Spiegel v. Ford

• Decision Date: 15 November 1933
• Docket Number: No. 3935.,3935.
• Citation: 5 F. Supp. 456
• Parties: SPIEGEL v. FORD, Dist. Atty.
• Court: U.S. District Court — District of Massachusetts

5 F. Supp. 456

SPIEGEL v. FORD, Dist. Atty.

No. 3935.

District Court, D. Massachusetts.

November 15, 1933.

Edward Spiegel, of Boston, Mass., pro se.

Francis J. W. Ford, U. S. Atty., of Boston, Mass., pro se.

McLELLAN, District Judge.

This is a bill in equity in which the plaintiff seeks to enjoin the United States attorney for this district from the prosecution of an indictment recently returned against him. The defendant's motion to dismiss the bill of complaint is, under the equity rules, the equivalent of a demurrer.

The bill of complaint sets forth the pertinent provisions of the Act of Congress of March 9, 1933 (48 Stat. 1), entitled "An Act to provide relief in the existing national emergency in banking, and for other purposes," and the executive order of the President of the United States, dated August 28, 1933, issued pursuant thereto. The bill also contains a copy of an indictment returned by the grand jury on October 26, 1933, for failing to make and file a return, pursuant to the executive order of August 28, 1933, and for retaining a legal and equitable interest in certain gold coin without a license therefor.

The plaintiff says that the act and order are unconstitutional and in violation of the Fifth Amendment of the Constitution, which provides that: "No person * * * shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It is stated also that the requirements of the executive order constitute an unreasonable search and seizure, contrary to the provisions of the Fourth Amendment to the Constitution, and that it constitutes an exercise by the President of the legislative power as distinguished from an administrative act of investigation and regulation, in violation of section 1, article 1, of the Constitution.

These are matters which should be decided if the case is of such a nature that this court has jurisdiction of it, and, unless such jurisdiction exists, they are matters which should properly be considered and decided only in connection with a direct attack upon the indictment made on the criminal side of the court. For present purposes, it makes no difference whether or not the act and order are unconstitutional, unless the bill states a case for equitable relief.

The additional allegations of the bill of complaint on which the power of the court of equity to interfere with a criminal prosecution must depend are, in substance, as follows:

It is averred that the act and order are penal enactments, creating a new offense amounting to a felony, the penalties wherefor are severe, that the law gives the complainant no appeal from an adverse decision upon a demurrer or motion to the indictment, and that the only way in which the sufficiency of the indictment and the constitutionality of the act and order can be tested in a criminal proceeding is by appeal after trial and upon conviction and sentence. The bill states further that the complainant is a lawyer engaged in active practice, that he has established a good reputation, and that, notwithstanding the unconstitutionality of the act and...