of a bona fide corporation, and the control thereby resulting to it from its power, and the exercise thereof, to appoint its directors and manage its business, does not give such railroad company any interest, direct or indirect, in the coal which may be mined by such corporation and transported in interstate commerce over the lines of such railroad company within the meaning of these words as contained in the act under review. In the bill of complaint filed in this cause it is alleged: "That the defendant [the Lehigh Valley Railroad Company] is, and has been continuously since long before the said 1st day of May, in the year 1908, the owner of the entire capital stock of the Lehigh Valley Coal Company and of Coxe Brothers & Company, Incorporated, corporations of the said state of Pennsylvania, and that it thus controls, and has been controlling, the election of the directors or managers of said coal companies. That said coal companies hold, by conveyances and leases made long before the said 1st day of May, in the year 1908, anthracite coal lands and coal mines situated and being in the counties of Carbon, Lehigh, Luzerne, and Wyoming, in the said state of Pennsylvania; but said coal lands and coal mines are, as they have been continuously since long before the said 1st day of May, in the year 1908, now being operated, in the mining of anthracite coal, by and under the direct management of the respective presidents and directors of said coal companies, the president of each of said coal companies being, as he has been for a long time past, the president of the defendant, and a majority of the directors of each of said coal companies being officers or directors of the defendant, as they have been for a long time past. That by virtue of the ownership of the entire capital stock of said companies by the defendant, as hereinbefore stated, the defendant owns said coal lands and coal mines, and the anthracite coal therein or thereupon, and mined and being mined, therefrom, ** and that by virtue of the management of said coal companies by certain of the officers of the defendant, as hereinbefore stated, the operations of said coal companies in the mining of anthracite coal, have been, and are now being, carried on by and under the authority of the defendant." The defendant, while denying the legal conclusion from the material facts thus alleged by the bill of complaint admits that it is now and has been for many years past the owner of shares of the capital stock of the coal companies named in the bill of complaint, and alleges in regard thereto as follows: This defendant now owns the entire capital stock of the Lehigh Valley Coal Company." With these averments of the bill and the answer before it, and the cause having been heard on the pleadings, the Supreme Court in its opinion said: "It remains to determine the nature and character of the interest embraced in the words 'in which it is interested directly or indirectly.' The contention of the government that the clause forbids a railroad company to transport any commodity manufactured, mined, or produced, or owned in whole or in part, etc., by a bona fide corporation in which the transporting carrier holds a stock interest, however small, is based upon the assumption that such prohibition is embraced in the words we are considering. The opposing contention, however, is that interest, direct or indirect, includes only commodities in which a carrier has a legal interest, and therefore does not exclude the right to carry commodities which have been manufactured, mined, produced, or owned by a separate and distinct corporation, simply because the transporting carrier may be interested in the producing, etc., corporation as an owner of stock therein. If the words in question are to be taken as embracing only a legal or equitable interest in the commodities to which they refer, they cannot be held to include commodities manufactured, mined, produced, or owned, etc., by a distinct corporation, merely because of a stock ownership of the carrier. Pullman Palace Car Co. v. Missouri Pacific R. R., 115 U. S. 587 [6 Sup. Ct. 194, 29 L. Ed. 499]; Conley v. Mathieson Alkali Works, 190 U. S. 406 [23 Sup. Ct. 728, 47 L. Ed. 1113]. And that this is well settled also in the law of Pennsylvania is not questioned. It is unnecessary to pursue the subject in more detail, since it is conceded in the argument for the government that if the clause embraces only a legal interest in an article or commodity it cannot be held to include a prohibition against carrying a commodity simply because it had been manufactured, mined, or produced, or is owned, by a corporation in which the carrier is a stockholder. The contention of the government substantially rests upon the assumption that unless the words be given the meaning contended for they are without significance. That this is clearly not the case is well illustrated by the New Haven Case, supra [200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515]. In that case the Chesapeake & Ohio Railway Company, it was shown, at one time not only directly engaged in buying, selling, and transporting coal, but subsequently, when a statute was passed in West Virginia prohibiting such dealings, it resorted to indirect methods for the continuance of its previous practice. It may well be that the very object of the provision was to reach and render impossible the successful employment of methods of the character referred to. Certain it is, however, that in the legislative progress of the clause in the Senate, where the clause originated, an amendment in specific terms, causing the clause to embrace stock ownership, was rejected, and immediately upon such rejection an amendment, expressly declaring that interest, direct or indirect, was intended, among other things, to embrace the prohibition of carrying a commodity manufactured, mined. produced, or owned by a corporation in which a railroad company was interested as a stockholder, was also rejected. 40 Cong. Rec. (1906) pt. 7, pp. 70127014. And the considerations just stated we think completely dispose of the contention that stock ownership must have been in the mind of Congress, and therefore must be treated as though embraced within the evil intended to be remedied, since it cannot in reason be assumed that there is a duty to extend the meaning of a statute beyond its legal sense upon the theory that a provision which was expressly excluded was intended to be included. If it be that the mind of Congress was fixed on the transportation by a carrier of any commodity produced by a corporation in which the carrier held stock, when we think the failure to provide for such a contingency in express language gives rise to the implication that it was not the purpose to include it, at all events, in view of the far-reaching consequences of giving the statute such a construction as that contended for, as indicated by the statement taken from the answers and returns which we have previously inserted in the margin, and of the questions of constitutional power which would arise if that construction was adopted, we hold the contention of the government not well founded. We then construe the statute as prohibiting a railroad company engaged in interstate commerce from transporting in such commerce articles or commodities under the following circumstances and conditions: * When the car rier at the time of transportation has an interest, direct or indirect, in a legal or equitable sense in the article or commodity, not including, therefore, articles or commodities manufactured, mined, produced, or owned, etc., by a bona fide corporation in which the railroad company is a stockholder." The counsel for the complainant, after the reinstatement of the cause, applied to this court for leave to amend the bill of complaint. The court thought the application should be denied, and accordingly did deny it. Thereupon the counsel for the government moved to dismiss the bill of complaint without prejudice, which motion was opposed by counsel for the defendant. The court having declined to grant this motion, the counsel for the defendant thereupon moved to dismiss the bill absolutely. The court then inquired of counsel for the government whether, in view of the premises, it was desired to have the cause stand for further proceedings in this court, and upon the statement that the government. would not proceed any further in this court in view of the fact that the amendment had been disallowed, our conclusion is that the bill should be dismissed absolutely upon the allegations of the bill and answer. It will be observed that this case differs from United States v. Delaware, Lackawanna & Western Railroad Company, 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836, in which, upon its reinstatement, an injunction was ordered to be issued. In re MARKS. (District Court, E. D. Pennsylvania. February 21, 1910.) No. 2,152. 1. BANKRUPTCY (§ 136*)—WITHHOLDING ASSETS-CONTEMPT-PUNISHMENT— DEFENSES. A bankrupt should not be committed for contempt for failure to comply with an order requiring him to turn over money to his trustee alleged to have been withheld, where the court is convinced that the bankrupt is without physical ability to comply. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 136.*] ` 2. BANKRUPTCY (§ 136*)—WITHHOLDING ASSETS CONTEMPT-PUNISHMENT— HEARING. Where an order, finding that a bankrupt had retained from his trustee a certain sum of money and directing the payment thereof, had been previously affirmed by the District Court and remained unappealed from, it would not be reviewed by such court in a proceeding to punish the bankrupt for contempt in failing to comply therewith. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 136.*] 3. BANKRUPTCY (3 136*)-WITHHOLDING ASSETS-CONTEMPT-PUNISHMENT— EVIDENCE. In a proceeding to punish a bankrupt for contempt in failing to comply with an order requiring him to turn over withheld assets to his trustee, evidence held to require a finding that the bankrupt had not present abil ity to comply, and was not therefore subject to incarceration for contempt. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 136.*] In the matter of the bankruptcy of Jacob M. Marks. On rule to commit bankrupt for contempt. Rule discharged. See, also, 171 Fed. 281. George Wentworth Carr, for trustee. J. B. MCPHERSON, District Judge. In September, 1906, after a prolonged and very careful investigation, the referee found as a fact that in January, 1905, the bankrupt had about $8,000 belonging to the estate in his possession or under his control, and thereupon directed him to pay that sum to the trustee within 20 days. An application to revoke the order followed, and in February, 1908, the referee first reduced the amount to $3,000 in round figures, and then revoked the order altogether. On June 24, 1909, the District Court affirmed the reduction, but set aside the revocation; and, as no review of this action was asked for, the starting point of the present inquiry is the order of affirmance. For the purpose of enforcing it the trustee obtained a rule requiring the bankrupt to show cause why he should not be committed for For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes contempt in failing to pay. He answered the rule, and a hearing was had before me in open court on December 29 and 30, 1909, when such testimony was presented as either party desired to offer. The question for decision is whether the bankrupt should be committed to prison for failure to comply with the order of June 24th; and upon this question the brief of the trustee's counsel concedes that: "All the cases are practically harmonious in the declaration that, if the court is convinced that the bankrupt is unable to comply with the order, he should not be committed for contempt. Without the physical ability to comply, there can be no contempt." Unquestionably that is the rule in this circuit. The Court of Appeals approved it in Trust Co. v. Wallis, 11 Am. Bank. R. 360, 126 Fed. 464, 61 C. C. A. 342—and there are decisions elsewhere to the same effect. It will be observed that the present case differs from those which involved the preliminary question whether the referee or the District Court should make an order on the bankrupt to pay money or deliver goods. Here that point has been passed. It has been finally decided that in February, 1908, the bankrupt had in his possession or under his control the sum of $3,000 belonging to his estate in bankruptcy; and it only remains to inquire whether he is now able to pay. In this proceeding the court will not re-examine the question whether the order should ever have been made-either at all, or in the particular amount fixed by the referee. The trustee has therefore an unimpeachable right to the money specified in the order, and presumptively the bankrupt is able to pay it; but the admission must nevertheless be made that the presumption may not correspond with the fact, and that in reality the bankrupt cannot comply with the order. Unless he has the physical ability to comply, he should not be committed for contempt. In practical effect, although perhaps not in legal contemplation, this would revive the abolished penalty of imprisonment for debt. If he cannot pay, and if this inability is the result of his own criminal act, he may, of course, be punished by the criminal law, although no civil remedy may be available in the situation. Even if he has misappropriated the money, the court has not the power to imprison him in a proceeding for contempt; for this would deprive him of his constitutional right to submit the charge of misappropriation to a jury in the proper criminal court, and would deprive him, also, of the inseparable right to be exempt from imprisonment for such an offense until he shall have been lawfully convicted. And it is also true that he cannot be imprisoned in a proceeding for contempt, if for any other reason he cannot produce the money; for the court cannot imprison as a punishment. It can only imprison to compel obedience to its order. But with an order to pay in force against him, and with the need to overcome the presumption of his ability to comply, it will no doubt happen at times that a bankrupt may fail to meet the burden of proof, and may be obliged to go to jail until he satisfies the court that he was telling the truth when he pleaded poverty. Certainly his bare denial of present ability to pay may be properly regarded with suspicion, and he may be required to satisfy the court with clearness that obedience to the order is wholly beyond his power. Such situations must be dealt with as they arise. No general rule can be laid down, and each case must stand upon its own facts. A decision upon the general subject has been recently reported from the Second Circuit. Re Stavrahn (C. C. A.) 174 Fed. 330. In the present case I cannot escape from the conclusion that the bankrupt is now unable to comply with the order. The evidence satisfies me that he is in straitened circumstances, a merchant in a very small way, practically living from hand to mouth, and barely able to make a scanty livelihood for himself and his household. In my opinion, to commit him to prison would not obtain a dollar for his creditors, but would simply result in destroying what little business he has managed to acquire, and would probably reduce those dependent upon him to penury. It is already clear to me that the court would be obliged to release him after an unproductive confinement of several weeks or months, and I do not think I have the right to imprison him at all, unless there is at least a doubt concerning his ability to comply with the order. In a doubtful case, I think it is clear that the court has the right, and may be under the duty, to resort to imprisonment in order to test the sincerity of the bankrupt's denial. The rule is discharged. In re QUINN. (District Court, E. D. New York. October 7, 1909.) 1. CRIMINAL LAW ( 242*)—PLACE OF TRIAL-REMOVAL OF Defendant. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 242.*] 2. CRIMINAL LAW (§ 242*)—PLACE OF TRIAL-REMOVAL OF DEFENDANT. On an application for the removal of a defendant to another federal district for trial, the question whether there was probable cause shown that the defendant committed in the district to which the removal is sought the offense for which he was held must be determined by the court to which application for removal is made. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 510; Dec. Dig. § 242.*] 3. HABEAS CORPUS (8 19*)-PROCEEDINGS REVIEWABLE-APPLICATION REMOVAL OF DEFENDANT FOR TRIAL. FOR The decision of the court, to which an application for removal of a defendant to another federal district for trial is made, that probable cause is shown, is not reviewable, so far as the correctness of the decision is concerned, by habeas corpus. [Ed. Note. For other cases, see Habeas Corpus, Dec. Dig. § 19.*] In the matter of the application for removal of Joseph T. Quinn to the Southern district of New York. Granted. Leo Oppenheimer, for petitioner. William J. Youngs, U. S. Atty. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |