272
FEDERAL REPORTER ,vol;
51.
chasers of this property which they did not assume,and cannot he held to have assumed, when they bought the property at the receiver's sale. The conclusion is that this is not a case where the court is required by law to tax counsel fees of the complainant against the defendant, and, in the absence of any such requirement, and considering the question unde"r the general rule applicable in courts of equity, such a case is not made as the court would, in its discretion, give it that direction. But the court will leave the matter of compensation of complainant's solicitors open until the fund is brought into court derived from the sale of the property under the decree which has been directed, and will then make such ordel' for the payment of counsel fees, and for such amount, u may be proper. An order may be taken sustaining the demurrer upon the ground stated.
BISHOP
v.
AMERICANPR.ESERVERS' CO.
et al.
(CIrcuit Court, N. D. nHnois. June
.
8, 1892.)
1.,
Act July 2,18110, (26 St. at Larg'El, p.209,) Which forbids comblnatlons"n restraint ,Cif interstate and gives a right of action to any person injured by . acts in ,Yiolation' of its provisions,: does not authorize suit where the only cause of actionJs the bl,'inging of two suits wh.ich.Jl.aire not been decided. SAME-l'I..EADING.
IN: ,RESTRA.INT ap TRADE-TRuST COMBINATIONS.
2.
in such an action which does not aver that the goods mariufactured by plaintiffj and in respect o.f Which he claims to be injured, are a subject of interstate comjDerce, or that the acts. complained of have anything to do with any contract in restraint of trade, or that the parties are citizens of different states, is de!purrable., .
At Law. On demurrer to declaration. Action by ,ApdrewD. Bishop against the American Preservers' Company, Bernard E. Ryan, and T. ,E. Dougherty, for injuries alleged to havebelln sustained in his business and property by reason of acts of the defeIfdants in violation. of the "An Trust Law," (26 St. at Large, p. 209.) That act. makes Hlegal all combinations "iIf restraint of trade or commerce among, the several state!;!," and provides that" any person who shall be inj'\lred in hiabusiness or property by any. other person or corporation, by of forbidden or declared to be unlawful by this. act,' maY sue therefor, and repover. threefold damages." and Fre,derick, Qrnd, for plaintiff. Mayer $tein, for c;lef!'Jn4ants. BLODGEJTT,:District Judge, (orally;) This suit is now before the court on adel1::l'urrerto,the declaration by_ the defendants, the American Preservers' ,Gompany,Bernard E. Ryan, and T. E. Dougherty. c,. plaintiff- charges . that in,1888. he .was . engaged in the business of mali-
AMERICAN PRESERVERS' CO·
273
. ufacturing fruit butter, jellies, preserves, etc., in the city of Chicago, and that, at the instance of others engaged in the same business, he entered into an agreement with them for the formation of a trust or combination for the purpose of advancing and maintaining the prices of such goods, and that a trust or combination called the" American Preservers' Trust" was organized for that purpose, of which plaintiff became a memo ber, and to which he conveyed his property and plant which he had used '. in said business; that afterwards the managers of the organization decided to take in more manufacturers and their property, and adopt the form of organizing under a charter granted under the laws of West Virginia for the purpose of conducting the business of said trust, and tbat he assigned and transferred his property used in said business to the said company, Preservers' Oompany, one of the defendants herein; that, after he had so transferred his property to the said trust and company, differences arose between himself and the managers of said trust, and the said trust known as the" American Preservers' Company" brought a suit of replevin in one of the courts of the city of Chicago, and took possession of the property and plant, books, etc., which plaintiff' had used in the management of his business in connection with said trust, and that said defendant, the American Preservers' Company, has also brought suit at law in this court against plaintiff, claiming to recover the sum of $3,000. This is the substance of the declaration. It issU:fficient for the of this demurrer to say: 1: This.declaration does not show that the suits complained of are yet decideq.' may on trial be shown and decided that the defendant has the right to maintain both these actions against plaintiff'. ,2,Aaa rule an action at law cannot be maintained for bringing even a false and fictitious action against a person. The commencement of a suit' at law is an assertion of the right in a manner provided by law, and persons so commencing suits cannot be subjected to other actions or penalties by reason of their having done so, or for asserting or prosecuting what they' claim as a legal right. The remedy of the party so sued is in defending the suit, and, if he is successful in his defense, he recovers costs, and sometimes damages. Gorton v. Brown, 27 III. 489; Speer v. Skinner, 35 III. 282; Wetmore v. MeUinger,64 Iowa, 741, 18 N. W. Rep. 870.. It is clear from the allegations in this declaration that the plaintiff has attempted' to bring this suit under the provisions of the act of congress entitled." An act to protect trade and commerce against unlawful restraints and monopolies;" approved July 2, 1890, (26 St. p. 209.) But the injuries complained of are not such as give a right of action under this statute. Although this defendant, the American Preservers' Company, may.be an illegal organization, it may have a valid right in the property replevied, as against plaintiff, and the right to sue and collect the $3,000 fat which suit ,is brought. If, from difficulties growing out of the organization:and management of the alleged trust, an altercation and quarrelhadensued between plaintiff and ,the other members or officers of the trust, and, plaintiff had been assaulted by the persons he waS so associv.51F.no.6-18
;2H ,a,ted' With" it is veny} clear 1e would hav;e lJ.ad,D,p right cifaction under this Furtheri,it. is Inot averreJiIin the deolaration thatth.e,goods .:wactured byplaintilf,ar.e'll; subjeot o£interstateoommeree., : Neither does :ito.ppear that tbe,sUits ,complained'oiuad anything' to do with the' '.1eged.contract in restraint of tJ;ade. Certainly, as it seems..to me, Ull til the decision of the suits::oomplained of, plaintiff has. sustained no damage fOl"whi<lh he cannot. be adequately compensated by the costs and .ages to be awarded, in the determination of those cases, if it shall beheld ,tMre .was no right'ofaction. Can a party to an illegal contract bring sllit,'lMiller v. Am'l1lJCm, 12 Sup. Ot;, Rep. 884, (decided by the supreme cOUJitMay 16, 1892.).! Do not deem it necessary 110 passon that question ,at this .time.· The declaration is also f!\tallydefective in not averthe citizenship of ,the parties 'to l,le such as gives this court judsdic.tion. "The demurrer! issustailied; , t"
"in ,re 8HER¥AN, .Siupervisor. <CirCUit ::.;,iL-·': N; D.,.,:.;:; O,CJurt, .lt1tl.nOf.B.JulY 29, 1892.) :: j
SUPBBVISOBS OIl ELECTIONIl,....COMlIBN5ATIOX...,.INnll:X.
Rev. St. § 2081, whiplJ, be paid the ohief supervJlOr ,a for enterin,g and Indexinj!' the records 01 hi's of6oe, " does not authorize payment of Buoh fee&'tc.. ma.kibgau"index" of the lists of registered voters, consisting merely of a of tbe of such lists, espeaially when such is not 'completed tUlthree years after the election for whichtbe lists were made·.
Acoouptingof E.B. Sherman; chief supervisor of elections for the :northern district of Illinois. E.,B. Sher:mtin, for chief T. E, Milchriat, U. ,8. Dist. Atty. GRESHAJl, Oi1'ouit Judge. Prior to the genela! elections of 1888, fed· ,eral superviaors were duly appointed to guard .and scrutinize the registration and voting in the ,city of Chicago, city ofLake View, village of Hyde Park, and town of Lake. These officers; by requirement of the chief supervisor, prepared and delivered to him duplicate lists or registers of pel"sonswhoregistered and ivoted in tbeiiuespcctive precincts at such electioO/.'1., These reports showed the residence, name, nativity, and when, date of color, whether naturali2ied,. anti, if so, inwhat application, to be re/Zistered I term of facts required by the law&! of Dlinois. In l88S·the chief supervisor prepared an ac,count ·,fofcertainservices, ,some ofilie items of which were approved and others diaapproved. .by the. circuit :judge. That account, however, embraced; no item for.!' centering and indexing the records of bis office," IilJld Mt· prE'!sentfi a claim for that work, being 61,482 folios, at 15: cents per folio;amQllnting to $9;222.30, and for necessary stationery, &210.35. Section 2031 of the Re:vised Statutes, which, it the allowance aLthese amounts, reads;
IN ;&E PANZARA.
"Tbere shnll be allowed an{J paid to the chiefsupervisor for his services 3S such offi"er the following cOllJpensatipn apart from!lnd in excess of all fees, allowed by law for the performance of any duty as circuit court commissioner: For filing and caring for every return, report, rpcord, document, or other paper required to be filed by hiw under any of the preceding provisions; 10 cents; lor affixing a st'al to any paper, record, report. or instrument, 20 cents; for entering and indexing the records of his office, 15 cents pt'r folio; and for arranging al1(1transmitting to congress, as provided for in section No. 2020, any report, statement, record, return, or for each folio,15 cents, and for any copy thereof, or orany paper on file, a like sum." is now The so-called" index," for the making of wbich claimed, is simply a copy or consolidation of the precinct regil:lters. The chief supervisor large books lor this purpose, with headings and lines corresponding to the precinct registers ; and his so-called "index" shows only what appears in the precinct registers. This is neither entering nor indexing the records of his office, within the meaning of the section relerred to. Instead of being an index of the precinct registers, it shows their entire contents. It is now more/han three years since the election of 1888. 'fhe work charged for has just been completed, and it can serve no useful purpose. For these reaSons 1 decline to approve the
In .re PANZARA et al. (Df,strlct
Court, E. D. New York. June 1,1892.) DECISION HA.BEAS CORPUS .
1.
IMMlORATIOlll- SUPERINTEND)llNT'S QUESTION.
'rhepowel" of the federal superintendent of immigratibn to retuMl passengel"ll is confined to "alien immigrants," and the question whether persons ordered to be returned are of that description is jurisdictional, and may be determined by the courts on habeas corpus. One who is a resident of the United States, though of foreign birth. and nit naturalized, and Who is returning from a visit to the country of his birth, is not an alien im.migrant within the meaning of the laws regulating immigration.
SA,ME-U:\,NATURALIZED RESIDENTS RETURNINO FROM VISIT.
At Law.
Application of Angelo Panzara and others for a writ of corpus. Petition discharged. The United State8 DiBtrict Attorney, for of immigration. David Humphrey8, for petitioners. Wing, Shoudy &: Putnam, for master of the Cheribon.
BENEDICT, District Judge. The petitioners, silt in number, joined in a petition for a writ of habeas corpus addressed to the master of the ship CheribOD, in order that the .legaliiy of their detention by that master might be: inquired, into by this court. The master. prod ueed the petitioners in accordancewiili the: writ, and made return that "the abovenamed persons had beea placed in his custody as master of said
276·
FEDERAL REPORTER,
vol. 51.
ship, thereof, by tha direction ofthesupel'intendent of illln}igrll,ti0tl of the port of New York, to be sent back toltaly." To tl,lIs return the petitioners made answtlr that they· are. not alien immigrants, but are residents of the United States, where thtly have acquired a domicile; and that, when returning to their respective homes in the United States from a voyage to Italy, undertaken by them with the in. tention of returning to the United States, they were unlawfully detained' and directed to be sent. back to Italy by the superintendent of immigration. it was directed that the testimony of each petitioner be taken by the clerk, and that notice of the time and place of taking such testimony be given to the master of the ship, and also to the superintendent of immigration. The testimony of each of the petitioners was thereupon taken before the clerk; the master of the Ship being there represented, but no on.e appearing for the superintendent of immigration. Upon the testimony of the petitioners so taken the hearing was had. At the hearing, the assistant district attorney being present and speaking forthesuperhitendent of immigration, leave was given to cross-. examine any of the petitioners. The Rf'.sistant district attorney decliningtdcross-examine any of the petitioners, the hearing proceeded upon the uncontradicted testimony of the respective petitioners. The only argument made was in behalf of the petitioners. The question to be decided is whether this testimony shows a case where the superintendent of immigration had jurisdiction to direct the return of these petitioners to Italy. No question can be determined by this court. From the testimony it appears 111 respect to each petitioner that he is not an alien immigrant, qut a resident of the United States; that when detained by order of the superintendent of immigration he was on his way from to his place of abode in the United States; and that his voyage to'It/uy was undertaken with intent to return to the United he resided. Upon this testimony it must be held to have States, been shown in. regard toeach petitioner that he was not an alien immigrant; and, that fact appearing, even if it be assumed that the petitioner was born iu Italy, and .had never been naturalized, it must nevertheless be held that the order of the superintendent of immigration set up in the master's return is void for wallt of jurisdiction. The statute conferring power upon the superintendent of immigraLion to order the return of persons arriving in the United States frohl loreign countries confines his power to alien immigrants. He bas no jurisdiction to direct the not an alien immigrant. The return to a foreign country question whether the petitioner is anlilien immigrant is there lore It jurisdictional one, and the finding of the commi$sioner upon that question is not conclusive upon the courts. That question, when presented to the coint by a ·petition for habeaacorpu3, must be decided by the court upon the evidence presented to the court jn such proceeding. And when, as here, theuncontradioted testimony presented shows in respect toeac4' of the petitioners that :he is not an· alien immigrant, it becomes the duty of the court to declare the order of the superintendent of immigratltm that the petitioner be returned to Italy to be void, and therefore
IN
277
affording no legal ground for the detention of the petitioners by the mas. ter of the ship. The petitioners must therefore be discharged, but the order will not be carried into effect until sufficient time has elapsed to enable an appeal to be taken from this decree. In case an appeal be taken, any petitioner may be released on giving a recognizance with surety in the sum of $100 for appearance to answer the judgment of the appellate court.
In re MARSH. (District Court, S. D. CaUfornia. July 5, 1899.) 1. On petition for a writ of habeas corpus to release a United States froI!l custody undel' state Pl'ocess the court cannot inquire i.nto the truth or justice of the charges a.gainst him, but is limited to the question whether his alleged unlawful acts were done in pursuance of a law of the United States. Suu:. A federal court cannot release by habeas corpus a Uni.ted States marshal held in custody under state process on the charge of kidnapping and carrying hjto Mexico a person named, though the marshal claimed to have been executing the law I1gainst the immigration of Chinese; for there is no law of the United States wllich would authorize such an act. . FEDERAL CoURTS-JURISDICTION-HABEAS CORPUS-UNITED STATES MARSHALS.
Petition of A.W. Marsh, by George E. Gard in his behalf, for a writ . of habeas corpus. Denied. James L. Copeland and C. C. Stephens, for petitioner. Ross, District Judge. The petition for the writ sets forth that is illegally restrained of his liberty in this judicial district by the sheriff of San Diego county under and. by virtue of an order made on the 6th day of June, 1892, by W. A. SLOANE, as justice of the peace for San Diego township, in San Diego county, Cal. " holding the said Marsh, together with one Smallcomb, to answer before the superior court of that county for the crime of kidnapping, and admitting them to bail in. the sum of $1,000 each. The proceeding in which the order was made was instituted on the 11th day of April, 1892, by the filing, pursuant to the provisions of a statute of California, of an affidavit by one Edward Crosthwaite, in wbich it was averred that on the 29th of January, 1891, Smallcomb, Marsh, and one Cruz, at Tia Juana, in San Diego county, Cal., "did willfully and feloniously forcibly steill and take affi.ant and carry hiIDinto another country, to wit, the republic of Mexico, without having first established a claim so to do according to. the laws of the United States or of the state of California," contrary to. the provisions ofthesta.testatute. Upon the filing of the affidavit a rant was iSll}.led for the arrest of the parties against wQomthe charge was thus preferred, and,. the matter coming on for hearing. before., the. justice of the peace, testimony was taken, upon which. the order hold. ing them. was based. A copy of that testimony is llilnexed'