IN RE UPCHURCH.
«(Jircuit (Jourt, E. D. North Oarolina. February 18, 1889.)
UNITED STATES COMMISSIONERS-ApPOINTMENT OF DEPUTy-MARSHAl,S.
Rev. St. U. S. § 1983, provides that the circuit courts of the states an,d the district courts of the territories from time to time shall increase the number of commissioners, so as to afford a speedy and convenient means for the arrest and examination of persons charged with violation of the election laws. Section 1984 empowers "the commissioners authorized to be appointed by the preceding section" within their respective counties to appoint one or more suitable persons, from time to time, who shall execute all such warrants or other process as the commissioners may issue, etc. Held, that since the appointment of commissioners was not authorized fur the first time, but merely directed, by section 1983, the power to appoint process servers, given by section 1984, must extend to all commissioners. In any case it would be impossible to distinguish from the rest the cla&s in terms designated by this section.
In the Matter of the Account of John R. Upchurch against the United States for services rendered as special deputy marshal. A.W. Shaffer, for petitioner.
SEYMOUR, J. A. W. Shaffer, Esq., the United States commissioner holding the appointment for this judicial district of chief supervisor of shortly before the election of November last, appointed the petitioner, in writing, to execute "all such warrants or other process" as should issue to him from such commissioner in the lawful performance <>f his duties, and especially such warrants or other process as might issUe under the provisions of chapter 7, tit. 70, Rev. St.; that is, under the law in relation to crimes against the elective franchise and the civil rights 'of citizens. The question now made is as to the power of the commissioner to appoint a person other than the marshal, or oneM his deputies, to execute process. The authority to make the appointment is ,claimed under section 1984 of the Revised Statutes. That and the two preceding seCtIons read as follows:
"Sec. 1982. The district attomeys, marshals. and deputy-marshals. the -commissioners appointed by the circuit and territorial courts with power to arrest. imprison. 01 bail offenders, and every other officer 'who is especially by the president. are authorized and regllired. at the expense of the United States. to institute prosecutions against all persons violating any of the provisions of chapter 7. of the title' Crimes.' and to cause such persons to be arrested and imprisoned or bailed for trial bpfore the court of the United States. or the territorial court having cognizance of the offense. :Sec. 1983. The circuit COli rts of the United States, and the district courts of the territories. from time to time. shall increase the number of commissioners so as to afford .a speedy and convenient means for the arrest and examination of persons charged with the crimes referred to in the preceding section; and, sucb commissioners are authorized and required to exercise all the powers and duties -conferred on them herein with regard to such offl"nses in like mao,ner as they a.re authorized by law to exercisewith regard to other offenses against the laws «)f the United States. Sec. 1984. The commissioners autho.1'ized to be appointed by the preceding section are empowered within their respective coun-
ties to appoint, in writing. under their hands, one or more suitable persons, from time to time, who shall execute,aU BUC,h warrants or other process as the commissioners may issue in the lawful performance of their duties. * * *" A casuaYreading of section 1984 might lead to the opinion that it was intended to limit the power to deputize to commissioners expressly apthe pl'ecedingsection.. No possible reason can be assigned pointed for such a discrimination between different commissioners; and enforcing it would be practically impossible, for no method is provided of determining which, if any, of such officers have been l:l.ppointed under, or in , consequence of, the enactment of the legislation brought forward by the :revisers as section 1983. To take the case at bar: Mr. Shaffer's commission was issued after April 6, 1866,-'-the date of such legislation,but there is no reference to it in the commission, and no record shows either that he was or that he was not appointed with any reference thereto. Moreover, a critical readingof section 1983, supra, shows that it does not in fact authorize the appointment of commissioners. Such authorization. already existed withollt any limitation as to number in a previous section: "Sec. 627. Each circuit court may appoint, in different parts of the district for which it is beld, so many discreet persons as it may !leem necessary, who shall be called' commissioners of the circuit courts,' and shall exercise the powers which are or may be expressly conferred by law upon commission· ers of cir<iuit courts." . "" .' . Section 1983 merely the'circuit courts to increase the nU11lber of such commissioners, gives a reaSon for, the direction, and enjoins upon United States (for the words "such commissioners" in that section can have no.other relation than to the ,word "commis· sioners " in the preceding section) diity of enforcing the penl'Ll statutes referred to in section 1982; thatis tp say" the .section has only adirectory But,if section 1983 does not authorize the appointment of commissioners, the words 4'authRrized to be appointed by the preced. section"must be held (1) either to render the whole of section 1984 insensible because the whole of what follows refers.to them; (2) be modby inteI:pretationj or (3) disrega.rded on .the well-known principle, .llS applicablE}. to statutes as to deeds or wills, utile .per inutile non vitiatur. The first course is not to be taken unless no other can be adopted. The 'wol'dsin question might, if Buchappeared to have been the intention of the legislature, be interpreted tome'an the commissioners appointed in consequence of the direction of the Ji,receditlg section. But I am satisfied from a reading of the whole of the. three sections quoted 8upra, that the word "commissioners," used. in section 1984, was intended to have the Bame relation that the same word has in section 1983. The first of these three sections makes it the duty of aU' commissioners of circuit courts to i,n,stitute prosecutions against persqns violating the provisions of chapter 'i 'of 'the title" Crimes." Theseqof,ld requires the courts to increase tht;l Ji,umber of such commissioners so as 'toaflord a speedy means of arresting and, examining. persons ·so prosecuted, while the third gives such commissioners power to.· deputize persons to execute the process issued in
IN ItE UPCHURCH.
pursuance Of the first of these sections,-seotion 1982. To carry out what is evidently the purpose of the legislature by this construction of section 1984; the court is not compelled to do as much violence to the section as would be done by a lireral construction, for that would tmllify it entirely; while the, second one suggested would, though only neglecting two words, insert six others in their place. ' An examination of the 'Statutes from which the three sections under consideration were drawn sllows beyond a doubt that this oonstruction . is the one which carries out the intention of the original acts. The statutes in question are the civil rights bill of 1866 and that of 1872. It will not be necessary t9 our purpose to examine more than the first of these two acts. It, is entitled" An act to protect all persons in the United States in their civil rights, and furnish means for their vindication," and was passed over the veto of President Johnson on the 9th of April, 1866. At that time congress and the president were engaged in the reconstruction contest, so called, which culminated in the impeachment of the latter. The Un.itedStates marshals being presidential appointees, and the hostility of Mr. Johnson to the civil rights bill being notorious, it was apprehended ,that the marsl:1als would not enforce the law; Hence the insertion in it of a provision making it highly penal in such officers to refuse to receive or fail to execute writs issued in pursuance thereof, and also of onE:: providing against such apprehended relusal or neglect by providing for the appointment of other officers to' execute them. Sections 4 and 5 of the act of April 9, 1866, read as follows:
"Sec. 4. And be it further enac;:ted, that the district attorneys, marshals, and deputy-marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, 'I< 'I< 'I< the officers and agents of the freedman's bureau, and every other officer who may, be specially empowered by the president of the United States, shall be, and they are hereby, specially authorized and required at the expense of the United States to institute proceedings against all and every person who shall violate the prOVisions of this act. 'I< 'I< 'I< And with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law without distinction obace or color, '" 'I< 'I< it shall be the duty of the circuit COl11'ts of the United states, and the superior courts of the territories of the United States, from time to time, to increase the number of commissioners, so 8S to afford a speedy and convenient means for the arrest and examination of persons charged with a violation' of this act. 'I< 'I< * Sec. 5. It shall be the duty of all marshals 'I< 'I< * to execute all warrants 'I< 'I< 'I< issued under the provIsions of this act, 'I< . 'I< 'I< and shOUld any marshal or deputy-marshal refuse to receive such warrant, 'I< 'I< * 01' to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined. 'I< * 'I< And the better to enable the said commissioners to execute their duties faithfully, 'I< * 'I< they are hereby altthotized and empowered, within their counties respectively, to appoint, in writing under their hands. anyone or more-suitable persons from Lime to time to execute all such Warrants and other process as may be issued by them in the lawful perfonnauce 0( their resP'¥ltive duties." It is evident that the "said commissioners"of section 5 refers to the
word as first used in section 4; lind includes :811 United States commissioners. In rewriting. these sections, as modified by the act of 1872, (the
second civil tights bill,) the revisers broke up section 5 of the original act, making out of it sections 1983 and 1984 of the Revised Statutes; and in commencing the second of these sections they substituted for the pronoun" they" the words" the commissioners authorized to be appointed by the preceding section," as a more suitable beginning of a paragraph. There was no def'ign to change the law, but only an inadvertence in the rearrangement of the sections. The present law must therefore have the same interpretation as the statute from which it was derived. The posed necessity of appointing some one other than the marshal or his . deputies to execute process is not believed to exist or to have ever ex· isted in this district, but that fact can have no possible effect upon the interpretation of the statute. The account is allowed.
TAFT t1. STEPHENS LITH.
«(Jirouit Oourt, B. D. Missouri, E. D. March 26, 1889.)
Rev. St. U. S. § 4963, provides that every person who shall insert or impress notice of copyright on any article not copyrighted "shall be liable to a penalty of $100. recoverable. one-half." etc. Hetd. that though, where one on different days under different circumstan.ces prints separate,copies, each separate transaction Play constitute a separate offense. yet that the printing of many copies as a single continuous act is but one offense, and each imprint is not a separate cause of action.
SAME-QUI TAM AC'l'ION-PETITION.
A petition alleged that on a certain day, and at divers times between that day and the commencement of the action, defendant engraved, etc., and sold to the number of 10.000 copies. a certain print. etc.. Hfitd. that but one cause of action for a single penalty of $100 was stated. The article upon which the false notice was placed was described in the petition. the description shOWing it to be the SUbject-matter of copyright; but the petition further averred that the article was not subject to copyright. Held. that in such an action the court will not labor on· demurrer to reconcile inconsistencies in pleading. and that. as the penalty is not recoverable for placing the notice on an article that cannot be copy.righted, the petition was bad.
SAME-ARTICLE NOT SUBJECT TO COPYRIGHT.
At Law. On demurrer to petition. diction, see 37 Fed. Rep. 726. W. E. Jili.88e, for plaintiff. Paul BakeweU, for defendant.
For opinion on plea to the
This is a demurrer to the petition.
The action is a qui
tam action brought by the plaintiff as informer under section 4963, Rev.
St. U. B., to recover the penalty therein named. The petition alleges that the defendant printed and circulated 10,000 copies. of a chromo, which is described, putting on each the word "copyrighted," or some equivalent word. The section provides that "every person who shall in-
TAFT V. STEPHENS LITH. & ENG. CO.
sert or impress such notice, or wbrds of the same purport, in or upon any book, map, chart, musical composition, print, cut, engravjng, or photograph, or other article for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable, one-half for the person who shall sue for such penalty, and' one-half to the use of the United States." The petition alleges that the defendant thus printed and issued 10,000 copies, and plaintiff aflks judgment for $100 penalty for each copy, or $1,000,000 in gross. All this is stated in one count; and one ground of challenge is that either there are 10,000 different causes of action, which should each be stated in a separate count, or, if there is but one cause of action, a single penalty of $100 only is recoverable, and the amount prayed for is excessive. The plaintiff pleads the great trouble and inconvenience there'would be in setting out 10,000 causes of action.We think that the rule is unquestioned, and see no reason why it should be deviated from in a case like this. Plaintiff is not suing, for the value of his services, or for injury to his property, but simply to make profit to himself out of the wrongs of others; and when a man comes in as an informer, and in that attitude 'I.10ne asks to have a half million dollars put into his pocket, the conrts will never strain a point to make his labors light, or his recovery easy. So that, if each separate imprint is a separate cause of action, we have no doubt that the petition is demurrable as joining 10,000 causes of action in a single count. But we think that, fairly construed, there is only one cause of action stated. The petition alleges" that heretofore, to-wit, on the 2d day of November, A. D. 1888, and at divers times between said day and the commencement of this action, the said defendant did engrave, print, publish, and sell to the number of 10,00C copies, a certain print, etc." Now, the language of the statute is not "for each cOPYi" and while it may be true that if, upon different days, under different circumstances, the defendant printed separate copies, each transaction thus separate Would constitute a separate offense, yet when the printing of many copies is a single continuous act, only one offense is committed thereby We had a similar question under the election statutes a year or two since, where false registrations were charged. 1 We held there that where several names were falsely registered, and all done at one time, and as a single continuous act, it constituted but one offense, although, if registered on different days, and under different circumstances, they might constitute separate offenses. Here the allegation is that "on the 2d of November, and at divers times" This of course suggests a separation, at least -in the matter of time. Yet, if the pleader claims that there were separate and distinct offenses, there should be a clear divergence of each transaction, both as to time and circumstances, and the court in a quasi criminal action ought to hold the pleader to language free from doubt, and hold, as to a pleading like this, that it simply alleges a continuous action in the printing and issuing of these 10,000 copies, and as such states but a single offense.
s. v. Eagan, 'SO Fed, Rep.. 498.
vol. 38. '
Another ground-of demurrer is that the chromo upon which the word "copyrighted" was placed wag. not the subJect of copyright. The law is clear that no offense' is committed when the word "copyrighted" is placed upon an article that is not the sabject-rnatter of copyright·.,-that cannot be copyrighted. The law is designed to guard against deception, and no one is deceived when the word "copyrighted" is placed upon an article that cannot be copyrighted, such as a kitchen stove, or a railroad car. Now, the plaintiff in this case describes the chromo, and the description disCloses an :article which could be copyrighted, and, if the petition sWpped with this description, it would doubtless be sufficient. But it goes further, and alleges that "said printing and chromo has not been copyrighted by the defendant or any other person, nor was the same subject to copyright under said laws." Thus it appears that the averment of disability is not limited to the person, but is cast upon the print. It.was not the subject of copyright. There is in this an apparent contradiction to that which might be inferred from the language of description. Counsel suggests that the thought he had was that under the particular circumstances this print could not be copyrighted, and it is possible that there might be circumstances which would thus at the tirne exclude this print from copyright, although in its nature it was the subject-matter of copyright. But in a criminal or qu01!i criminal action the pleading should be clear and consistent. The court.is not called upon to strain any language to rel:nove dou bt or secure consistency. There Should be no labored effort at reconciliation 9f apparentlyconhadictory averments. at least when the pleading is challenged before trial. So, because it is alleged that the print was not the subject of copyright, we think the demurrer should be sustained, and it is so ordered. Stlbsequent pleading may be prepared with referellce to the views of the offense as above expressed. Plaintiff will be granted 30 days in which to file an amended petition, and defendant 30 days thereafter to plead thereto.
(Circuit Court, 8. D. NeU! Y01'k.
Otl'STO:M:S DUTIES-DRESS GOODs-ACT MARCH
January 7, 1889.
3, 1883. SCHEllULE L Women's dress goods composed chiefly of wool, with 'from 1.119 to 4.74 per cent. of cotton introduced intbe warp and selvedges thereof for tbe purpose of changing the classification, in the form of a tlber,the warp being a mixed or compound thread of wool' and cotton, held not to have been made "with threads of other materials." within the meaning df said schedule. ' ..t1lao, held, that the language of said paragraph in said Schedule K explicitly restricts the operation of said clause to threllds wholly composed of other materials than WQol oI'worsted. --,' (81111abu8 by tke Court.)
Action to recover customs duties.,