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Sturgeon v The Borough of Oakdale.

between the defendant and that owner, the defendant has a right to maintain its sewer as it is. It cannot therefore be required to remove the sewer, or to change its location.

2. The plaintiff having failed to show a right to the relief prayed for, the bill must be dismissed. It is therefore ordered that the bill be dismissed and that the costs should be paid by the plaintiffs.

In re Parole.

Conviction of Second Crime in Another State-Pardon-Returned to Penn

sylvania-Acts of 1911 and 1915.


The clear implication of Section 14 of the Act of June 19, 1911, P. L. 1055, as amended by the Act of June 3, 1915, P. L. 788, relating to the parole of convicts, is that the convict is not required to serve the remainder of his term without computation where after parole, he went to another state was rested but paroled after conviction of the second offense and returned to the penitentiary in Pennsylvania and was serving out the remainder of his first sentence. He could be released a second time on parole by the Governor on the recommendation of the Board of Inspectors of the penitentiary.


Harrisburg, Pa.

April 8, 1920.

Mr. John W. McKenty,
Parole Officer,
Eastern State Penitentiary,

Philadelphia, Pa.



This Department is in receipt of your communication of the 25th ult. relative to Joseph Ryan, alias Thomas McCluska, B-3133. I understand the facts to be as follows:

He was convicted of the crime of murder in the second degree and sentenced on March 5, 1906, to undergo imprisonment in your institution for a term of nineteen years. On June 19, 1914, he was paroled. Some time subsequent thereto, he left the State of Pennsylvania and went Indiana where he was convicted of the crime of petit larceny and confined in one of the penal institutions of that state. On October 30, 1916, the Governor of Indiana pardoned Ryan, alias McCluska, "upon condition that he be delivered into the custody of the proper officials of said Eastersi State Penitentiary of Philadelphia, Pa., and in the event said penitentiary does not come for him, he is to serve his term of sixty days, together with fine and costs, in said Indiana State Farm, until released as provided by law.” In accordance with this pardon, he was returned to your institution and is now confined therein. You now inquire whether he can be again released on parole.

The conditions upon which the pardon was granted have been met and the pardon is in effect a full pardon. As held by former Attorney General Brown, in an opinion dated June 6, 1918, such a pardon reaches not only the consequences of the criminal act but the conviction itself; so that in contemplation of law, Ryan committed no crime while he was

In re Parole.

in the State of Indiana. To the same effect are Diehl et al. v Rogers et al., 169 Pa., 316; and Ex Parte Garland, 71 U. S., 333.

Section 10 of the Parole Act of June 19, 1911, P. L. 1055, as amended by the Act of June 3, 1915, P. L. 788, substantially providing that if a convict, released 0,7 parole, is convicted of any crime punishable by imprisonment under the laws of this Commonwealth, he must serve out the remainder of his term without commutation, has no application.

You are therefore detaining this convict not on account of what he did in Indiana, but because he violated his parole by leaving the State of Pennsylvania without permission of your Board of Inspectors. The present status of the prisoner, so far as his eligibility to parole, therefore, is governed by Section 14 of the Act of 1911, as amended by the said Act of 1915, which reads as follows:

"Whenever it shall appear to the Board of Inspectors of a penitentiary that a person who has been sentenced thereto under this Act, and released on parole by commutation containing a condition that the convict shall be subject to this Act, has violated the terms of his or her parole, the secretary of said Board of Inspectors may issue a warrant for the arrest of said person, in the same manger as in the case of an escaped convict. Upon said convict being returned to the penitentiary, he or she shall be given an opportunity to appear before its Board of Inspectors, and, if said board shall find that said parole has not been broken, the prisorier shall be released, and continue subject to the terms of said parole; but, if it be found that said parole had been broken, said board shall declare such convict delinquent; after which a full report of the said case shall be forwarded immediately to the Governor, who thereupon may issue his mandate, reciting the date of commutation, for the recommitment of such convict for breach of parole, to the penitentiary of original commitment, to be imprisoned in said penitentiary for the remainder of a period equal to the unexpired maximum term of such prisoner as originally sentenced (computing the same from the date of arrest for breach of parole), wless sooner released on parole or pardoned; but, if the Governor shall disapprove the finding of the Board of Inspectors, the said prisoner shall be released upon the conditions of his original parole."

The clear implication of this section is that where the parole has been broken by some act or omission got comprehended by Section 10, the convict is not required by the statute to serve the remainder of his term without commutation, but may be again released on parole by the Governor, upon the recommendation of the Board of Inspectors of your institution.

Specifically answering your inquiry, I beg to advise that Joseph Ryan, alias Thomas McCluska, a convict in the Eastern State Penitentiary, may now be legally recommended by your Board of Inspectors for release on parole.

Very truly yours,

Deputy Attorney General.

United States of America v Basic Products Co.

Mandamis -Federal Trade Commission -Trade Secrets -Unterstate Com

nerce -Unfair Competition-Constitutional Limitations---Act of Congress of September 26, 1914.

The Federal Trade Commission cannot compel by mandamus a corporation to reveal production costs and trade secrets relating to the manufacture of a patented commodity used in the United States navy, where such information was sought for the use of the Navy Department to enable it to fix a price, in that the Act of Congress of September 26, 1914, creating said commission conferred such powers only where questions of unfair competition in commerce were involved and where it affirmatively appeared that defendant was engaged in interstate commerce.

Where an incident of an intended investigation by the Federal Trade Commission was the ascertainment of trade secrets and the cost of manufacturing a patented product, to which defendant had the exclusive right, with the expressed intention of giving such information to the Navy Department, the court refused a writ of mandamus in that such procedure would be the taking of private property for public use without due process of law.

The Act of Congress of September 26, 1914, authorizes a petition for mandamus in aid of the Federal Trade Commission, but mandamus issues only where and only when there is a right to demand and a corresponding duty to perform the act required. The determination as to when such a demand will lie is by the court, not by those who demand performance for some particular act or thing.

Mandamus. No. 2214 November Term, 1919. District Court of the United States for the Western District of Pennsylvania.

R. L. Crawford, for plaintiff.
Reed, Smith, Shaw & Beal, for defendant.

ORR, J., September 9, 1919.–To a petition filed by the Attorney General of the Cnited States, at the request of the Federal Trade Comission, for a writ of mandamus upon the Basic Products Company, the latter has made answer at considerable length. To that answer, the plaintiff has demurred. It is upon the demurrer that this case is now before the Court.

While all the material averments of the answer, which are well pleaded, must be taken as true, yet the important questions in the case cannot be clearly outlined without reference to the petition as well, and without a statement of the particular grounds upon which the demurrer is based. The Court therefore sets forth the substance of the pleadings with quotations from the same and with the use of italics where deemed proper for special emphasis.

With respect to the petition, it is to be noticed:

That there is no averment of any facts which show that the defendant is engaged in interstate commerce. The recital in the resolution of the Federal Trade Commision, which is hereinafter set forth, is not such averment.

The petition sets forth that on the 8th day of March, 1917, the Federal Trade Commission passed a resolution, and on the 11th of March followig, caused notice thereof and its demand in pursuance thereof, to be served on the defendant, which notice and demand are both set forth at length in the petition. They are embodied in one paper duly executed by the Federal Trade Commission.

The part of said paper which contains the notice, recites the date of the passage of the resolution as aforesaid; that it was passed at a regular session of said Commission, and contains the resolution itself, which is as follows:

"Resolved. That, pursuant to the provisions of sub-division (a) of Section 6 of the Act of Congress entitled 'An Act to create a Federal Trade Commission, to define its powers and duties and for other purposes' ap

United States of America v Basic Products Co.

proved September 26, 1914, the Commission proceed forthwith to gather and compile information concering, and investigate the organization, business, conduct, practices and management of the Basic Products Company, a corporation engaged in interstate commerce, and the relation of said Basic Products Company to other corporations, individuals, associations and partnerships; and be it further,

Resolved. That, pursuant to the provisions of Section 9 of said Act of September 26, 1914, L. W. Plowman and H. L. Maxey are hereby designated as duly authorized agents of the Federal Trade Commission to examine and copy any and all docume:itary evidence of whatsoever character concerning the organization, business, conduct, practices and management of said Basic Products Company, and its relation to other corporations, individuals, associations and partnerships; and be it further

Resolved. That a copy of this resolution be served on the said Basic Products Company with a demand on behalf of the Federal Trade Commission that the said L. W. Plowman and H. L. Maxey, its agents, be permitted access to the books, papers, records, memoranda and data of the said Basic Products Company for the purpose of carrying out the direction of this resolution."

The part of that paper containing the demand is as follows:

"Pursuant to the terms of said resolution, the Federal Trade Commisgion hereby formally demands of you an opportunity to examine any documentary evidence in your possession which relates to the organization, business, conduct, practices, and management of said Basic Products Company, a corporation, and its relation to other corporations and to individuals, associations, and partnerships in order that copies may be made of any portions of said documentary evidence, as appears to be relevant to the subject matter of said' investigation.

The said Federal Trade Commission, by its duly authorized agents, viz., L. W. Plowman and H. L. Maxey, presents itself for the purpose of examination and making copies, if deemed advisable, of any documentary evidence within your possession or control and which relates to the above entitled investigation now being conducted by it. In particular, the Federal Trade Commission demands that it be permitted to examine and take copies, if deemed advisable, of all documentary evidence which relates to the production costs, annual production, and capital investment the manufacturing of a commodity known as ‘Syndolag.'”

The petition further avers that upon the service of said notice and demand, certain examiners, duly authorized by the Commission, presented themselves, within the usual business hours, at the office of the defendant in Pittsburgh “for the purpose of examination and making copies, if deemed advisable, of any documentary evidence within the possession and control of said defendant, which related to the investigation then being conducted by said Commission, as aforesaid, and particularly of such documentary evdence which related to the production costs, annual production, and capital investment in the manufacturing by defendant of a commodity known as 'Syndolag.' but said defendant wholly failed and refused and still fails and refuses to permit said representatives of the Commission to examine said documentary evidence and make copies of same."

The petition concludes with a prayer for a writ of mandamus.
The answer to said petition avers:

(1) That the defendant is the manufacturer of a patented article known as "Snydolag,” which has been developed by the defendant after great expenditure of time and money, and which, among its other uses, is widely sold by defendant for repairing the bottoms of open hearth steel furnaces, a purpose for which heretofore only imported Austrian magnesite could be

United States of America v Basic Products Co.

used. Not only is the article patented, but in the production thereof the defendant has developed certain refinements of method which are and have been kept secret by defendant and which constitute trade secrets of great value, as are also the cost accounts relating to the production of such article:

(2) On or about September 4th, 1918, the Navy Department of the United States ordered from defendant 250 tons of syndolag for which defendant quoted a price of $35.00 per ton, which was then the usual and ordinary price, but the Navy Department refused to agree to such price and required such material to be billed at the tentative price of $30.00 per ton. Pursuant to such order the defendant shipped to the said Department 64.9 tons of said material. Subsequently thereto, after the armistice with Germany was signed, the balance of said order was cancelled by the Navy Department and the Defendant waived any claim against the United States by reason of such cancellation.

(3) During November and December, 1918, and January and February, 1919, repeated demands were made by the Navy Department for aftidavits from defendant showing defendant's cost of production of said article for the pretended reason of enabling the Navy to decide upon the price which it would be willing to pay defendant for its product. Defendant then offered, and in the answer in this proceeding renews said offer, to accept any price for said material which the Navy Department may see fit to pay. While such demands were being made by the said department, the latter nevertheless, on December 14th, 1918, and January 19, 1919, paid defendant at the rate of $30.00 per ton for all syndolag delivered as aforesaid. The defendant, prior to the filing of the answer in the present proceeding, offered, and in the said answer renews such offer, to return to said department, or to the Treasurer of the United States as directed. any part of such price which is in excess of the price which the Navy Department, in its discretion, sees fit to pay for such product, or, should the Navy Department be unwilling or unable to fix such price, to refund to the Navy Department or to the Treasurer of the United States as directed, the whole amount received by defendant for such product.

(4) That the foregoing offers have been continuously made by defendant, yet under the pretense of fixing a price therefor, the aforesaid demands for affidavits have been made by the Navy Department without reason or just cause. When the defendant finally refused to furnish such affidavits, the Navy Department's said demands were then taken up by the Federal Trade Commission, at the request and for the purpose of the Navy Department, in an effort to secure for the Navy Department such information through an assertion of the powers of the Federal Trade Commission. Such Trade Commission did, on March 1st, 1919, send examiners to drefendant's plant with the following communication;



March 1st, 1919

Basic Products Company,

Kenova, W. Va.


This will serve to introduce Messrs. L. W. Plowman and H. L. Maxey, examiners of the Federal Trade Commission.

At the request of the Navy Department, the Federal Trade Commission

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