is approximately the same. such pleas up for consideration, but all The District Judge must call to his aid two counsel ask for their consideration by three other federal judges before there shall be judges. Therefore, notwithstanding my an interlocutory injunction to restrain the own views that it is quite possible that the enforcement of a state statute on the ground District Judge may act upon such matters of its alleged unconstitutionality. Judge without asking the help of two other judges, Tuttle held, in Republic Acceptance Corp. yet the delicacy of the present situation v. De Land (D. C.) 275 F. 634, that he had causes me to conform to the desire of counthe power to dispose of a motion to dismiss sel, and the case is set for hearing January a bill which had been presented to him and 8, 1925, at 11 a. m., on pleas to the juriswhich attacked the constitutionality of a diction before three judges. state act. In Brown Drug Co. v. U. S., 235 F. 603, Circuit Judge Smith, sitting with NOTE.—The above case came

on to be two District Judges, in the consideration of heard at New Orleans, La., on January a suit against the Interstate Commerce Com- 10, 1925, before Circuit Judge R. W. Walkmission and certain carriers to prevent the er and District Judges West and Atwell. enforcement of new rates, and where there The motion to dismiss and to the jurisdicwas an application for a temporary injunc- tion was presented, and the three judges tion, held that a motion to dismiss could not concurred in holding that an order of be heard before the three judges; that they the Interstate Commerce Commission, which were convened to hear the application for a

allowed the consolidation of the two railtemporary writ of injunction, and not to way systems, and which provided for the determine whether the case should be dis- operation and leasing of one of them, to

its merits. "If the motion gether with many other matters, "related to had been filed before the application had transportation,” and that a suit to set aside been made, there would be no pretense that such an order must be brought within the these three judges should sit to hear that district wherein the petitioners for such orquestion." Continuing, he said: “The mo- der resided; i. e., in either Kentucky or tion to dismiss is one the majority of this Arizona. The bill was dismissed. court think must be submitted to the Dis

127 (ad) 733, trict Judge alone and be determined by

6 him. That motion is not entirely free from cortiorare denied 273... dificulty. It is alleged in the bill that no 6,45,71860.846,47 Se volt.94. legal evidence was taken before the Inter- CHICAGO S. S. LINES, Inc., et al. v. UNITED state Commerce Commission which would

STATES LLOYDS, Inc., et al. confer jurisdiction on it in this matter. Some of the judges are inclined to the opin- (District Court, N. D. Nlinois

, E. D. Novem

ber 28, 1924.) ion that it stated a legal conclusion; some that it stated an ultimate fact to be deter

No. 34728. mined by the District Court. Whether he

1. Insurance 470–Mere raising of vessel will determine it to-day or not is no affair held not acceptance of abandonment to underof this court. When we come to the ques- writers. tion as to whether the temporary injunc- Mere raising of vessel which had sunk tion shall be granted or not a majority are

alongside dock by salvor employed by under

writers' surveyor held not an acceptance of an agreed it cannot be done." See, also, Ili- abandonment of the vessel to the underwriters.

missed upon

aff!!

2. Insurance 470-Underwriters

having N. Longley, both of New York City, of raised vessel to minimize loss held not obliged to make repairs before tendering her back.

counsel), for respondents. Underwriters, having raised vessel to min. imize loss, held not obliged to make repairs be- CARPENTER, District Judge. This acfore tendering her back.

tion is to recover from underwriters on the 3. Insurance C470—Acts of president of theory of constructive total loss of the owner corporation held waiver of attempted steamer George W. Clyde (built in 1872) abandonment of vessel to underwriters. Acts of president of owner corporation,

as a result of her sinking alongside her dock after attempted abandonment of vessel to un- at Little Current, Canada. It is also claimderwriters, in continuing in possession, making ed that if not liable on this theory, undertemporary repairs, soliciting cargo and insurance, requesting a survey for "class," attempt writers are nevertheless liable for damages ing sale of part interest, and appearing in fore caused by the sinking. There are also parclosure suit by mortgagee, held waiver of attempted abandonment.

tial loss claims for damage to rudder and 4. Insurance Om472_It is duty of insured,

boilers prior to the sinking. owner of vessel, on its sinking, to make ade

The libel was filed by the owner, Chicago quate investigation of cause and cost of rais: Steamship Lines, Inc., and Northern Trust ing and repairing before abandonment to underwriters.

Company of Chicago, a mortgagee. J. C. It is duty of insured, owner of vessel, on Hoskins was president of the owner corpoits sinking, to make prompt and adequate in ration. The master of the vessel was Capt. vestigation to determine the cause and possibility and cost of raising and repairing; and to Goodrow. warrant abandonment it must appear that the All the policies sued upon named R. Parvessel sank by reason of peril insured against, and that the cost of raising and repairing would ry-Jones of Cleveland as underwriters' surin high probability exceed the stipulated veyor, and directed that he be notified in amount.

event of any loss. Parry-Jones has been for 5. Insurance 470_Whether loss is in an

many years in charge of the Great Lakes amount warranting abandonment of vessel to underwriters not peculiarly question of fact; district on behalf of the Salvage Associa“high probability" rule being applicable. tion, a concern organized for the benefit of

Whether loss of vessel is in an amount English underwriters and having its headwarranting abandonment to underwriters is not purely a question of fact, the "high proba- quarters in London. bility” rule being applicable.

On Saturday, August 25, 1923, the Clyde 6. Insurance Om665(4)-Evidence held insuf. loaded a cargo of print paper at Little Curficient to warrant owner of sunken vessel in rent, Canada. Half an hour after loading abandoning her to underwriters.

was completed, she commenced to list to Evidence held insufficient to warrant owner of sunken vessel in abandoning her to under. port and continued listing slowly for about writers.

an hour until she leaned against the dock. 7. Insurance Om416 - Underwriters held not Then for 10 to 20 hours she gradually setliable for damages from sinking of vessel due tled until she rested on the bottom. The waat least in part to owner's negligence.

Where sinking of loaded vessel alongside ter was clear and about 25 feet deep. She dock was due to leaking of water through rivet lay practically on an even keel in a sheltered holes along vessel's side, negligently permitted position. Her upper deck was entirely out to remain in defective condition by owner, held, insurer was not liable for damages from the of water. There was neither wind nor cursinking, even if conceded to be due in part to rent and the weather was fair. Except for the master's negligence.

some boulders under the bow, the bottom 8. Insurance 402-Underwriters held liable

was firm and smooth. The Clyde was 256 for damages to rudder and boiler of vessel.

Underwriters held liable for damages to feet in length, and 22 feet from the stem rudder and boiler of vessel.

the ship rested on a 4-foot rock. Forty-six

feet from the stem, and from there on aft, In Admiralty. Libel by the Chicago she lay practically on an even keel. The Steamship Lines, Inc., and the Northern only sign of damage to the hull was one Trust Company of Chicago, against the hole in the bottom caused by settling down United States Lloyds, Inc., and others. De- on the 4-foot rock. cree for libelants for part only of the re- On Sunday, August 26th, the master nocovery sought.

tified Hoskins in Chicago of the sinking. Kremer, Branand & Hamer, of Chicago, Hoskins thereupon telegraphed that fact to Ill., for libelants.

Parry-Jones in Cleveland, saying nothing Ickes, Lord, Wire & Cobb, of Chicago, about abandonment. On Monday Hoskins Ill., Bigham, Englar & Jones, of New York wired the master asking the cause of the City, and Burry, Johnstone & Peters, of sinking. Goodrow replied that the cause Chicago, Ill. (F. Bruce Johnstone, of Chi- was unknown. On the same day Hoskins cago, Ill., and D. Roger Englar and Henry wrote Parry-Jones confirming his telegram

2 F.(20) 767 and adding that the Clyde had been aban- mitted to take refuge under this clause from doned to underwriters.

the consequences of inconsistent conduct. On receipt of the telegram announcing the The acts which are protected are those reasinking, and before abandonment had been sonably tending toward the recovery of or suggested, Parry-Jones solicited bids for the safety of the vessel. In my opinion the raising the vessel. On Wednesday evening, mere raising of the Clyde did not constitute August 29th, Capt. Reid, a salvor, arrived at an acceptance of abandonment. Little Current. He learned from the mas- [2] Libelants insist, however, that having ter how long the Clyde had taken to settle, raised the vessel, the underwriters were and that same night made Parry-Jones a “no bound to repair, and could not tender her cure no pay" bid by telegraph. He raised back in damaged condition. her in three days. To use his expression, I have examined the cases cited by libel"The whole affair was a mere pumping job.” ants in support of this position, commenc

ing with the leading case of Peele v. MerAbandonment.

chants' Insurance Co., 19 Fed. Cas. 98, deIt is contended by respondents that no cided by Mr. Justice Story in 1822. As I abandonment was made to underwriters: read them, they do not sustain libelants' conFirst, because Parry-Jones was not the tention. In the Peele Case the question was proper person to receive the notice, he be- whether underwriters had a right, without ing underwriters' surveyor, and not being consent of the owners, to take possession agent of the insurers, within the meaning of and management of the ship and afterward the policy; second, because the letter of to repair the ship for owner's account. JusAugust 27, 1923, was merely a report made tice Story held that the underwriters had no to Parry-Jones that the Clyde had already such right and must be deemed to have acbeen abandoned; and, third, because the al- cepted the abandonment which had been leged abandonment was not joined in orduly tendered. In the instant case, howratified by the Northern Trust Company, ever, the policies give the underwriters no the mortgagee. The Northern Trust Com- right to make repairs. They at no time pany not only did not join in the abandon- took possession and control of the ship, but, ment, but several weeks thereafter it com- on the contrary, the ship remained constantmenced proceedings in this court to fore- ly under the control and direction of the close its mortgage on the vessel, and it is owner and its master. at least doubtful whether under these cir- In Richelieu Navigation Co. v. Boston Ins. cumstances the abandonment was effectual. Co., 136 U. S. 408, 10 S. Ct. 934, 34 L. Ed. In the view I have taken of the case, how- 398, where a judgment in favor of underever, it is not necessary decide any of writers was sustained, the Supreme Court the foregoing questions.

held that the acts of the underwriters in

sending a wrecking party, taking possession Acceptance of Abandonment.

of, and repairing the vessel, did not amount Libelants insist that the underwriters to an acceptance of abandonment. The raised the vessel and that this action consti- court said (page 433 [10 S. Ct. 941]): tuted an acceptance of abandonment. While “Whether the insurer accepts or not is a the contrary might be urged with some matter of construction of his words and conforce, I am assuming for the purpose of this duct. Any act done for the purpose of makopinion that Capt. Reid of the wrecking ing the most of the property, to whomsoever company was the agent of the underwriters. it may prove to belong, ought not to be conDid their conduct constitute an acceptance strued against the party who thus seeks the of abandonment?

common interest." The sue and labor clause of the policies,

In the absence of a provision to the conwhich covers also the matter of abandon- trary in the policy of insurance, the underment, provides as follows:

writers cannot be punished for trying to “And it is especially declared and agreed minimize the damage. that no acts of the insurer or insured shall

In Peele v. Merchants' Insurance Co., sube considered as a waiver or acceptance of pra, Justice Story said, 19 Fed. Cas. at page the abandonment."

119: [1] This provision is in the public inter

“If after abandonment, the owners were est. It leaves both insurer and insured free to proceed to repair the ship without conto act for the safety of the vessel without sultation with the underwriters, it would be prejudice to their respective rights under a waiver of the abandonment, because it the policy. Neither party, however, is per- would be doing an act inconsistent with the

2 F.(20)-49

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