accepted legal definitions of property, business and labor.

Definition of Property: Property means the dominion of indefinite right of user and disposítion which one lawfully exercises over particular things or subjects and generally to the exclusion of all others. Property is ownership, the exclusive right of any person freely to use, enjoy and dispose of any determinate object, whether real or personal. (English and American Encyclopedia of Law.)

Property is the exclusive right of possessing, enjoying and disposing of a thing. (Century Dictionary.)

A right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the power of disposition, from himself and his successors. (Austin, Jurisprudence.)

The sole and despotic dominion which one claims and exercises over the external things of the world in total exclusion of the right of any other individual in the world. (Blackstone.)

It will be seen that property is products of nature or of labor, and that the ersential element is that it may be disposed of by sale, be given away, or in any other way transferred to another.

There is no distinction in law between property and property rights.

From these definitions it is plain that labor power or patronage cannot be property, but aside from this we have the thirteenth amendment to the constitution prohibiting slavery and involuntary servitude.

Labor power can not be property, because it can not be separated from the laborer. It is personal. It grows with health, diminishes in sickness, and ceases at death. It is an attribute of life.

The ruling of the courts make of the iaborer a serf, of patronage an evidence of servitude by assuming that one may have a property right in the labor or patronage of another.

principal concern, whether for a longer or shorter time. (Webster's Dictionary.)

Definition of Labor: Physical or mental effort, particularly for some useful or desired end. Exertion of the powers for some end other than recreation or sport. (Century Dictionary.)

It will be seen from the above definition that, while there is a fundamental difference between property and business, there is none at all between business and labor. so that, if businesrs be property, so is labor, and, if the earning power of business can be protected by equity power through injunction, so can the earning power of labor; in other words, the laborer may obtain an injunction against a reduction of his wages, or against a discharge, which would stop the wages entirely.

If this new definition of property, by including therein business and labor, be accepted, then the judge sitting in equity becomes the irresponsible master of all men who do business or who labor.

We contend that equity power and jurisdiction-discretionary government bv the judiciary-for well-defined purposes and within specific limitations, granted to the courts by the constitution, has been so extended that it is invading the field of government by law and endangering constitutional liberty, that is-the personal liberty of the individual citizen.

As government by equity-personal government-advances, republican government -government by law-recedes.

We have escaped from despotic government by the king. We realized that, after all, he was but a man. Are we going to permit the growing up of a despotic government by the judges? Are they not also men?

Definition of Business: That which occupies the time, attention and labor of men for the

occupies the time, attention and labor of men for the purpose of profit and improvement. (American and English Encycl. of Law.)

That which busies, or that which occupies the time, attention or labor of one, as his

must be as sternly resisted as usurpation by the executive.

What labor is now seeking is the assistance of all liberty loving men in re

HOUGH, District Judge: This motion is based on numerous grounds, of which one only is to be considered in this memorandum; as to the rest, no opinion is expressed.

It appears from the affidavits filed and from admissions in open court that the United States attorney for this district desired, for the proper preparation and presentation of evidence in this prosecution, including proceedings before the grand jury, the assistance of an expert accountant. Owing to the nature of the case, such assistance was concededly both proper and necessary. The Attorney. General was therefore requested to select Mr. John P. Fernsler for this purpose, and to employ him specifically therefor. Accordingly, on March 13, 1909, Mr. Fernsler was designated in the following language, contained in a letter signed by the Attorney General:

"You are hereby appointed a special assistant to the United States Attorney for the Southern District of New York to assist in the investigation and prosecution of the case of the United States v. Heinze. Under the provisions of the act of congress approved June 30, 1906 (34 Stat. 816), you are authorized and directed to conduct grand jury proceedings in connection with the case mentioned above."

In pursuance of this designation, Mr. Fernsler, when this indictment was under consideration in the grand jury room, attended before that body, and took part in the proceedings to the extent of asking some technical questions of other expert accountants who were upon

the witness stand, and throughout suggested, if he did not direct, the method of examining expert witnesses thought to be allied with defendant. No suggestion of personal misconduct or indecorous behavior is made against Mr. Fernsler, nor is it shown or suggested that any injury has been done to defendant by Mr. Fernsler's presence, unless it be the suspicion that it is to Mr. Fernsler's skill in reading and interpreting books of account that this indictment is largely due; this, however, can certainly not be regarded as a legal injury to defendant, if the method be otherwise lawful.

If there be a settled method of conducting the deliberations of grand jurors, established by generations of procedure, based on the experience of many courts in many communities, and evidenced by the decisions of authoritative tribunals, such method must be followed until the legislature sees fit to overturn the old rule.

It has never to my knowledge been denied or doubted that the rule of the common law is that a grand jury, while deliberating upon an indictment or presentment, shall listen to witnesses who give testimony, and to no one else except the authorized law officers of the crown or the commonwealth. The English practice of permitting the presence of the prosecutor in the grand jury room is an apparent, but not a real, exception, for it is still true that the majority of prosecutions in England are private; the expense thereof being borne by the complainant, and the crown taking no part therein unless and until authority therefor be granted by the proper de; partmental officer. So, too, the instances of bailiffs, clerks, and stenographers are not exceptions to this rule. These useful persons are necessary or convenient in the same way as is a piece of furniture, but if it were made to appear that such persons, having obtained audience of the grand jurors, under the excuse of their occupation, sought to influence the result of their deliberations or to participate therein, the rule would be infringed.

So far as this court is concerned, little time need be spent in collating authorities to show what the rule is. It has been done too recently by Thomas, J., in United States v. Rosenthal (C. C.) 121 Fed. 862. This decision has been considered in United States v. Cobban (C. C.) 127 Fed. 713, and the last-cited case was followed in United States v. Twining (D. C.) 132 Fed. 129. The Cobban and Twining Cases did not approve of the Rosenthal decision in its entirety though, it is only in the earlier of the two decisions that the matter is reasoned. In United States v. Virginia

Carolina Chemical Co. (C. C.) 163 Fed. 66, the point is gone into thoroughly, with some interesting comments upon the Cobban decision, and the Rosenthal Case fully adhered to. Even if this court were now inclined to depart from Judge Thomas's decision, it would be most improper to do so until the matter had been presented to and decided by a higher tribunal.

This matter then starts with the admission that if it were not for the act of June 30, 1906 (Act June 30, 1906, c. 3935, 34 Stat. 816 [U. S. Comp. St. Supp. 1909, p. 48], the presence of Mr. Fernsler in the jury room under the circumstances above stated would require that the indictment be quashed.

The prosecution therefore urges: (1) That Mr. Fernsler is an "officer of the Department of Justice," and therefore entitled virtute of ficii, as well as by the express terms of his appointment, to participate in and conduct grand jury proceedings, so that he was far within his authority and right in merely assisting the United States attorney in charge. (2) That even if Mr. Fernsler had received no appointment from the Attorney General, he might under the circumstances of this case attènd in the grand jury room as a de facto assistant to the United States attorney, and aid him in those technical matters whereof Mr. Fernsler's knowledge is admittedly useful and extensive. (3) That, in the absence of any showing of actual prejudice or injury to the defendant by reason of Mr. Fernsler's presence, the motion should be denied, as raising one of those minor matters concerning which the law does not take notice.

It seems unnecessary to consider at any great length the first contention. The statutes were thoroughly reviewed in the Rosenthal Case.

They have not been changed so as to affect the point under discussion by the act of June 30, 1906, and under those statutes Mr. Fernsler is not an officer of the Department of Justice; he is but an employee of the Depart ment of Justice. The distinction between these two titles is sometimes not easy to draw, but under the legislation affecting this department the question is not a difficult one. It need only be pointed out that Mr. Fernsler's tenure of office is the will of the Attorney General, his compensation is nominal, and his connection with the department limited to a single litigation. To say that the word "officer" in the sense of the statutes, or in any sense at all, can be applied to him needs but to be said to be denied. Again, Mr. Fernsler is not an attorney at law; he does not pretend to be a qualified practitioner in any court, and it is in my judgment entirely clear that the intent

of the act of 1906 was plainly not to authorize the introduction into the grand jury room of previously unauthorized laymen, but to enlarge the number of officeholding lawyers who might attend before the jury to render assistance in matters of law alone.

The necessary result of the government's position is that it is now within the power of the Attorney General to appoint a class of "special assistants to district attorneys" (not special assistant district attorneys), who may be accountants, doctors, chemists, engineers, etc., and, having seevrally authorized them to conduct grand jury proceedings, may put them in charge of such cases as would be benefitted by special technical education. This may be a good system, but it has not been adopted by law, and the fact that Mr. Fernsler did not conduct in their entirety the proceedings in this case does not change the fact that, if his appointment be construed as the government does construe it, he might have done so.

As to the second proposition advanced by the prosecution, no authority is produced for it.

The commonwealth may call expert witnesses as well as fact witnesses, but it has never before been urged that counsel is entitled to have at his elbow in a grand jury room an expert assistant. He is not entitled to it before a petit jury, though the practice is common by permission of the court; but no court has, or ought to have, the same dispensing power in grand jury proceedings that it possesses and daily exercises in the conduct of civil causes at common law.

The third proposition was treated at great length in the Rosenthal Case, and need not now be enlarged on. Instances might be multiplied wherein a violation of law cannot be seen to have produced any present injury to any one. That is a good reason for refusal to punish or refusal to prosecute, but it is no reason for justifying illegality. As was well remarked by Thomas, J.:

"The inconvenience of resubmitting the matter to the grand jury is temporary; the injustice of denying the defendant investigation pursuant to the law of the land would be perpetual."

An excused or pardoned illegality is frequently unimportant, but a justified illegality, however trivial in itself, is of the highest importance.

It need only be added that no reason is seen for departing from the general view of grand jury procedure expressed in the cases of Farrington (D. C.) 5 Fed, 343, and Edgerton (D. C.) 80 Fed. 374.

The motion to quash is granted.

NOTE.-Going Behind Indictment for Irregularities Before Grand Jury, or Insufficiency of Evidence to Support it.-The Rosenthal case, supra, refers to a number of cases from state jurisdictions, some of which, along with others, will be noticed hereinafter. The general principle back of the ruling in the Rosenthal case is stated as follows: "Every citizen is amenable to the secret inquisition of the grand jury, and he may demand justly that his essential rights be guarded by the wholesome preservation of settled systems and policies, that give greater certainty to legal proceedings, and fix on the designated prosecuting officer of the locality inevitable accountability for what is done or omitted." This language has its special point in that the unauthorized party before the grand jury was claimed to be pro hac vice the prosecuting officer. In such case the claim of there being no harm done was held not an answer to what was complained of.

In the Cobban case, supra, the statute was not construed as in the Rosenthal case, and the opinion is mainly as to whether the sufficiency of the testimony to support an indictment may be inquired into. It expressed its conclusion as follows: "After a careful examination of many of the numerous citations, the conclusion is that the decided weight of authority, both as to numbers and dignity, and in which this question is directly involved, is against the investigation of the evidence had before the grand jury, either to show that some of it was incompetent or that all of it was insufficient to justify the finding of the indictment." To this effect see State v. Fasset, 16 Conn. 458; Hope v. People, 83 N. Y. 422, 38 Am. Rep. 460; U. S. v. Reed, 2 Blatchf. 435, 27 Fed. Cas. 727, op. by Nelson, Justice. As contra, see United States y. Farrington, 5 Fed. 343, opinion by Wallace. D. J.

In the Virginia-Carolina Chemical Co. case, supra, where statutory construction accorded with the Rosenthal case and principal case, it was then considered whether or not the indictment should be quashed because two appointees of the Department of Justice "participated in the examination of witnesses and heard the testimony introduced before the grand jury." The court said: "Their presence there and participation in this investigation was bound to have impressed the jury and conveyed to them the information that the Department of Justice was exceedingly anxious that this indictment be found. Who can say how far-reaching this influence was, and what effect it had on the individual juror when he came to vote upon the finding of the indictment, assuming, as we do and must, that the conduct of these special assistants before the grand jury was as circumspect in every particular as would have been that of the district attorney had he been present and alone conducting the investigation." This case thereupon approved the following, from U. S. v. Edgerton, 80 Fed. 374: "There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners. 74 N. C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such safeguards which surround the grand jury?" The fair inference is that there is a pre

sumption, generally, of prejudice, and that some acts might be deemed harmless.

In Wilson v. State, 70 Miss. 595, 13 So. 225, 35 Am. St. Rep. 664, a plea of abatement set up that one employed to assist the district attorney appeared before them in company with the district attorney and told one of the grand jurors what witnesses to summon. Each of the grand jurors testified that he was not influenced thereby and did not think the grand jury was. The court said: "The candid statement of Mr. Finley that he went before the grand jury because he thought the appellant to be a great scoundrel and therefore he desired his indictment and conviction, presents the precise reason why he should not have gone before the jury, for it is just such influences the law forbids. The case is covered by the decision in Durr v. State, 53 Miss. 425 Welch v. State, 68 id. 341."

The irregularity of calling a defendant before a grand jury to testify without his knowing or being informed that his own conduct is under investigation is considered at great length in State v. Duncan, 78 Vt. 364, 63 Atl. 225, 4 L. R. A. (U. S.) 1144, 112 Am. St. Rep. 922, and the plea in abatement was overruled where the indictment was founded in part on his testimony. In one case considered (People v. Lauder, 82 Mich. 109. 46 N. W. 956) the plea was considered bad for not averring that defendant claimed his privilege. To the same effect was State v. Comer, 157 Ind, 611, 62 N. E. 452. It seems conceded in the Duncan case that, if the privilege had been claimed and denied, this could have been shown and the indictment quashed.

nesses.

In State v. Wood, 112 Iowa, 484, 84 N. W. 503, the motion to quash was because of the presence before the grand jury during the taking of testimony "of one not permitted or required by law to be present," etc. The proof showed that the father of a young girl, who "was very nervous and fearful about appearing before" the grand jury was permitted to be present during the time she gave her testimony, both being witHe did nothing to influence the daughter as a witness and there was no showing of any prejudice. The court said: "There is no statute prohibiting the grand jury from calling two witnesses before it at the same time. We recognize that on many accounts it is better practice not to do this, and only say it is not a violation of law if done." Cases are then cited to the effect that the presence of a third person in the grand jury room while testimony is being taken would not necessarily vitiate the indictment, viz.: Lawrence v. Com., 86 Va. 575, 10 S. E. 840; Bennett v. State, 62 Ark. 535. 36 S. W. 947; State v. Clough, 49 Me. 576; State v. Kimball, 29 Iowa, 267, all of these confining presence to the time of the taking of testimony and not during deliberations.

In State v. Clark (W. Va.), 63 S. E. 402, a motion to quash upon the ground that an indictment was found upon illegal and incompetent evidence is held not good, but that such a question can be presented by plea in abatement; but even then the plea is not sustainable, if there is legal evidence upon which it could have been found other than that which was illegal or incompetent. A prior decision by this court was that neither for insufficiency or incompetency of evidence will

an indictment be quashed on plea in abatement where there is other evidence. State v. Woodrow, 58 W. Va. 532, 52 S. E. 545, 2 L. R. A. (U. S.) 862, 112 Am. St. Rep. 1001. There are authorities to the contrary, but the Woodrow case says: "Very plainly a court cannot go into the question of the weight and sufficiency of the evidence to sustain the indictment." If incompetent evidence is mingled with competent, the rule is the same, concludes the court. Inference is, therefore, that inquiry could be made by plea in abatement as to whether there was any competent evidence before the grand jury. See also Sparrenberger v. State, 53 Ala. 481; Boone v. People, 148 Ill. 440, 36 N. E. 99; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Com. v. Whitcomb, 157 Pa. 611, 27 Atl. 794.

Other states forbid inquiry as to what evidence there was, which, however has no bearing on the question of whether or not plea in abatement will lie for other reason. Those excluding inquiry on the question of evidence are State v. Fasset, supra; Mercer v. State, 40 Fla. 216, 24 So. 154, 74 Am. St. Rep. 135; State v. Comer, 157 Ind. 611, 62 N. E. 452; State v. Smith, 74 Iowa, 580, 38 N. W. 492; Cotton v. State, 43 Tex. 169.

In State v. Sullivan, 110 Mo. App. 75, it was ruled that the presence of a stenographer is a manifest impropriety, however pressing the necessity therefor, but it does not ipso facto invalidate an indictment, unless it appear there was prejudice to the defendant thereby. This case cites in its support State v. Bates, 148 Ind. 610; State v. Brewster, 70 Vt. 34, 40 Atl. 1037; U. S. v. Simmons, 46 Fed. 65.

In State v. Bowman, 90 Me. 363, 60 Am. St. Rep. 266, the exact converse Iwas held, the secrecy policy being sufficient to invalidate any indictment where proceedings were in disregard thereof. The question was argued as to whether there could be a waiver by the state so that an indictee could not take advantage of secrecy not being observed. The court said: "Although the obligation of secrecy was undoubtedly intended for the benefit, more particularly, of the state, we think neither the prosecuting attorney can waive it, nor the court nullify its objects." Then it is further argued that the grand jury should be entirely independent and if the court could send a stenographer in as to some cases and omit this as to others, there is no telling what influence such a discrimination might have upon the jurors.

In the Brewster case, supra, also reported in 42 L. R. A. 444, it was said to have been the practice for 100 years to allow the clerk and state's attorney to take notes of testimony for future use and it is no great extension for a stenographer, who is the state's attorney's servant, to do this for him.

Summary. The weight of authority appears to be that it is allowable to show on plea in abatement that there was no evidence at all to support an indictment, but weight or sufficiency of evidence will not be considered, nor the mere infusion of incompetent or illegal evidence in the hearing, and that the presence of an unauthorized third person will vitiate an indictment unless it is clear no prejudice resulted. The federal courts may be said to enforce the pre

sumption of prejudice more strictly than the state courts, but it may be said there seems no other than circuit court authority in regard to this. C.

JETSAM AND FLOTSAM.

RECOVERING A JUDGMENT FOR FAILURE TO FILE A BRIEF.

to

A rather singular decision is that of the Supreme Court of Oklahoma in Butler v. McSpadden, 107 Pac. 170, reversing a judgment, apparently because the appellee had failed to file a brief. The court said: "We have read the brief filed by counsel for plaintiff in error, and from a consideration thereof it seems us that the point made, that the judgment lacks evidence to sustain it, is well taken. In the absence of a brief on the part of counsel for defendant in error, we are not given that assistance which we should have in determining the theory upon which the court rendered its judgment, and the pressure upon the time of the court is such that it cannot, in justice to other litigants, brief cases for parties who elect to neglect it."

It would seem that the court did not examine the record or abstract, but took as true the statements of the appellant's brief, as to what the evidence before the court was. It may well have been that the attorney for the appellee, recognizing the unsoundness of the judgment in his client's favor, had not the courage to file a brief. On the other hand, it may just as well be that he felt so confident of the soundness of the judgment, that he thought he might safely rest upon the record, without putting his client to the unnecessary expense of filing a brief. It may well be also, that the appellee had no means with which to employ counsel to protect his judgment in the supreme court, and surely such a person is entitled to have the court examine the abstract prepared by the appellant, for the purpose of ascertaining whether the errors alleged by him in his brief are well founded, and then determine whether, even though error exists, it is of a sufficiently serious character to require the court to reverse the judgment. That the court would certainly be called upon to do, even if the appellee filed a brief. Considering the disadvantage of an appellee who is unable to retain counsel, it would seem that an appellate court should, where such is the case, examine the abstract-or if necessary the record-with the utmost care, before undoing the work of the trial court, by reversing a judgment. So while an appellant court cannot, without doing injustice to other litigants whose cases are awaiting a hearing, go upon a search to discover decisions to sustain the judgment, the appellee who has failed to file a brief has at least a right to expect that the court will carefully apply what knowledge of the law it possesses to the consideration of his case.

We venture to suggest, before dismissing the subject, that if the law provided, as it should, for the payment of an attorney's fee and the other necessary expenses of sustaining a judg