that any white person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian Country in violation of law, such superintendent, agent, subagent, or commanding officer, may cause the boats, stores, packages, wagons, sleds, and places of deposit of such person to be searched; and if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited, one half to the informer and the other half to the use of the United States." After careful consideration of the arguments and briefs of counsel, I conclude that the phrase in the Act of March 2, 1917, on which the Government relies, "or where the introduction is prohibited by treaty or Federal statute," does not authorize the forfeiture of the automobile in question because its use in introducing intoxicating liquor into the State of Tennessee in violation of the Reed Amendment, as alleged. [2] A statute imposing a forfeiture should be strictly construed and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation. 19 Cyc. 1358, and cases cited in note 14. [3] The effect of a proviso is furthermore presumptively limited to the particular legislation to which it is appended, and should not be construed as having a more general application unless such legislative intention is clearly and positively expressed in language admitting of no other reasonable interpretation. Minis v. United States, 15 Pet. 423, 445, 10 L. Ed. 791. It is hence not to be construed as having a general application when its language is perfectly satisfied by confining its operation to the particular legislation to which it is appended, especially when there is no other general legislation then in force to which it can relate. 15 Pet. 446, 447, 10 L. Ed. 791. As all other provisions of the Act of March 3, 1917, in which this proviso is contained relate exclusively to Indian affairs, and the particular clause. to which it is appended relates to the suppression of traffic in intoxicating liquors among Indians, it is therefore presumptively limited to the introduction of intoxicating liquor among the Indians, and should certainly not be extended beyond the treaties and statutes relating to Indian affairs unless the language admits of no other reasonable interpretation and is not perfectly satisfied when applied to such treaties. and statutes. At the time this Act was passed there were in force various treaties with Indian Tribes and Federal statutes ratifying the same, by which certain tracts of land had been ceded to the United States by the Indians and therefore had ceased to be "Indian Country," but in which, pursuant to the treaty stipulation and statutes, the laws of the United States prohibiting the introduction of intoxicating liquor into the "Indian Country" nevertheless remained in force. Treaty with Nez Perce Indians, May 1, 1893, art. 9, ratified by the Act of Aug. 15, 1894, c. 290, 28 Stat. 286, 330; Treaty with Choctaw and Chickasaw Indians, March 21, 1903, ratified by the Act of July 1, 1902, c. 1362, 32 Stat. 641, 651; also various Treaties with the Choctaws, Seminoles, Creeks and other Indian Tribes and ratifying Acts, collated in Ex parte Webb, 225 U. S. 663, 684, 685, 32 Sup. Ct. 769, 56 L. Ed. 1248. The Act of March 1, 1895, c. 145, 28 Stat. 693, prohibiting the introduction of intoxicating liquor into the "Indian Territory," including those portions which, though largely inhabited by Indians, were no longer "Indian country," also then remained in force after the incorporation of the Indian Territory into the State of Oklahoma, so far as it prohibited the introduction of intoxicating liquors from without the new State into that part of it which had formerly been the "Indian Territory," although not remaining "Indian country," under the well established authority of the Federal Government to regulate liquor traffic with the Indians, even after Statehood. Ex parte Webb, 225 U. S., supra; Joplin Mercantile Co. v. U. S., 236 U. S. 531, 537, 35 Sup. Ct. 291, 59 L. Ed. 705. As the lands which had been ceded by the Indians under the foregoing treaties and a part at least of the former Indian Territory was no longer Indian country, it is obvious that the preceding phrase in the proviso of the Act of March 2, 1917, relating to vehicles used in introducing intoxicants "into the Indian country" would not have been applicable to these places, and that in order to make the proviso applicable to such places it was necessary to add the subsequent phrase now in question, "or where the introduction is prohibited by treaty or Federal statute," or its equivalent. The meaning of this subsequent phrase is, however, clearly satisfied when it is applied to the places in which the introduction of intoxicating liquor was still prohibited by these Indian treaties and ratifying acts and by the Act of 1895 prohibiting the introduction of intoxicating liquor into the Indian Territory. This meaning of the phrase is entirely germane to Indian affairs, the general subject matter of the Act of March 2, 1917, and also to the particular clause to which the proviso is attached relating to the suppression of traffic in intoxicating liquors among Indians, and gives to this phrase a meaning entirely consistent with the general plan of legislation of the United States in dealing with Indian affairs. The meaning of this phrase being thus clearly satisfied by its application to these Indian treaties and statutes in reference to Indian affairs, it would, in my opinion, be contrary to the fundamental rule of construction stated in Minis v. United States, 15 Pet. 423, 10 L. Ed. 791, supra, to extend its meaning so as to include general legislation having no reference whatever to Indian affairs or to the suppression of the traffic in intoxicating liquor among the Indians, even if there appeared to have been then in force any other general treaties or Federal statutes prohibiting the introduction of intoxicating liquor to which this proviso could in any event have been applicable: No such general treaty appears however to have been then in existence; and no general Federal statute other than the Webb-Kenyon Act of March 1, 1913, c. 90, 37 Stat. 699 (Comp. St. § 8739), which prohibited the transportation, through interstate or foreign commerce of intoxicating liquor into any State, Territory or District, for use in violation of the law thereof; but did not prohibit such introduction for lawful local use. The Act of March 2, 1917, furthermore specifically provides that the vehicles used in the introduction of intoxicating liquor "shall be subject to the seizure, libel and forfeiture provided in section twenty-one forty of the Revised Statutes of the United States." Section 2140, however, provided for search for liquor by any superintendent of Indian affairs, Indian agent, sub-agent, or commanding officer of a military post, and that if such liquor should be found it should be seized and delivered to the proper officer, proceeded against by libel, and forfeited. In United States v. Steamboat Cora, I Dak. 1, 46 N. W. 503, it was held by the United States Territorial District Court, construing the Act of March 15, 1864, c. 33, 13 Stat. 29, from which this section is derived, that to maintain a libel of forfeiture thereunder the seizure must be made by one of the designated officers or agents therein specified in order to constitute a legal seizure, and that a seizure made by the Marshal under writ of the court based upon the Government's libel, did not confer jurisdiction. The effect of this holding, which appears to me to be based upon a sound interpretation of the statute, is twofold: First, as the seizure and forfeiture to be made under the Act of March 2, 1917, is that provided for by R. S. 2140, and as such forfeiture can only follow a search and seizure made by certain designated officers or agents, most of whom are stationed in Indian country or closely contiguous thereto, and not generally throughout the United States, this strengthens the conclusion that it was not intended by the proviso in the Act of March 2, 1917, that it should apply generally throughout the United States or otherwise than in treaties and statutes relating to Indian affairs; and, second, as the seizure in the instant case is not alleged to have been made by any of these designated officers or agents (but as shown by the process was made by the Marshall under writ of monition and arrest based upon the libel itself) if follows that for want of showing of a legal seizure, this court has acquired no jurisdiction of the automobile thus seized. I find nothing inconsistent with this conclusion in United States v. One Buick Roadster (D. C.) 244 Fed. 961, 963, 964, which merely held that the Act of March 2, 1917, authorized the forfeiture of an automobile used in introducing liquor into that portion of Oklahoma which was formerly the "Indian Territory" although not "Indian Country," which remained prohibited even after statehood under the Act of March 1, 1895, and was sustainable under the power of Congress in the regulation of Indian affairs; a conclusion in which I entirely concur, the construction of the proviso so as to include such cases being entirely germane to the other provisions of the Act and well within the presumptive meaning of the proviso. I pass without determination the suggestion of counsel for the claimant that in any event the Reed Amendment is not to be deemed a Federal statute prohibiting the introduction of liquor into Tennessee within the meaning of the Act of March 2, 1917, since such prohibition arises not merely from the Federal statute but also from State legislation; as well as the question suggested in my mind in considering this case, whether in any event the Reed Amendment can be properly considered as a Federal statute prohibiting the introduction of intoxicating liquor into Tennessee or other places within the meaning of the Act of March 2, 1917, since it does not absolutely prohibit the 255 F.-12 introduction of liquor into such places, but merely prohibits such introduction otherwise than for four specified purposes. For the reasons stated, a decree will be entered adjudging the libel to be insufficient in law and dismissing the same. FLANAGAN v. COLEMAN et al. (District Court, E. D. New York. August 15, 1918.) COPYRIGHTS 85 INJUNCTION PENDENTE LITE-DENIAL. On motion for injunction pendente lite restraining defendants from publishing, printing, or selling a musical composition or any colorable imitation thereof, held, that as the affidavits in support of motion were controverted by answering affidavits, and it appeared that plaintiff knew the facts more than a year before the bill was filed, the motion should be denied. In Equity. Bill by Thomas J. Flanagan against Charles Coleman and Isidor H. Gertler, doing business under the trade-name and style of the Songland Publishing Company, and others. On motion for injunction pendente lite. Motion denied. John J. Cunneen and Charles P. Robinson, both of New York City, for plaintiff. George R. Bristor, of New York City, for defendant Coleman. GARVIN, District Judge. This is a motion for an order enjoining pendente lite the defendants and each of them, their agents, servants, and employés, during the pendency of this action, from publish-, ing, printing, reprinting, copying, selling, vending, offering for sale, or otherwise distributing the musical composition entitled, "Where is My Mama," or any imitation or colorable imitation of plaintiff's said musical composition, and for such other and further relief as may be just and proper. The motion is based upon the bill of complaint and the exhibits thereto attached with the affidavit of Margaret V. F. McCarthy, setting forth that she had purchased from the Plaza Music Company six copies of the song in question, and the affidavit of Lew Shaffer which sets forth the employment of the affiant during 1916, 1917, and part of 1918 by Charles Coleman, apparently one of the defendants herein, during which period Coleman had the affiant selling the song in question on the title page of which appeared, "Copyrighted by Charles Coleman," and the music of which was printed by F. J. Lawson Company of New York, S. H. Talbot of Chicago, and the Plaza Music Company of New York. The complaint sets forth that the defendants Coleman and Gertler on September 3, 1912, signed and filed a certificate in the office of the county clerk of New York county, in which they certified that they were conducting the business of music publishers with an office at 169 West Eighteenth street, borough of Manhattan, city of New York, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes under the name of "Songland Music Publishing Company"; that on and before April 20, 1910, plaintiff was the author, composer, and proprietor of both the words and music of a song of great and artistic value entitled, "Where is My Mama"; that on or about April 20, 1910, plaintiff published this composition and affixed to each copy published and offered for sale, "Copyright and published MCMX by Thos. J. Flanagan," "International Copyright Secured," "All Rights Reserved," and on and before April 20, 1910, plaintiff sent to the Librarian of Congress, Copyright Office, a manuscript of the song in question; a certificate of registration appears to have been issued by the register of copyrights to the plaintiff, and on December 11, 1916, he deposited two copies of the publication with the register; that about May, 1911, plaintiff and defendant Coleman made an agreement, whereby plaintiff promised to pay or assign to Coleman one-half of the profits on sales of the said song in consideration of $100, which latter sum Coleman has refused to pay, this agreement being canceled by consent; that the plaintiff has never granted or assigned to said Coleman any interest in the profits of the song entitled, "Where is My Mama," or any right to print, reprint, copy, vend, or offer it for sale; that on the copy of the song plaintiff permitted to be written, out of courtesy to defendant Coleman, who was singing and selling said song as plaintiff's employé, the words, "Words by Chas. Coleman," although Coleman had not in fact written the words; that plaintiff has never granted or assigned to Coleman any interest of ownership, authorship, or proprietorship in the copyright thereof; that this song has acquired great popularity, and plaintiff believes it has and will continue to have a popularity which will be a source of great benefit to plaintiff; that the defendants Coleman and Gertler, appreciating the popularity of the song, and with full knowledge of the rights of plaintiff therein and of the copyright, on and after September 3, 1912, unlawfully caused to be published, and threatens to cause to be published, this song throughout the United States; that all of the defendants except Sheridan and the Plaza Music Company have unlawfully caused to be printed on the first page of the song, and with full knowledge of the plaintiff's copyright of said musical composition, the following "Copyright MCMXVI by Chas. Coleman," "Words and Music by Chas. Coleman," "International Copyright Secured," "Songland Publishing Company, 549 Kosciusko Street, Brooklyn, New York," "All Rights Reserved"; that the defendants Lawson and F. J. Lawson Company at plaintiff's request and prior to April, 1910, printed the song and printed on the first page the words, "Copyright and published MCMX by Thos. J. Flanagan," and that the latter company had full notice of the plaintiff's copyright; that thereafter during 1916 the defendant Lawson Company, at the request of defendant Coleman, unlawfully printed on the first page of copies of the said song the words, "Copyright MCMXVI by Chas. Coleman," and that the said Lawson Company at other times since 1910 had printed copies of said musical composition at the request of the defendant Coleman and without authority of the plaintiff; that the defendants Sheridan and Plaza Music Company are engaged in selling the song; that the publishing, printing, copying, vending, and offering for sale |