Howell v. Miller

• Decision Date: 09 November 1898
• Docket Number: 621.
• Citation: 91 F. 129
• Parties: HOWELL v. MILLER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

91 F. 129

HOWELL v. MILLER et al.

No. 621.

United States Court of Appeals, Sixth Circuit.

November 9, 1898

George Gartner, for appellant.

George P. Wanty, for appellees.

Before HARLAN, Circuit Justice, TAFT, Circuit Judge, and CLARK District Judge.

HARLAN Circuit Justice.

This action was brought in the circuit court of the United States for the Eastern district of Michigan by the appellant Howell, against the appellees, Lewis M. Miller, Washington Gardner, George A. Steel, William A. French, the Robert Smith Printing Company (a corporation of Michigan), Robert Smith Edgar Thorpe, and John H. Stephenson. The parties, plaintiff and defendants, are all citizens of Michigan. The plaintiff prepared and published some years ago three volumes known as 'Howell's Annotated Statutes of Michigan.' The first volume contained the general laws of the state including the acts of the extra session of the legislature of 1882, with notes and digests of the decisions of the supreme court of Michigan, and an appendix containing the general tax law of 1882. It also contained the Declaration of Independence; the constitution of the United States, with an index; the act of 1787 for the government of the Northwest Territory, with notes and digests of decisions; the act of 1805 for the government of the Michigan territory, with marginal notes; the ordinance of 1836, relating to certain propositions made by congress to Michigan, with marginal notes; the assent of Michigan to the act of congress of June 15, 1836; the act of 1837, admitting Michigan into the Union and the constitution of Michigan of 1850, with marginal notes, digest of decisions, and index. The second volume was in the same general form. The third was also in the same form, and contained the Public Acts of Michigan passed at the legislative sessions of 1883, 1885, 1887, and 1889. Each volume was copyrighted by the plaintiff, and thereby, it is asserted, he acquired under the laws of the United States 'the sole liberty of printing, reprinting, publishing, * * * and vending the same. ' Rev. St. U.S. Sec. 4952. The bill proceeds upon the ground that another compilation of the statutes of Michigan, in two volumes, had been prepared by the defendant Miller, and was about to be published and distributed by or through the agency of the defendants. The first volume, when this suit was brought, had been printed by direction of the legislature, and was about to be bound and distributed. Such publication and distribution of the new compilation will, it is averred, be an infringement of the rights of the plaintiff under the copyright laws of the United States, and will work irreparable injury to those rights. The circumstances under which the new compilation was prepared for publication and distribution are these: The constitution of Michigan of 1850 forbade any general revision of the laws to be thereafter made, and provided that, when a reprint thereof became necessary, the legislature in joint convention should appoint 'a suitable person to collect together such acts or parts of acts as are in force, and without alteration arrange them under appropriate heads and titles'; and that the laws so arranged should 'be submitted to two commissioners appointed by the governor, for examination, and if certified by them to be a correct compilation of all general laws in force, shall be printed in such manner as shall be prescribed by law.' Article 18, Sec. 15. There were two authorized compilations after the adoption of the constitution of 1850,-- the Cooley compilation of 1857, and the Dewey compilation of 1871. In 1882-83 Howell published the first and second volumes of his compilation; and in 1883 the legislature of Michigan passed an act providing that the general laws of the state, as collected and arranged in those volumes, should be received and admitted in all courts and proceedings, and by all officers, 'as evidence of the existing laws thereof, with like effect as if published under and by the authority of the state.' Sess. Laws 1883, p. 8; 2 How.Ann.St.p. iv. In 1893, Howell published his third volume, known as the 'Supplement.' By an act passed by the Michigan legislature in 1895 it was provided that all the general laws of the state should be collected and compiled (by a compiler to be appointed by the legislature), without alteration, under appropriate heads and titles, with marginal notes, references, index, and complete digest of the decisions of the supreme court of the state relating to such general laws; the compiler's work to be completed on or before the convening of the legislature of 1897, and placed in the hands of the governor, after having been certified to be correct by two commissioners appointed by him. The compensation of the compiler was fixed at $6,000. The legislature of 1897 was directed to provide for the publication and binding of such recompilation in such manner and form as was deemed best. Sess. Laws Mich. 1895, Act No. 268. The defendant Miller, having been previously selected by the state legislature, duly qualified as compiler under the act of 1895, and entered upon the work prescribed therein. His labors having been partially completed, so far as the manuscript was concerned, the legislature, by an act passed March 10, 1897, provided for the completion, printing, binding, distribution, and sale of said compilation. By that act it was provided that Miller's compilation-- after the general laws enacted by that session had been incorporated into it-- should be printed, under the supervision of the compiler, 'by the state printer as other state printing is done,' with a full and complete index, by the consecutive section numbers, in pages of the size and measurement of Howell's Annotated Statutes, with annotations to each section, set in one-half the measure of the text, and arranged in two columns on the page, all on paper of a specified kind, furnished by the board of state auditors, and bound by the state binders. The act further provided that the compilation should be known as the 'Compiled Laws Michigan, 1897,' and required an edition of 20,000 copies to be printed and bound by the state printer and binder, and delivered to the secretary of state for distribution, as the public acts were distributed, and, in addition, one copy to be delivered to each senator and representative of the legislature of 1895, and one copy each to the compiler and the two commissioners. The secretary of state was directed by the same act to sell, from time to time, any number of the copies remaining after such distribution, except such number as was held for future distribution, at such price per copy, not less than the actual cost thereof, as the board of state auditors should determine. That act gave the compiler, for services under it, an additional compensation of $2,500. Sess.Laws 1897, Act No. 26. The defendants are all connected with the execution of the acts of 1895 and 1897,-- Miller, as stated, being compiler, under appointment of the legislature; Gardner, secretary of state; Steel, state treasurer; French, commissioner of the state land office (the last three officers constituting the board of state auditors, referred to in the act of 1897); the Robert Smith Printing Company, state printer; and Smith, Thorpe, and Stephenson, officers of the printing company. They all denied any connection with the proposed printing, binding, distribution, or sale of the Miller compilation, except as directed by the above acts of the legislature. Twenty thousand copies of the first volume of the Miller compilation having been printed, but not bound, the present suit was brought by Howell. The relief asked by him was: That the defendants be restrained perpetually from distributing or causing to be distributed, and from selling or offering for sale, either the whole or any part of the above compilation of the statutes of Michigan prepared by Miller, and printed by the Robert Smith Printing Company, and from delivering or causing to be delivered to any person, firm, or corporation the manuscript or any printed matter, or any part of the same, forming or intended to form the whole or any part of such compilation as prepared and compiled by Miller; and, further, from distributing or causing to be distributed, selling or offering for sale, the whole or any portion of the matter prepared or printed, intended as 'Compiled Laws Michigan, 1897,' '2,' and 'Index,' or any part of the same. That it be adjudged that the compilation of the statutes of Michigan prepared by Miller, printed in part and in process of being printed by the Robert Smith Printing Company, constitutes and is a piracy upon Howell's Annotated Statutes of Michigan, and an infringement upon the rights and the property of the plaintiff arising under the acts of congress of the United States respecting copyrights. And that a preliminary writ of injunction be issued, restraining the defendants from parting with, transferring, or delivering to any individual, corporation, or officer the whole or any part of the manuscript prepared by or under the direction of Miller, or the whole or any part of the printed matter of what is to constitute the said 'Compiled Laws Michigan, 1897,' or any part of such matter, whether in manuscript, printed, or printed and bound; and further restraining the defendant Gardner from distributing or causing to be distributed, the whole or any part of said Compiled Laws, and the defendants Gardner, Steel, and French from fixing and determining a price per volume for the sale of said compilation, and from selling or offering for sale volume 1, volume 2, or the index prepared under the direction or supervision of Miller, and restraining the said defendants, jointly and individually, from distributing or...