(249 U. S. 182)

May 18, 1917, c. 15, 40 Stat. 76 [Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k]), sustained in Selective Draft Law Cases, 245 U. S. 366,

SUGARMAN v. UNITED STATES.

(Argued and Submitted Jan. 9, 1919. Decided 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C,

March 3, 1919.)

No. 345.

1. COURTS 385(5)-SUPREME COURT-DIBECT REVIEW OF DISTRICT COURT.

While, if any of the rulings excepted to and assigned as error involves a constitutional question, substantial, or so when writ was sued out, the Supreme Court, on direct error to the District Court, invoked on the ground that the construction or application of the federal Constitution was drawn in question, may review all questions raised, and must determine them, so far as necessary to afford relief, even if it be concluded that the constitutional question was correctly decided below, yet mere reference to a provision of the Constitution, or mere assertion of a claim under it, does not authorize any review of a conviction, and jurisdiction must be declined, unless the writ presents such substantial question properly raised below. 2. CRIMINAL LAW 829(3) TRIAL-REQUESTED INSTRUCTIONS-GIVING SUBSTANCE -ABRIDGING FREEDOM OF SPEECH.

361, Ann. Cas. 1918B, 856. He was tried in the District Court of the United States for the District of Minnesota, found guilty by the jury, and sentenced. See 245 Fed. 604. Thirty-one exceptions were taken to rulings of the trial judge. Instead of seeking review by the Circuit Court of Appeals under section 128 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1133 [Comp. St. § 1120]), the case is brought here under section 238 (Comp. St. § 1215).

[1] Review by this court on direct writ of error is invoked on the ground that the construction or application of the federal Constitution was drawn in question. Thirty of the rulings excepted to below are assigned as errors here. If any one of them involves a constitutional question which is substantial, or was such when the defendant sued out his writ of error, we have jurisdiction to review all the questions raised and it is our duty to determine *them, so far as necessary to afford redress, even if we should conclude that the constitutional question was correctly decided below. Williamson v. United States, 207 U. S. 425, 432, 434, 28 Sup. Ct. 163, 52 L. Ed. 278; Goldman v. United SUB-States, 245 U. S. 474, 476, 38 Sup. Ct. 166, 62 L. Ed. 410. But mere reference to a provision of the federal Constitution, or the mere assertion of a claim under it, does not authorize this court to review a criminal proceeding; and it is our duty to decline jurisdiction unless the writ of error presents a constitutional question substantial in character and properly raised below.

The substance of requested instructions as to the provision of the Constitution against abridging freedom of speech held clearly embodied in the charge given.

3. CRIMINAL LAW 834(2) QUESTED INSTRUCTIONS STANCE.

TRIAL-RE

GIVING

The exact language of requested instructions need not be adopted, but it is enough that they are or have already been given in substance.

In Error to the District Court of the United States for the District of Minnesota.

Abraham L. Sugarman was convicted of

violation of the Espionage Act (245 Fed. 604), and brings error. Dismissed.

* Messrs. Seymour Stedman, of Chicago, Ill., and T. E. Latimer, of Minneapolis, Minn., for plaintiff in error.

Eq

uitable Life Assurance Society v. Brown, 187

U. S. 308, 311, 23 Sup. Ct. 123, 47 L. Ed.
190; Goodrich v. Ferris, 214 U. S. 71, 79, 29
Sup. Ct. 580, 53 L. Ed. 914; Hendricks v.
United States, 223 U. S. 178, 184, 32 Sup.
Ct. 313, 56 L. Ed. 394; Manhattan Life Ins.

Mr. John Lord O'Brian, of Buffalo, N. Y., Co. v. Cohen, 234 U. S. 123, 34 Sup. Ct. 874, for the United States.

58 L. Ed. 1245; Brolan v. United States, 236

Mr. Justice BRANDEIS delivered the opin- U. S. 216, 218, 35 Sup. Ct. 285, 59 L. Ed.

ion of the Court.

The Espionage Act (Act June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 [Comp. St. 1918, 10212c]) provides that:

"Whoever, when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States * shall be punished."

Sugarman was charged with having violated this section on July 24, 1917, by words spoken in an address made at a Socialist meeting which was attended by many registrants under the Selective Service Act (Act

544; United Surety Co. v. American Fruit Co., 238 U. S. 140, 142, 35 Sup. Ct. 828, 59 L. Ed. 1238.

Of the 31 exceptions taken below only two refer in any way to the federal Constitution. These two are for refusal to give the following instructions:

(a) "The Constitution of the United States provides that Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances. This right has been deemed so essential and necessary to free institutions and a free people that it has been incorporated in substance in the Constitutions of all the states of the Union. These constitutional provisions referred to are

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

$185

not abrogated, they are not less in force now | bition against court to dismiss, for want of jurisbecause of war, and they are as vital during war diction, libel filed in such court while boat was as during times of peace, and as binding upon in hands of marshal and subsequent to requisiyou now as though we were at peace."

tion of Shipping Board, established by Act Sept. 7, 1916, and acting under authority of Act June 15, 1917 and President's executive order of July 11, 1917, though with consent of libelants and counsel for board, no appearance being entered for vessel, boat was used for war purposes with captain as special deputy marshal.

(b) "This provision of our Constitution will not justify or warrant advocating a violation of law. A man may freely speak and write and petition, but he is responsible for the consequences of what he may say, write or publish; and if what he says and publishes has a natural tendency to produce a violation of law, that is to impel the persons *addressed to violate the law, and the person using the language intends that it should produce a violation of law, then Petition for writ of prohibition by the the person using such language is subject to Whitney Steamship Corporation, to be directpunishment and this is not inconsistent with the ed to the District Court for Eastern Disright and protection guaranteed by the Consti-trict of New York. Petition dismissed. tution of the United States and of this state."

While the trial judge refused to give these specific instructions, his charge to the jury included the following passage:

On Petition for a Writ of Prohibition.

See, also, 250 U. S. 39 Sup. Ct. 5, 63 L. Ed.

Mr. Alexander S. Bacon, of New York City, for petitioner.

Mr. Peter S. Carter, of New York City, for respondent.

*Mr. Justice PITNEY delivered the opinion of the Court.

Petitioner, a corporation of the state of New York, is the owner of the Steamship H. M. Whitney, her engines, etc., which ves

"Now, considerable has also been said in this case about freedom of speech. The Constitution of the United States provides that Congress shall make no law abridging the freedom of speech. This provision of the Constitution is of course in force in times of war as well as in times of peace. But 'freedom of speech' does not mean that a man may say whatever he pleases without the possibility of being called to account for it. A man has a right to honest-sel, on April 18, 1918, while in petitioner's ly discuss a measure or a law, and to honestly criticize it. But no man may advise another to disobey the law, or to obstruct its execution, without making himself liable to be called to account therefor."

[2, 3] This passage in the charge clearly embodied the substance of the two requests made by the defendant. The judge was not obliged to adopt the exact language of the instructions requested; Holt v. United States, 218 U. S. 245, 253, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; nor was he obliged to repeat the instructions already given in substance. Compare Bennett V. United States, 227 U. S. 333, 339, 33 Sup. Ct. 288, 57 L. Ed. 531. As no substantial constitutional question was presented by the defendant, this court is without jurisdiction to review the other errors assigned.

Dismissed for want of jurisdiction.

(249 U. S. 115)

In re WHITNEY S. S. CORPORATION.

possession, was attached by the United States marshal for the Eastern district of New York in an action in rem brought by the Patent Vulcanite Roofing Company in the District Court of the United States for that district. On April 27, 1918, while the vessel was in the possession of the deputy marshal under the process in that action, the United States Shipping Board established by act of September 7, 1916 (39 Stat. 728, c. 451), acting under authority of the act of June 15, 1917 (40 Stat. 182, c. 29), and the President's Executive Order of July 11, 1917,1 in*structed one Smith as its agent to

1 EXECUTIVE ORDER.

By virtue of authority vested in me in the section entitled "Emergency Shipping Fund" of an act of Congress entitled "An act making appropriations to supply urgent deficiencies in appropriations for the military and naval establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes," approved June 15, 1917, I hereby direct that the United States Shipping Board Emergency Fleet Corporation shall have and exercise all power and authority vested in me in said section of said act, in so far as applicable to and in furtherance of the construction of vessels, the purchase or requisi

(Argued Dec. 9, 1918. Decided March 3, 1919.) tioning of vessels in process of construction, wheth

er on the ways or already launched, or of contracts for the construction of such vessels, and the completion thereof, and all power and authority applicable to and in furtherance of the production, purchase, and requisitioning of materials for ship con

struction.

And I do further direct that the United States

Shipping Board shall have and exercise all power

and authority vested in me in said section of said act, in so far as applicable to and in furtherance of the taking over of title or possession, by purchase

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*117

diction as the basis of a direct appeal to this court were denied upon the ground that the claimant had no standing to attack the validity of the attachment.

Thereafter this court granted leave for the filing of a petition for a writ of prohibition, and made an order upon the judges of the district court to show cause why such writ should not issue. Return was made by the judge who had acted in the proceedings above mentioned, and, the matter having

er and by counsel for the Crane Company, the question for decision is whether the prohibition ought to be issued, or the order to show cause discharged.

The validity of the attachment in the suit of the Vulcanite Company and the continued

take possession of the steamer in behalf of the United States. This Smith did pro forma on April 29, but without dispossessing the marshal or his deputy. On May 16, Theodore A. Crane's Sons Company filed its libel in rem against the steamer in the same court, and under process in this suit the marshal, who already had her in custody, again attached the vessel. Afterwards, and on May 29, the Shipping Board, by its counsel, appeared before the court, stated that the use of the vessel was needed by the government | been argued here by counsel for the petitionfor war purposes, that the marshal was still in custody by virtue of the writs of attachment in the two suits referred to, and that the board did not desire to raise an issue over the possession of the property as between two departments of the government, and moved the court to direct the marshal | possession of the marshal or his deputy unto release her. No appearance having been entered in behalf of the ship, the court heard proctors for the libelants and counsel for the Shipping Board, and on motion of the latter, with consent of the former, made an order entitled in the two causes directing that the marshal be permitted to appoint the master of the ship as a special deputy United States marshal, that this deputy remain in possession of the vessel in behalf of the marshal, that the vessel, in his custody, be turned over to the Shipping Board for purposes connected with the war, the special deputy marshal or his substitutes to remain | subjected to attachment under process in the always in possession, and that the vessel be returned to the custody of the marshal upon being released from requisition by the Shipping Board.

*Thereafter the present petitioner, claimant of the vessel, appeared specially by counsel and moved the District Court to quash the attachment in the Crane suit and dismiss the libel on the ground of want of jurisdic tion. These motions, after argument, were overruled; and at a subsequent date motions for a rehearing and for a certificate of juris

or requisition, of constructed vessels, or parts thereof, or charters therein; and the operation, management and disposition of such vessels, and of all other vessels heretofore or hereafter acquired by the United States. The powers herein delegated to the United States Shipping Board may, in the discretion of said Board, be exercised directly by the said Board or by it through the United States Shipping Board Emergency Fleet Corporation, or through any other corporation organized by it for such purpose. Woodrow Wilson.

The White House, 11 July, 1917.

39 SUP.CT.-13

der that process are not in controversy. No bond was given or deposit made for release of the vessel pursuant to section 941, Rev.. St. (Comp. St. § 1567), or the admiralty rules of this court or of the District Court. Hence the vessel remained, for all purposes of the action in the custody of the court. The requisition of the Shipping Board extended merely to the use of the ship for war purposes, and did not in fact take her out of the custody of the court. So far as any interest of the petitioner was concerned, there was nothing to prevent the vessel from being

Crane Company suit; and as she actually was subjected to that process by the action of the marshal, the jurisdiction of the court in that suit was complete, and the owner's only recourse was to enter appearance therein, with or without giving a bond or making, a deposit.

*If the custody of the ship by the officer of the court was inconsistent with the purposes of the Executive, acting through the Shipping Board, this was not a matter of which petitioner could take advantage. The application of the board through its counsel for an order permitting the vessel to be put at the service of the government for war purposes while still remaining in the custody of the marshal for the purposes of the court's jurisdiction, consented to by the only other parties who had a standing in court, was a sufficient warrant for the order made.

Order to show cause discharged and petition dismissed.

$102

(249 U. S. 100)

L. A. WESTERMANN CO. v. DISPATCH
PRINTING CO.

this both parties acquiesced. In addition, the District Court found that there were seven cases of infringement and awarded

(Submitted Nov. 15, 1918. Decided March 3, $10 as nominal damages for each case-$70

1919.) No. 50.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Sixth Circuit.

Suit by the L. A. Westermann Company against the Dispatch Printing Company. To review a judgment of the Circuit Court of Appeals (233 Fed. 609, 147 C. C. A. 417), modifying a decree for complainant, a writ of

in all. The plaintiff appealed, insisting that for each case it was entitled under the copyright law to an award of not less than $250. The Circuit Court of Appeals sustained that contention, but held that what the District Court regarded as seven cases was only one, and directed that the decree be modified by awarding $250, instead of $70, as damages. 233 Fed. 609, 147 C. C. A. 417. A writ of certiorari granted on the plaintiff's petition brings the matter here.

[1, 2] Whether there were seven cases of infringement or only one, and whether the damages should have been assessed at not less than $250 for each case, are the questions to be considered. The facts bearing on the solution of these questions are as follows:

The plaintiff designs and produces pictorial illustrations of styles in women's apparel and supplies the same to dealers in such apparel for use in advertising their *goods. All the illustrations are separately copyrighted and all authorized copies carry the required copyright notice. The plaintiff grants exclusive licenses to use the illustrations for limited periods, each license being restricted to a particular locality. The dealer obtaining the license pays a fixed charge for it. Ordinarily the fact that the license is exclusive makes it attractive, serves as an incentive for paying the charge and is a helpful feature of the plaintiff's business. But when infringers use the illustrations the strength of that feature diminishes and the plaintiff's business suffers accordingly.

At the time of the infringing acts in question the Moorehouse-Martens Company, a dealer at Columbus, Ohio, had an exclusive license from the plaintiff covering the use of the illustrations in that locality.

The defendant publishes at Columbus a

daily newspaper, each issue comprising as many as 30,000 copies widely circulated. Without the consent or authority of the plaintiff or its licensee the defendant reproduced and published in its newspaper six of the plaintiff's copyrighted illustrations. They were published separately, each in a *Mr. Curtis C. Williams, of Columbus, Ohio, distinct issue and in all the copies. Five for petitioner.

certiorari was allowed.

Decree reversed.

Messrs. Smith W. Bennett, of Columbus, Ohio, and Luther Day, of Cleveland, Ohio, for respondent.

were published once and the other one twice, the illustrations being used in each instance as part of an advertisement by some competitor intrade of the plaintiff's licensee. These two advertisements having the same

*Mr. Justice VAN DEVANTER delivered illustration were by different advertisers the opinion of the Court.

and were separated by an interval of 26 days.

This was a bill for an injunction against future infringement of certain copyrights and to recover damages for past infringement. The injunction was granted and in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The record, while showing that the plaintiff was damaged by the infringing publications, does not show the amount of the damages, a matter which is explained by un

*103

#105

disputed testimony to the effect that the dam- | in the singular, not the plural. Each copyages could not be estimated or stated "in dollars and cents, or in money." On this point the Circuit Court of Appeals aptly said:

Whether the defendant made any profit six cases of infringment in the sense of the from the publications does not appear. In its bill the plaintiff asked for what are termed statutory damages in lieu of actual dam-lustration covered by one of the copyrights ages and profits.