United States v. Two Obscene Books, 25449.

• Decision Date: 24 August 1950
• Docket Number: No. 25449.,25449.
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. TWO OBSCENE BOOKS.

92 F. Supp. 934

UNITED STATES v. TWO OBSCENE BOOKS.

No. 25449.

United States District Court N. D. California, S. D.

August 24, 1950.

George Olshausen, San Francisco, Cal., for claimant Ernest J. Besig.

Frank J. Hennessy, United States Attorney, and Reynold H. Colvin, Assistant United States Attorney, San Francisco, Cal., for United States of America.

GOODMAN, District Judge.

On June 24, 1949, the United States filed a libel of information herein charging that the two obscene books named as respondents, were imported into the United States in violation of Section 305 of the Tariff Act of 1930, 19 U.S.C.A. § 1305, and praying for their forfeiture and destruction.

One Ernest J. Besig appeared as claimant, filed an answer to the libel and alleged that the respondent two books were not subject to seizure and should be returned to the claimant. In effect he claims the books to be not obscene.

The court takes judicial notice of the fact that Ernest J. Besig is the Director of the American Civil Liberties Union of Northern California.

In an amendment to his claim and answer, he asserts that 19 U.S.C.A. § 1305 abridges freedom of speech and violates the Constitution (First Amendment).

Now before the court for determination is the claimant's motion for a commission to take the depositions, on written interrogatories, of 19 persons alleged to be experts in the field of literary criticism. Of the 19 named, 1 resides in Connecticut, 2 in Illinois, 1 in Massachusetts, 2 in New York, 1 in Germany, 6 in France, 2 in Holland, 1 in Belgium, and 1 in Switzerland, and 2 in England.

In the written interrogatories, the so-called literary critics are asked to state their respective opinions of the two books "from the stand point of value and standing as works of literature." The court assumes that since the testimony is sought by claimant, it will be favorable to his cause.

The two books are authored by Henry Miller and are entitled respectively "Tropic of Capricorn" and "Tropic of Cancer." They were printed and published in 1948 at 4 Rue de la Paix, Paris by the "Obelisk Press." Their published price is 400 francs. On each book is printed: "Must not be imported into England or the U. S. A."

The United States objects to the issuance of the commission on the ground that the obscenity of the books may be determined from the books themselves without the necessity of any so-called expert testimony.

While the proceeding, being in rem, is initiated on the admiralty side of the court, nevertheless the Rules of Civil Procedure will apply inasmuch as, once answer is filed, the action proceeds at law. Eureka Productions v. Mulligan, 2 Cir., 108 F.2d 760. The court therefore has power to determine whether or not the commission should issue. Rule 28, Fed.Rules Civ.Proc., 28 U.S.C.A.

At the time of the submission of the motion, it was stipulated that the two respondent books would be deemed appended to the motion as exhibits to be considered by the court in arriving at decision.

The court has read both books.

In United States v. One Book entitled "Ulysses", 2 Cir., 72 F.2d 705, at page 708, Judge Augustus Hand states: "While any construction of the statute that will fit all cases is difficult, we believe that the proper test of whether a given book is obscene is its dominant...