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10 F.(2d) 971 McMANUS et al. v. UNITED STATES. sonable rental would be $350 per month. (Circuit Court of Appeals, Fifth Circuit.

The jury was waived, and the case submitted January 4, 1926. Rehearing Denied to the judge, who made special findings of January 29, 1926.)

fact and conclusions of law. There is no No. 4671.

dispute as to the facts, and the assignments

of error may be summarized as an objection Post office @mw 6–Plaintiffs held not entitled to to the entering of the judgment on the facts recover rental value of premises used as post

found. office, where they had defaulted under express contract by not paving street and grad. Briefly stated, the facts found by the ing alley in accordance with proposal.

District Court are these : In December, Where proposal for lease of post office, sub- 1919, George A. Parton and George J. Mcmitted to Postmaster General, contemplated paving of street in front of building and reduc. Manus, and their respective wives, who were tion of grade in alley, which proposal was accept- then the owners of the premises in question, ed by government and possession taken, held submitted a proposal to the Postmaster Gerthat such proposal and acceptance constituted an eral to lease a part of the building to the express contract between the parties, the plain- United States for a period of 10 years, at a tiffs could not recover rental value where they were in default, in that contemplated paving yearly rental of $12, in the expectation that and grading had not been completed, and gov-, the location of the post office would enhance ernment, being ready and willing to execute the value of other property in the vicinity. lease and pay rent on compliance with pro- This proposal was accepted by the governposal, was not in default.

ment, and possession was taken of the prem

ises with the consent of plaintiffs. Plaintiffs In Error to the District Court of the

are now the sole owners of the premises, and United States for the Northern District of entitled to the rights and subject to the liaTexas; William H. Atwell, Judge.

bilities arising from the contract. The proAction by Mrs. Agnes McManus and posal contemplated that Elm street, in front George J. McManus against the United of the building, would be paved, and that the States. Judgment for the United States, and grade of an alley in the rear would be reducplaintiffs bring error. Affirmed.

ed to prevent overflow of the room by storm R. B. Creager, of Brownsville, Tex., Geo. water. Elm street has not been paved, nor A. Hill

, Jr., of Houston, Tex., Chas. F. O'. has the alley been reduced in grade, in conDonnell, of Dallas, Tex., and T. M. Ken- sequence of which the room becomes overnerly, of Houston, Tex. (Cockrell, McBride, flowed in heavy rains, and it has not been O'Donnell & Hamilton, of Dallas, Tex., and put in proper condition, so that the lease Kennerly, Williams, Lee & Hill, of Houston, could not be made as contemplated. No rent Tex., on the brief), for plaintiffs in error,

has been paid, but the government has been Henry Zweifel, U. S. Atty., and N. A. ready and willing at all times to execute the Dodge, Sp. Asst. U. S. Atty., both of Fort lease and pay the rent on compliance by Worth, Tex. (Shelby S. Faulkner, Asst. U. plaintiff with the proposal made and acceptS. Atty., of Washington, D. C., on the brief), ed. There has been no waiver on the part of for the United States.

the government of the conditions of the

proposal. Before WALKER, BRYAN, and FOS

On these findings of fact, the District TER, Circuit Judges.

Court concluded that the proposal and ac

ceptance constituted an express contract beFOSTER, Circuit Judge. In this case tween the parties; that the plaintiffs had deplaintiffs in error, hereafter referred to as faulted and are still in default on the conplaintiffs, brought suit under the Tucker Act tract; that there was no default on the part (24 Stat. 505), to recover of the United of the government; and that therefore plainStates for the use and possession of certain tiffs are not entitled to recover anything at premises in the town of Ranger, Tex., used all. In these conclusions we concur. as a post office, for which it is alleged a rea- Affirmed.

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en to the form of the verdict, and judgment ÆTNA LIFE INS. CO. v. EDWARDS.

was entered on it in the sum of $5,637.77. (Circuit Court of Appeals, Fifth Circuit. Error is assigned to the action of the January 2, 1926.)

court in submitting the question to the jury

as to whether defendant in error was entitled No. 4655.

to a lump sum verdict and to the entering of Master and servant m405(6)-Evidence held judgment on that verdict. It is doubtful that to show employee had received all reasonable treatment, and that injury to sacroilliac joint the errors assigned present anything for our was permanent (Texas Employers' Liability consideration, considering the character of Act (Vernon's Ann. Civ. St. Supp. 1918, art. the case and the course of the trial, but we 5246-1 et seq.]).

have nevertheless examined the evidence Evidence, in action against insurer, under which is brought up in the record. From Texas Employers' Liability Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-1 et seq.) held that it would appear that defendant in error to show that employee received all reasonable was totally disabled at the date of trial, May treatment, and that injury to sacroilliac joint 20, 1925, over a year after his injury; that was permanent.

he had several times submitted himself to

examination and treatment in hospitals at the In Error to the District Court of the request of plaintiff in error; that he received United States for the Northern District of

only temporary relief, and was unable to Texas; James Clifton Wilson, Judge.

stand the physical pain of the severe treatAction by J. A. Edwards against the ment that might possibly cure him. The tesÆtna Life Insurance Company. Judgment timony as to the permanency of his injury is for plaintiff, and defendant brings error. conflicting, but there is direct testimony from Affirmed.

at least one doctor to the effect that his inHarry Preston Lawther, of Dallas, Tex., jury is permanent, and the whole trend of for plaintiff in error.

the medical testimony is to the same effect. Frank S. Roberts, of Breckenridge, Tex., We think it is shown that defendant in for defendant in error.

error has done everything that could reasonBefore WALKER, BRYAN, and FOS- ably be expected of him in the way of receivTER, Circuit Judges.

ing treatment and endeavoring to have himself cured, and we concur in the finding of

the jury that his injury is permanent. FOSTER, Circuit Judge. This case was

Affirmed. begun in a state court and removed to the District Court. The issues are very simple. It appears that defendant in error was employed by the Landreth Gasoline Company,

MCGILL V, UNITED STATES. which was a subscriber to the Texas Employ- (Circuit Court of Appeals, Fifth Circuit ers' Liability Act (Vernon's Ann. Civ. St.

January 2, 1926.) Supp. 1918, art. 5246—1 et seq.), and which

No. 4563. carried a policy of insurance with the Ætna Insurance Company, plaintiff in error. On 1. Indictment and information Om 171-Vari.

ance between allegation of prior offense and March 12, 1924, defendant in error sustained

proof thereof in prosecution for third offense an injury to the sacroilliac joint in the

held not a fatal varianco (National Prohibicourse of his employment. Under the terms tion Act [Comp. St. Ann. Supp. 1923, $ of the policy he was entitled to receive $20 101381/4 et seq.]). a week during his incapacity, not exceeding In prosecution for third violation of Nation401 weeks, and, in the event of his total per

al Prohibition Act (Comp. St. Ann. Supp. 1923, manent incapacity, he was entitled to a lump offense on particular day, cause numbered 4468.

§ 1013814 et seq.), indictment charging a prior sum settlement under the policy.

and proof that such case was numbered 4162, Defendant in error brought his suit, held not at such variance as to render erroneclaiming permanent total disability, and ous entry of judgment on verdict. prayed for a lump sum settlement. Liability 2. Indictment and information w202(1)–Ir. under the policy is not denied. In fact,

regularity consisting of variance between al. weekly payments had been regularly made. legation and proof as to prior offense held Evidence was taken before the jury. No cured by verdict (National Prohibition Act motion was made for a directed verdict. The

[Comp. St. Ann. Supp. 1923, § 10138/4 et

seq.]). judge charged the jury fully on the law of the

Where prior offense against National Procase, and a special verdict was rendered for a

hibition Act (Comp. St. Ann. Supp. 1923, $ lump sum settlement. No exception was tak- 1013814 et seq.) was alleged as cause No. 4468,




10 F.(2d) 973 and proof showed that it was cause No. 4462 MILLIKEN-TOMLINSON COMPANY V. held, irregularity was cured by verdict.


COMPANY. In Error to the District Court of the (Circuit Court of Appeals, First Circuit United States for the Western District of

March 16, 1926.) Texas; Duval West, Judge.

No. 1825. Charles McGill was convicted of violating

In Error to the District Court of the the National Prohibition Act, and he brings United States for the District of Maine.

Horace E. Wilson, of San Antonio, Tex.,

On petition for rehearing. Denied.

For former opinion, see 9 F.(20) 809. and Mark McMahon, of Fort Worth, Tex. (Will A. Morriss, of San Antonio, Tex., on

Before BINGHAM and JOHNSON, Cirthe brief), for plaintiff in error.

cuit Judges, and BREWSTER, District John D. Hartman, U. S. Atty., of El Judge. Paso, Tex.

BREWSTER, District Judge. A petition Before WALKER, BRYAN, and FOSTER, Circuit Judges.

for rehearing has been filed in this case

by the plaintiff in error, presenting nine disFOSTER, Circuit Judge. [1] In this based. Each of these grounds presents a

tinct grounds upon which the petition is case plaintiff in error was convicted of of- question which was fully discussed in the fenses denounced by the National Prohibi- opinion of this court handed down November tion Act (Comp. St. Ann. Supp. 1923, 8

25, 1925. 1013844 et seq.). The indictment was in two

A consideration of the petition reveals no counts. The first count charged unlawful

new matter, nor any errors of sufficient mopossession of intoxicating liquor for bever- ment to induce a majority of the court to age purposes in the city of San Antonio, alter or modify any conclusion reached. Tex., as & third offense. The previous first

In view of such a situation, it seems unoffense was alleged to have been committed necessary to now deal with or grant a rehearon the 28th day of November, 1922, in cause ing for the purpose of further considering No. 3838, and the second offense on the 27th the many ramifications of the case, which day of July, 1923, in cause No. 4468, both in the petition for rehearing involves. the District Court for the Western District

Petition denied. of Texas. At the trial the district attorney offered the record of a previous conviction for an offense of possession committed on the 27th day of July, 1923, the same as alleged in the indictment, but it appeared that there was a variation in the number given that case UNITED STATES v, MCCONNELL, in the indictment; the record offered being No. 4462 instead of 4468. Error is alleged,

(District Court, E. D. Pennsylvania. February

4, 1926.) very artificially, to the entering of the judgment on the verdict on the ground that the Internal revenue Ew44_Prohibition director variance is fatal.

not punishable as person employed under

"revenue law" or "revenue provisions of a [2] The evidence to sustain the former con- law." viction of the offense committed on July 27, National Prohibition Act (Comp. St. Ann. 1923, was received without objection. It Supp. 1923, § 1013814 et seq.), being primarily does not appear that the point was raised by intended to carry out Const. Amend. 18, is

not a "revenue law,” which is a law to raise demurrer, by motion in arrest of judgment,

revenue, not one in which such purpose is nor in any other way that might have been

merely incidental, and contains no "revenue effective. The variation is slight and imma- provisions,” purpose of section 35, providing for terial. There is no question as to the previ- double tax and additional monetary penalties

for illegal manufacture or sale of liquor, being ous conviction for an offense committed on

penal, so that prohibition director, appointed the date named, and the evidence in this rec

by Commissioner of Internal Revenue under ord is sufficient to fully identify the offense section 38, is not a person appointed or acting so that a plea of autrefois convict could be under "revenue law,” or “revenue provisions sustained. Furthermore, the irregularity is

of a law," and hence is not subject to punish.

ment, under Rev. St. $ 3169, as extended by cured by verdict.

Act Feb. 8, 1875, § 23 (Comp. St. $8 5889, Affirmed.

5890), for making opportunity for person to defraud United States or permitting violation "Seventh-who negligently or designedly of law.

permits any violation of the law by any other [Ed. Note. For other definitions, see Words


shall be dismissed from and Phrases, First and Second Series, Revenue Law.]

office, and shall be held to be guilty of a mis

demeanor,” etc. William C. McConnell was indicted for Section 23 of the Act of February 8, 1875, unlawfully making an opportunity for a provides: person to defraud the United States and per- "That all acts and parts of acts imposmitting violation of a revenue law. On de- ing fines, penalties, or other punishment for murrer to indictment. Demurrer sustained. offenses committed by an internal revenue of

George W. Coles, U. S. Atty., and Francis ficer or other officer of the Department of the B. Biddle, Asst. U. S. Atty., both of Philadel- Treasury of the United States, or under any phia, Pa.

bureau thereof, shall be, and are hereby, apHenry W. Braude, George S. Russell, plied to all persons whomsoever, employed, Murdoch Kendrick, and John C. Bell, all of appointed, or acting under the authority of Philadelphia, Pa., for defendant.

any internal revenue or customs law, or any THOMPSON, District Judge. The in

revenue provision of any law of the United dictment contains nine counts. Count 1

States, when such persons are designated or charges that “the said defendant, William acting as officers or deputies, or persons havC. McConnell, being then and there an offi- ing the custody or disposition of any public cer or agent appointed and acting under the money." authority of a revenue law or revenue provi

The National Prohibition Act is described 'sion of a law of the United States, viz. the in its title as: National Prohibition Act (Comp. St. Ann.

"An act to prohibit intoxicating beverSupp. 1923, § 1013844 et seq.] and supple- ages, and to regulate the manufacture, proments and regulations, did willfully, know. duction, use, and sale of high-proof spirits ingly, and unlawfully make an opportunity for other than beverage purposes, and to infor a person or persons presently to this sure an ample supply of alcohol and progrand inquest unknown to defraud the Unit- mote its use in scientific research and in the ed States.” It recites the appointment of the development of fuel, dye, and other lawful defendant by the Commissioner of Internal industries." Revenue as prohibition director for the state Under title 2, section 38, of the Act of Pennsylvania.

(Comp. St. Ann. Supp. 1923, § 1013872y), Counts 2 to 9, inclusive, charge that the the Commissioner of Internal Revenue is audefendant, "being then and there an officer thorized to appoint such assistants, etc., as or agent appointed and acting under the au- he may deem necessary for the enforcement thority of a revenue law or revenue provision of the provisions of the act. of a law of the United States, as more par- The demurrer raises the question whether ticularly set forth in count 1 of this indict- the defendant, having been appointed proment, did knowingly, willfully, unlawfully, hibition director for the state of Pennsylnegligently, or designedly permit a violation vania for that purpose, comes within the deof the said law by another person or persons scription in section 3169, R. S., as extended presently unknown.”

by the Act of February 8, 1875, of a person In each count the particular manner in "employed, appointed, or acting under the which and means by which the offense charg- authority of any internal revenue ed is alleged to have been committed, are set law, or any revenue provision of any law of out. The offenses charged are under section the United States." The answer to that ques3169 of the Revised Statutes as extended by tion depends on whether the prohibition law section 23 of the Act of February 8, 1875 is a revenue law or contains revenue provi(Comp. Stat. $$ 5889, 5890). The pertinent sions which would make the defendant, apparts of section 3169 are as follows: pointed and acting under it, amenable to pun

“Every officer or agent appointed and act. ishment for the offenses charged in the ining under the authority of any revenue law dictment. There is no purpose expressed in of the United States

the title of the act to raise revenue, and it is

not open to question that it was passed for "Fifth—who makes opportunity for any the primary purpose of carrying into effect person to defraud the United States; or, the Eighteenth Amendment to the Constitu


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10 F.(20) 973 What is meant by the term "revenue ing associations organized under the statute, laws" has been decided in numerous cases. is clearly not a revenue bill, which the ConIn United States v. Norton, 91 U. S. 566, 23 stitution declares must originate in the House L. Ed. 454, where it was contended that the of Representatives. Mr. Justice Story has statute of limitations applicable to the pros- well said that the practical construction of ecution of a clerk in the post office for em- the Constitution and the history of the oribezzlement of money order funds was that gin of the constitutional provision in question prescribed in an act punishing crimes arising proves that revenue bills are those that levy under the revenue laws, the Supreme Court, taxes in the strict sense of the word, and are in an opinion by Mr. Justice Swayne, said: not bills for other purposes which may in

“It is a matter of common knowledge that cidentally create revenue. 1 Story on Const. the appellative 'revenue laws' is never ap- $ 880. The main purpose that Congress had plied to the statutes involved in these classes in view was to provide a national currency of cases,

The Constitution of the United based upon United States bonds, and to that States (article 1, $ 7) provides that ‘all bills end it was deemed wise to impose the tax in for raising revenue shall originate in the question. The tax was a means for effectualHouse of Representatives. The construction ly accomplishing the great object of giving of this limitation is practically well set- to the people a currency that would rest, tled by the uniform action of Congress. Ac- primarily, upon the honor of the United cording to that construction, it has been con- States, and be available in every part of the fined to bills to levy taxes in the strict sense country. There was no purpose by the act of the words, and has not been understood to or by any of its provisions to raise revenue extend to bills for other purposes which in- to be applied in meeting the expenses or obcidentally create revenue.' Story, Const. 8 ligations of the government." 880. 'Bills for raising revenue,' when enact- In Millard v. Roberts, 202 U. S. 429, 26 ed into laws, become revenue laws. Con- S. Ct. 674, 50 L. Ed. 1090, it was held that gress was a constitutional body sitting under the Acts of Congress of February 12, 1901 the Constitution. It was, of course, familiar (31 Stat. 767, 774), and February 28, 1903 with the phrase 'bills for raising revenue,' as (32 Stat. 909), for eliminating grade crossused in that instrument, and the construction ings of railways, and the erection of the which had been given to it. The precise ques- union station in the District of Columbia, and tion before us came under the consideration providing for part of the cost thereof by apof Mr. Justice Story, in United States v. propriations to be levied and assessed in the Mayo, 1 Gall. 396 (Fed. Cas. No. 15,755). District, were not unconstitutional, as bills He held that the phrase “revenue laws,' as for raising revenue, because they originated used in the act of 1804, meant such laws 'as in the Senate and were therefore repugnant are made for the direct and avowed purpose to article 1, § 7, cl. 1, of the Constitution. of creating revenue or public funds for the Mr. Justice McKenna in his opinion says: service of the government. The same doc- "In answer to the contention the case of Twin trine was reaffirmed by that eminent judge City Bank v. Nebeker, 167 U. S. 196 [17 S. in United States v. Cushman (2 Sumn.] 426 Ct. 766, 42 L. Ed. 134), need only be cited," (Fed. Cas. No. 14,908). These views com- and follows the language of the court in that mend themselves to the approbation of our case, quoting Mr. Justice Story: “That revjudgment.”

enue bills are those that levy taxes in the In Twin City Bank v. Nebeker, 167 U. S. strict sense of the word, and are not bills for 196, 17 S. Ct. 766, 42 L. Ed. 134, the question other purposes, which may incidentally create was whether section 41 of the National Bank- Act of June 3, 1864 (R. S. § 5214), im- In United States v. Hill, 123 U. S. 681, 8 posing taxes upon the average amount of S. Ct. 308, 31 L. Ed. 275, where the question notes in circulation of a banking association, was whether section 844 of the Revised Statwas a revenue law. Mr. Justice Harlan, for utes (Comp. St. § 1414), providing for the the court, said:

payment by the clerks of the Circuit Courts "It is sufficient in the present case to say into the Treasury of the surplus moneys rethat an act of Congress providing a national ceived by them as the fees and emoluments currency secured by a pledge of bonds of the of office, is a revenue law, the court said, United States, and which in the furtherance throngh Mr. Chief Justice Waite, that: of that ohject, and also to meet the expenses “The term revenue law,' when used in attending the execution of the act, imposed a connection with the jurisdiction of the courts tax on the notes in circulation of the bank- of the United States, means a law imposing

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