(271 F.) tiff's complaint accordingly. This order and judgment was entered on the 7th day of February, 1901. Thereupon, availing itself of the provisions of section 1525 of the Code of Civil Procedure of the state of New York, the plaintiff applied to the Circuit Court, Judge Coxe presiding, for an order granting a new trial, and this order was granted as matter of course, pursuant to statute. After the action was brought in the federal court, the plaintiff brought another action for the same cause in the Supreme Court, state of New York, but took no proceedings therein, but went to trial on the merits as hereinbefore stated in the federal court, where it was defeated as has been recited. Since the entry of the order of Judge Coxe granting a new trial in the Circuit Court, the plaintiff has done nothing in the federal court, but did revive its state court action in 1904, and proceeded to trial and had judgment in its favor. The defendant pleaded in that action the pendency of the prior action in the federal court for the same cause and between the same parties, and on appeal to the Court of Appeals of the state of New York the judgment rendered in favor of the plaintiff in the state court was affirmed. 195 N. Y. 303, 88 N. E. 753. Thereupon the comptroller of the state of New York paid the costs and took a new trial under the statute referred to. Another trial was had in the state court, and defendant was defeated. The defendant appealed from this judgment to the Appellate Division, where the judgment of the state court was affirmed (152 App. Div.. 918, 137 N. Y. Supp. 1141), whereupon the defendant appealed to the Court of Appeals of the state of New York, where the judgments of the state court, both at circuit and Appellate Division, were reversed and a new trial ordered (208 N. Y. 288, 101 N. E. 898). A new trial was thereupon had, and the defendant was again defeated. Thereupon the defendant moved for a new trial on the ground of newly discovered evidence, and this motion was granted, and alll judgments in the state courts vacated. 100 Misc. Rep. 511, 166 N. Y. Supp. 8. This order granting a new trial on the ground of newly discovered evidence was affirmed by the Appellate Division and by the Court of Appeals of the state of New York. 183 App. Div. 897, 169 N. Y. Supp. 1112; 224 N. Y. 377, 121 N. E. 99. In all of these proceedings in the state courts the defendant has urged and insisted upon the pendency of the action between the same parties for the same cause in the federal court. The plaintiff has taken no further proceedings in its action in the federal courts, although about 20 years have elapsed since the granting of the new trial in the federal court by the order of Judge Coxe as above stated. The defendant now insists that, under the decisions of the courts to which attention will be called, the order of Judge Coxe granting a new trial in the federal court should be declared a nullity and a fraud upon the law and abandoned; no proceedings having been taken to bring the case to trial in the federal court by virtue of the leave granted under the provisions of such order. Without reciting at length the cases to which reference is made, and which I think should control and determine the decision of this motion, I will say that I think the following cases are decisive of this motion: Fraser v. Weller, 6 McLean, 11, 9 Fed. Cas. 725, No. 5,064 (Circuit Court and District Court of Michigan); Cunningham v. City of Milwaukee, 13 Wis. 120; Hyatt v. Challiss (C. C.) 55 Fed. 267; De Lancey v. Piepgras, 141 N. Y. 88, 35 N. E. 1089. It seems to me that, having procured an order for a new trial in the federal court some 20 years ago and not having proceeded thereunder, but having proceeded in the state court, the plaintiff has shown conclusively that it had and has no intention of availing itself of the order of Judge Coxe granting a new trial, and that the relief prayed for by this motion should be granted. There will be an order accordingly. In re ASSOCIATED OIL CO., Inc. Petition of FROMHERZ. (District Court, E. D. Louisiana. March 26, 1921.) No. 2455. Bankruptcy43-Corporation in hands of state receiver cannot become voluntary bankrupt. After a receiver has been appointed for a corporation by a state court, under authority of the laws of the state, with power to take possession of and hold the property of the corporation, its directors are without power to authorize the filing of a petition in voluntary bankruptcy and the surrender of its property to the bankruptcy court. In Bankruptcy. In the matter of the Associated Oil Company, Incorporated, bankrupt. On petition of Alvin M. Fromherz, state receiver, to vacate adjudication. Adjudication annulled, and petition in bankruptcy dismissed. W. McL. Fayssoux, of New Orleans, La., for state court receiver. Farrar & Woulfe, of New Orleans, La., for receiver in bankruptcy. FOSTER, District Judge. In this case the facts are these: A petition was filed in the civil district court for the parish of Orleans by 17 stockholders, holding over 2,700 shares, against the Associated Oil Company, Incorporated, hereinafter referred to as the Oil Company, December 28, 1920, praying for the appointment of a receiver. The petition alleged substantially that the funds of the company were being used to its detriment for the benefit of a corporation known as the Adey Johnson Company, Incorporated, the officers of which were the same as the officers of the Oil Company, and that the Adey Johnson Company was indebted to the Associated Oil Company in an amount exceeding $22,000. Other acts of mismanagement of the officers and directors, amounting to gross negligence, if not fraud, were also alleged. On this petition a rule nisi issued, and, after answer filed, the civil district court appointed a receiver on March 2, 1921, with "full power to hold, administer, manage, and dispose of the property and income For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (271 F.) of said corporation in such manner as the court shall direct." The receiver qualified on March 4, 1921, but has not as yet attempted to take possession of the property of the Oil Company. On the same day, March 4, 1921, the board of directors of the Oil Company adopted a resolution declaring that the affairs of the company were in a precarious state owing to the pendency of the suit for a receiver and directing that schedules in voluntary bankruptcy be filed. The petition in bankruptcy and schedules were filed on March 7, 1921, and adjudication followed immediately. The schedules show liabilities of $21,936.55 and assets of $142,796. Only one ordinary creditor is shown, the Adey Johnson Company above referred to, in the amount of $17,963.59. At the same time, on petition of the Oil Company suggesting that litigation then pending in Caddo parish, La., necessitated such action, a receiver was appointed in the bankruptcy proceedings. A copy of the resolution above referred to was filed with the petition in bankruptcy, but was not called to the attention of the court, and the fact that a receiver had already been appointed in the state court was not disclosed. On March 9, 1921, Alvin M. Fromherz, the receiver appointed by the state court, filed a petition in the bankruptcy proceedings, setting out the facts of his appointment and alleging the illegality of the resolution of the board of directors of the Oil Company and subsequent adjudication in bankruptcy and the appointment of the receiver in this court, and praying that the said adjudication and the appointment of the receiver be annulled and set aside. The company and the receiver in bankruptcy joined issue, alleging the absolute nullity of the judgment because of various irregularities in the proceedings in the state court and praying a dismissal of the petition. The case was submitted on the issues thus presented. The state court undoubtedly had jurisdiction to appoint a receiver on the case presented to it under the law of Louisiana. See section 18 of Act 267 of 1914 and Act 159 of 1898. The irregularities complained of are not sufficient to render the judgment wholly void, and it is elemental that the judgment cannot be collaterally attacked. Had the previous appointment of a receiver been known, no receiver would have been appointed in this court, not only through comity, but also because unnecessary. The question remains: Could the directors of the company make a surrender in bankruptcy after the appointment of a receiver? It seems to me this question should be answered in the negative. The appointment of a receiver certainly took the custody and control of the assets out of the corporation and its officers, so there was nothing to surrender. It is also the general rule that the appointment of a receiver over a corporation is equivalent to a suspension of its corporate functions and an injunction to its agents and officers from intermeddling with its. property. See High on Receivers (4th Ed.) par. 290. Furthermore, in the exercise of discretion, I think I should decline. to interfere with the state court in this matter. To allow the adjudication to stand would undo all that has been accomplished in the state court. The receiver was appointed because of the mismanagement of the officers. It was alleged and admitted that the officers of the Oil Company and the Adey Johnson Company are the same. That company is the sole ordinary creditor shown on the schedules. Necessarily, if the sworn schedules are true, it would elect the trustee. In that event the custody and control of the assets of the Oil Company would in effect be restored to the very men from whom the state court saw fit to take them. This would enable the officers of the Oil Company to perpetrate a fraud on the state court through the agency of the bankruptcy court, something unthinkable. The order appointing the receiver herein will be recalled and avoided. The adjudication in bankruptcy will be annulled, and the petition dismissed. UNITED STATES v. PEOPLE'S FUEL & FEED CO. * Criminal law 13-Provision of Lever Act against profiteering invalid. The provision of Lever Act Aug. 10, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Sup. 1919, § 3115%ff), that "it is hereby made unlawful for any person to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," held invalid as a criminal statute, as providing no standard by which the guilt or innocence of any person charged with its violation may be determined. Criminal prosecution by the United States against the People's Fuel & Feed Company. On demurrer to indictment. Demurrer sustained. Writ of error dismissed. 254 U. S. —, 41 Sup. Ct. 448, 65 L. Ed. Thomas A. Flynn, U. S. Atty., and Joseph M. Holub, Asst. U. S. Atty., both of Tucson, Ariz. Kingan & Campbell, of Tucson, Ariz., for defendant. DOOLING, District Judge. The defendant demurs to an indictment which charges that it did "feloniously exact, demand, and receive the sum of six dollars as the purchase price of one-half of a load of wood, sold by it to the firm of Richey & Richey, which wood was a necessary, and that said price of six dollars was unjust and unreasonable, in this: That a just and reasonable price for said wood did not exceed the sum of four dollars, and that defendant did then and there make an unjust and unreasonable rate and charge in handling and dealing in and with the said necessary." The statute under which the indictment is drawn provides: "That it is hereby made unlawful for any person to make any unjust or unreasonable rate or charge, in handling or dealing in or with any necessaries." Act Aug. 10, 1917, c. 53, § 4, 40 Stat. 276, 277 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%ff). The demurrer challenges the indictment through the law itself, on the ground that the offense is not defined with such certainty as to enable an individual to determine what is, and what is not, forbidden, beFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (271 F.) cause the statute nowhere defines, or furnishes any rule to define, what shall constitute an unjust or unreasonable rate or charge, but leaves that question to be determined without check or guide by the uncontrolled opinion of the court and jury to which shall be submitted any alleged violation of its provisions. The statute is one arising out of the necessities of the war, and designed for the very laudable purpose of preventing profiteering. Sympathy with its purpose, or approval of its design, however, should not blind us to the facts that no individual can know in advance of a trial and verdict of a jury whether he has violated the statute or not, and that the criminality of his conduct is not fixed by any definition or with any certainty, but is made to depend upon whether a jury may later think that the rate or charge made by him is just or unjust, reasonable or unreasonable. In upholding a Texas statute which denounced acts which "tended" to bring about prohibited results, or which were "reasonably calculated" to fix and regulate the price of commodities, the Supreme Court of the United States, in Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417, uses the following language: "But the Texas statutes in question do not give the broad power to a court or jury to determine the criminal character of the act in accordance with their belief as to whether it is reasonable or unreasonable, as do the statutes condemned in the cases cited." Among the cases cited to which the language refers is the case of Louisville & Nashville Railway v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457, which case the Supreme Court described as one "in which a railroad was indicted for charging more than a just and reasonable rate, in which it was held that the law was unconstitutional, for under such an act it rests with the jury to say whether a rate is reasonable, and makes guilt depend, not upon standards fixed by law, but upon what a jury might think as to the reasonableness of the rate in controversy." This language exactly fits the present statute. The guilt or innocence of an individual under it is not made to depend upon standards fixed by law, but upon what a jury might think as to the justice or injustice, the reasonableness or unreasonableness, of rates or charges made by him in handling or dealing with necessaries. I cannot forecast the action of other courts, but it is my own firm conviction that no one should be put upon trial for an offense so vaguely defined-for an act the criminality of which he has no possible means of measuring in advance, depending not at all upon his own intent to violate the law, but wholly upon the opinion of a jury, based on instructions by a court, which is itself without guide or compass, and where all concerned, defendant, counsel, government, court and jury, may well be at cross-purposes, no one knowing what is just, or what is reasonable, and all disagreeing as to the method by which what is just. or reasonable may be, if indeed it can ever be, legally ascertained. With these views I deem it best to sustain the demurrer, to the end |