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In re Adulterated Food.

health, a thousand investigations and as many prosecutions might be necessary. I am advised since the receipt of your inquiry that this is what has actually occurred in Philadelphia with the candy in question, and that a number of retail dealers have been prosecuted. The Legislature could not have been ignorant of the difficulties which would attend the enforcement of the Act if a seller were thus permitted to relieve himself from responsibility.

Considering the purpose of the Act, the evident intent of the Legislature and the plain words of the enactment, I am of the opinion that a sale of adulterated food is a violation of the Act, even though it be made with distinct notice to the purchaser that the food is adulterated.

(3) May an officer or agent of the United States Government, selling adulterated food in pursuance to the order of his Department of the Federal Government be prosecuted for a violation of this Act ?

This must be answered in the negative.

It is a general rule that an officer of the United States Government who, in the strict performance of his official duty, does an act which constitutes a violation of the law of a State, is not punishable for the commission of such act.

This rule has been established and adhered to in a long line of decisions in the Federal Courts, of which the following are selected as illustrative of the varying circumstances under which it has been applied.

In re Thomas, 82 Fed., 304, the Governor of the Central Branch of the National Military Home for Disabled Volunteer Soldiers at Dayton, Ohio, served oleomargarine to the soldiers at that home without complying with the requirement of an Act passed May 16, 1894, entitled :

"An Act to prevent fraud and deception in the manufacture and sale of oleomargarine and promote public health in the State of Ohio."

On petition to the Circuit Court of the United States for a writ of habeas corpus, the petitioner was discharged. Mr. Justice Taft said, page 309 :

"The jurisdiction of the State Government in such a case is excluded because that which is being done is the business of the United States, and such business is as completely beyond the influence and control of the State Government as if it were not done within the territory of the State.”.

And on page 310:

"No State can pass a law which shall in any manner interfere with or prevent the due exercise of its constitutional functions by the United States Government through its officers and agents."

On appeal the order of the Circuit Court was affirmed by the Circuit Court of Appeals, 87 Fed., 453, and by the Supreme Court of the United States, 173 U. S., 276; 43 L. Ed., 699. That Court, speaking through Mr. Justice Peckham, said (L. Ed., 701):

"The government is but claiming that its own officers, when discharging duties under Federal authority, pursuant to and by virtue of valid Federal laws, are not subject to arrest or other liability under the laws of the State in which their duties are performed *

“We are of opinion that the governor (of the Soldiers Home) was not subject to that law, and the Court had no jurisdiction to hear or determine the criminal prosecution in question, because the act complained of was performed as part of the duty of the governor as a Federal officer, in and by virtue of valid Federat authority, and in the performance of that duty he was not subject to the direction or control of the Legislature of Ohio.”

In re Waite, 81 Fed., 359, an agent of the Federal pension department engaged in investigating pension frauds in the State of Iowa did an act which amounted to a violation of section 3871 of the Code of Iowa, which provided for the punishment of one who maliciously threatened to accuse a person of a crime in order to compel him to do an act against his will. He was tried and convicted

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In re Adulterated Food.

in the State Court and upon error the Supreme Court of the State affirmed the judgment (State v Waite, 70 N. W., 596). Upon petition to the District Court of the United States for a writ of habeas corpus he was discharged. Upon error to the Circuit Court of Appeals (Campbell v Waite, 88 Fed., 102) this decision was affirmed. Mr. Justice Thayer, speaking for that Court, said (pages 106-7):

“It was also decided in re Neagle, 135 U. S., 1, 75, 10 Sup. Ct., 658 (34 L. Ed., 55, 75), where most of the foregoing cases were cited and approved, that no act done in pursuance of a law of the United States lawfully enacted can be an offense against the laws of a State, and that an act done in obedience to rules or regulations lawfully prescribed by one of the executive departments of the government or in obedience to the directions of one of the heads of such departments, acting within the scope of his authority, is to be regarded as an act done in pursuance of a law of the United States, although no Statute of the United States has in express terms directed the doing of the act."

In Cunningham vs. Neagle, 135 U. S. 1, 10 Sup. Ct., 658, 34 L. Ed. 55, Neagle, special deputy marshal of the United States, while protecting Mr. Justice Field of the United States Supreme Court from a murderous assault by Judge Terry, shot and killed the latter. He was indicted for murder in the Court of San Joaquin County, California. Upon petition to the United States Circuit Court for writ of habeas corpus, he was discharged, which action was affirmed by the United States Supreme Court. Upon the argument in the latter Court the Attorney General of California urged “that if the habeas corpus order can deliver the relator from prosecution under the laws of California, then it exempts him from all liability to trial anywhere.” To this contention Mr. Justice Miller, speaking for the Supreme Court said (p. 75):

"To the objection made in argument, that the prisoner is discharged by this writ from the power of the State Court to try him for the whole offense, the reply is, that if the prisoner is held in the State Court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of California. When these things are shown, it is established that he is innocent of any crime against the laws of the State, or of any other authority whatever. There is no occasion for any further trial in the State Court, or in any Court.”

To the same effect are Tennessee v Davis, 100 U. S., 257, 25 L. Ed., 648, where an internal revenue officer, while engaged in the course of his official duty, killed a man; in re Lewis, 83 Fed., 159, where a marshall was charged with robbery; in re Turner, 119 Fed., 231, where an army officer engaged in building a sewer for an army post was arrested for contempt in violating an injunction issued by a State Court; and Hunter v Wood, 209 U. S., 210, 52 L. Ed., 754, where a ticket agent, acting under authority of the order of a Unietd States Court charged for a railroad ticket a rate in excess of the rate established by a State law.

It is true that where it is claimed by the officer that his act was performed in the course of his official duties, but it does not clearly appear that such was the fact, the United States Court may, in its discretion, refuse to discharge him upon habeas corpus and allow him to be tried in the State Court and to establish his claim to immunity before a jury in that Court. Such a case was Castle vs. Lewis, 254 Fed., 917. Without discussing the facts or the law of this or other similar cases, it is sufficient to say that the facts which you present do not make such a case.

The Constitution of the United States, Article I, Sec. 8, provides : “The Congress shall have power

to declare war to raise and support armies

to make rules for the government and

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In re Adulterated Food.

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regulation of the land and naval forces

and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States or in any Department or officer thereof."

Neither the power of Congress to authorize the purchase of supplies for the use of the army, nor the power to authorize the sale of excess supplies, can be doubted. Congress has enacted many laws in the exercise of these powers. Perhaps the most recent is the Act of July 9, 1918, c. 143, as amended by the Act of Feb. 25, 1919, c. 39, which authorized the President, through the head of any executive department to sell upon such terms as he shall deem expedient, war supplies, etc. This power and authority existing, I must assume that the army officers, concerning whose acts you inquire, were acting pursuant to it. It follows from what has been said that these officers are not answerable for their acts to the laws of the State of Pennsylvania.

I, therefore, advise you that officers or agents of the United States Government, selling adulterated candy in pursuance of orders from their Department of the Federal Government, are not liable to prosecution for violation of the Pure Food Act of May 13, 1909, P. L., 520, although the sales thus made by them would otherwise constitute a violation of the provisions of that Act.

I have written to you at some length believing that if the Department of the Federal Government which directed the sale of this candy be advised that the acts of its officers constitute a violation of the State Law, and that prosecution is prevented solely because of the fact that the acs are done in pursuance of its order, it will arrange for the disposal of this candy in another manner or in another place.

Yours very truly,

GEORGE ROSS HULL,

Deputy Attorney General.

Lodge No. 321 et al. v Grand Lodge of Brotherhood of Railroad Trainmen. Injunction Subordinate LodgeBenefits-Forfeiture of Charter.

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It is an undoubted rule of law that members of subordinate lodges with beneficial features have property rights which cannot be done away or interfered with, except upon a reasonable notice and hearing, whether the by-laws fail to provide for such notice and hearing or not, and preliminary injunction to restrain grand officers from forfeiting charter granted, where it was admitted that such forfeiture would interfere with such rights.

No. 596 July

In Equity. Sur Motion for Preliminary Injunction. Term, 1920. C. P. Allegheny Counly.

G. R. Speer and Saml. S. Robertson, for plaintiff.

SHAFER, P. J., May 27, 1920.—The bill is by a subordinate lodge and a number of its members against a grand lodge and its officers, to restrain the defendants from forfeiting the charter of the subordinate lodge. The society is a union of railroad trainmen, or persons who have been such, with beneficial features, the members in good standing being entitled to certain death and other benefits. A part of the activities of the society has to do with the relations of the trainmen and their employers, and the constitution and general rules contain provisions as to strikes, and among others one contained in Section 11 of the general rules which provides that any lodge

Lodge No. 321 et al. v Grand Lodge of Brotherhood of Railroad Trainmen.

under whose jurisdiction an unauthorized strike occurs shall within ten days thereafter cause charges to be preferred against the members engaged in the strike, and that if they do not do so, “the charter of the lodge may be revoked by the president of the grand lodge, who may transfer to other lodges the members not participating in such strike."

It appears from the evidence that by a communication dated April 23, 1920, the president of the grand lodge declared the charter of the plaintiff lodge No. 321 to be revoked, for the reason alleged, that a large majority of the members of that lodge were engaged in an illegal strike in violation of this Rule No. 11, from about the 9th or 10th of April, and that the lodge had taken no action such as required by this rule, and that for that reason its charter was forfeited. It is alleged in the bill that it wasn't true that members of the lodge were engaged in an illegal strike. We do not deem it necessary in this preliminary stage of the case to pass upon the question of whetlier they were so engaged or not. The question discussed at the hearing was as to the validity of the general rule under which the president of the grand lodge undertook to act, or at least as to his power to enforce it without some notice to the lodge or its members. We do not deem it necessary or proper in the disposition of a motion for a preliminary injunction to enter into a full discussion of the case, which might interfere with a proper determination of it upon final hearing. It is sufficient for the present purpose to say that it is an undoubted rule of law as to such societies that the property rights of members cannot be done away or interfered with, except upon a reasonable notice and hearing, whether the by-laws fail to provide for such notice and hearing or not. Whether such a rule applies to the revocation of a charter of a subordinate lodge, as contended by the plaintiff, need not now be determined, because it is evident from the rules of the society and the statement of the president in his declaration of forfeiture, that the property rights of members of the plaintiff lodge in the beneficial features of the society are interfered with. The president's declaration of forfeiture declares that the members will be transferred to other lodges upon signing and forwarding to the grand lodge the necessary statement provided for in Section 44 of the Constitution, and this section provides that when a lodge is defunct, the president of the grand lodge may grant a dispensation to the members to join another lodge, provided that such a transfer is made within thirty days, and that this dispensation shall be treated in the same manner as a card of withdrawal from one lodge to another,

It seems to us very plain that this might result in a loss of benefits to members of the plaintiff lodge, and for that reason we are of opinion that the plaintiffs are entitled to a preliminary injunction which will preserve the status of the lodge and its members until final hearing. It is therefore ordered that a preliminary injunction issue restraining the defendants, the grand lodge of the Brotherhood of Railroad Trainmen and the president and other officers named as defendants, from forfeiting the charter of the plaintiff Lodge No. 321, and from doing any act or thing to prevent or hinder the members of the subordinate lodge from paying their dues, the performance of their obligation of membership and the enjoyment of their rights as members of such lodge, until final hearing. Injunction bond to be given in the sum of five hundred ($500.00) dollars.

Dietrich v Dietrich.

Divorce-Evidence

-Effect of —Master's Report-Burden of Proof.

The mere giving of testimony by a respondent husband in a divorce hearing before a master publicly in the presence of the libellant wife and others, some of them her neighbors, and thus making a public record of it, that the respondent and the libellant had sexual intercourse with each other prior to their marriage, and that after their marriage the respondent contracted from the libellant a venereal disease, which allegations are denied by the libellant, does not evidence such a deliberate intention on the part of the respondent to publicly defame his wife, nor in itself constitute such indignities rendering her condition intolerable and life burdensome, and is not such public defamation of the libellant, as entitles her to a divorce from bed and board, where the developments of the case make the evidence competent.

The findings of fact of a master in divorce do not have the same force and effect as the findings of fact of a referee in a civil case, or of a court in a case tried before the court without a jury, which will not be disturbed except for manifest error, and it is the duty of the court to review the case on its merits, to examine and consider the evidence, and to determine by its own judgment the controversy presented, stating its reasons for overruling or sustaining the exceptions to the master's findings. But it is the duty of the court to give consideration to the opinion and report of the master, particularly where the evidence is made up largely of oath against oath and the veracity of the witnesses is involved, and where the master states in his report that in reaching his conclusions he took into consideration in connection with the testimony the appearance and impression made by the witnesses in giving their testimony.

In a divorce case, as in other civil cases, the burden is on the libellant to prove his case by a fair preponderance of the credible evidence, and where the court hearing the case is not convinced by a fair preponderance of the credible evidence of the truth of the allegations made by the libellant against the respondent a decree of divorce will be refused.

Exceptions to the Findings and Report of a Master in Divorce. No. 1 March Term, 1919. C. P. Fayette County.

Sturgis & Morrow, for libellant.
Harry W. Byrne, for respondent.

VAN SWEARINGEN, P. J., October 12, 1920.—This application by the wife is for a divorce from bed and board, with alimony, on the ground that the respondent "by cruel and barbarous treatment endangered the life of the libellant and offered such indignities to her person as to render her condition intolerable and life burdensome and thereby forced her to withdraw from his home and family," under the act of February 26, 1817, 6 Sm. L., 405. A master was apointed who has filed a report recommending that a divorce be refused.

The parties had known each other but a few months prior to their marriage, which occurred on July 1, 1918. The libellant now is in her sixtieth year, and the respondent is nearly sixty-one. The respondent is the libellant's third husband, and the libellant is the respondent's second wife. Each has grown children by a former marriage. At the time of their marriage the libellant lived at Wilkinsburg, in a rented house, a part of which she leased to roomers, and the respondent was and still is a butcher living and doing business at Point Marion. Following their marriage the libellant went to live with the respondent at his home at Point Marion, and they remained together there until November 18, 1918, when the libellant left the respondent's house, and never since has returned.

The libellant testified that during the four and one-half months that she lived with the respondent he repeatedly threatened to do her bodily harm, at the same time using vile, profane, and abusive language, compelling her to flee from his presence to escape his assaults, with his clenched fist or with a cane, he, however, never actually striking her, but saying he would “smash her teeth down her throat” and would "knock a hole in her," calling her a “Goddam hussy,” a "Goddam woman," a "hell of a woman,” and a "Goddam liar," greatly agitating and frightening her, injuring her feelings and spirits, insulting and humiliating

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