Volume 16 — Federal Reporter, Second Series

<p>These were not put in evidence, and all that appeared was that one had been taken out in 1920, one in 1923, and one in 1924; the last apparently not being involved in the proceeding. The trustee did put in evidence, ■however, a letter of the insurer saying that neither of the two policies in suit had any ■cash surrender value on January 2,1925 (the date of the adjudication), but that they would have on March 9 and April 14, respectively, if the premiums then due were paid. The wife asserted her claim on the ground that she had paid all the premiums but the first, and this the referee overruled. Thereafter he granted a rehearing, but adhered to his first decision.</p> <p>The wife then filed with the referee a petition to review this order, which the District Court affirmed, and the order of affirmance is now in this court on petition to revise. The referee did not certify any return to the District Court, and so far as appears from the transcript the petition to review was heard •upon the stenographer’s minutes en bloc, the documentary evidence, and the referee’s order.</p>

The defendant was convicted on counts L 2, 3, 4, and 6. A fine of $500 was imposed on counts 1, 2, and 4, and imprisonment in the county jail for six months on count 3, and four months on count 6, and a fine of $500; jail sentences to run consecutively. From this judgment writ of error is prosecuted.

<p>August 13, 1925, the defendant moved to quash the search warrant and exclude from the evidence articles seized on the ground that the warrant was not issued in the name of the President or the United States; that the affidavit does not state facts constituting probable cause; that the affidavit does not name the owner or occupant of the building. This motion was denied by Judge Kerrigan. A bill of exceptions was presented to Judge Kerrigan August 31, “to be used on writ of error to review the order denying the petition to quash the search warrant and exclude evidence.” This was settled, approved, and allowed September 10,1925. The defendants brought the matter here on writ of error. See Jacobs et al. v. U. S. (C. C. A.) 8 F.(2d) 981. On motion the writ was dismissed, on the ground that the order denying the petition to return the seized property was not a final order.</p> <p>On September 30,1925, by leave of court, a new information, styled an “amended” information, was filed against the defendant, predicated upon the affidavit of Fred A. Lea. The acts charged in counts 1, 2, 4, and 5 were identical with counts, 1, 2, 3, and 4 in the first information, except that the defendant alone is charged. Count 3 in the new information charged maintenance of a nuisance by keeping for sale 395 gallons of so-called “jackass brandy” at 1143 Post street, etc.</p> <p>On October 3, 1925, a motion to quash the new information was made, alleging that the court had not power to authorize it; that it was in violation of the Sixth Amendment to the Constitution; that there is a misjoinder in counts 2 and 3, each charging a nuisance on the same premises at the same time and place; and that defendant will be twice placed in jeopardy for the same offense, in violation of the Fifth and Sixth Amendments to the Constitution. This motion was denied.</p> <p>On May 11, 1926, the cause came on for trial before Judge St. Sure, and a verdict was returned May 13, at 3:40 p. m. Witness Powers, on behalf of the government, testified that on May 22, 1925, he was a prohibition agent, and had been for two years and nine months; that he had visited 1143 Post street, the premises in issue, several times. It consisted of a garage and automobile repair shop. The occasion of the first visit was tracing a shipment of “so-called ‘com sugar/ which is used in the manufacture of whisky * * * to the garage. * * * ” On May 22, with Lea and two police officers he visited the premises, and “on the mezzanine floor we found four copper stills, two of them still warm, and 395 gallons of so-called ‘jackass brandy5 in whisky barrels,” and other things mentioned. The plaintiff then offered the stills and samples of the liquor in evidence. Defendant objected, on the ground that it was illegally taken, in violation of the Fourth and Fifth Amendments to the Constitution, and on cross-examination identified a search warrant, and also specified “each and every ground theretofore stated in support of the motion previously made to quash the search .warrant and exclude the evidence. * * *55 The objection was overruled, and thereafter certain other witnesses were sworn and testified for the government and for the defendant.</p> <p>Two bills of exceptions are in the record —one to the proceeding under the first information, where the defendant and another were charged, and which was brought to this court on error (Jacobs et al. v. United States, supra); and the proceeding under the new information, where the defendant alone is charged, and on which conviction was had.</p>

<p>The bills alleged: That each plaintiff was a common carrier engaged in interstate-commerce, operated a steam railroad in the city of New York, and was therefore within the terms of the statute. That the changes directed by the statute would involve large expense, out of any reasonable relation to the benefit conferred on the community, because they would affect only industrial districts, already so overcharged with smoke from factories that the plaintiffs’ contributions were insignificant. That the time given for compliance with the act was too short to be practicable, and in some cases that it was physically impossible to comply at all; in some eases, that the changes involved large expenditures, which could be met only by the issue of new securities. That the section took property without due process of law, because of the incommensurability between outlay and benefit. That it denied the plaintiffs equal protection of the law, in that it singled out railroads alone. That it was a direct burden upon interstate commerce, because it required the plaintiffs to change their equipment as interstate carriers and to make such large outlays, and that it further trenched upon the powers of the Interstate Commerce Commission, to whom had been given jurisdiction under the Boiler Inspection Act and its amendments (Comp. St. § 8630 et seq.) to prescribe the kind of motive power to be used.</p> <p>The defendants answered denying the allegations of law in the bills, admitting some of the facts and denying others. After the eases had been argued the New York Legislature amended section 53-a so as to give power to the New York Public Service Commission to extend the time within which the carriers might make the changes. Under that amendment, the Commission extended the time of all the original plaintiffs, except the four whose names appear above, whose applications they denied.</p>

The cause was tried to a jury, and the court held that she was taxable, upon the theory adopted by the taxing officers, but that the jury must decide what was the value of the shares at the time of the gift. Evidence upon this issue was submitted by both sides, and the jury by special verdict found the value of the common shares to have been $24, and of the preferred $43.50.