George Bernard Harris.

Memories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 online

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Online LibraryGeorge Bernard HarrisMemories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 → online text (page 14 of 18)
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Harris: Oh, he charged that the political enterprise created it.

Morris: Did that whole unfortunate matter have any relation to his retirement?

Harris: No. He persisted very well. He was a vigorous man intellectually.
It was a shame, I always thought, that he was brought into
disrepute, into areas of disrepute.

Morris: He d retired from the district court by the time you came on.*

Harris: I think it was about the time.

Morris: Had you ever presented a case before him?

Harris: Oh, yes. I got along pretty well with him. He was a man of great
discipline, and almost I wouldn t say fanatical but almost a
heroic approach.

Maybe I ll have a sip of the coffee.

Morris: All right, [pause] Let s go back to the American Can case. You
mentioned that it was a long and bitter trial.

Harris: Yes. It was a long and difficult trial, bitterly contested. On
one side they had the dean of the Wall Street lawyers the name
escapes me for a moment. On the prosecution they had some of the
best men in the department.

Morris: That would be the U.S. attorneys were Frank Hennessy and Herbert
Bergson.

Harris: That s correct. Frank Hennessy was a fine prosecutor.

Morris: A San Francisco man who had been U.S. attorney for a long time?



*Judge Louderback died in office December 11, 1941. He had served
on the district court since April 17, 1928.



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Harris: Yes. He always looked forward to going on the federal court.
Morris: He wanted to be a judge. Oh dear! What happened?
Harris: He managed to get on the wrong side.

Morris: That makes some sense in terms of there being different groups within
the political establishment.

Harris: Frank Hennessy was a man of all people. He subjected himself to
great discipline. He was not a humorist; he was a very able man.
He was not unlike many others that graced the bench.

Morris: And Herbert Bergson was he a deputy?
Harris: A deputy.

Morris: Who would have carried most of the responsibility for preparing a
case and then presenting it before the ?

Harris: That would be difficult for me to answer because of the fact that
I never served in the United States attorney s office. Ordinarily
it was well-maintained, well- disciplined, and well-handled.

Prosecutions were not numerous; prosecutions were normal. Maybe
you d have a couple of trials a week.

Morris: Coming from the U.S. attorney s office.

Harris: Yes. In those days, they d lean over the bench and say, "Harris," or
"Judge George Harris, you ll try the XYZ case." I d try that case.

Morris: The U.S. attorney would say this to you?

Harris: The court. You d try it, and you d try it to the best of your
ability. We didn t have the elaborate system of appointment

Morris: Oh, I see. The chief judge would lean over and say, "Judge Harris,
you re going to take this case."

Harris: You d have the trial starting

Morris: Yes. "It s going to come up next week."

Harris: That s right. And you d try it. If you d had the pits for a year,
you d try it. It was almost a sacred obligation, for the litigants.
Very often they didn t have to pay a nickel not even costs.

Morris: Really?



166






Harris: Yes, there were no set fees. I know today, in the state courts at
least, there s a great amount of money paid for the defense of the
cases.

Who has written on the federal courts?

Morris: Quite a lot. All the legal journals carry quite a lot upon them.
I ve got some bibliography notes. What we ve been using is the
hornbook on the different subject areas. The hornbook on antitrust
matters was written by a man named Sullivan from southern California.
He cites Judge Yankwich quite a lot.

Is the U.S. attorney s office like the county district attorney s
office in that the district attorney will come in and say, "I ve got
some materials which I am preparing, and I think I ve gotten enough
information to bring a case against whatever company." Will they
come in and discuss that with a judge before filing a case?

Harris: They discuss it with the U.S. attorney first and get his viewpoint,
and then join hands if they can in unanimity of expression.

Morris: The judge and the U.S. attorney?

Harris : Yes .

Morris: That there is merit to a case on these

Harris: If there be merit to a case, they ll try it.

Morris: Before the case is actually brought filed.

Harris: No. The judge always tries, somewhat vainly, to avoid discussion
of the factual background of any case, or the merit, for fear that
it might influence him. That s held in great regard.

Morris: But you would be aware that the U.S. attorney s office was

considering bringing a case, for instance, against American Can?

Harris: Oh, yes.



167



VIII SOME CASES OF NOTE: ADMINISTRATIVE CONCERNS



American Can and Other Antitrust Cases



Morris: Why would it be here in California, in the Northern District, that
the American Can case came to court?

Harris: Jurisdiction. It s a favorable site, too, because lawyers are pretty
good here. They prepare well, and they re vigorous at the level
of their profession. I think that s the main reason.

Morris: Would it have anything to do with the fact that there are fairly
major American Can factories here in California?

Harris: Sure. The can-closing industry was at its peak here. And their
engineering was at its peak.

Morris: Their research and

Harris: The research was at its very highest level.

Morris: Here in California.

Harris: They knew that they could only hold the industry in the fashion in
which they held the industry by almost superhman activity.

Morris: You mean to hold such control over such a large piece of the canning
industry?

Harris : Yes .

Morris: Would this be a situation where other parts of the canning or the
agricultural industry or similar manufacturing organizations would
be interested in this and would appear in the case also, or be
there in court to see what was going to happen?



168



Harris: As friend of the court. Quite often.
Morris : Was this a factor in the American Can case?
Harris: I don t think so.

Morris: Some of the articles on the case indicate that it was considered to
have major reverberations in manufacturing industry. Were you
aware of this at the time?

Harris: I realized that we were in big litigation. I realized that the
lawyers were the best they could possibly get. I realized that
they d resort to practices of any kind to win.

[coffee break]
ff

Harris: I referred to a situation where alleged bribes had been offered.
This was only a "commercial massage." I think that s in the
opinion.

Morris: This is an American Can person testifying it s a commercial massage.

Harris: Yes. I remember that over the years. Whenever anybody grew

hysterical about practices, they always find a parody in American
Can.

Morris: Because the testimony was so extreme by all parties?

Harris: No, it wasn t extreme; it was casual. Sort of a casual approach.

Morris: What the government was asking for was elimination of the requirements
contracts. What is puzzling is that in 1924, the Federal Trade
Commission had ordered American Can to remove these requirements
provisions from its closing-machine leases, and American Can said
they had done so. But it was 1949 when this case came back to you,
and I wondered why it took twenty years to go to court again if the
company had not complied?

Harris: I can t quite understand that, because the policing on requirements
was very rigid. I just don t understand that.

Morris: Neither did I.

Harris: I remember your notes on it.

Morris: The other puzzling aspect of that is that if there had been

tying provisions as far back as 1924, why had they not been found
in restraint of trade earlier?



169



Harris: I must confess that I don t know the answer. Procedure would

indicate practical procedure would seem to indicate that that would
be an ample time to bring a host of actions. I don t understand it.

Morris: Was there something particular about the American Can requirements

contracts that was in addition to tying contracts that had been ruled
on earlier? Did they come up with some kind of new wrinkle that ?

Harris: No. Tie-in requirements contracts represented the main issue of
practice that was regarded as violative of the principles of
antitrust.

Morris: But in your experience, when one judge rules that this kind of

procedure is in restraint of trade, does the business community find
some new way of doing things that doesn t meet that objection?
Does that have to come back to court again to be ?

Harris: I think not. Why would they come back to court?

Morris: Well, it looks as if over the years there is a series of different
cases that different judges rule on and find that something else
is in restraint of trade that nobody had happened to raise a question
about in earlier cases.

Harris: Isn t that true of factfinding bodies, whether it be an individual
or a collective body? Different areas of approach arise and give
rise to different areas of thinking. It s part of the philosophy
of judging, I guess.

Morris: That human beings are ingenious and inventive and [pause] part of
the business of judging is to keep up with these new pieces of
information and the new ?

Harris: Part of the standards of the day, the philosophies, the mechanical
aspects, the dynamics of a particular industry. That s about it.

Morris: The dynamics of the particular industry brings up the next point I

wanted to ask you about. You appointed a man named Edward Mitchell

Harris: Yes, he was my clerk. He was held in high esteem by the federal
officials. Everyone knew Ed Mitchell. They knew him for his
attention to the details. Lawyers would call him, and he d go
through an infinite amount of agony and some research to satisfy
the lawyers. [Earlier, he had been Judge St. Sure s clerk.] He
was really the presiding judge of the court when poor Judge St. Sure
was taken ill. Judge St. Sure was not well for a year and a half or
two years, and he needed help, of course.



170



Harris: He would give the lawyers as much attention as possible, so that

the judge s necessary requirements in tenure would not be altered.

Morris: Would he actually sit there in a hearing with the judge?

Harris: Oh, no, he d never do that. But he d go and look up the records,
and find out when the activity ceased, and when it started.

Morris: At what point did you assign him to the study of canning operations
around the country?

Harris: Well, there were complaints about the reporting of the incidents of
transgression, and I got tired of writing letters. We thought it
advisable to send someone who knew the terms and could converse with
the industry on a factfinding expedition subject to the approval of
the court and the attorneys. That was accomplished pretty well
through Mitchell. He turned in some revealing matters. Where those
records are, I don t know presently.

Morris: Did Mr. Mitchell stay with the courts?

Harris: Not necessarily, no. He was trained in the disciplines of the
federal system.

Morris: How long did he do work on this?

Harris: Of that I have no recollection. It might be a year; it might be
some significant period of time.

Morris: I would think so. The canning industry is fairly large.

Harris: It took him over the Northwest, South. The reports were looked upon
with some favor by not only American, but all the contestants.

Morris: Was this for your use during the trial or in preparing your decision
upon the case?

Harris: I think in some instances you d find that reference would be made to
the statistical information developed through the decision. By
this I mean the judicial aspect didn t reach that area. It was
purely on the level of statistics.

Morris: Did you also use him later on to supervise compliance with your
ruling?

Harris: As best we could. It was very difficult.

Morris: But it is part of the function of the court to then supervise the
decision, or is that done by the U.S. attorney s office?



171



Harris: That was left to the U.S. attorney.

Morris: Then, five years later in 1954, the American Can case came back
when the U.S. attorney s office alleged there had been violation
of the antitrust decree.*

Harris: I think I decided one rather important case later on. There was
some question about some infirmities in the pleadings , I think,
or something or other. I didn t go to the vitals of the case. I
think the cause was amended this is my best recollection and
proceeded to trial and judgment.

Morris: And you felt that the matter had been sufficiently discussed
earlier, so you dismissed the petition.

Harris : Yes .

Morris : One of my questions throughout was why Continental Can was referred
to as considerably as it was in the reporting on the American Can
case. Then Continental itself, apparently, came before you on an
antitrust matter.**

Harris: Mrs. Driscoll must have the file on it. [brief tape interruption]

Morris: Let me try to state the question more simply. How was Continental
Can related to the American Can Company difficulties? Continental
Can was mentioned in the American Can case, and then Continental
Can was also

Harris: Continental was a very unhappy person about all this prosecution.
Morris: They were unhappy about the prosecution of American Can?

Harris: Yes- They were unhappy about their own involvement. Of course,
their involvement was not as productive as the involvement of
American, because it was a smaller company.

Morris: That s why I was curious that they were linked together.

Harris: Strategy and tactics. American felt that so long as they had superior
numbers before the court, they d get superior judgment.



*U.S. v. American Can Company, 126 F Supp. 811 (1954)

**U.S. v. Continental Can Company, 128 F Supp. 932 (1955) and 143 F
Supp. 787 (1956)



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Morris :
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But then Continental itself was brought into court on antitrust.
Continental dragged its feet.

So American Can brought Continental into the discussion first.
Yes, as a matter of tactics. Get as many unhappy souls as you can.

Then what happened? Did the U.S. attorney s office decide, "Well,
maybe we d better take a look at Continental Can, too?"

I don t remember.

Continental also was sued on antitrust matters, having to do with
rental rates .

Yes. I don t remember. Some mishmash.

Oh, that s fascinating. Is Frank Hennessy still around?

Frank Hennessy s dead. Frank Hennessy was such a disciplinarian
I can t possibly infer any misdoings to him.

I wasn t thinking of misdoings, I was thinking of the interesting
way that one thing leads to another. I can see the logic of
American Can getting its little brother, as it were, involved in
the case against American Can, and that in turn raising questions
about how Continental Can

You probably ought to figure a lifetime on your part and my part
trying to find the whys and wherefores in the canning industry.
The canning industry has a lot of romance to it, background. I
suppose it s looked upon like any other industry: as time wears on,
the mystique can take on a different pallor.

I m wondering if the canning industry is particularly significant

in a case in California, because of its relationship to the agricultural

industry, which is such a major part of the economy in California.

They re interlocking corporate parties.
Were there such issues raised in the case?

No. The approach to American and Continental Can was one of complete
simplicity. Looking back upon those days, and the vast amount of
intrigue that goes on, in not only one industry, but many, the vast
amount of detail that s assimilated, one must perforce look upon
the activities of American and Continental as child s play. Really.



173



Morris: [chuckles] You have a very tolerant view, it seems to me from your
tone of voice, of intrigue in industry.

Harris: I suppose as you continue in a professional career, your vigor
sometimes wanes not professionally sometimes wanes. Why? I
never know; but I just view it as I did.

Morris: You raise an interesting question of the court s role in relation

to the intrigue in the business world, that this is another kind of
situation

Harris: I couldn t find a direct proportion. I was trying to say. You
can t find a direct proportion, but you can find a semblance of
relevance.

Morris: Is it another example of the kinds of checks and balances that have
developed in the American system?

Harris: Yes, I think so.

Morris: I ve got a couple other short questions here. There was a request
to amend an antitrust decree in 1955 against Continental Can. It
had to do with your original decree prohibiting acquisition of
companies producing containers. Was this seen as an alternative to
requiring divestiture of container manufacturing on the general
matter of antitrust not wishing a company to have too large a share
of the business? As an alternative to divesting themselves of
parts of the business that they could be required not to acquire
any additional companies producing, in this case, containers.

And then a year later, the government asked if your prohibition
applied to glass containers, as opposed to metal.

Harris: I have no recollection of that at all.

Morris: I was entertained with this. It seems again like a very ingenious
distinction, that glass containers did not add to the concentration
of control under one company, whereas another tin can manufacturing
company would.

Harris: I don t see the probative value, but perhaps it has.

Morris: Were antitrust matters related to what s become of concern in the
sixties and seventies , that mergers may have become too important
a segment of the American economy?

Harris: Maybe I m a little tired, but could you rephrase that?



174



Morris: I was wondering if antitrust legislation dealt with matters of
mergers. Is a merger considered something that somebody might
investigate from an antitrust point of view?

Harris: Most of them are investigated by the U.S. attorney s office in

Washington well in advance in every considerable aspect. I think
at a higher level you ll find pressure groups, too, forming, as you
would in all areas of business or profession.

Morris: Maybe we could talk just a minute about the Fox-West Coast case,

and then why don t we wind it up for this morning. This was in 1961.
It was Samuel Goldwyn Productions v. Fox West Coast.*

Harris: Oh, Sam Goldwyn was sort of renegade in his own profession. I d better
look out for that word renegade. Sort of a character in his own
profession. How much of a renegade he was remains to be seen; I
don t know. He brought the action in spite.

Morris: Goldwyn wanted to get back at Fox West Coast?

Harris: I suppose.

Morris: Goldwyn was making the films, and Fox had the theaters.

Harris: I suppose. In all events, the case proceeded to trial and many

witnesses were prominent in the theatrical firmament. My colleague
Judge Murphy tried it. He was somewhat theatrical in his approaches,
and somewhat theatrical in his background and approaches. He had
vast stage experience.

Morris: What kind of stage experience had he had?

Harris: Plays for the Bohemian Club.

Morris: Did you two ever act together?

Harris: I met him years ago. He was a great Shakespearean student.

Morris: Had you known each other in your student days?

Harris: Yes. Santa Clara University. Murphy was a very distinguished man.
I think he rather enjoyed the portfolio of stars he had before him.

Morris: There were two movie cases, and, if I m not mistaken, I think you sat
on the Sam Goldwyn v. Fox-West Coast, and then Judge Murphy sat on
U.S. v. Loew s.



*194 F Supp. 507 (1961)



Harris ;
Morris :

Harris :
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175



I guess so.

That s interesting that there were two cases: one in 1961; and one
in 1962. Did it bring back memories of the early cases you worked
on?

Yes, it brought back many memories. Tell me, what time is it about?

It s about twelve- thirty. I think this might be a good place to
stop for today.



Harris: It might be, because I have a hearing at three- thirty.

International Longshoremen s and Warehousemen s^ Proceedings////
[Interview 9: September 30, 1980]



Morris: We ve had several weeks interruption because of your illness, and
I m delighted that you re feeling up to par again.

Harris: And I appreciate, for the record, the courtesy extended to me. I m
prepared to go forward,

Morris: Thank you. I thought this morning we might plunge right into what
was probably your most celebrated case on the district court, the
case involving Harry Bridges. I wonder if we might preface that by
asking about some of the other cases involving the International
Longshoremen and Warehousemen s Union. In December of 1948, there
was a case in Hawaii, The ILWU v. Ackerman.* You were called to sit
on a three judge court involving that case. I wonder if you could
tell me how you came to be a member of that three- judge court.

Harris: [pause] John Biggs, United States circuit judge, called me. He
was chief judge then. Is my voice all right?

Morris: Sounds fine.

Harris: [He] called me and indicated they had a problem in Hawaii of some

magnitude. The case, he indicated, was far-reaching and had occupied

the courts on several occasions. He told me that the local judge

in Hawaii would sit with us. That was Delbert Metzger [spells name].



*82 F Supp. 65 (1948)




Celebration of Booker T. Washington Day in San Francisco,
early 1940s. Judge Harris, second from left, rear. Second
from left, front, is Public Defender Gerald Kenney. Others
are from the press or police.




Bohemian Grove encampment, 1977
Judge Harris, center, second row,



176



Harris :

Morris
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Harris

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Morris:

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Delbert distinguished himself during the war years by resisting
the intrusion, as he called it, of the United States array
authorities .

Into the affairs of Hawaii?

Yes. That s an incident you may recall. He made history when he
laid his firearms on the desk of the civil judge in Hawaii; it met
with international news. It was really the first clash of the civil
authorities and the military in Hawaii.



Who put their firearms on ?

Delbert Metzger put his firearms on the desk,
was quite obvious.

I see. He was going to defend his court?



The omen, of course,



He was going to defend his court. It was a very significant act and
very dramatic, I thought. Metzger and I became close personal
friends after the case. It was a difficult one, all the way through
witnesses testimony in Hawaii and elsewhere.

The propriety of calling a three-judge case was then at stake,
were there constitutional infirmities, and the usual investigation
was sought.

Are you saying that there were objections to a three- judge court
being impaneled in thise case?

Yes, there were objections, which we overruled.

Who objected?

The Hawaiian authorities. [pause]

You ve spoken of this case as a vigil. I wondered what were the
conditions and concerns that made this such an exceptional case.

It was a case of a very demanding nature. Nerves were pretty well

Maui County officials were engaged in activities connected with
the dock strike. There was a riot act that had recently been
enacted that was called into question.

The constitutionality of that came up, too. It was impregnated with
so many problems, both psychological and otherwise, that it was a
very difficult situation. I mentioned to Biggs that I had some
misgivings about the propriety of the action on statutory grounds,
on the theory that it was not a three-judge case as such.



177



Morris: What distinguishes a three- judge case?

Harris: A three-judge court is called into question under certain circumstances,
as this case was. John Biggs, a profound lawyer and also a dear
friend of mine, felt that there were no constitutional infirmities,
that it was perfectly proper to call a three- judge case. The matter
was reviewed by our circuit, our ninth circuit, and we were reversed.

Morris: On the issues that had caused you some question? The ninth circuit
reversed the case on the same grounds that you d been concerned
about?

Harris : Yes .

Morris: Do I hear you saying you would rather not have served on that three-
judge court?

Harris: Yes. The United States attorney s office in Hawaii was authorized

to manage the case from their viewpoint. There was a young lady from


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