United States v. Philadelphia & R. Ry. Co.

• Decision Date: 12 March 1915
• Docket Number: 45-47.
• Citation: 221 F. 683
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: UNITED STATES v. PHILADELPHIA & R. RY. CO. (three cases).

221 F. 683

UNITED STATES v. PHILADELPHIA & R. RY. CO. (three cases).

Nos. 45-47.

United States District Court, E.D. Pennsylvania.

March 12, 1915

Francis Fisher Kane, U.S. Atty., of Philadelphia, Pa.

Wm Clarke Mason, of Philadelphia, Pa., for defendant.

THOMPSON District Judge.

The reason assigned why the bill of indictment in each of the above-entitled cases should be quashed is as follows:

'(1) Because at the sitting of the said grand jury, and while they were considering the said complaints recited in the indictment, and while they were hearing testimony concerning the same, there was present in the said grand jury room, and within the hearing of what transpired and listening to what was said, with the consent of the district attorney, a person who was not a district attorney representing the United States of America, nor a witness in the said cause, nor was such person authorized by law to be in the said grand jury room at the said time.'

The name of the person who, it is alleged, was unlawfully present in case No. 47 is William M. Clift, and the name of such person in cases Nos. 45 and 46 is Arthur Head.

The following facts appear by the answers to the motions and the testimony of Mr. Clift and Mr. Head:

Mr Head was present in the grand jury room while the evidence was being heard upon which indictments Nos. 45 and 46 were based, and Mr. Clift was present while the evidence was being heard upon which indictment No. 47 was based. Neither was present during the deliberations of the grand jury. Mr. Head is a member of the bar of Bradford county, Pa., and Mr. Clift is a member of the bar of Montgomery county, Pa. Mr. Clift and Mr. Head were each appointed special assistants to the United States attorney for the Eastern district of Pennsylvania by telegram from the Attorney General in similar form, that appointing Mr. Head being as follows:

Department of Justice.

Telegram.

G.C.T.

Washington, January 4, 1915.

Arthur Head, Care United States Attorney, Philadelphia, Penna.:

You are hereby appointed a special assistant to the United States attorney for the Eastern district of Pennsylvania to assist in investigation and prosecution of alleged violation of act to regulate commerce, as amended, by Philadelphia and Reading Railway Company and others, and are authorized and directed to conduct grand jury proceedings in Eastern district Pennsylvania in connection with such investigation. Compensation to be determined. Execute and forward oath.

Gregory.

Mr. Head was admitted to the bar of Bradford county in 1877, and has never been admitted to practice in the Supreme Court of Pennsylvania, nor the Supreme Court of the United States, and is not engaged in active practice as a lawyer. Mr. Clift is official stenographer of court of common pleas No. 2 of Philadelphia county, was admitted to the bar of Montgomery county in 1882, and has never been admitted to practice in the Supreme Court of Pennsylvania or of the United States. He is not in active practice, and has not been for a great many years.

Neither Mr. Clift nor Mr. Head consulted with the Attorney General or the district attorney, nor with any one else concerning the pending indictments against the defendant, nor concerning alleged violations of the Interstate Commerce Acts, nor concerning the preparation of the case. Both of these gentlemen were in fact employed as stenographers, and were present in the grand jury room solely for the purpose of taking stenographic notes of the testimony of the witnesses. That was what was done by them, and it was not intended that anything else should be done by them while in the grand jury room, and neither participated in any way whatsoever in the conduct of the proceedings or in the examination of the witnesses. The testimony taken by Mr. Clift was afterwards transcribed by two women in his office.

The appointment by the Attorney General was apparently under the provisions of section 363, Comp. Stat., and the direction to conduct grand jury proceedings was under authority of the Act of June 30, 1906, 34 St.at L. 816, which provides as follows:

'That the Attorney General, or any other officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law (section 363 Comp. Statutes), may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil and criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys now are or hereafter may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought.'

The matter of appointment of special assistants to the district attorney is entirely within the discretion of the Attorney General, and Mr. Clift and Mr. Head both come within the term 'attorney or counselor.' The fact that neither has been admitted or is qualified to be admitted as a member of the bar of this court, not being a member of the bar of the Supreme Court of the state or of the United States, is not, in my opinion, a valid objection to their being appointed to conduct legal proceedings before the grand jury. Congress appears to have authorized attorneys for the government to appear in proceedings in the United States courts, whether members of the bar of such courts or not. If, therefore, Mr. Clift or Mr. Head had conducted the proceedings before the grand jury, or had been present in the grand jury room for the actual purpose of conducting the proceedings, their presence could not be questioned upon the present motion.

It is apparent, however, that they were not appointed to conduct the grand jury proceedings and that any thought of...