*1 literal- period. Taking their defined 1st, January ly, the default upon the served notice ever written landlord tenant, entitle would never think the right of forfeiture. We rightly dis- item of claim rental
allowed. period January 31 to During the realized landlords August the theaters from their own $30,- outgo of of income over an excess proof they In their 677.96. of claim credit only $6,473.41 guarantor ed the period, $24,204.35 having the sum of charge deducted from been income as a depreciation the theaters. deduction, court below disallowed this ruling the correctness of this turns on the meaning “the net income derived month ly from during said business” landlords’ operation. The purpose of this obvious agreement clause of the landlords in position occupied, would have had there been no forfeiture of the leases. Forfeiture was plainly not posi intended to better their tion. As would have had to bear de
preciation charges upon the theaters had continued, perfectly the leases clear were intended to bear them in accounting provided the clause question.
Order affirmed.
UNITED v. ONE STATES PACKAGE.
Circuit Court of Second Circuit Dec. Hardy, Atty., Lamar U. S. New City (Francis H. Horan and Wil-
788 question The Attys., physicians both is Young, liam F. Asst. U. S. import who for the City, counsel), of New articles as involved York present case in them United order to use States. for the health of their ex- are Greenbaum, Ernst, of New Wolff & cepted by implication from the literal Ernst, City (Morris York Lindey, Alexander Certainly they are terms the statute. Kline, all of New Eugene M. excepted in the case of an abortive which City, counsel), Hannah York for Dr. is 305 to save claimant-appellee. Stone, M. (a) prohibits the Tariff Act HAND, SWAN, and AU- Before L. causing of article's for “un- Judges. GUSTUS N. lawful very point abortion.” This was the decided in Bours F. v. United 229 HAND, Circuit AUGUSTUS N. (C.C.A.7), 960 where a similar statute Judge. (Cr.Code, 211 334 and U.S.C.A. § [18 § filed this libel note]) United States declaring “every nonmailable arti- against containing vaginal package a 120 cle or ed designed, adapted, or intend- pessaries alleged to be more for preventing ported contrary abortion, use,” to section any or for or immoral indecent held physicians § to cover us- (a). the decree libel ing From say the mails in order to appealed. In our United States operate upon will patient a if an examin- opinion be affirmed. the decree should necessity ation shows the of an to save And life. this result was reached The claimant Dr. Stone is a New prac- been licensed to though who has the statute in specialized years and has for sixteen any tice in mailing of article “intended for * * * containing package gynecology. not, producing abortion” did by physician in pessaries to her a was sent Act, of the Tariff trying them in Japan for the qualify by the word saving “abortion” opinion practice and her as to giving her “unlawful.” In contraceptive pur- their usefulness v. I. Lee & 45 F.(2d) C. prescribes poses. that she testified She (C.C.A.2), Swan, Judge writing for pessaries in cases where it the use would not be desirable court, mailing construed the statute in for a to un- way. In referring to the mail- accuracy pregnancy. The dertake a ing contraceptive bearing testimony ques- of this faith trade-mark, plaintiff’s he adverted to the York Penal Law which tioned. The New fact that the capable misdemeanor to sell general it in makes said, legitimate use and page 108 at away or offer for give or to advertise F.(2d), discussing the incidence prevention any for the of con- sale statute: ception excepts furnishing such articles to pre- faith physicians who prevent “The intention proper prevention cure their use for the scribe medical use of merely or other articles People Sanger, N.Y. v. of disease. capable because are of illegal New York Penal' Law 118 N.E. lightly uses is not to be ascribed to Con- Laws; 1145. The wit- 40) c. (Consol. gress. Section 334 forbids .also mail-, nesses both ing of obscene books and writings; yet use of contra- that the claimant testified ceptives thought has never been it mails bar from the necessary writings medical sent to or and that em- the health women purposes, general ployed articles of the nature of a character which would render practice. pessaries in their There the no was highly indecent if sent broadcast to all * * * dispute of these as to the truth state- persons. classes of It would ments. ‘adapt- seem reasonable the word ed’ limited meaning more 305(a) of the Tariff 1305(a) provides suggested above (19 U.S.C.A. to construe the whole phrase adapted persons ‘designed, “All. are that: from intended’ requiring an intent importing into the United States from on the * * * * * * country sender that foreign arti- article mailed concep- contraception illegal be used for or abor- cle whatever for purposes.” tion causing unlawful abortion.” or for indecent or immoral or for tion coupled with per- Judge remarks were Swan’s “prevention concep- not with the words dicta, full accord haps they are in Act, tion.” But v. Judge in Bours opinion of Mack derived, which the are others the word F. (C.C.A.) 229 United States *3 “unlawful” qualify mentioned, sometimes inserted to already and were we have the of the word and some- Appeals the of lied on Court times suppose It omitted. seems hard to construing the when Sixth Circuit that under second and 62 F. the third sections statute in Davis v. United articles for in procuring intended use abor- (2d) 473. while, tions in all were cases Tariff Section the section, under only the first were as well 1305(a), (19 U.S.C.A. § prohibited when intended for use in an 334, (18 18, the of U.S.Code title “unlawful the why abortion.” Nor can we see mailing, 334), prohibiting the U.S.C.A. § should, at least in section of section 396 the U.S.Code and title except for producing abortions the 396),' prohibiting (18 U.S.C.A. life, if used to safeguard and bar articles com- transporting in interstate porting or for preventing conception though em- or adapted, “designed, merce of ployed by physician practice in his the of or conception, preventing for intended profession protect the order health abortion,” originated all producing of his or to save them from (17 of 1873 Comstock Act the so-called infection. Act entitled “An 598), which was Stat. in, and Cir- Suppression of Trade the It is for true when the of, Arti- Literature and passed, culation obscene ComstockAct was information now cles of immoral Use.” available as to the evils resulting in many cases from limited, was most it a the of 1873made and accordingly argued that the lan sell, lend, away, “any or crime to guage prohibiting the sale or mailing of what medicine, article drug contraceptives should be taken literally conception, ever, and that Congress intended to bar the use causing unlawful abortion.” Section completely. such articles While we through mails prohibited sending may assume section 305(a) intend designed “any article or Tariff (19 U.S.C.A. 1305(a) conception or prevention of ed for the exempts only such articles as the act of procuring of abortion.” Section 3'forbade excepted, yet are satisfied .that “any hereinbe statute, well as all the acts we have things, except fore-mentioned articles or to, embraced such ai tides as hereinbefore-mentioned when Congress would have denounced as im bulk, imported and not moral if it had understood all the condi purposes before mentioned.” All tions which under were to be used. the statutes referred to were design, opinion, Its in our pre was not to suppress scheme a continuous im sale, importation, vent or carriage by moral and obscene literature and mail things might intelligently be possible far as be to should so construed employed by competent conscientious and consistently. done, gether and If this be of saving life question ought the articles here in or promoting being well pa of their to be forfeited when not intended for an tients. The word “unlawful” would make purpose. interpre immoral Such was the this clear as to articles for producing tation in the decisions of the Circuit abortion, and courts have read an ex Appeal of the Courts of Sixth and Sev emption act covering into the such articles and of this court in enth Circuits where even “unlawful” v. C. I. Lee & exception used. The apply same should construing the statute an preventing conception. articles for improper use of the mails. policy Congress it is true that the argued 305(a) contraceptives that section of the been to forbid the use of It is altogether only purpose 1305(a) Act if the using _§ prohibiting prevent conception from the differs riage statutes car them be to in cases by mail and in injurious where interstate commerce it would to the “intended preventing offspring, of articles con welfare of the or her ception beyond going policy abortion” because in it is. such a far abortions, destroy incipi- “unlawful” hold that cases, upon slight expression. distinctions ent allowed may be my accept am broth- taken to content yet therefore no measures likely judgment, been, ers’ prevent conception whatever are, termination should be to indeed still result doubts. operation. an pregnancy by means of suppose that the It seems unreasonable involves legislation national scheme com- requires the such inconsistencies articles, use of plete suppression of by such advocated which in authority in medical world. weight *4 GREAT LAKES TRANSIT CORPORATION Bill, in- originally (MILKO v. INTERSTATE S. CO. S. Senate, contained troduced al., Interveners).* et prescription of a “except on standing, given faith,” words were omitted from Circuit Court Sixth Circuit. ultimately passed. The the bill as it was June n never reason for amendment seems Rehearing Denied Nov. 1936. Con- floor of have been discussed committee, remarks gress, or Conklin, bill of Senator form, that passage final indicate scope not well measure was language that used understood and future inter- largely left holding ground for pretation. no We see placed upon similar construction language in decisions applicable not to the article's to is forfeit, and com- seeks a like in- mon sense would seem terpretation in the case at bar. the libel is decree af- firmed. Judge (concurring). had If the decision been left to me alone, strongly I should have felt more the force of the brothers Senate act, original and of amendment word, “unlawful,” passed. as it use There me reason substantial seems contraconceptives saying were meant forbidden, not to be lawful use by physicians, and that contemplated. Many people their minds about changed years, act sixty for- matters in büt then; conduct now as bids public feeling gets until stands it, enough change momentum majority would long after a it, poll if were taken. peal Neverthe- prepared to I am not dissent. course of recognize that very tell us through Congress much, importance is of considerable it importations should be the law as mails; that as to the
the same as ought impute differences intention granted Ct. Ed. —. 57 S. 81 L. of certiorari
*Writ