페이지 이미지
PDF
ePub

It does not appear that the premises were ALSCHULER, Circuit Judge. The apoccupied for residence purposes; the fair peal is from the decree of the District Court inference from the evidence being that finding invalid patent No. 1,436,365, grantWurm not only did not live there, but that ed appellant Nov. 21, 1922, for improvehe did live at the Thirty-Fifth street place. ment in advertising display signs. The patIt thus appears that the officers, having seiz- ent is for a window sign in which the let. ed this warm whisky while in Wurm's pos- ters are depressed or countersunk from the session (knowing that to be his name), and plane of the sheet from which the sign is hearing the ridiculous story he told to ex- made, and the letters gilded or otherwise plain his possession of the liquor, had their brightly colored, the sign to be attached to suspicions very properly and naturally di- the inside surface of the window by means rected to these premises, through the fact of of an adhesive substance previously applied his possession of the gas receipt, and deposit to so much of the sheet as is not so counbeing in the name of another. With their tersunk. The claimed single feature of adsuspicions thus aroused and directed, and vance over the prior art is in the unitary supplemented by what they saw on the ap- sign wherein the part of the sheet which proach of the premises and before entry, contacts with the glass is adapted to receive they were in our judgment justified in en- the adhesive substance, making a sign tering without search warrant this combined cheaply producable in large quantities, and distillery and brewery. This is decisive of readily and durably attachable in its enthe only issue involved, and does not take tirety to the inside of the glass. into consideration the undisputed evidence Window signs of countersunk letters of that upon their return from the premises V-shape or other cross-section are old in the Wurm stated to them that he was in fact the art, and such single letters, for use in winproprietor, and employed the two men to dow signs, and with narrow rims about the make "moonshine" and "home-brew,” which edge of the letter for receiving sticking subhe sold and delivered to saloonkeepers. stance for attachment to the inner surface The judgment is affirmed.

of a window, are also old. A device such as the latter was considered in the Sixth circuit as far back as 1903 in Rodwell Sign Co. v. F. Tuchfarber Co., 127 F. 138, 62 C.

C. A. 252. STEINAU CO. v. COMMON SENSE NOVEL.

One of the other claimed advantages for TY CO.

the single letter signs so attached was its (Circuit Court of Appeals, Seventh Circuit.

removability for use in other combinations December 8, 1924.)

of letters. With such a background we canNo. 3430.

not perceive any element of invention in Patents 328_Steinau patent, 1,436,365, for combining two or any number of such letters

unitary window sign, held invalid for lack of in any desired shape or form into a single invention.

sign, and applying to the parts which would Steinau patent, No. 1,436,365, for unitary contact with the surface of the glass glue or window sign having depressed letters, gilded or

f other sticking substance, just as was done brightly colored, to be attached to inside of window by means of substance applied to part with the single letters. of sheet not depressed, held invalid for lack of From the affidavit of Mr. Bostwick, whose invention.

company manufactures for appellant its

signs purporting to be made under the patAppeal from the District Court of the

ent, it would seem that one of the difficulties · United States for the Eastern Division of was to

was to find a glue which would permit the the Northern District of Illinois.

shipment of these signs in large quantities Suit by the Steinau Company, a copart and in contact with each other without their nership, against the Common Sense Novelty sticking together, and at the same time be Company. Decree for defendant, and plain- suitable for properly attaching the sign to tiff appeals. Affirmed.

the glass so that changes of temperature of Thomas A. Banning, Jr., and Samuel W. the window glass will not cause the signs to Banning, both of Chicago, Ill., for appel- loosen and fall. He describes the difficulty

of obtaining such a glue and the experiCharles H. Poole, and Clarence E. Mehl- ments of some of the largest glue manufachope, both of Chicago, Il., for appellee. turers in the United States, resulting ulti

Before ALSCHULER, EVANS, and mately in the production of a suitable glue, PAGE, Circuit Judges.

and a very considerable business in the

lant.

ble tiberately norbade.

3 F.(20) 148 signs. From this it would seem that the then permitted to go unprosecuted, but was great problem was the glue. With this the again taken while distributing the same sort patent does not deal.

of matter. The inference is quite irresistiWe believe that the District Court, in its ble that he understood the nature of it, and finding that the patent does not show in- deliberately persisted in doing what the law vention over the prior art, was right, and of the land forbade. Act of Congress Oct. the decree is affirmed.

16, 1918, as amended by Act June 5, 1920 (Comp. St. Ann. Supp. 1923, § 428914b[1]).

The judgment of the District Court is af

firmed.
GEBARTUS V. PAUL.
(Circuit Court of Appeals, Seventh Circuit.
November 20, 1924.)

Deild 20 Flad) 353.
No. 3416.

THE PICTONIAN. Aliens 54_Evidence held sufficient to show (District Court, E. D. New York. Nov. 26. accused knowingly distributed literature op

1924.) posing organized government.

No. 1081. Evidence of previous arrest of alien sought to be deported for distributing literature op

1. Treaties 2-Governments may by treaty posing all organized government, and his state

authorize searches and seizures of foreign ment that be believed in its teachings, held

vessels. sufficient to show that he knew nature of litera Though the right to search and seize ships ture distributed by him in violation of Act of other nations for violation of the United Cong. Oct. 16, 1918, as amended by Act Cong. States laws is limited by international laws, June 5, 1920 (Comp. St. Ann. Supp. 1923, 8 rulers or governments may by treaty agree not 428914b[1]).

to complain of such action or agree that such

search and seizure may be made. Appeal from the District Court of the 2. International law 10 - Vessels on high United States for the Eastern District of seas subject to laws and treaties of Own Wisconsin.

country.

Vessels on the high seas are subject to the . Habeas corpus by Joe Gebartus against

a laws of their own country and to treaties made Chas. H. Panl. From a judgment quashing by the sovereign or government of their counthe writ, relator appeals. Affirmed.

try. A. W. Richter, of Milwaukee, Wis., for 3. Treaties en 12–Treaty with Great Britain appellant.

authorizing seizure of British vessels within

certain limits held self-executing. Roy L. Morse, of Milwaukee, Wis., for

The treaty between Great Britain and the appellee.

United States of May 22, 1924, authorizing the Before ALSCHULER, EVANS, and seizure of vessels for certain violations of law PAGE, Circuit Judges.

within one hour's sailing distance of the coast, having been ratified by the Senate, is self

executing and needs no further legislation to PER CURIAM. This is an appeal from insure its validity. judgment quashing writ of habeas corpus

4. Treaties om 12-Legislation declaring cer. challenging sufficiency of deportation pro- tain acts crimes not prerequisite to enforceceedings brought against appellant, an alien. The warrant of deportation recites that it is Seizures and libels under treaty between predicated upon the finding that appellant Great Britain and the United States of May 22,

bir had in his possession for purposes of cir

1924, in which Great Britain agrees to make no

objection to the boarding and seizure of priculation and distribution written and print

vate vessels violating United States' lawg withed matter advising, advocating, and teaching in one hour's sailing distance of coast, held auopposition to all organized government. It thorized as against objection that Congress has is conceded that he was in fact distributing not by law declared acts denounced by Rev. St.

$ 3450 (Comp. St. 8 6352), Tariff Act 1922, such matter, and the only contention is that 88 584, 586, 587, 593 (Comp. St. Ann. Supp. the evidence wholly fails to show that he 1923, 88 5841h3, 5841b5, 5841h6, 5841h12, knew the matter was of that nature. 5841h13), and National Prohibition Act, $$ 3, The conclusion seems inescapable that

26, tit. 2 (Comp. St. Ann. Supp. 1923, 88

1013872aa, 1013842mm), to be crimes when there was ample evidence of this fact. It

committed beyond 3 and 12 mile limits. appears that a year or so before, while dis

5. Intoxicating liquors 250–Libel for for. tributing similar literature, he was arrested,

feiture of British vessel under treaty held and then stated as his reason for such dis

sufficient. tribution that he believed in the matters and A libel against a ship seized under the treathings set forth in the literature. He was ty with Great Britain of May 22, 1924, need

3 F.(20)-10

[ocr errors]

not allege that the ship was committing an of. tions and amended exceptions to the libel fense at the time of the seizure, in view of filed herein. article 2, subd. 2, of the treaty, where the libel alleges that such ship was attempting to make

The plaintiff in its libel alleges that each contact with an American vessel, and attempt of the causes of forfeiture therein specified ed to smuggle liquor into the United States. arose from a violation of article 2, section 6. Intoxicating liquors 247_Possession by 2, of the Treaty between the United States

British vessel without intent to smuggle into and Great Britain, to aid in the prevention United States not cause for forfeiture. of the smuggling of intoxicating liquors in

The mere possession of intoxicating liquor to the United States, adopted May 26, 1924, by British vessel beyond territorial limits of and that the several causes of forfeiture United States, without any intention to attempt to commit offense against United States laws,

also arose from a violation of the several is no cause for forfeiture under the treaty sections of the Revised Statutes or other with Great Britain of May 22, 1924, but to acts of Congress as hereinafter set forth: possess liquor within one hour's sailing distance Cause 1. & 3. of the National Prohibition of the coast with intent to smuggle it into the United States is sufficient ground for forfei.

Act.

ture.

Cause 2, § 584, of the Tariff Act of 1922.

Cause 3. & 586, of the Tariff Act of 1922, 7. Internal revenue ma 46– Intoxicating liquors 250Libel for forfeiture of vessel under

Cause 4, § 593, of the Tariff Act of 1922. treaty with Great Britain not alleging vessel Cause 5, § 3450, of the Revised Statutes. within one hour's sailing distance held insuffi To all of these causes the claimant has cient.

excepted. He urges that no authority exA libel for forfeiture of a British vessel for ists in any United States Statute for the possession of intoxicating liquor in violation of prohibition and internal revenue laws, which boarding and seizing of a vessel 14 miles contained no allegation as to location of vessel, from the United States coast, that the Britnor that distance from coast to schooner could ish treaty does not and cannot extend the be traversed in one hour by vessel endeavoring

right to search and seize beyond the 12to commit offense, held insufficient.

mile limit, and that aside from the question Libel of forfeiture by the United States

of illegality of seizure, each and every of against the schooner Pictonian, her tackle,

the grounds of forfeiture in law is in itapparel, furniture, papers, and engines. On

self defective and insufficient in law.

I do not agree wth the claimant. exceptions and amended exceptions to the libel. Overruled in part, and sustained in

[1] Of course, the right to search and part, with leave to amend.

seize the ships of other nationals, for vio

lation of the laws of the United States, is Ralph C. Greene, U. S. Atty., of Brook- limited by international law, but no counlyn, N. Y., and Robert W. Duvall, Asst. U.

try other than that of the ship seized would S. Atty., of Oyster Bay, N. Y.

have any just cause of complaint, and I Louis Halle, of New York City, for claim

can see no reason why the ruler or governant.

ment of that country may not by treaty

agree not to complain of such action or CAMPBELL, District Judge. This is an agree that such search and seizure may be action brought by the United States of made. America against the schooner Pictonian, her [2] The vessels of a country on the high tackle, etc., in causes of forfeiture and pen- seas are subject to the laws of their own alty, civil and maritime, for breach of the country, and this includes a treaty made by provisions of section 3450 of the Revised the sovereign or government of their counStatutes of the United States (Comp. St. try. § 6352), sections 584, 586, 587, and 593 of [3] Under the Constitution of the United the Tariff Act of 1922 (Comp. St. Ann. States, the right to make treaties is vested Supp. 1923, SS 58411-3, 58411-5, 5841h-6, in the President subject to ratification by 5841h-12, 5841h-13), and sections 3 and 26, the Senate, and the Constitution further tit. 2, of the act of Congress approved Octo- provides, article 6, clause 2: ber 28, 1919, and commonly known as the “2. This Constitution, and the laws of the National Prohibition Act (Comp. St. Ann. United States which shall be made in purSupp. 1923, 88 101381/2aa, 1013812mm), suance thereof; and all treaties made, or and section 2 of article 2 of the Treaty be- which shall be made, under the authority tween the United States and Great Britain, of the United States, shall be the supreme to aid in the prevention of the smuggling of law of the land; and the judges in every intoxicating liquors into the United States, state shall be bound thereby, anything in adopted May 26, 1924. The case comes the Constitution or laws of any state to the before this court on the hearing of excep- contrary notwithstanding."

8 F.(20) 145 The treaty having been ratified by the hold the principle that 3 marine miles exSenate is self-executing and needs no fur- tending from the coast line outwards and ther legislation to insure its validity

measured from low-water mark constitute There is nothing in the Constitution nor the proper limits of territorial waters.” in the treaty itself which requires the pas- “Article II. (1) His Britannic majesty sage of any further legislation to carry out agrees that he will raise no objection to the the terms of a treaty. Foster v. Neilson, boarding of private vessels under the Brit2 Pet. (27 U. S.) 253, 7 L. Ed. 415. ish flag outside the limits of territorial wa

[4] Claimant contends that the acts al- ters by the authorities of the United States, leged against the vessel in the case at bar its territories or possessions in order that are not crimes because Congress has not by inquiries may be addressed to those on law declared such acts to be crimes when board and an examination be made of the committed beyond the three or at most the ship's papers for the purpose of ascertaintwelve-mile limits, and that Congress is ing whether the vessel or those on board without power to make such acts crimes are endeavoring to import or have importwhen committed beyond such limits.

ed alcoholic beverages into the United This claim is not, in my opinion. Well States, its territories or possessions in viofounded, because while Congress might un- lation of the laws there in force. When such der international law be without power to inquiries and examination show a reasonable enact laws which without their consent ground for suspicion, a search of the veswould bind foreign nationals outside of the sel may be initiated. territorial limits of this country, I see no “(2) If there is reasonable cause for bereason why any such foreign sovereign or lief that the vessel has committed or is comgovernment cannot either consent to the ex- mitting or attempting to commit an offense tension of the territorial limits of this against the laws of the United States, its country as to their ships, subjects, or citi- territories, or possessions prohibiting the zens, or where, as in the treaty to which importation of alcoholic beverages, the vesreference will be made, uphold the three- sel may be seized and taken into a port of mile limit as the territorial limits of the the United States, its territories, or possesUnited States, and at the same time agree sions for adjudication in accordance with not to object to the seizure within certain such laws. other defined limits, beyond the three-mile “(3) The rights conferred by this article limit, and the forfeiture after adjudication shall not be exercised at a greater distance by the courts of the United States of any from the coast of the United States, its tervessel which has committed, is committing, ritories, or possessions than can be traversed or is attempting to commit any offense in one hour by the vessel suspected of enagainst the existing laws on any particular deavoring to commit the offense. In cases, subject which had prior thereto been en- however, in which the liquor is intended to forceable within the territorial limits of the be conveyed to the United States, its terriUnited States, its territories or possessions. tories, or possessions by a vessel other than

As I read the treaty which will herein- the one boarded and searched, it shall be after be referred to, that is exactly what the speed of such other vessel and not the Great Britain has done, and such treaty speed of the vessel boarded which shall debinds her ships and subjects and has the termine the distance from the coast at which effect of law, and perforce the laws of the the right under this article can be exercised.” United States relating to the particular sub

ar sub

“Ai

“Article III. No penalty or forfeiture ject are extended in their application to

under the laws of the United States shall be the ships and subjects of Great Britain

applicable or attach to alcoholic liquors or within such additional limits, to accomplish

to vessels or persons by reason of the carthe purpose in said treaty set forth, and

riage of such liquors, when such liquors are the right to search and seize is given.

listed as sea stores or cargo destined for a

port foreign to the United States, its terSo much of the treaty between the United

ritories, or possessions on board British vesStates and Great Britain to aid in the pre- sels voyaging to or from ports of the Unitvention of the smuggling of intoxicating liq- ed States, or its territories or possessions. uor into the United States, dated January or passing through the territorial waters 23, 1924, which, became effective May 22, thereof, and such carriage shall be as now 1924, as is necessary for consideration in provided by law with respect to the transit the matter at bar, reads as follows:

of such liquors through the Panama Canal, "Article L. The high contracting parties provided that such liquors shall be kept declare that it is their firm intention to up- under seal continuously while the vessel on which they are carried remains within said action at bar, that the ship was off our territorial waters and that no part of such coast attempting to make contact with an liquors shall at any time or place be un- American vessel, motorboat K14622, and laden within the United States, its terri- that it did attempt to smuggle intoxicating tories, or possessions."

liquor into the United States. The right to search under the circum- Latham, Cowart and Schwarz v. United stances alleged in the case at bar seems, States of America, 2 F.(20) 208, decided under the terms of said treaty, to be beyond by the United States Circuit Court of Apquestion, and in my opinion the treaty was peals, Fourth Circuit, October 21, 1924, in intended by both nations to and did deal which case, in the absence of a treaty, the with the matter in a complete way.

court said: This was also the opinion of the court in “One who ranges along the land or water U. S. v. Schooner Frances Louise, 1 F.(20) line of any country with the design of aid1004, decided in the United States District ing in the subversion of its laws challenges Court of Massachusetts, September 30, that country to enforce its laws and assumes 1924, in which case the libel was dismissed the risk of his own mistakes and the action on the ground that the government had fail- of wind and tide and all the forces of naed to prove that the distance to the vessel ture." And—“The defense, therefore, that libeled could be covered in our hour's sail- the defendants sold the whisky on the high ing from shore by contact boat, but the seas where it was lawful to sell it is not court thoroughly considered the question of available. The defendants being under arthe validity of the treaty and held:

rest in the United States, it make no differ"I have great doubt whether any such enco that they were outside the jurisdiction broad right of seizure exists as the govern. when by aiding and abetting they become ment contends. But it is not necessary to principals in crime committed in the Unitdecide this question, because I am clearly ed States." of opinion that the whole situation is cov Claimant makes some objection to the ered by the treaty. . . . It dealt ex- particular causes of forfeiture alleged in plicitly with the case of liquor ships hover- the libel, but I find the exceptions to the ing on our coast and being visited by small second, third, fourth, and fifth causes of boats from shore. Of course, such small forfeiture should be overruled and disalboats only come to the hovering vessel to lowed; but the exception to the first cause get contraband goods. Both parties under- of forfeiture requires further consideration. stood that. The plain inference is that such [6,7] The treaty was made to aid in the trading does not render the hovering ves- prevention of the smuggling of intoxicating sel amenable to seizure as long as she keeps liquor into the United States, and I do not to the high seas, except as provided in the believe that the mere possession of liquor, treaty. I think both nations intended the at some undescribed place beyond the tertreaty to deal with the matter in a com- ritorial limits of the United States by a plete way. If so, upon familiar principles British ship, without any intention to atof law, it is conclusive. See Texas & Pacific tempt to commit an offense against the Ry. Co. v. Abilene Cotton Oil Co., 204 U. laws of the United States, would be suffi. S. 427, 436, 437, 27 S. Ct. 350, 51 L. Ed. cient under the treaty to constitute a causn 553, 9 Ann. Cas. 1075. The construction of of forfeiture under the laws of the United it is a judicial question. Jones v. Meehan, States, including the treaty; but to possess 175 U. S. 1, at page 32, 20 S. Ct. 1, 44 L. the liquor within the extended limits with Ed. 49. I have no doubt that it is consti- the intent to smuggle it into the United tutional.”

States would seem to constitute an attempt [5] For the decision of the question now to commit an offense against our laws. presented it is not necessary that the libel In the first cause of forfeiture as alleged allege that the ship was committing an of- in the libel there are no allegations as to fense against the laws of the United States the location of the vessel, nor that the disat the time of the seizure, because by the tance from the coast to the schooner can be treaty, article 2, subdivision (2), supra, at- traversed in one hour by the vessel endeavtempting to commit an offense against the oring to commit the offense. I therefore laws of the United States is made a sufficient hold that the exception to the first cause of ground of seizure, and it is impossible to forfeiture, solely because of a lack of the deny that a ship is attempting to violate necessary allegations as pointed out, is susthe laws specified in the libel, even if such tained. But as an amendment of this cause laws applied only within the three-mile lim- of forfeiture, if the district attorney desires it, when it is alleged, as in the libel in the to amend, can undoubtedly be made within

« 이전계속 »