(264 F.) The quoted statement indicates that the court concluded that a result of giving effect to the attacked instrument would be to deprive the plaintiff in the suit of the enjoyment of the whole of his estate. Whether that conclusion was or was not warranted by the facts of that case, a similar conclusion is not warranted by the facts of the instant case; the instrument here in question being such a one that, if it is valid, it is not capable of having the effect of preventing the enjoyment by the plaintiff of a valuable interest or estate in the land, the title to which is sought to be quieted. [3] Controlling decisions show that, in determining whether a jurisdictional requirement as to the sum or value of the matter in controversy is met, there should not be taken into consideration the value of a thing about which, under the issues in the suit, the court is not called on to concern itself in any way. Parker v. Morrill, 106 U. S. 1, 1 Sup. Ct. 14, 27 L. Ed. 72, was a suit by the appellant for partition and to remove a cloud upon the title to a tract of land worth more than the jurisdictional amount, one-twentieth interest in which land. was claimed by the appellant. The appeal was dismissed on the ground that the value of the interest claimed by the appellant was less than that required to authorize an appeal, and that the value of the nineteen-twentieths interest of an appellee in the land could not be taken into account. The value of the appellee's interest might as well have been taken into account in that case as the value of the interest or estate left in the appellants in the instant case by the instrument complained of, as to which interest or estate no controversy or dispute is disclosed. In Elgin v. Marshall, 106 U. S. 578, 1 Sup. Ct. 484, 27 L. Ed. 249, the court dismissed a writ of error brought to review a judgment against a town for $1,660.75 on interest coupons detached from $7,500 of bonds issued under a statute, the unconstitutionality of which was. set up as a defense, though the point actually litigated and determined in the suit was the validity of the bonds, and, as between the parties to the suit, in any subsequent action upon other coupons, or upon the bonds themselves, that judgment, as to all questions actually adjudged, would be conclusive as an estoppel. Speaking of the statutory rule limiting its jurisdiction to review, on writs of error or appeal, to those cases where the matter in dispute, exclusive of costs, exceeds the sum or value of $5,000, the court said: "The language of the rule limits, by its own force, the required valuation to the matter in dispute in the particular action or suit in which the jurisdiction is invoked; and it plainly excludes, by necessary implication, any estimate of value as to any matter not actually the subject of that litigation.” In the instant case the sole subject of litigation is the attacked instrument, or the right or interest in the land it purports to confer. The decisions in the cases of Colvin v. Jacksonville, 158 U. S. 456, 15 Sup. Ct. 866, 39 L. Ed. 1053, and Wheless v. St. Louis, 180 U. S. 379, 21 Sup. Ct. 402, 45 L. Ed. 583, support the proposition that in a suit for an injunction it must affirmatively appear that what is sought to be enjoined would result in loss or damage to the plaintiff of the jurisdictional amount. The following was said in the last-cited case: "The 'matter in dispute within the meaning of the statute, is not the principle involved, but the pecuniary consequence to the individual party dependent on the litigation, as, for instance, in this suit, the amount of the assessment levied, or which may be levied, as against each of the complainants separately." The only possible pecuniary consequence to the appellants of the existence of the attacked instrument and the enforcement of all the rights it purports to confer would be their deprivation of substantially less than the entire value of the land described in that instrument. The record does not disclose any controversy or dispute as to their right to enjoy such possession and use of that land as are consistent with the enjoyment by the appellee of the rights it claims. The suit is such a one that no judgment rendered in it can involve in any way a material part of the value of the land described in the attacked instrument. So far as is disclosed, the only controversy or dispute as to the appellants' ownership of the land results from the assertion by the appellee of the claim based on the instrument sought to be canceled and annulled. It is not shown that a denial of all the relief sought would result in loss or damage to the appellants of the jurisdictional sum or value. The record does not disclose that any or all of the parties to the suit have at stake, exclusive of interest and costs, a sum or value in excess of $3,000. This being true, the motion to remand the case to the state court from which it was removed should have been granted. An order to that effect will be here entered. Reversed. HUTCHESON, District Judge, dissents... MERRITT v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. May 3, 1920. Rehearing Denied July 6, 1920.) No. 3414. 1. War 4-Sugar a "necessary," within Food Control Act, as to hoarding. Under Act Aug. 10, 1917, § 6 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115gg), prohibiting the hoarding of necessaries, sugar is a "necessary," in view of section 1 (section 3115se), authorizing the President to make such regulations and issue such orders as are essential effectively to carry out the provisions of that act, under which the President provided for licensing manufacturers and distributors of certain food commodities, including sugar, and declared economy in the use of sugar necessary, and proof that sugar was a necessary was not required. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Necessary.] 2. Criminal law 304 (9)—Judicial notice of war resolution and presidential proclamations taken. The resolution of April, 1917, declaring a state of war, and the proclamations of the President under Act Aug. 10, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%e-3115% kk, 3115%-3115% r), are public acts of which the courts take judicial notice. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (264 F.) 3. Criminal law 13-Statute prohibiting hoarding of necessaries not void Act Aug. 10, 1917, § 6 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4. War 4-Reasonable requirements of defendant and dependents for sugar In a prosecution for hoarding sugar, where there was evidence of the 5. Criminal law ~304 (17)—Judicial notice taken of orders of Food Adminis- Judicial notice is taken of the orders of the Food Administration re- 6. War ~4—Conviction of hoarding sustained by evidence as to purchases Evidence that defendant authorized and knew of the purchases and de- 7. Criminal law ~62-Procuring another to do criminal act constitutes guilt. act. 8. Criminal law 330-Burden on defendant as to exceptions in criminal In a prosecution for hoarding sugar, it devolved upon defendant to in- 9. Criminal law 1035 (5)-Overruling of challenge to juror challenged per- The overruling of a challenge to a juror for cause was not prejudicial 10. Criminal law 703-Opening argument in prosecution for hoarding sugar In a prosecution for hoarding sugar, the remarks of the counsel for the 11. War 4-Evidence relevant on question of intent in prosecution for On a trial for hoarding sugar, evidence that a witness heard defendant For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 12. War 4-On trial for hoarding sugar, evidence of telephone conversation with defendant's home admissible to show intent. On a trial for hoarding sugar, evidence concerning a telephone order for sugar from some one at defendant's home, whom the witness recognized by the voice as one from whom he had previously taken orders for sugar, was admissible as bearing on defendant's knowledge that those who bought produce for him were inquiring into the price of quantities of sugar. 13. Criminal law 470-Opinion of expert as to requirements of family for sugar immaterial. On a trial for hoarding sugar, the opinion of a salesman in a grocery store as to what would be the reasonable requirements of a family was properly excluded; it being for the jury to say whether there was a hoarding of sugar in excess of defendant's reasonable requirements. In Error to the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge. Hulett C. Merritt was convicted of an offense, and he brings error. Affirmed. C. W. Pendleton, Meserve & Meserve, and Anderson & Anderson, all of Los Angeles, Cal., for plaintiff in error. Robert O'Connor, U. S. Atty., and Lyndol L. Young, Sp. Asst. U. S. Atty., both of Los Angeles, Cal. Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge. HUNT, Circuit Judge. Merritt, plaintiff in error, was convicted of violation of the act of Congress of August 10, 1917, entitled an act to provide further for the national security and defense by encouraging the production, conserving the supply, and controlling the distribution of food products and fuel. 40 Stat. 276 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115e-3115kk, 31151⁄4l-3115gr). The charge was that Merritt, about October 15, 1917, did knowingly, willfully, and feloniously— "Hoard a certain necessary, as defined in the act, to wit, sugar; that is to say, that on or about the 15th of October, 1917, Merritt did knowingly, willfully, unlawfully, and feloniously hold, arrange for, and contract for five 100-pound sacks of sugar, the said 500 pounds of sugar then and there being a quantity of sugar in excess of the reasonable requirements of the said Hulett C. Merritt for use and consumption by himself and dependents for a reasonable time." It is alleged that the hoarding and holding of the sugar was continuous from about the 15th of October, 1917, to the 25th of July. 1918, and that the holding, arranging for, and contracting for and hoarding did not relate to any transaction on any exchange, board of trade, or similar institution or place of business, as described in section 13 of the act of Congress already referred to; that Merritt did not hoard, hold, arrange, and contract for the said 500 pounds of sugar as a farmer or gardner, or as a member or on behalf of any cooperative association of farmers or gardeners, and that the sugar was For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (264 F.) not the product of any farm, garden, or other land owned, leased, or cultivated by Merritt. Reversal is urged upon the ground that the portion of the act of Congress under which the indictment was drawn and upon which the prosecution was based is void for want of definiteness and certainty. Section 6 of the act (section 3115gg) provides as follows: "Any person who willfully hoards any necessaries shall upon conviction thereof be fined not exceeding $5,000 or be imprisoned for not more than two years, or both. Necessaries shall be deemed to be hoarded within the meaning of this act when either (a) held, contracted for, or arranged for by any person in a quantity in excess of his reasonable requirements for use or consumption by himself and dependents for a reasonable time; (b) held, contracted for, or arranged for by any manufacturer, wholesaler, retailer, or other dealer in a quantity in excess of the reasonable requirements of his business for use or sale by him for a reasonable time, or reasonably required to furnish necessaries produced in surplus quantities seasonally throughout the period of scant or no production; or (c) withheld, whether by possession or under any contract or arrangement, from the market by any person for the purpose of unreasonably increasing or diminishing the price: Provided, that this section shall not include or relate to transactions on any exchange, board of trade, or similar institution or place of business as described in section 13 of this act that may be permitted by the President under the authority conferred upon him by said section thirteen: Provided, however, that any accumulating or withholding by any farmer or gardener, co-operative association of farmers or gardeners, including livestock farmers, or any other person, of the products of any farm, garden, or other land owned, leased, or cultivated by him shall not be deemed to be hoarding within the meaning of this act." It is argued that section 13 (section 3115k) makes no attempt to define the term "necessaries" and that, although the statute attempts to define the word "hoarded," within the meaning of the act, such attempt is futile, in that the definition is too uncertain and indefinite to justify a court in sustaining the statute as a valid one in the creation of a crime. [1, 2] We find ourselves unable to agree to the suggestion that sugar is not defined as a necessary. Section 1 of the act (section 3115e) referred to expressly authorizes the President to make such regulations and to issue such orders as are essential effectively to carry out the provisions of the act. By proclamation issued October 8, 1917, the President provided for the licensing of manufacturers and distributors of certain food commodities, "including sugar," and afterwards by proclamation issued January 18, 1918, declared that á continued. economy in the use of sugar was necessary until a later time. Of these proclamations, as of the resolution of Congress of April, 1917, declaring a state of war, judicial notice was proper. They were public acts, and we think it was unnecessary for the prosecution to introduce additional proof that sugar was a necessary. Armstrong v. United States, 80 U. S. (13 Wall.) 154, 20 L. Ed. 614. [3] Nor can we uphold the view that there is a fatal indefiniteness and uncertainty in the definition expressed in section 6, heretofore quoted. The language that "necessaries shall be deemed to be hoarded," within the meaning of the act, when either held, contracted for, or arranged for by any person "in excess of his reasonable requirements for the use or consumption by himself and dependents for a |