Council of Defense of State of New Mexico v. International Magazine Co.

• Decision Date: 24 May 1920
• Docket Number: 5254.
• Parties: COUNCIL OF DEFENSE OF STATE OF NEW MEXICO et al. v. INTERNATION MAGAZINE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 390

COUNCIL OF DEFENSE OF STATE OF NEW MEXICO et al. v. INTERNATION MAGAZINE CO.

No. 5254.

United States Court of Appeals, Eighth Circuit.

May 24, 1920

James M. Hervey, of Roswell, N.M., and A. B. Renehan, of Santa Fe N.M., for appellants.

Francis C. Wilson, of Santa Fe, N.M., for appellee.

Before CARLAND and STONE, Circuit Judges, and AMIDON, District Judge.

STONE Circuit Judge.

This is an appeal by various individuals, who were the Governor and Attorney General of the state of New Mexico, and members officials, or agents of the Councils of Defense of the state and of Bernalillo county, from a preliminary order enjoining them from interfering with the sale and distribution in New Mexico of magazines published and sold by appellee, the International Magazine Company. The importance and character of the issues necessitate a full statement of the controversy, which may be gained from the complaint and a portion of the statement of the case by appellants. The complaint is as follows:

'International Magazine Company, a corporation duly organized and existing under the laws of the state of New York, having its principal office and place of business in the city of New York, in said state, and a resident and citizen of the state of New York, brings this bill against the Council of Defense of the State of New Mexico, organized and existing under the laws of the state of New Mexico, Secundino Romero, W. A. Hawkins, C. R. Brice, J. M. Sully, Eufracio Gallegos, Charles Springer, B. C. Hernandez, Eduardo M Otero, Walter M. Danburg, Guthrie Smith, Alfred Grunsfeld Max Nordhaus, Jesus Romero, Nestor Montoya, Rafael Garcia, W. C. Oestreich, W. C. Reid, A. B. McMillen, P. G. Redington, L. A. McRae, Felix Baca, H. E. Rogers, the Council of Defense of the County of Bernalillo, W. E. Lindsey, and Harry L. Patton, all of them being residents and citizens of the state of New Mexico.

'(1) And thereupon your orator complains and says that it is, and for some years last past has been, a corporation duly organized, created, and established by and under the laws of the state of New York, for the purpose of carrying on the business of owning, publishing, editing, preparing, and selling magazines, and is now, and has been at all times material hereto, the owner and publisher of certain magazines of general circulation throughout the United States and the state of New Mexico, known to the reading public, and owned, printed, and published by your orator under certain names registered under the trade-mark laws of the United States of America, as follows, to wit: Hearst's, Cosmopolitan, Good Housekeeping, Harper's Bazaar, Motor, Motor Boating, and Puck-- each of which magazines is printed, published, and prepared for sale monthly by your orator in the city and state of New York, and through its general agents in all the large cities of the United States, including Los Angeles, Cal., distributed and sold to local dealers throughout the state of New Mexico, and by them sold and distributed to the trade in said state; and your orator further alleges and shows that prior to the commission of the acts hereinafter complained of your orator enjoyed a large and lucrative sale of said magazines throughout the said state of New Mexico, which was of increasing value to it by virtue of a growing subscription list and an annual increase in sales by newsdealers throughout the state, whereby the right at all times material hereto, and in the future, of unrestricted access to the markets of New Mexico, and the right to sell its product in the ordinary course of trade and business and through the usual channels in said state, in fair and untrammeled competition with products of a similar or of the same character, is of great value to your orator, to wit, of a value far in excess of $3,000, and that the loss and damage, both past and prospective, to your orator, by reason of the acts of the defendants herein complained of, is not less, and in truth and in fact is far in excess of, said amount.

'(2) Your orator further gives your honor to be informed that the defendant the Council of Defense of the State of New Mexico was created by an extraordinary session of the Legislature of the said state of 1917, by an act of the said Legislature approved May 8, 1917, entitled 'An act to provide for the public defense,' the pertinent provisions of which, relating to the creation of the said State Council of Defense, being as follows, to wit:

"There is hereby created a council to be known as the Council of Defense of the State of New Mexico, consisting of nine (9) members, to be appointed by the Governor by and with the advice and consent of the Senate, who shall serve during the time of the present war, and for such further time thereafter as the Governor may deem necessary. The Governor shall have power to fill any vacancy that may occur on such council by the death, resignation, or inability to serve of any member thereof, and may remove any member for cause and appoint some person to fill such vacancy.

"Said council shall hold its meetings at the city of Santa Fe, or at such other place or places as it may deem necessary, and a majority of the council shall constitute a quorum to do business, and the affirmative vote of a majority of such quorum shall be required and shall be sufficient to adopt or pass any motion or resolution authorizing or directing any act or thing within the power of the council. Any number less than a quorum may meet and adjourn from day to day until a quorum be present. The council may determine the rules of its procedure, and with the approval of the Governor, may make any and all regulations necessary for the carrying out of the provisions of this act.

"The council, as soon as it is organized, shall communicate at once with the National Council of Defense, and offer its co-operation and state that it is organized and is ready to receive information and to carry out within the state of New Mexico such plans as will mutually be agreed upon for the defense of the nation, and shall, in every way possible, co-operate with such National Council of Defense. It shall get into communication with defense bodies representing other states and shall co-operate with them as far as may be practicable.

"The council, after consultation with the National Council of Defense, shall gather at once through its committees or otherwise, statistics, facts and other information found necessary, and shall arrange them in an orderly and accessible manner. They shall supervise and direct investigations and make recommendations to the Governor and to the Legislature.

"The members of the council shall be paid five dollars ($5.00) per day and necessary traveling expenses for the time they are actually engaged in the performance of their duties as members of such council, to be paid out of the state war fund. The council shall cause to be kept an accurate record or journal of its proceedings, and the original thereof shall be filed with the secretary of state at the termination of the term of service of the said council.' 'That pursuant to the provisions of said act the defendants Secundino Romero, W. A. Hawkins, C. R. Brice, J. M. Sully, Eufracio Gallegos, Charles Springer, B. C. Hernandez, and Eduardo M. Otero were duly appointed by the Governor, and their appointments confirmed by the Senate of the state of New Mexico, as members of the said Council of Defense of the State of New Mexico, and said defendants are now, and at all times material hereto were, members of said council; that the defendant Walter M. Danburg is general secretary of said Council of Defense, and defendant Guthrie Smith is, and was at all times material hereto, the publicity agent thereof, and editor of a weekly newspaper known as the 'New Mexico War News,' which was at all times material hereto and now is printed, published, issued, and distributed throughout the state of New Mexico by the said Council of Defense in the manner hereinafter set forth; that the Council of Defense of Bernalillo County is an organization, the members of which are selected by the State Council of Defense and appointed by said W. E. Lindsay, as governor of New Mexico, from residence of Bernalillo county, and organized for the purpose of cooperating with the State Council of Defense in promoting patriotism and the purposes of the government of the United States in the prosecution of the war with the Central Powers; that the defendants Alfred Grunsfeld, Max Nordhaus, Jesus Romero, Nestor Montoya, Rafael Garcia, W. C. Oestreich, W. C. Reid, A. B. McMillen, P. G. Redington, L. A. McRae, Felix Baca, and H. E. Rogers are, and were at all times material hereto, members of said organization appointed by the Governor as aforesaid; that the defendant Washington E. Lindsey is the duly elected and acting Governor of the state of New Mexico, and as such chief executive of said state has, under and by virtue of the said act of New Mexico Legislature, the power of appointment and removal of members of said council, and supervisory and advisory powers over the acts, matters, and things done by said Council of Defense; and the defendant Harry L. Patton is the duly elected and acting Attorney General of said state, and as such head of the legal department of said state.

'(3) And your orator gives your honor further to be informed that certain of the individual defendants, to wit, Secundino Romero, W. A. Hawkins, C. R. Brice, J. M. Sully, Eufracio Gallegos, Charles Springer, B. C. Hernandez, and Eduardo M. Otero, as members of the said Council of Defense in New Mexico, have created an executive committee, composed of the said defendants Charles Springer, B. C. Hernandez, and C. R. Brice, which said executive

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