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the company's road was operated as a device to evade the provisions of the act; denied that its operation resulted in giving the steel company illegal rates, or in affording it any kind of advantage or preference; and denied that it had neglected to file with the commission copies of any agreements or tariffs as required by the act.

Certain officers of the five railroad companies and an officer of the steel company appeared before the commission as witnesses in obedience to its subpoena, and, having failed to elicit any facts from them which materially tended to support the charge of unlawful discrimination in favor of the latter company, the commission demanded the stock books of the steel company and the stock books of the five railroad companies for inspection, and in that connection inquired of the witnesses whether they knew who owned the five companies, and especially whether the steel company owned them, or a majority of their stock. On the advice of counsel, the witnesses refused to produce the books or answer the questions, and the commission applied to this court for an order to compel them to do both.

The application is based upon the twelfth section of the commerce act, which declares that the commission shall have authority to inquire into the management and business of all carriers engaged in commerce between the states; that it shall keep itself informed as to the manner and method in which such business is conducted, and have the right to obtain from such carriers full and complete information necessary to enable it to perform its duties and accomplish the objects for which it was created; that it shall execute and enforce the provisions of the act; that upon its request it shall be the duty of any district attorney of the United States to institute in the proper court, and prosecute under the direction of the attorney general, all necessary proceedings for the enforcement of the act and for the punishment of all violations thereof; that it shall have power to require by subpoena the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation from any place in the United States at any designated place of hearing. The act further provides that, “in case of disobedience to a subpoena, the commission, or any party to a proceeding before the commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents, under the provisions of this section. And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such carrier or other person to appear before said commission, (and produce books and papers, if so ordered,) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a con. tempt thereof."

The Interstate Commerce Commission is an administrative, and not a judicial, body, and the important question presented for deter: mination is, can the process of this court be exercised in aid of an

investigation before such a tribunal? The jurisdiction of the courts of the United States is limited, and it is not competent for congress to confer upon them authority which is not strictly judicial, and clearly within the grant found in the third article of the constitution. The first section of that article declares that the judicial power of the United States shall be vested in one supreme court and such inferior courts as congress may from time to time establish; and the second section declares that the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, etc. This grant of power was discussed in Osborn v. Bank, 9 Wheat. 738, and in delivering the opinion of the court Chief Justice Marshall said:

"This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case.

In Smith v. Adams, 130 U. S. 167, 9 Sup. Ct. Rep. 566, this section was again considered, and in interpreting it the court said:

“By those terms are intended the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim or contention of a party takes such a form that the judicial power is capable of acting upon it, then it has become a case or controversy."

“ The functions of the judges of the courts of the United States,” said Judge Story,“ are strictly and exclusively judicial. They cannot, therefore, be called upon to advise the president in any interpretation of law, or act as commissioners in case of pensions or other like proceedings.” 2 Story, Const. § 1777.

The application of an administrative body (and we are now considering such an application) to a judicial tribunal for the exercise of its functions in aid of the execution of nonjudicial duties does not make a "case" or "controversy” upon which the judicial power can be brought to bear. It is not a contention between litigants, "brought before a court by regular proceedings for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." The commission was engaged in investigating charges of unlawful discrimination against certain railroad companies, and this court is simply asked to aid that body in obtaining evidence which, it is claimed, will tend to support the charge. The subject of the inquiry is not brought here for adjudication, and this court can exercise no discretion beyond deciding whether the evidence demanded is pertinent to the charge, and within the general scope of the twelfth section of the act. Congress cannot make the judicial department the mere adjunct or instrument of either of the other departments of government. Hayburn's Case, 2 Dall. 409; Ferreira's Case, 13 How. 45; McLean's Case, 37 Fed. Rep. 648.

By an act of congress passed in 1887 the president was authorized to appoint three commissioners to examine the books, papers, and

method of business of all railroad companies which had received aid from the United States, for the purpose of ascertaining whether they had observed the obligations imposed upon them by law. The act gave the commissioners power to require the attendance and testimony of witnesses and the production of books, papers, and documents relating to any matter under investigation. It also provided “that any of the circuit or district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, issue an order requiring any such person to appear before said commissioners, or either of them, as the case may be, and to produce books and papers, if so ordered, and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof." Three commissioners were accordingly appointed, and they cited before them Leland Stanford, president of the Central Pacific Railroad Company, one of the corporation which had received government aid, and propounded questions to him touching the administration of the affairs of his company, and the alleged dishonest disbursement of some of its mon. eys, which he refused to answer. He was also required to produce the books of his company, which he declined to do. The circuit court for the northern district of California was thereupon applied to for an order upon Stanford, to show cause why he should not be required to comply with the demands of the commissioners. Mr. Justice Field, Judge Sawyer, and Judge Sabin constituted the court which heard the motion, and they concurred in holding that it was not a case or controversy within the meaning of the constitution, and that the act under which the commissioners were appointed was unauthorized and void. In a carefully prepared opinion on the motion, Sawyer, Circuit Judge, said:

“The court is made the ministerial agent of the commission to perform its behests whenever a witness refuses to respond to a question or produce papers within the range of the authority attempted to be given by the statute. The judicial department of the government is simply made, by this act, an adjunct to the legislative department in the exercise of its political and legislative functions and powers, to execute its demands, and that, too, in a matter into which congress, under the decision cited, has no jurisdiction whatever to inquire. I know of no power in congress to thus render the judicial department subordinate or auxiliary to the legislative and executive departments of the government, or to either of them. If there is any one proposition immutably established I bad supposed it to be that the judiciary department is absolutely independent of the other departments of the government, and that it cannot be called upon to act & part subordinate to any other department of the government. In re Pacific Railroad Com’rs, 32 Fed. Rep. 267.

Undoubtedly congress may confer upon a nonjudicial body authority to obtain information necessary for legitimate governmental purposes, and make refusal to appear and testify before it touching matters pertinent to any authorized inquiry an offense punishable by the courts, subject, however, to the privilege of witnesses to make no disclosures which might tend to criminate them, or subject them to penalties or forfeitures. A prosecution or an action for violation of such a statute would clearly be an original suit or controversy between parties within the meaning of the constitution, and not a mere application, like the present one, for the exercise of the judicial

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power in aid of a nonjudicial body. So much of section 12 as authorizes or requires the courts to use their process in aid of inquiries before the Interstate Commerce Commission is unconstitutional and void, and the application is dismissed.

In re INTERSTATE COMMERCE COMMISSION.

(Circuit Court, N. D. Illinois. December 7, 1892.) Application by the Interstate Commerce Commission for an order to compel Sumner Hopkins and Henry Walker to answer certain questions. Application dismissed.

Thomas E. Milchrist, U. S. Itist. Atty., John P. Hand, Asst. Dist. Atty, and Walter D. Dabney, special counsel, for Interstate Commerce Commission

Rogers, Locke & Milburn, for the witnesses.

GRESHAM, Circuit Judge. The commission, of its own motion, instituted an inquiry to ascertain whether certain railroad companies engaged in the transportation of passengers and property from Chicago io eastern seaboard points had violated the provisions of the commerce act. The inquiry seems to have been chiefly directed against the Wabash Company, and the questions which Sumner Hopkins and Henry Walker refused to answer relate to the business and management of that company. The application for an order to compel those witnesses to testify before the commission as demanded is disinissed for the reasons given in disposing of the application for a similar order against W. G. Brimson and others. 53 Fed. Rep. 476.

BOSTON LASTING MACH. CO. y. WOODWARD et al.

(Circuit Court, D. Massachusetts. January 18, 1893.)

No. 2,948. 1. PATENTS FOR INVENTIONS-INVENTION-COMBINATION-LASTING AND FASTEN

ING MACHINE.

Letters patent No. 248,344, issued October 18, 1881, to Erastus Woodward, for an improvement in lasting and fastening machines, cover, in the second, third, and fourth claims, the combination of a jack for holding a last, automatic pegging mechanism so constructed as to present and drive but one nail, and mechanism which is brought into operation by the pressure of the sole of the shoe carried by the jack, and actuates the pegging mechanism. Held, that the function of this combination is new, and

the patent is entitled to a broad construction. 2. SAME-INFRINGEMENT.

These claims are infringed by machines made under letters patent No. 426,160, granted April 22, 1890, to Erastus Woodward, since these machines

contain devices which are equivalent to those of the patent. 3. SAME-COMBINATION-INVENTION.

The first and fifth claims of the first above-named patent, which cover a combination of the jack, the pegging mechanism, and the actuating mech: anism, with an unweighted foot treadle, so constructed as to press the work against the actuating mechanism when the treadle is depressed, are void, as the treadle takes no part in the function of the combination. In Equity. Suit by the Boston Lasting Machine Company against Erastus Woodward and others for infringement of a patent. Decree for complainants as to the second, third, and fourth claims of the pacent and that the first and fifth claims are void.

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James E. Maynadier, for complainant.
George O. G. Coale, for defendants.

CARPENTER, District Judge. This is a bill in equity to enjoin an alleged infringement of letters patent No. 248,544, granted October 18, 1881, to Erastus Woodward, for an improvement in a lasting and fastening machine. The letters patent have been assigned to the complainant. The claims alleged to be infringed are as follows:

"(1) In an organized machine for lasting and tacking the uppers of boots and shoes, the combination of a jack and last adapted to be operated by a foot treadle, to present the work to the nozzle of an automatic fastening-driring device, and the automatic fastening-driving device, whereby the last and jack are presented by the foot to the nozzle of the fastening-driving device, a tack or nail driven, and the jack and last automatically adapted to resunie their original position upor the release of the treadle, substantially as described.

“(2) In an organized lasting and tacking machine, the combination of a jack for holding a last and presenting it to automatic fastening-driving mechanism, the said automatic fastening-driving mechanism, and an actuating device for starting the fastening-driving mechanism, constructed substantially as set forth, and adapted to be moved in the act of presenting the work in proper position for receiving the fastening, whereby the fastening may be driven at the instant that the work is so located, all substantially as and for the purposes described.

“(3) In an organized machine for lasting and tacking the uppers of boots and shoes, the combination of a jack for holling and presenting the last to an automatic fastening-driving device, the automatic fastening-driving device, and the means for setting said fastening-driving device in operation, arranged or located to be automatically moved upon the placing in position of the last, whereby a fastening is driven at the instant the last is so located, all substantially is and for the purposes described.

“(4) In an organized machine for lasting and tacking the uppers of boots and shoes, the combination of a jack for holding and presenting the last to an automatic fastening-driving device, the automatic fastening-driving device, and the means for starting and stopping its operation, adapted to be operated or moved automatically upon the placing in proper position of the last or work in relation to the nozzle, whereby, upon the instant said work is so located, a fastening is driven, and the machine automatically stopped, all substantially as and for the purposes described.

“(5) In an organized machine for lasting the uppers of boots and shoes, the combination of a jack for holding and supporting the last, and for presenting it and the work thereon to an automatic fastening-driving device, said fastening-driving device, means for stopping it, and an unweighted foot treadle for operating the jack, all arranged so that, as the jack is listed, the stop-motion mechanism is operated, all substantially as and for the purposes described."

The second, third, and fourth claims are for the combination of the jack for holding a last, the automatic pegging mechanism so constructed as to present and drive but one nail, and the mechanism which is brought into operation by the pressure of the sole of the shoe, carried by the jack, and actuates the pegging mechanism. Previous to this invention, there had been automatic pegging devices, which, being actuated mediately or immediately by the pressure of the work, commenced to present and drive nails, and so continued, whereby many nails were wasted. There was also a machine so constructed as to drive only one nail, and set in operation by pressure on a thumb piece by the hand of the operator. Such a machine is

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