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with monopolizing and attempting to monopo- | came responsible for the acts of the Dupont lize it. The declaration, after stating the or- Company as their own. As the jury exonganization of the plaintiff in January, 1903, erated the latter company this ground fails. for the purpose of manufacturing and sell- So that even if the ruling was wrong it did ing powder, particularly black blasting pow- no harm unless something more can be found der, alleges a long previous conspiracy on in the case. Portland Gold Mining Co. v. the part of various companies to monopolize Stratton's Independence, 158 Fed. 63, 85 C. C. the trade in explosives, which ended in the A. 393, 16 L. R. A. (N. S.) 677. The ruling organization of the E. I. Dupont de Ne- did not import that there was no evidence mours Powder Company in May, 1903, in or- against the Dupont Company, the case der more completely to carry out that end. against which was put fairly to the jury, It is alleged that the defendants and others but that there was no evidence that the othhave carried out that end, and that in pur- er defendants conspired with it, so far at suance of it they did acts, detailed at great least as the plaintiff was concerned. These length, for the purpose of compelling the companies did not make black blasting powplaintiff to join them or else go out of busi- der and had no interest immediately adverse That, with an allegation that they to the plaintiff. The basis of the charge of succeeded and forced the plaintiff to sell out conspiracy affecting the black blasting powat a loss, is the whole scope of the declara- der business was that the Dupont Company tion. There was a motion to strike it out for directly or through another company was induplicity, but the motion was overruled on terested in their stock. No other is suggestthe ground that the declaration was as we ed in the declaration and it would be hard to have stated. (D. C.) 196 Fed. 514. The extract any act from the evidence. Certaintrial proceeded on that footing without com- ly none could be found that was more than plaint. So far as contracts bore upon the an infinitesimal fraction of those done by supposed attempt to subject plaintiff to the the Dupont Company. Here again the Court monopoly the jury was allowed to consider was of opinion that the exceptions to be them. The case was fully tried upon the considered should have the whole record beground taken by the plaintiff at the outset hind it, but on the record as it stands we and the only one on which it could hope to think it sufficiently appears that the plainsucceed. The plaintiff did not ask to amend. tiff suffered no real harm. It is unnecessary to advert to the statement [4, 5] The next matter requires but a few of the judge that in his opinion the excep- words. The plaintiff offered in evidence detion to be considered should have the whole crees in a proceeding by the Government' grecord behind it, or whether, as has been finding the Dupont Company guilty under the suggested, the *second section is not the only Sherman Act of an attempt to monopolize. one addressed to transactions such as were United States v. E. I. Dupont de Nemours alleged. Northern Securities Co. v. United & Co. (C. C.) 188 Fed. 127. These of course States, 193 U. S. 197, 404, 24 Sup. Ct. 436, were held inadmissible. The Court also 48 L. Ed. 679. When the plaintiff, after the ruled that the statute of limitations barred ruling of the judge, went through the form recovery for any damage suffered before Sepof electing to rely upon acts done contrary tember 18, 1905, six years before the beginto section 2 of the statute, it simply adhered ning of the present suit. The plaintiff now to the interpretation of its declaration that contends that the Clayton Act of October 15, it had accepted at the beginning and had 1914, c. 323, § 5, 38 Stat. 731 (Comp. St. 1916, endeavored to sustain throughout. Portions § 8835e) making admissible such criminal of the charge are criticised in this connec- judgments "hereafter rendered," in some way tion for pointing out to the jury that section should affect our decision upon a ruling 2 embraced not only monopoly but attempts made years before, and that by virtue of to monopolize. But this was wholly to the the same section the running of the statute plaintiff's advantage, as it explained that of limitations was suspended retrospectiveif the plaintiff was driven out of business by ly as to claims already barred, pending the the defendant's acts it was entitled to re- Government suit. These matters do not need eover if those acts were done in the course more than a statement of what was argued of an attempt to monopolize, whether or not and what was done. they were crowned with success. It allowed the jury to consider everything that indicated such an attempt.

[6] Another exception seems to us over critical. Mr. Waddell, the organizer of the plaintiff corporation and chief witness on its behalf, started it directly after leaving the Dupont Company, with which he had been for many years. He knew all the elements of the situation before he embarked on the venture, and did not do so until the Dupont Company had reached the height of its pow

[3] Next in importance is an exception to the Court's directing a verdict in favor of the Eastern Dynamite Company and the International Smokeless Powder and Chemical Company. There were no acts done by either of these companies that were aimed at the plaintiff. The only substantial ground er. The judge remarked in his charge that for charging them was that if they were the plaintiff did not stand like a competitor parties to a conspiracy as alleged they be that had been in existence while the de

fendant's influence was being developed and | 522, 536, 35 Sup. Ct. 170, 59 L. Ed. 341; that had been injured in its business dur- Elmer v. Fessenden, 151 Mass. 359, 362, 24 ing the course of such development-that the N. E. 208, 5 L. R. A. 724. In view of the mere existence of the defendant's power as finding of the jury the rulings as to damages it was when the plaintiff was born was not are immaterial and need no discussion here. in itself a cause of action to the plaintiff, The defendant put in evidence tending to but that the plaintiff must show that the show that its conduct was not the cause of defendant uses its power oppressively, if not the plaintiff's failure and its evidence, or against the plaintiff, at least in the course of the weakness of the plaintiff's prevailed. defendant's business. This was innocuous Our conclusion upon the whole case is that truth. The plaintiff could not be called in- the plaintiff has had a fair trial and that to being in order to maintain a suit for con- the judgment should not be disturbed. duct that made it not pay to be born. Claims Judgment affirmed. for such antenatal detriments are not much favored by the law. See National Council, United American Mechanics v. State Council of Virginia, 203 U. S. 151, 161, 27 Sup. Ct. 46, 51 L. Ed. 132.


[7] Another statement in the charge con- (Argued Nov. 4, 1918. Decided Dec. 9, 1918.) cerning Mr. Waddell's knowledge of the defendant's power and policy is complained of, but the complaint seems to us based upon a perversion of its meaning. The defendant had put in evidence tending to show that Mr. Waddell organized the plaintiff merely to sell it out to the defendant, without any real intent to compete. The Court said that of course Mr. Waddell had a right to go into business and that his motive was of little moment so far as that was concerned, but that it might have a bearing on the ques tion whether the plaintiff was sufficiently capitalized to meet normal conditions, adding that it did not matter whether it was or not as against a competition forced upon it by unlawful means. This is treated as if it had made the motive an answer to the claim. What it really did was to state correctly that, on the question whether the plaintiff's failure was due to the defendant's oppression or to the plaintiff's incapacity, the jury in estimating the evidence and finding what the facts were might consider Mr. Waddell's motive if they should find it to have been what the defendants alleged.


No. 212.



§ 15 (Comp. St. 1916, § 5096a), to make reservaCongress had power, by Act March 3, 1891, tion of Annette Islands in Alaska, for Metlakahtla Indians, inclusive of adjacent waters and submerged land; the "reservation" not being in nature of private grant, but simply a setting apart, until otherwise provided, designated public property for recognized public purpose to advance dependent Indian people.

and Phrases, First and Second Series, Reserva[Ed. Note.-For other definitions, see Words tion.]




In view of purpose of Indians in going to islands, character of islands, and purpose of creating reservation, reservation of Annette Islands in Alaska for Metlakahtla Indians, created by Act Cong. March 3, 1891, § 15 (Comp. St. 1916, § 5096a), includes adjacent waters and submerged land, to protect fish supply of Indians, principal source of their sustenance and industry. 3. INDIANS 6-CONSTRUCTION OF STATUTES.

Statutes passed for benefit of dependent Indian tribes or communities are to be liberally construed, and doubtful expressions resolved in favor of the Indians.

[8] We agree with the Circuit Court of Appeals that it is not necessary to deal specifically with all the details brought up by the dragnet of the plaintiff's exceptions and assignments of error, sixty-nine in number and occupying more than sixty pages of the record. Central Vermont Ry. Co. v. White, 238 U. S. 507, 508, 509, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. Several exceptions were taken to the exclusion of statements by third persons of their reasons for refusing or ceasing to do business with the plaintiff. We should be slow to overthrow a judgment on the ground of either the exclusion or admission of such statements except in a very strong case. But the exclusion in this instance was prop- This is a suit by the United States to ener. The statement was wanted not as evi- join the Alaska Pacific Fisheries, a California dence of the motives of the speakers but as corporation, from maintaining, and to comevidence of the facts recited as furnishing pel it to remove, an extensive fish trap erectthe motives. Lawlor v. Loewe, 235 U. S.ed by it in navigable waters at the Annette

*Mr. Justice VAN DEVANTER delivered the opinion of the Court.

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

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.

Suit by the United States against the Alaska Pacific Fisheries. From a decree granting the relief sought, defendant appealed to the Circuit Court of Appeals, which affirmed (240 Fed. 274, 153 C. C. A. 200), and defendant appeals. Affirmed.

Mr. C. H. Hanford, of Seattle, Wash., for appellant.

Mr. Assistant Attorney General Brown, for the United States.


Islands in Alaska. The objections urged, needs of the Indians and the object to be atagainst the trap are, first, that it is within a reservation lawfully established for the use of the Metlakahtla and other Indians, and, second, that it is an unauthorized obstruction to the navigable capacity of waters of the United States. A decree was entered granting the relief sought and this was affirmed by the Circuit Court of Appeals. 240 Fed. 274, 153 C. C. A. 200.

[1] That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement. All were the property of the United States and within a district where the entire dominion and sovereignty rested in the United States and over which Congress had complete legislative The Annette Islands are a group of small authority. National Bank v. County of Yankislands in southeastern Alaska. During the ton, 101 U. S. 129, 133, 25 L. Ed. 1046; Shivesummer of 1887 some 800 Metlakahtla Indi-ly v. Bowlby, 152 *U. S. 1, 47-48, 58, 14 Sup. ans emigrated from British Columbia and Ct. 548, 38 L. Ed. 331; United States v. Wisettled on one of these islands. The emigra-nans, 198 U. S. 371, 383, 25 Sup. Ct. 662, 49 tion and settlement were not only acquiesced L. Ed. 1089. The reservation was not in the in but encouraged by executive and adminis- nature of a private grant, but simply a settrative officers of the United States,' and ting apart, “until otherwise provided by law," subsequently were sanctioned by Congress of designated public property for a recognizthrough the enactment of section 15 of the ed public purpose-that of safe-guarding and Act of March 3, 1891, c. 561, 26 Stat. 1101 advancing a dependent Indian people dwell(Comp. St. 1916, § 5096a). That section reads ing within the United States. See United as follows: States v. Kagama, 118 U. S. 375, 379, et seq., 6 Sup. Ct. 1109, 30 L. Ed. 228; United States v. Rickert, 188 U. S. 432, 437, 23 Sup. Ct. 478, 47 L. Ed. 532.

"That until otherwise provided by law the body of lands known as Annette Islands, situated in Alexander Archipelago in southeastern Alaska, on the north side of Dixon's entrance, be, and the same is hereby, set apart as a reservation for the use of the Metlakahtla Indians, and those people known as Metlakahtlans who have recently emigrated from British Columbia to Alaska, and such other Alaskan natives as may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may [be] prescribed from time to time by the Secretary of the Interior."

The fish trap was erected in 1916 without the consent of the Indians or the Secretary of the Interior. It is a formidable structure consisting of heavy piling and wire webbing, is located in water of considerable depth approximately 600 feet from the high tide line of the island on which the Indians settled, is intended to catch about 600,000 salmon in a single season, and its operation will tend materially to reduce the natural supply of fish accessible to the Indians.

The principal question for decision is whether the reservation created by the Act of 1891 embraces only the upland of the islands or includes as well the adjacent waters and submerged land. The question is one of construction of determining what Congress intended by the words "the body of lands known as Annette Islands."

As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated, to have in mind the circumstances in which the reservation was created-the power of Congress in the premises, the location and character of the islands, the situation and

1 House Ex. Docs. 50th Cong. 1st Sess. vol. 10, p. 64, vol. 13, p. 34; Sen. Mis. Doc. No. 144, 53d Cong. 2d Sess.; Sen. Doc. No. 275, 55th Cong. 2d Sess.

[2] The islands are in the interior of the Alexander Archipelago and separated from other islands by well-known bodies of water. Before the Metlakahtla settlement they were wild and uninhabited. While bearing a fair supply of timber, only a small portion of the upland is arable, more than three-fourths consisting of mountains and rocks. Salmon and other fish in large numbers frequent and pass through the waters adjacent to the shore and the opportunity thus afforded for securing fish for local consumption and for salting, curing, canning and sale gives to the islands a value for settlement and inhabitance which otherwise they would not have.

The purpose of the Metlakahtlans in going to the islands was to establish an Indian colony which would be self-sustaining and reasonably free from the obstacles which attend the advancement of a primitive people. They were largely fishermen and hunters, accustomed to live from the returns of those vocations, and looked upon the islands as a suitable location for their colony, because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development.

After their settlement and before the reservation was created, the Indians, under the guidance of a noted missionary, adopted a form of self-government suited to their needs; established for themselves a village with substantial dwellings, schoolhouses and the like, and *constructed and installed an ex-2 tensive establishment where they canned salmon for the market.2

House Ex. Docs. 50th Cong. 2d Sess. vol. 10, p. cli; House Mis. Docs. 52d Cong. 1st Sess. vol. 50, part 9, pp. 27-29, 188.

The purpose of creating the reservation

was to encourage, assist and protect the indians in their effort to train themselves to habits of industry, become self-sustaining and advance to the ways of civilized life. True, the Metlakahtlans were foreign born, but the action of Congress has made that immaterial here.

by the United States in any torpedo constructed
for any person or other governments, and would
not exhibit such device, the United States could
restrain exhibition of a balanced turbine torpedo,
whether or not patentable or within the prior
art, or known to defendant, plans for which the
defendant; "furnish"
government furnished
meaning to supply, while "invent" means to cre-


[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Furnish.] 2. UNITED STATES 58-CONTRACTS-CONSTRUCTION-EXHIBITION OF TORPEDO.

The circumstances which we have recited
shed much light on what Congress intended
by "the body of lands known as Annette Is-
lands." The Indians could not sustain them-ture torpedoes for the United States, engaged
Where defendant, contracting to manufac-
selves from the use of the upland alone. The not to exhibit any device for which the design
use of the adjacent fishing grounds was was furnished to it by the United States, the
equally essential. Without this the colony latter could restrain it from exhibiting a de-
vice incorporated in a torpedo which was first
could not prosper in that location. The In-
communicated or suggested verbally, and then by
dians naturally looked on the fishing grounds letter, unaccompanied by blueprints of design.
as part of the islands and proceeded on that 3. INJUNCTION 189 - RELIEF - RESTRAIN-
theory in soliciting the reservation. They ING EXHIBITION OF TORPEDO - VIOLATION
had done much for themselves and were
striving to do more. Evidently Congress in-
tended to conform its action to their situation
and needs. It did not reserve merely the
site of their village, or the island on which
they were dwelling, but the whole of what is
known as Annette Islands, and referred to it
as a single body of lands. This, as we think,
shows that the geographical name was used,
as is sometimes done, in a sense embracing
the intervening and surrounding waters as
well as the upland-in other words, as de-
scriptive of the area comprising the islands.

restrain its contractor for the manufacture of
In injunction suit by the United States to
torpedoes from exhibiting devices furnished by
the United States, decree should not include de-
vices not used in the existing torpedo, where the
contractor does not display disposition to violate
its trust, but the exclusion should be without
prejudice to the government's right to obtain in-
junction against disclosure on proof of intention

to use them.

Mr. Chief Justice White dissenting.

[3] This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Choate v. Trapp, 224 U. S. 665, 675, 32 Sup. Ct. 565, 56 L. Ed. 941, and cases cited. And it has further support in the facts that, save for the defendant's conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public as reserving the adjacent fishing grounds as well as the upland, and that in regulations prescribed by the Secretary of the Interior on February 9, 1915, the Indians are recognized as the only persons to whom permits may be issued for erecting salmon traps at these islands.

(248 U. S. 37)

E. W. BLISS CO. v. UNITED STATES. (Argued Nov. 20 and 21, 1918. Decided Dec. 9, 1918.) No. 15.

Appeal from the United States Circuit
Court of Appeals for the Second Circuit.

Suit by the United States against the E.
W. Bliss Company. From a decree of the
District Court for plaintiff, defendant ap-
pealed to the Circuit Court of Appeals,
which amended and affirmed (139 C. C. A.
633, 224 Fed. 325; 143 C. C. A. 496, 229
and defendant appeals. Af-
Fed. 376),


Messrs. George W. Field and Arthur C. Fraser, both of New York City, for appellant.

Mr. G. Carroll Todd, Asst. Atty. Gen., for appellee.

Mr. Justice MCKENNA delivered the opin
ion of the Court.

Appeal from a decree of the United States
Circuit Court of Appeals (United States v.
E. W. Bliss Co., 224 Fed. 325, 139 C. C. A.
633) amending and affirming a decree of the

Decree affirmed.

These views are decisive of the suit and District Court for the Eastern District of sustain the decree below. New York entered in a suit brought by the United States against appellant (herein referred to as the Bliss Company) restraining the latter from exhibiting or communicating the construction and operation of a torpedo known as the Bliss-Leavitt torpedo.

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The controversy turns upon the construction and application of certain clauses of the contracts between the Bliss Company and the United States and is not, we think, in broad compass. In support of its contention in the main the United States has the


Where a contract between the United States and defendant for manufacture of torpedoes pro-sanction of the two courts. vided that defendant would not make use of any device the design for which was furnished to it The development, construction and opera

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


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tion of the torpedo gave animation and at- covers the balanced turbine and *certain othtraction to the argument, but it is enough er features, and it is manifest that whether to say that its method of propulsion is the it should be granted depends particularly upbalanced turbine method, so called, that is, on a provision of the contract which prohibturbines revolving in opposite directions. its the exhibition of the torpedo or its perThe United States asserts that to this meth-formance to any person whatsoever or to od of propulsion the excellence and efficacy any other government, or its representatives, of the torpedo is due and that it was the than that of the United States. That proviconception of the United States; that it was sion is that the Bliss Company "will not the result of much experimentation on the make use of any device the design for which part of its engineers and those of the Bliss is furnished to it" by the United States "in Company and the expenditure of substantial any torpedo constructed or to be constructed sums of money by the government, and that for any person or persons, firms, corporabecause of the superior speed, range and tions, or others, or for other governments power of this new weapon, other nations than" the United States and "will not exhave been eager to learn the secrets of its hibit such device or in any way describe it construction. to or give any information in regard to it to any person * or to other governments, or their representatives" or exhibit its performance "either in shop or in service tests." A violation of the contract incurs its cancellation and releases the United States from all claims or demands under it. It is, however, provided that no design shall be considered as coming within the provisions unless the United States communicates in writing to the Bliss Company that it (the United States) thinks it is embraced by the provision. It is disputed whether the

The Bliss Company denies these assertions, opposes them, besides, by the contentions that the balancing of rotary bodies analogous to turbines rotating in opposite directions was a matter of common knowledge long prior to any transactions with the United States and that the *torpedoes constructed by it under its contract contained balanced turbines, so called, of its own design and property; or, to quote counsel:

"The torpedo is the product of the assiduity and genius of the defendant's officers and engineers, and not that of the government."

And, further, that it purchased from Lieutenant Davison, with full knowledge of the United States, all of his rights to foreign patents, and to this patent, it is said, the United States assigns a special excellence. This is the issue in outline. The Bliss Company asserts the right to have other customers than the United States and to seek other markets, and not subject to restriction by the United States. The United States claims an exclusive service and even concealment from all others except as it may concede it. The resolution of the contentions is in the contract of the parties.

Those transactions date to 1905 and are exhibited in three contracts, one of November 22, 1905, one of June 12, 1912, and an intervening one dated July 16, 1909. In the 1905 contract there was a provision, which it is admitted was embodied in all subsequent contracts. Disputes arose as to the meaning of the provision, the rights and restraints under it, and the Bliss Company brought them to litigation by expressing its desire to negotiate with Messrs. Whitehead & Company for the right to manufacture the torpedo in foreign countries. The Bureau of Ordnance objected, and on May 9, 1913, the company addressed the Secretary of Navy as follows:

"As a means to this end we notify you hereby that it is our intention to communicate the conplete construction and operation of the existing type of Bliss-Leavitt torpedo, and to make a demonstration of the operation of said torpedo, to a representative of Messrs. Whitehead & Company on or immediately after June 1, 1913." [1] To restrain the threatened action this suit was brought. The prayer of the bill

1" 'Nineteenth. It is hereby expressly further stipulated, covenanted and agreed, that the party of the

first part will not make use of any device the design for which is furnished to it by the party of the second part in any torpedo constructed or to be constructed for any person or persons, firms, corporations or others, or for other governments than the party of the second part hereto; that the party of the first part will not exhibit such device or in any way describe it to, or give any information in regard to it to any person or persons, firms, corporations, or others, or to other governments, or their representatives, than the party of the second part hereto; that the party of the first part will not exhibit the performance of any torpedo containing such device either in shop or in service tests, to any person or persons, firms, corporations or others, or to other governments, or their representatives, than the party of the second part hereto:

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"'Provided furthermore, that no device or design of this clause unless the party of the second part shall be considered as coming within the provisions shall state to the party of the first part in writing, at the time when the said device or design is itself conveyed to the party of the first part by written communication from the party of the second part, that the party of the second part considers that the said device or design is embraced within the provisions of this clause.'"

"In the contract of June 12, 1912, the foregoing clause became clause Twentieth. The 1912 contract contained, however, in the second clause, the following new matter, which (save that part enclosed by brackets) had not been included in previous con



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''[Second. The manufacture of said torpedoes]. (the word "torpedoes" as used throughout this contract being intended to include everything covered by the drawings, plans and specifications above referred to) [shall conform in all respects to and with said drawings, plans and specifications] including duly authorized changes therein, but said drawings, plans and specifications are not hereto annexed or made a part hereof. They contain in

formation of a confidential character that cannot

be made public without detriment to the government's and the ontractor's interests, and they are

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