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(253 U. S. 142)
O'CONNELL et al. v. UNITED STATES. (Argued April 23 and 26, 1920. Decided May 17, 1920.)
1. CRIMINAL LAW 1092(9)—Court wITHOUT POWER TO SETTLE BILL OF EXCEPTIONS AFTER TIME AS EXTENDED WITHIN TERM.
Where the term of court at which defendants were convicted, as extended by a rule of the District Court, expired December 4th, and the last order prior to that time, extending the time for preparing the bill of exceptions, extended the time to December 14th, the court's power over the cause expired not later than
December 14th, and any proceedings thereafter concerning settlement of the bill were coram non judice, and did not justify consideration of the
2. ARMY AND NAVY 20, 40-WAR 4SELECTIVE SERVICE AND ESPIONAGE ACTS
The Selective Service Law of May 18, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, $$ 2044a-2044k), and the Espionage Act of June 15, 1917, are constitutional.
Daniel O'Connell and others were convicted of offenses, and they bring error. Affirmed.
*Messrs. Gilbert E. Roe, of New York City, T. C. West and Daniel O'Connell, both of San Francisco, Cal., and Joseph L. Tepper, of Washington, D. C., for plaintiffs in error. Mr. Assistant Attorney General Stewart, for the United States.
Mr. Justice MCREYNOLDS delivered the opinion of the Court.
Plaintiffs in error were tried under an indictment with two counts. The first charges section 3, Act June 15, 1917, c. 30, 40 Stat. a conspiracy to violate the Espionage Act217, 219 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c)-by obstructing the recruiting and enlistment service; the second a conspiracy to violate the Selective Service Law-section 6, Act May 18, 1917, c. 15, 40 Stat. 76, 80 (Comp St. 1918, Comp. St. Ann. Supp. 1919, § 2044f).
A demurrer, challenging the constitutionality of both acts and the sufficiency of each OB-count, was overruled.
BY The trial continued from September 12 to 25, 1917, and resulted in the following verdict:
A conspiracy to obstruct recruiting and enlistment by persuasion constitutes a crime under Espionage Act, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212c).
4. CRIMINAL LAW 878(2)—VERDICT WITH BLANKS HELD A GENERAL VERDICT OF GUILTY
ON BOTH COUNTS.
Under an indictment charging in one count a conspiracy to obstruct the recruiting and enlistment service, and in the second count a conspiracy to make false certificates concerning liability for military service and to aid in evading the Selective Service Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 88 2044a-2044k), a verdict finding defendants "guilty on the count of the indictment and on the count of the indictment" sufficiently showed an intention to find a general verdict of guilty upon both counts, especially where no objection was made to the form of the verdict by the motion for new trial or in arrest of judgment.
5. ARMY AND NAVY 40-PENAL PROVISIONS OF SELECTIVE SERVICE ACTS NOT LIMITED TO
The clause of Selective Service Act, § 6 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044f), making it an offense for any person to make or be a party to the making of any false statement or certificate as to the fitness or liability of himself or any other person for service, or otherwise to evade or aid another to evade the requirements of that act or the regulations thereunder, is not limited to officers and persons charged with the duty of carrying the
act into effect.
In Error to the District Court of the United States for the Northern District of California.
"Thomas H. Haskins, Foreman."
No objection was made to this verdict when returned, nor at any time prior to May 31, 1919, long after the record came here, when permission was asked to amend the assignments of error.
Motions for new trial and in arrest of judgment were overruled. The former attacked the verdict as contrary to law and the evidence but said nothing concerning its form. The latter recited:
"And now after verdict against the said defendants and before sentence, come the said defendants in their own proper persons and by Daniel O'Connell their attorney and move the court here to arrest judgment herein and not pronounce the same"
-*and specified the following grounds: (1) The indictment fails to set forth facts sufficient to constitute an offense. (2) The first count is repugnant to itself for reasons set forth in the demurrer. (3) The second count is based on the Act of May 18, 1917, inapplicable to the defendants because they were not engaged in carrying out its terms. (4) The first count does not adequately inform defendants concerning nature of charge against them. (5) Both the Acts of May 18
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and June 15, 1917, are in conflict with the Constitution and are invalid.
September 29 O'Connell was sentenced to the penitentiary for five years on the first count and for two years on the second, the terms to run consecutively. The other plaintiffs in error were sentenced to varying concurrent terms under both counts, none being in excess of three years. On the same day a writ of error from this court was allowed. The record contains a bill of exceptions, with an elaborate explanatory certificate signed by the District Judge.
The trial took place during July term, 1917; the next term as appointed by statute began November 15. On September 29, 30 days were granted for preparation and presentation of a bill of exceptions. October 23 an order undertook to extend the time to November 15; on November 12 a like order specified November 27; on November 26 an order specified December 15; on December 14 a further order undertook to extend it to December 24, when a still further extension was ordered to December 31. On the latter date a proposed bill was presented. January 9, 1918, the United States attorney procured an order granting time in which to prepare amendments to the proposed bill which were thereafter presented.
When an act to be done in any pending suit relates to the preparation of bills of exceptions or amendments thereto, "the time allowed by these rules may, unless otherwise specially provided, be extended by the court or judge by order made before the expiration of such time,
but no such extension or extensions shall exceed thirty days in all without the consent of the adverse party."
After expiration of the three months specified by rule 9, plaintiffs in error having in open court requested further extension, the United States attorney announced that he would not consent but would ask the court to refuse to settle any bill thereafter proposed. In April, 1918, he moved that settlement of the proposed bill be refused and that it be stricken from the files. The court expressed the opinion that the bill was too late unless the United States attorney had waived objection thereto, and on that point said:
"I am very strongly of the view that owing to the attitude of the United States attorney, distinctly stated theretofore, which was all that
could be done under the circumstances this was not such a waiver."
But, in order that the matter might be brought here for final determination, the facts were set out and the certificate signed.
 Under the statute the trial term ex
pired November 15; but, for the purpose of filing the bill of exceptions, a general rule extended it to December 4-three months last order of court within the extended from the first Tuesday in September. The term designated December 14 as the final day for action.
"By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a *formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties. * * After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end." Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 450, 452 (36 L. Ed. 162).
We think the power of the trial court over the cause expired not later than the 14th of December, 1917, and any proceedings concerning settlement of a bill thereafter were coram non judice. We may not, therefore, consider the bill copied in the record. Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113; Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090; Waldron v. Waldron, 156 U. S. 361, 15 Sup. Ct. 383, 39 L. Ed. 453; Jennings v. Philadelphia, Baltimore & Washington Ry. Co., 218 U. S. 255, 257, 31 Sup. Ct. 1, 54 L. Ed. 1031. And the same is true of certain notes of proceedings taken during trial which we directed to be brought here, without prejudice, by order of June 9,
The motion to amend original assignments of error is granted. Having regard to the record properly before us only four of the assignments require special notice: (1) Unconstitutionality of the Selective Service and the Espionage Acts. (2) That the first count is bad because it only charges a conspiracy to obstruct the recruiting and enlistment service by inducement and persuasion. The verdict was fatally defective and the judgment invalid. (4) The second count is bad. It charges a conspiracy to make false certificates concerning liability for military service and to aid in evading the act without alleging that the conspirators were officers or persons charged with the duty of carrying it into effect.
[2, 3] The constitutionality of the two acts
is settled by opinions of this court announced since the writ of error was sued out. Goldman et al. v. United States, 245 U. S. 474, 38 Sup. Ct. 166, 62 L. Ed. 410; Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States,
249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561. Also the criminality of a conspiracy to obstruct recruiting and enlistment by persuasion has been determined. Schenck v. United States, supra.
 Apparently a printed form was used in preparing the jury's verdict, defendants' names and the word "guilty" being inserted. When presented no objection was made to its form or wording, neither the motion for new trial nor in arrest of judgment indicated any such objection, and plaintiffs in error mentioned none when called upon to show cause why sentence should not be imposed. We think the intention to find a general verdict of guilty upon both counts is sufficiently plain. Evidently all parties so understood at the time. See Statler v. United States, 157 U. S. 277, 279, 15 Sup. Ct. 616, 39 L. Ed. 700; Ballew v. United States, 160 U. S. 187, 197, 16 Sup. Ct. 263, 40 L. Ed. 388.
 The second count charges a conspiracy to violate section 6 of the Selective Service Act. Its provisions include:
"Any person who shall make or be a party to the making of any false statement or certificate as to the fitness or liability of himself or any other person for service under the provisions of this act, or regulations made by the President thereunder, or otherwise evades or aids another to evade the requirements of this act or of said regulations."
Other words of the section relate to officers and persons charged with the duty of carrying the act into effect, but the quoted ones are broad enough to include nonofficial persons and, when considered in connection with the general purpose in view, there can be no reasonable doubt that plaintiffs in error were within their meaning. Fraina et al. v. United States, 255 Fed. 28, 33, 166 C. C. A. 356.
We find no adequate cause for interfering with the judgment of the court below and it is
(253 U. S. 94)
LEARY et al. v. UNITED STATES. (Argued April 30, 1920. Decided May 17, 1920.) No. 314.
1. PRINCIPAL AND SURETY 185-SURETY NOT ENTITLED TO REIMBURSEMENT FROM INDEMNITY FUND FOR EXPENSES OF OPPOSING
COLLECTION OF JUDGMENT.
Where a fund which the United States sought to charge with a trust in its favor was
determined to be primarily security to L. upon a bail bond and judgment was obtained on the bail bond which L.'s estate was compelled to pay, his administrators were not entitled to reimbursement from the fund for their expenses in defending against proceedings to compel payment of the judgment, though the United States had impounded the fund, as the obligation to pay the judgment was absolute and not confined to a payment from such fund.
2. DEPOSITS IN COURT 11-CLERK HELD EN
TITLED TO POUNDAGE ON AMOUNT AWARDED TO PARTY.
Where a fund which the United States impounded and sought to charge with a trust in its favor was determined to be primarily security to L. against his liability upon a bail bond, the amount awarded to L.'s administrators on their payment of a judgment on the bail bond was properly subjected to the clerk's poundage for money kept and paid out by him. 3. PRINCIPAL AND SURETY 185-SURETY
NOT ENTITLED TO REIMBURSEMENT FROM INDEMNITY FUND FOR COST OF ESTABLISHING⭑ RIGHTS.
Where the United States sought to estab lish a trust in a fund obtained from it through
fraud, and L. intervened claiming that the fund was held to secure him against liability upon a bail bond and that he was a purchaser without notice of the rights of the United States, and it was determined that the fund was primarily security to him against such liability, he was not entitled to reimbursement from the fund for his expenses in establishing and protecting the trust in his favor, on the theory that the rights of the United States were inferior to his, as this would impose on the owner of the fund charges of a kind that the United States never pays, and charges for protecting the fund not for, but against, the United States.
Appeal from the United States Circuit Court of Appeals for the Fourth Circuit.
*Mr. Justice HOLMES delivered the opinion of the Court.
The United States brought a bill to charge Kellogg with a trust in respect of funds received by him from Greene and obtained from the plaintiff by Greene through his participation in some well known frauds. In 224 U. S. 567, 32 Sup. Ct. 599, 56 L. Ed. 889, Ann. Cas. 1913D, 1029, the representative of Leary was allowed to intervene and to assert a paramount claim upon the funds. In United
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States v. Leary, 245 U. S. 1, 38 Sup. Ct. 1, 62 [fying fund against unexpected attacks, that L. Ed. 113, it was established that the funds if the trustee fails to make it the cestui que were held by Kellogg primarily as security to trust may do so, and that in either event the Leary against his liability upon a bail bond fund should be charged. It does not matter for Greene. The United States having ob- that the United States is the opposing party, tained a judgment on the bail bond and the as its rights in the fund are inferior to those same having been paid by the Leary estate that Leary now has successfully affirmed. the present appellants filed a petition in the Trustees of the Internal Improvement Fund cause, in the District Court, to have the of the State of Florida v. Greenough, 105 U. funds applied to the reimbursement (1) of S. 527, 26 L. Ed. 1157. expenditures in defending against proceed- To these arguments the Government reings in the Surrogate Court to secure pay-plies in the first place that they come too ment of the judgment; (2) of expenditures in late; that the decree of the Circuit Court of establishing and protecting the trust; and Appeals that was before this court on the (3) of the sum of $40,802, the amount paid on last occasion was treated as a final decree, the judgment, with interest from July 26, which therefore fixed the amount that the 1910, the date when the judgment was paid. appellants could recover beyond enlargement, The District Court allowed the last claim and that as the prayer of the appellants was with interest at six per cent. less the clerk's only for the transfer of so much of the fund poundage of one per cent. under Rev. St. § as would pay the judgment on the bail bond 828 (Comp. St. § 1383). (The details are im- with interest, nothing more can be asked material.) It denied the other claims, and now. This objection might raise difficulty if its decree was affirmed by the Circuit Court of Appeals. 257 Fed. 246, 168 C. C. A. 330. Leary's administrators appealed.
[1-3] The only reason suggested for the claim on account of defending against proceedings on the judgment is that the United States in the present suit had impounded the funds available for payment. But the obligation to pay the judgment was absolute, not confined to a payment from these funds, and the claim for the cost of resisting it has no foundation. We also are of opinion that the deduction of poundage by the clerk was prop*96
otherwise our opinion were in favor of the appellants; but as we think that the Circuit Court of Appeals was right with regard to the merits, we will assume for purposes of decision that the previous proceeding did not so precisely determine the appellants'
*rights as to prevent their demanding the foregoing items as incident to the claim allowed.
To charge the fund with these expenses is to charge the United States, and it begs the question to say that the United States in this respect is subordinate to the Leary claim. It is not subordinate unless Leary's costs ought to come out of the Government's pocket, even though limited to particular money there. The Government cannot be made to pay or to take subject to the deduction, because Leary, even though a bona fide purchaser, had no contract for it, and because to charge the fund apart from contract is merely a roundabout way of saying that the owner of the fund must pay charges of a kind that the United States never pays; (see National Bank of Genesee v. Whitney, 103 U. S. 103, 104, 26 L. Ed. 443; United States v. Barker, 2 Wheat. 395, 4 L. Ed. 271) and charges for protecting the fund not for but against the United States.
er as in other cases of money kept and paid
Mr. Justice McREYNOLDS took no part in
(253 U. S. 113)
scribe the terms of carrier's bills of lading, UNITED STATES et al. v. ALASKA S. S. and that in any event there was no power to prescribe an inland bill of lading depriv
CO. et al.
(Argued Dec. 16 and 17, 1919. Decided May 17, ing the carriers of the benefits of certain
1920.) No. 541.
1. APPEAL AND ERROR 781(4)-TRANSPOR-
statutes of the United States limiting the liability of vessel owners. Alaska S. S. Co. v. U. S. (D. C.) 259 Fed. 713. One of the District Judges dissented, holding that the Commission had the power to prescribe bills of lading, and that the particular bills of The questions involved on an appeal from lading in question were within the authority an order enjoining the enforcement of an order of the Commission. An order was entered of the Interstate Commerce Commission, pre-refusing to dismiss the petition, and an inscribing the terms of carriers' bills of lading, junction pendente lite was granted. From become moot, where it is conceded that Trans- this order an appeal was taken directly to portation Act Feb. 28, 1920, requires changes this court under the statute of 1913. 38 Stat. in the forms prescribed; and the order will be 220. reversed, and the cause remanded, with direc tions to dismiss without prejudice. 2. APPEAL AND ERROR 843(1)-MOOT QUESTIONS WILL NOT BE DECIDED, HOWEVER CONVENIENT SUCH DECISION MIGHT BE.
The Supreme Court will determine only ac tual matters in controversy essential to the decision of the particular case before it, and where by an act of the parties or a subsequent law the existing controversy has come to an end the case becomes moot, and will be treated accordingly, however convenient it might be to have the questions decided for the government of future cases.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by the Alaska Steamship Company and others against the United States and another. From an order granting an injunction pendente lite, and denying a motion to dismiss (259 Fed. 713), defendants appeal. Reversed and remanded, with directions.
*Messrs. Charles W. Needham, of Washington, D. C., and Alexander C. King, Sol. Gen., of Atlanta, Ga., for appellants.
*It appears that the matter in controversy as to the authority of the Commission and the character of the bills of lading were subjects of much inquiry before the Commission, where hearings were had, and an elaborate report upon the proposed changes in carriers' bills of lading resulted in the adoption by the Commission of the two bills of lading. 52 Interst. Com. Com'n R. 671.
Pending this appeal Congress passed on February 28, 1920, the act known as the "Transportation Act of 1920," which terminated the federal control of railroads, and amended in various particulars previous acts to regulate interstate commerce. In view of this act of Congress this court on March 22, 1920, entered an order requesting counsel to file briefs concerning the effect of the act upon this cause. Briefs have been filed, and we now come to consider the altered situation arising from the new legislation, and what effect should be given to it in the disposition of this case.
The thing sought to be accomplished by the prosecution of this suit was an annulment Messrs. Roscoe H. Hupper, of New York of the order of the Commission, and an inCity, and Theodore W. Reath, of Philadel-junction restraining the putting into effect phia, Pa., for appellees.
Mr. Justice DAY delivered the opinion of the Court.
and operation of such order, which prescribed the two forms of bills of lading. The temporary injunction granted was against putting into effect the Commission's order prescribing the forms of the bills of lading.
[1, 2] The Transportation Act of 1920, passed pending this appeal, makes it evident (and it is in fact conceded in the brief filed by appellants) that changes will be required in both forms of bills of lading in order that they may conform to the requirements of the statute. We need not now discuss the details of these changes. It is sufficient to say that the act requires them as to both classes of bills. We are of opinion that the necessary effect of the enactment of this statute is to make the cause a moot one. In the appellant's brief it is insisted that the power of the Commission to prescribe bills
A petition was filed in the United States District Court for the Southern District of New York by numerous interstate carriers and carriers by water against the United States and the Interstate Commerce Commission to set aside an order of the Interstate Commerce Commission dated March 14, 1919, requiring the carriers to use two certain modified bills of lading, one pertaining to domestic and the other to export transportation. The cause came on for hearing upon application for a temporary injunction and upon a motion to dismiss the petition. The hearing was had before three judges, a Circuit Judge and two District Judges. A majority concurred in holding that the Interstate Commerce Commission had no authority to pre-of lading is still existent, *and has not been For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes