text:
    THORSCH v. MILLER, Alien Property Custodian et al.
    (Court of Appeals of District of Columbia.
    Submitted December 9, 1924.
    Decided April 6, 1925.)
    No. 4130.
    1. War <S=»I2 — Claimant of property held by Alien Property Custodian held not entitled to standing as naturalized citizen.
    Under Act March 4,1923, adding section 21 to Trading with the Enemy Act, providing that claims of any naturalized citizen to property held by Alien Property Custodian should not be denied on ground of any presumption of expatriation, arising under Act March 2, 1907, § 2 (Comp. St. § 3959), if claimant should give satisfactory evidence of his loyalty during his absence from the United States, claimant, a native of Austria, who resided in United States many years, becoming naturalized citizen in 1898, returned to Austria in 1912, served as vice consul of United States until breaking off of diplomatic relations in 1917, and thereafter engaged in banking business in Vienna, subscribed to Austrian war loans, and never resumed residence in United States, held not entitled to prosecute his claim as a naturalized citizen.
    2. War <g=bi2 — Statutory provisions requiring . claimant of property held by Alien Property Custodian to give evidence of loyalty, rebutting presumptions of expatriation, held applicable.
    Provisions of Act March 4, 1923, adding section 21 to the Trading with the Enemy Act, providing that claim of naturalized citizen to property held by Alien Property Custodian should not be denied on ground of any presumption of expatriation arising under Act March 2, 1907, § 2 (Comp. St. § 3959), if claimant should give satisfactory evidence of his loyalty during absence from United States, held applicable, though claimant, native of Austria and a naturalized citizen of the United States, during three years of his absence from the United States and until breaking off of domestic relations in 1917, was vice consul of the United States at Vienna, that officer not being required to be a citizen of the United-States at that time, and particularly where claimant, after resignation'of such office, continued to reside in that country for more than two years before commencement of suit on claim.
    3. War <§=>12 — Residence abroad during war time is counted in computing period of absence from country resulting in presumption of expatriation, notwithstanding provision against expatriation when country is at war.
    Under Act March 4, 1923, adding section 21 to the Trading with the Enemy Act, requiring naturalized citizen claiming, property held by Alien Property Custodian, against whom a presumption of expatriation has arisen, under Act March 2, 1907, § 2 (Comp. St. § 3959), from residence abroad, to give proof of his loyalty during absence from the country, residence abroad during war time is counted in computing period of absence from country, notwithstanding provision in latter act that no American citizen shall be allowed to expatriate himself when country is at war.
    4. Evidence <§=>47 — Court of Appeals of District of Columbia will take judicial notice of rulings of Department of State.
    Court of Appeals of District of Columbia will take judicial notice of rulings of Department of State.
    5. War <§=>12 — Rules for computing duration of foreign residence affecting presumption of expatriation applicable alike to situations arising under act declaring such presumption and to those arising under act amendatory of Trading with the Enemy Act.
    Rules for computing duration of foreign residence, under Act March 2,1907, § 2 (Comp. St. § 3959), creating a presumption of expatriation from extended residence in foreign state, apply equally to situations arising under Act March 4, 1923, adding section 21 to the Trading with the Enemy Act, relating to claims of naturalized citizens against whom a presumption of expatriation has arisen, to property held by Alien Property Custodian.
    6. War <§=>12 — Statute requiring proof of loyalty by naturalized citizens against whom presumption of expatriation has arisen, in prosecution of claims for property held by Alien Property Custodian, applicable to suit commenced before its enactment.
    Act March 4, 1923, adding section 21 to the Trading with the Enemy Act, requiring naturalized citizens, against whom a presumption of expatriation has arisen from residence in foreign state, to give proof of their continued loyalty when prosecuting claims for property held by Alien Property Custodian, held applicable to suit commenced, but not concluded, before its enactment.
    7. War <§=>12 — Evidence held insufficient to establish claimant’s purchase of corporate stock before its seizure by Alien Property Custodian.
    Evidence held insufficient to establish claimant’s purchase of corporate stock before its seizure by Alien Property Custodian.
    Appeal from the Supreme Court of the District of Columbia.
    Suit by Hugo Thorseh against Thomas W. Miller, as Alien Property Custodian, and Frank White, as Treasurer of the United States. Decree for defendants, and plaintiff appeals.
    Affirmed.
    G. T. Farrell, L. S. Rappaport, and H. H. McCormick, all of Washington, D. C., for appellant.
    D. H. Stanley, of Washington, D. C., and John Marshall, of Parkersburg, W. Va., for appellees.
    Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.
   MARTIN, Chief Justice.

This suit was brought by Hugo Thorseh under section 9 of the Trading with the Enemy Act as amended (42 Stat. 1511), to recover from the Alien Property Custodian the proceeds of certain 3,550 shares of the capital stock of the Wemer-Pfleiderer Company, a Michigan' corporation, which had been seized by the Custodian on March 7,1918, as the'property of Richard and Otto Werner, who were citizens and residents of Germany.

Mr. Thorseh claimed that he was a naturalized citizen of the United States, that he had bought the stock in question from the Werners on March 12, 1917, a year before the Custodian seized it, and that he was the sole owner of it at the time of the seizure. He claimed accordingly that the property or its proceeds should be returned to him under subsections (a) and (b) of section 9 of the act as amended, since he was not an enemy or ally of enemy, nor a citizen or subject of Germany, Austria, Hungary, or Austria-Hungary. The Custodian denied that Thorseh was a citizen of the United States, and also denied that he was the owner of the property in question at the time of its seizure. The lower court decreed against the claimant, who thereupon appealed.

The first question which arises upon the record is whether Mr. Thorseh has established his right to maintain this suit as a naturalized citizen of the United States. The following enactments relate to that subject:

On March 2, 1907, Congress passed an act in reference to the expatriation of citizens and their protection abroad. 34 Stat. 1228 (U. S. Comp. St. §§ 3958-3964). Section 2 thereof reads in part as follows:

“Sec. 2. * ' ® When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of resi-deuce during said years: Provided, however, that such presumption may he overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the .Department of State may prescribe: And provided also, that no American citizen shall be allowed to expatriate himself when this country is at war.”

On March 4, 1923, Congress passed an act to amend the Trading with the Enemy Act (42 Stat. 1511). Section 21 thereof, as added, reads as follows:

“Sec. 21. That the claim of any naturalized American citizen under the provisions of this act shall not be denied on the ground of any presumption of expatriation which has arisen against him, under the second sentence of section 2 of the act entitled ‘An act in reference to the. expatriation of citizens and their protection abroad/ approved March 2, 1907, if he shall give satisfactory evidence to the President, or the court, as the ease may be, of his uninterrupted loyalty to the United States during his absence, ■md that he has returned to the United States, or that he, although desiring to return, has been prevented from so returning by circumstances beyond his control.”

It appears that Mr. Thorsch was born in the city of Prague,. Austria. In 1894, when he was 19 years of age, he emigrated to this country, and became a naturalized citizen in 1898. In the course of time he established a printing business in Indianapolis, and by 1912 he had amassed a fortune of about $500,000. His family then consisted of his wife and one son. In the summer of 1912 he made sale of all of his property located in this country including his business and his home, converted the proceeds into Austrian money, and removed with his family to Vienna, Austria. He and his family have made temporary visits to the United States since that time, but nevertheless Vienna has been their place of general abode from the summer of 1912 up to the present time. Mr. Thorsch states that he never intended to expatriate himself, but always expected to return at some future time to this country. The testimony relating to an intentional expatriation upon his part is conflicting; but we do not find it necessary now to pass upon that question.

On August 28, 1914, after the war broke out in Europe, Mr. Thorsch became vice consul of the United States at Vienna, resigning on April 14, 1917, after diplomatic relations between this country and Austria were broken off. He and his family then continued to reside at Vienna, and during the war which followed, he was not interned, nor was his property sequestered, but he continued as before to engage unrestrictedly ' in business in that city. In 1916 he assisted in establishing the Vienna Bank of Commerce, investing the greater part of his fortune in its stock, and becoming a director and also a member of the executive committee of the bank. He held these positions throughout the war, during which time the bank subscribed to each of the war loans issued by Austria, whereby that, country was assisted in waging war against the United States and its allies. Nor has he ever become a resident of the United States since that time.

These facts bring Mr. Thorsch within the limitations of section 21, Act of March 4, 1923, supra, and prevent him from recovering as a naturalized American citizen in this suit; for he had resided for two years in the foreign state from which he came, and consequently could not recover against the Custodian without first giving satisfactory-evidence to the court “of his uninterrupted loyalty to the United States during his absence, and that he has returned to the United States, or that he, although desiring to return, has been prevented from so returning by circumstances beyond his control.” Mr.. Thorsch has utterly failed to give any evidence of that character. It should be noted that these requirements are not mere rules of evidence for ascertaining whether a naturalized American citizen thus residing-abroad had thereby intentionally expatriated himself. They serve rather as a limitation upon the Trading with the Enemy Act, prohibiting any naturalized citizen of the United States from recovering under section 9 of' the act after residing abroad for the prescribed period, without first proving his uninterrupted loyalty to this country while-abroad, and that he had returned to the, United States, or been prevented from doing so by circumstances beyond his control.

These conditions apply in this case-"notwithstanding the fact that Mr. Thorsch was vice consul of .the United States at Vienna during three years of his residence in-that city, and that he had secured passports-upon the occasions of his visits to this country. For at that time it was not required' that such an officer should be a.citizen of' this country, and moreover Mr. Thorsch continued thereafter to reside in Vienna for more than two years before the commencement of this ease. Section 2 of the act of March 2, 1907, provides that no American-■citizen, shall be allowed to expatriate himself when this country is at war; nevertheless residence abroad during war time is to be counted when computing the period of absence from this country for the present purpose. The Department of State, acting under the authority conferred upon it by the section, has ruled to this effect in General Consular Instruction No. 919, issued November 24, 1923, as follows:

“The presumption, under the second paragraph of section 2 of the Act of March 2, 1907, that naturalized citizens who have resided for two years in the foreign state from which they came or for five years in another foreign state have ceased to be American citizens, according to the department’s construction of the last proviso of this section, could not have arisen during the period when this country was at war. However, now that the war is over, residence abroad during the war should be counted in determining whether the presumption has arisen.
“It follows that, in the ease of a naturalis-ed citizen, when the two or five-year period of foreign residence was completed before April 6, 1917, the presumption of the loss of citizenship existed. However, if the two or five year period terminated between April 6,1917, and July 2,1921, then the presumption did not arise until the latter date, when the United States ceased to be at war. If the foreign residence began while this country was at war, such residence during the war period should be counted, although the presumption of loss of citizenship could not have arisen until after the termination of the war. In such ease the amount of residence abroad during the war period should be added to that outside of the war period and the total used in computing the two or five year period. The period between the dates of expatriation and the taking of an oath of repatriation cannot be counted in computing the two or five year period. * ' ® It is the view of the department, in the absence of an opinion of the court of last resort, that the presumption of cessation of American citizenship, arising under the statute, from protracted residence abroad continues'to exist only while a naturalized citizen continues to reside abroad, and that upon the return of the individual to the United States and upon his establishment there in good faith of a permanent residence reasons for the presumption disappear.”

This court takes judicial notice of the foregoing ruling of the Department of State. Caha v. United States, 152 U. S. 211, 14 S. Ct. 513, 38 L. Ed. 415. That ruling of course relates to the general provisions of the Act of March 2, 1907, respecting the status of naturalized citizens after a period of residence abroad, and has no specific reference to the provisions of section 21 of the Trading with the Enemy Act. The rules, however, for computing the duration of foreign residence, are alike in both eases. Moreover, the department’s interpretation of the law is manifestly correct, for when Con'gress in the latter act required proof of “uninterrupted loyalty” upon the part of naturalized citizens when residing abroad, it must have had in mind the conduct of such persons during the war, particularly if residing in an enemy country. It is hardly necessary to say that the present ease is governed by the specific provisions of the Trading with the Enemy Act.

It is contended, however, that the Act of March 4, 1923, should not apply to this case since the trial below was had, and the ease submitted although not yet decided, before the enactment of that section. The suit, however, was not concluded at that time, and the record discloses that the trial court after the date of the enactment offered the plaintiff an opportunity to introduce evidence upon the issue of loyalty and of his' return, to'this country, which he declined to do. We conclude accordingly that the plaintiff did not bring himself within the conditions prescribed by section 9 as amended, or section 21, and was not entitled to recover in this case.

The second question which arises upon the record is whether Mr. Thorseh in fact bought the stock in question from the Werners on March 12, 1917, as alleged by him. The 3,550 shares represented practically the entire ownership of a certain factory located at Saginaw, Mich. The Custodian after-wards realized $338,500 from a sale of the sequestered stock. It is claimed by Mr. Thorseh that these shares were owned by the Werners, who were then soldiers in the German army; that the stock certificates had been signed in blank by the owners and left in the hands of. Dr. Rosner, an Austrian attorney, for such disposition as he might deem to be for the owners’ interest; that on March 12, 1917, in a “hand to hand” transaction, Mr. Thorseh. exchanged 4,000 shares of his stock in the Vienna Bank of Commerce for the 3,550 shares of stock in question, and thereby became the sole owner of the latter. Mr. Thorseh had never seen the factory nor had any business relations with it nor with the Werners. He states, however, that he examined certain reports of the factory’s business in former years, and also relied upon the representations of Dr. Ros-ner.

At tbe time when he claims to have acquired the stock he was acting as American vice consul at Vienna, and a month intervened before his associates left that city because of the cessation of diplomatic relations between the two countries. Yet Mr. Thorsch never mentioned the transaction to any of them, nor did he send any notice thereof at" any time to the Saginaw corporation, nor attempt in any manner to have the shares transferred to his name. He explains this by saying that the business was then in the charge of an efficient manager, who might refuse to continue as such if informed of the transfer of ownership. When Mr. Thorsch left Indianapolis in 1912 he was closely associated with a certain attorney of that city, in whom he placed great confidence, by whom indeed some of Mr. Thorseh’s property was sold at the time of his removal to Vienna. This attorney still resided in Indianapolis, but no word was sent to him concerning the alleged transaction. In fact, according to Mr. Thorseh’s statements, he owned the stock two years and a half without sending a single communication to any one with reference to it or the corporation’s business. The Custodian seized the corporate shares on March 7, 1918, as the property of the Werners. According to Mr. Thorseh’s statement the Werners then had no interest whatever in the property, having parted with it a year previously. ' Nevertheless, on September 12, 1919, when the Custodian was about to make sale of the shares under section 12 of the act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115ff, the Werners sent a cablegram to him respecting the matter which is translated as follows:

“We are informed that our shares will be sold on September 12, we protest against this sale as being illegal, and ask Messrs. Staehle and Pletscher to protest in our name.”

It is difficult to believe that the Werners made an unconditional transfer of the shares to Mr. Thorsch on March 12, 1917, when it thus appears that on September 12, 1919, they were claiming to be the owners of the stock, and were not only protesting against a sale of it by the Custodian, but were also appealing to their representatives in this country likewise to protest in their name. Mr. Thorsch and Dr. Rosner make an attempt as witnesses to- reconcile this circumstance with their testimony concerning the alleged transfer of the stock on March 12, 1917, but they succeed only in making their narrative seem the more improbable. Mr. Thorsch states that it was not until October, 1919, that he first heard that the Alien Property Custodian bad seized the stock. He says that he then cabled a protest to the Custodian, and also communicated with his attorney in this country, and that at the same time he notified Dr. Rosner that it had come to his knowledge that the property had been seized and was to be sold by the Alien Property Custodian, and that he would hold his clients, Richard and Otto Wemer, responsible for all damages that he might suffer thereby.

However, according to the testimony, the Werners had cabled their protest to the Custodian a month before Mr. Thorsch learned of the seizure.' Dr. Rosner explains that he had caused the Werners thus to cable the Custodian by advising them that they were obliged as sellers of the stock certificate to place Mr. Thorsch as ljuyer in full possession of the rights adhering thereto, and that, since they were still the apparent owners of the stock certificate sold by them to Mr. Thorsch, “as far as the knowledge of the American government was concerned, they were obliged, in order to prevent the imminent sale of the plant, to protest against the sale, so that Mr. Thorsch would not find it impossible to protect his rights acquired by the purchase of these stock certificates.”

These explanations are altogether unsatisfactory, for it cannot be believed that Dr. Rosner, an' experienced attorney, and Mr. Thorsch, a capable business man and banker, could have understood that the Werners would be liable to Mr. Thorsch because of the seizure of the shares two years after they were sold to him, or that the Werners could prevent a sale of Mr. Thorsch’s shares by informing the Custodian that the shares belonged to them. Moreover, it does not appear how or why they had learned that Mr. Thorsch had failed to have the shares transferred to his own name, “as far as the knowledge of the American government was concerned,” during the two years succeeding his alleged purchase of them. It may be noted here that the Werners were requested to testify by deposition in this ease, but they refused to do so, and the only witnesses who testified to the alleged sale were Mr. Thorsch and Dr. Rosner.

Without extending this review of the record, we may say that the burden of proof respecting the ownership of the stock rested upon the claimant, and that he has failed to discharge that burden.

The decree of the lower court is therefore affirmed, with costs.

Appeal allowed to United States Supreme Court June 13, 1925.


source: Caselaw Access Project

author: MARTIN, Chief Justice.

license: Public Domain

text:
    UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. O’SHEA.
    (Court of Appeals of District of Columbia,.
    Submitted December 3, 1924.
    Decided April 6, 1925.)
    No. 4107.
    1. United States <@=>52|/2, New, vol. I9A Key-No. Series — Admiralty law, adopting by reference provisions of Employers’ Liability Act, applies as well to vessel controlled by Emergency Fleet Corporation as to privately owned vessels.
    Admiralty Law Act May 4, 1915, § 20, as amended by Act June 5, 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), adopting by reference provisions of Employers’ Liability Act April 22, 1908, and amendments (Comp. St. §§ 8657-8665, 1010), for benefit of seamen injured in course of employment, applies as well to vessels owned by United States Shipping Board Emergency Fleet Corporation as to merchant vessels privately owned.
    2. United States <®=>52!/2, New, vol. I9A Key-No. Series — Emergency Fleet Corporation held liable as operator of vessel which was in fact in control and management of agent.
    United States Shipping Board Emergency Fleet Corporation held, liable to injured seaman, under Act March 4, 1915, § 20, as amended by Act June 5, 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), as operator of vessel, though at time of accident vessel was in fact operated and managed by shipping company as agent' for Fleet Corporation.
    3. United States <@=>52!/2, New, vol. I9A Key-No. Series — Emergency Fleet Corporation cannot escape liability to injured seaman on ground that it is public agent, not liable to suit.
    United States Shipping Board Emergency Fleet Corporation cannot escape liability to injured seaman, under Act March 4, 1915, § 20, as amended by Act June 5, 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), on theory that it was acting as public agent, and as such not liable to suit.
    4. Seamen <@=>29(5) — Evidence held to show negligence of officers of vessel in unnecessarily exposing seaman to danger.
    Evidence held to show negligence of officers of vessel, operated by Emergency Fleet Corporation, in requiring seaman to unnecessarily expose himself to danger in effort to replace fuel oil in tanks from which it had escaped during rough weather.
    5. Seamen <g=>29(4) — Seaman, undertaking dangerous work at direction of officer, held not chargeable with assumption of risk.
    Seaman, who under pain of penalties undertook dangerous and unnecessary work at direction of officers of vessel, held not chargeable with assumption of risk.
    Appeal from Circuit Court of District of Columbia.
    Action by Jeremiab O’Shea against the United States Shipping Board Emergency Meet Corporation. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    ■ F. D. McKenney, J, S. Mannery, and G. B. Craighill, all of Washington, D. C., for appellant.
    Willis Crane, H. L. Lohnes, and F. B. Dow, all of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.
   MARTIN, Chief Justice.

Jeremiah O’Shea, as plaintiff, secured a verdict in the lower court against the United States Shipping Board Emergency Fleet Corporation in the sum of $25,000, as damages for personal injuries sustained by him on January 7, 1921, while employed as a boatswain on the steamship Dungannon, alleged to have been operated at the time by the defendant corporation. After the filing of a remitti-tur, the lower court entered judgment upon the verdict in the sum of $15,000, whereupon the defendant appealed.

The testimony sufficiently tends to prove the following facts: That the Dungannon was owned by the United States, and was operated as a merchant vessel by the Emergency Fleet Corporation, and that the plaintiff, an experienced seaman, was employed at the time as boatswain upon the ship; that the vessel was an oil-burning ship, and was .equipped with a storage tank for fuel oil in front of the cargo space; that while on the high seas, bound for the port of New Orleans, the plaintiff discovered that the cargo space was flooded with several hundred barrels of fuel oil, 'which had escaped from the tank through the manholes, the oil being about four feet deep at the rear of the cargo space, the depth diminishing forward; that the plaintiff reported this to the chief mate, whereupon, during the next five days, although the weather was cold and stormy and the sea rough, the captain ordered and compelled the plaintiff and seamen to- work in the hold trying to get the oil back through the manholes into the tank; that they rigged np a half barrel on wheels and attempted to dip the oil into it with pails, and then roll it to the manholes and empty the oil into the tank, first rigging up four life lines for support between the stanchions; that the deck of the hold was slippery and the air. filled with fumes, the ventilation being bad because of the partly closed hatches, made necessary by the weather, the oil moving with the roll of the ship, and they were compelled to work in underclothes and with bare feet, and to bathe in gasoline twice a day to get the oil off; that because of these conditions the plaintiff and men objected and protested to the chief mate that it was “a dangerous job for any man to try to save his life down there,” and that “it was no place for men to work, almost naked, as it was getting cold,” but the mate replied that he could not help it, as the master wanted the oil out of the cargo space before the vessel reached New Orleans; that the men complained to the captain, who in the hearing of the plaintiff read the regulations to them, and said that he would land them on the Bermuda Islands within an hour, if they did not go back to work; that the plaintiff also told the captain that “it was impossible for any man to work down there without being killed from gas or killed by slipping as the vessel was beginning to roll”; that on the fifth day .the weather was worse, the ventilators being shut to keep the sea out, whereupon the plaintiff again complained to the captain that conditions were desperate, and after a time'he was ordered to put the plates on the manholes and stop work; that, while attempting to put the plates in position, the plaintiff was thrown violently upon the iron coaming surrounding one of the manholes, thereby suffering severe and permanent physical injuries. Before attempting to fasten the plates upon the manholes, the plaintiff told the mate that he did not think he could put them on, “because, if he let go the life line, he would get killed,” and “that the oil was far down in the tank, so that it was not necessary to put the plates on, and it was a dangerous job,” .to which the mate replied that he knew it, but the captain wanted them on.

The plaintiff’s action was brought under section 20 of the Act of March 4, 1915, as amended by section 33 of the Act of June 5, 1920, 41 Stat. 1007 (Comp. St. Ann. Supp. 1923, § 8337a), which provides that “any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in eases of personal injury to railway employees shall apply.” Prior to that enactment the admiralty law of this country did not afford such a right or remedy for seamen. The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760; The Iroquois, 194 U. S. 240, 24 S. Ct. 640, 48 L. Ed. 955; Southern Pacific Company v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Chelentis v. Luekenbaek S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State of Washington v. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646. The terms of the cited act, however, extended the admiralty law as above stated, adopting by reference the provisions of the. Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65, and its amendments (Comp. St. §§ 8657-8665, 1010), for the benefit of seamen who suffer personal injury in the course of their employment. The Employers’ Liability Act permits of the recovery of damages from common carriers, by any person suffering injury while employed by such carriers, for such injury as results in whole or in part from the negligence of any of the officers of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, and other equipment.

The appellant presents various contentions in support of its appeal. The first one challenges the constitutionality of section 33 of the Act of June 5, 1920, supra; but since the brief was written the Supreme Court has-held the enactment to be constitutional. Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748.

The appellant next contends that the foregoing enactment, if constitutional, applies only to merchant vessels not owned by the United States; but we find no warrant in the letter or spirit of the act for such a limitation when the vessel is operated by others as in this case. The appellant also denies that the Dungannon was in fact operated by the Fleet Corporation at the time of the accident, claiming that it was then managed, controlled, and operated by the Columbus Shipping Company. This claim cannot be sustained, for the evidence discloses that the latter company was merely acting as the agent of the Fleet Corporation in tlie management and operation of the vessel. Cox v. Lykes Bros., 237 N. Y. 376, 143 N. E. 226; Shea v. U. S. S. B. Emergency Fleet Corporation (Sup.) 202 N. Y. S. 809.

The appellant also urges that the Fleet Corporation, in so far as it acted at all, was acting as a public agent, and as such could not be sued. Such a claim, however, is not tenable. See United States v. Strang, 254 U. S. 491, 41 S. Ct. 165, 65 L. Ed. 368; Sloans Shipyards Corporation v. Emergency Fleet Corporation, 258 U. S. 549, 42 S. Ct. 386, 66 L. Ed. 762; Providence Eng. Corp. v. Downey Shipbuilding Corp. (C. C. A.) 294 F. 641; Gould Coupler Co. v. Emergency Fleet Corp. (D. C.) 261 F. 716; Haines v. Lone Star Shipbuilding Co., 266 Pa. 92, 110 A. 788; Eichberg v. Emergency Fleet Corporation, 51 App. D. C. 44, 50, 273 F. 886.

The appellant furthermore contends that the evidence in the case failed to sustain the charge of negligence upon the part of the officers of the vessel. That contention, must be overruled upon the facts appearing in the record; for the officers did not exercise reasonable care for the plaintiff’s safety, when they required him to perform the work in question under the circumstances disclosed by the evidence. It is conceded that a ship’s officers may be justified under given circumstances in ordering seamen into positions of great personal peril in the performance of their duty; but no such circumstances existed in this case. Neither the safety of the vessel nor the preservation of the cargo required that the oil should be cleaned up while the ship was at sea in such weather, nor was the oil then needed for the operation of the ship. The plaintiff in fact was needlessly exposed to obvious danger of great bodily harm by the imperative command of the ship’s officers; this was negligence upon the part of the officers, and the plaintiff’s injury was the direct result of it.

It is next contended by the appellant that the plaintiff assumed “the risk of conditions which were plainly observable and appreciated by him,” and therefore cannot recover for the resulting injuries. This argument is answered at present by the fact that the doctrine of “assumption of risk” implies at least some measure of freedom of action upon the part of the employee, whereas in this instance the plaintiff was compelled under penalties to obey the order of his officers. The doctrine, therefore, does not apply to the proven facts of the ease. Parry v. Cricket (C. C. A.) 263 F. 523; Panama v. Johnson, 289 F. 967; Eldridge v. Atlas Steamship Co., 134 N. Y. 187, 32 N. E. 66; Shearman & Redfield on Negligence, vol. 1 (6th Ed.) §§ 207, 211a.

Various other questions are presented by the appellant, but we find no error in the record, and accordingly affirm the judgment of the lower court, with costs.


text:
    PALM et al. v. BACHRACH, Inc., et al. BACHRACH, Inc., v. PRINCESS CO. et al.
    (Court of Appeals of District of Columbia.
    Submitted March 5, 1925.
    Decided April 6, 1925.)
    Nos. 4169, 4170.
    1. Fixtures <®=»I4 — Right of seller of elevator to remove it for default in payment, held superior to rights of lessee or lessor of building in which it was installed.
    Conditional sale of electric freight elevator to lessee expressly reserving the right to enter the building and stipulating that the material remained seller’s property until final payment, effectually reserved the right to remove it in case of default in stipulated payments, and such right was superior to any right which either lessee or his lessor then acquired in the elevator as being a fixture.
    2. Fixtures @=»I4 — Rights of one installing elevator under conditional sale contract with lessee held not affected by subsequent assignments of lease.
    Rights of one installing elevator in building under conditional sale contract with lessee held not affected by lessee’s assignment of lease to one who gave renewal note for balance due on elevator, or by a second assignment to corporation, without reference to elevator or remaining indebtedness thereon.
    3. Fixtures <S=»14 — Assignee of lease, claiming no title to property, held not in position to attack conditional seller’s right to retake it on ground that conditional sale contract was not acknowledged and recorded.
    Where second assignee of lease did not claim to have purchased or to be owner of an elevator installed in leased premises under conditional sale contract with lessee, he could not attack seller’s right to remove such elevator for default in payment of purchase price, on ground that contract was not acknowledged and recorded as required by D. C. Code, § 547; that section being applicable only to third persons “acquiring title to the said property from said purchaser.”
    4. Contracts <©=> 186(f) — Decree requiring bank to satisfy purchase-money lien on elevator installed under contract with lessee out of collateral pledged with it by assignee of lessee, who had assumed debt, held unwarranted.
    In action by second assignee of lease to .enjoin removal of elevator conditionally sold to original lessee, where note given by plaintiff in consideration of the assignment to him had been pledged with bank as collateral for loan by first assignee, who had assumed lessee’s indebtedness on elevator, helá, plaintiff was not entitled to decree requiring such bank to pay amount due out of collateral held by it in excess of amount of its claim.
    Appeal from Supreme Court of District of Columbia.
    Suit by Baehraeh, Incorporated, against Blake Palm, trading as Blake Palm & Bro., the Princess Company, and the District National Bank of Washington. From a decree granting partial relief, the first-named defendant and plaintiff both appeal.
    Decreé reversed, and cause remanded, with directions.
    W. H. White, of Washington, D. C., for Palm and others.
    Morris Simon, Lawrence Koenigsberger, Eugene Young, W. E. Lester, R. P. Barnard, and G. H. Johnson, all of Washington, D. C., for Bachrach, Incorporated, and others.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   MARTIN, Chief Justice.

This is an appeal from a deeree of the lower eourt enjoining Blake Palm from removing a certain electric freight elevator, whether by legal process or otherwise, from its location in a certain building in the city of Washington; he being about to replevin the elevator under a'conditional sale contract. The facts are stipulated by the parties.

On August 10, 1918, Beyer, as owner, made a lease of certain premises in the city of Washington to Cary for the term of 10 years, commencing September 1, 1918, at a certain monthly rental, the premises to be used for a confectionery and lunch business. It was stipulated in the lease that all improvements made by the lessee upon the demised premises should become the property of the lessor at the termination of the lease, except the furniture, fixtures, or improvements of the lessee used in connection with the conduct of his business, such as soda fountain, counters, showcases, kitchen outfit, etc. The lease was duly recorded on August 28, 1918.

On September 7, 1918, while Cary was in possession of the premises under the lease and was conducting his business therein, he entered into a written agreement with Palm whereby the latter agreed to furnish and install an electric freight elevator and equipment in the premises for the sum of .$4,080, upon terms of $1,500 cash and a note for the balance, payable at the rate of $50 per month. It was stipulated in the agreement that Palm reserved the right to enter the building, and that the material should remain his property until final payments be made. The elevator was installed by Palm in accordance with the agreement; the note was given, and partial payments were made upon it, but at the commencement of this suit the sum of $1,568.40 was due and unpaid thereon. The conditional sale was not acknowledged until June 24, 1919, and was not recorded until July 9, 1919.

On June 2, 1919, Cary, with the consent of the lessor, assigned the lease, together with the personal property in the premises, to the Princess Company, of which he was president. At the same time the Princess Company gave its note to Palm for the sum of $1,568.40 as the balance due upon the conditional sale agreement; the note being indorsed by Cary personally before its delivery to Palm. The company continued the business until the latter part of 1919, when it became financially embarrassed and discontinued it.

On February 4, 1920, the Princess Company, with the consent of the lessor, entered into a written agreement with Baehraeh, Incorporated, whereby the former assigned the lease to the latter, omitting, however, to transfer or convey therewith the electric freight elevator in question. As consideration for the assignment of the lease, Bach-raeh executed and delivered its promissory note to the company in the sum of $46,750, payable in monthly installments of $458.33 each, and also agreed to assume the liabilities of the company as assignee of the lease including the payment of the monthly rental for the premises as stipulated therein. On' March 18, 1920, the note aforesaid was hy-pothecated by the Princess Company to the District National Bank as collateral for a loan made to it by the bank in the sum of $28,000. The bank still holds the collateral, although the debt due from the company has since been reduced by partial payments to the sum of $19,352. At the time of the loan the bank had no knowledge of the transactions relating to the elevator.

Prior to the filing of the bill Palm threatened to repossess himself of the elevator by replevin unless the balance of his debt be paid, whereupon Baehraeh began this suit for an injunction, and “for the purpose of having the respective rights of all the parties hereto adjudicated.” It is conceded that the material furnished by Palm for the elevator is the ordinary and usual kind purchasable in the market, and is capable of removal from the building without injury to the shafts, and of being replaced by another elevator of the same hind, or a different kind.

It is claimed by Palm that he is entitled to remove the elevator under the conditional sales agreement, unless the unpaid balance of the purchase money be paid to him. It is claimed by Bachrach that that agreement was not acknowledged or recorded as required by law, that it had neither actual nor constructive notice of the agreement when the lease was assigned to it, that the elevator was a fixture in the building, and that claimant was entitled to the possession and use of it as a tenant under the lease. It claims furthermore that, if it should be held that the unpaid balance aforesaid is a lien upon the elevator, the court should order the amount to be paid by the Princess Company, or by the District National Bank, from the collateral held by it in excess of the debt due to the bank from that company.

Upon these conflicting claims the lower court entered a permanent injunction against Palm, enjoining him from proceeding by replevin or otherwise to recover possession of the elevator, from which decree Palm has appealed. Bachrach also has ap-. pealed as a means of preserving its claim against the Princess Company and the bank in event of a reversal of the decree of the lower court in respect to Palm’s claim.

We cannot agree with the conclusion reached by the lower court. When Palm installed the elevator under the conditional sales agreement, he effectually reserved the right to remove it in ease of a default in the stipulated payments. That right was superior to any right which either Cary or his lessor then acquired in the elevator. In other words, neither of them was entitled to defeat Palm’s rights by claiming that the elevator had become a fixture upon the premises, and therefore was not removable under the conditional sale agreement. Mott Iron Works v. Middle States Co., 17 App. D. C. 584; Holt v. Henley, Trustee, 232 U. S. 637, 34 S. Ct. 459, 58 L. Ed. 767; Detroit Co. v. Sistersville Br. Co., 233 U. S. 712, 34 S. Ct. 753, 58 L. Ed. 1166; Tiffany, Landlord and Tenant, vol. 2, § 247.

When Cary assigned the lease, together with the elevator and other effects, to the Princess Company, and that company executed a renewal note to Palm for the balance owing under the contract, the rights of Palm as against both the company and the lessor respecting the elevator were the same as his former rights against Caiy and the lessor. Afterwards, when the Princess Company assigned and transferred the lease to Bachrach without reference to the elevator, the rights of Palm were not affected by the transaction. It should be noted that Bach-raeh does not claim to have purchased the elevator, nor to be the present owner of it, consequently the argument respecting the acknowledgment and recording of the conditional sale contract is irrelevant.

The statute governing that subject, section 547, Code D. C., reads in part as follows: “No conditional sale of chattels in virtue of which the property is delivered to the purchaser, but by the terms of which the title is not to pass until the price of said chattels is fully paid, where the purchase price exceeds one hundred dollars, shall be valid as against third persons acquiring title to said property from said purchaser without notice of the terms of said sale, unless the terms of said sale are reduced to writing and signed by the parties thereto and acknowledged by the purchaser and recorded in the same manner as a chattel mortgage,” etc.

This enactment does not apply to the present case, since Bachrach is not a third person “acquiring title to said property from said purchaser,” and accordingly is not within the terms of the statute. Moreover, Baeh-raeh does not hold under a demise of the premises made by the owner subsequent to the installation of the elevator, but as as-signee of a lease .made prior to that time. Under the terms and conditions of the assignment Bachrach acquired no greater rights in the premises than those possessed by its assignor. It may be noted that the lessor of the premises is not a party to this record, but, since Bachrach claims as a lessee, the rights of the lessor have been considered herein.

Nor do we find that Bachrach is entitled to the relief claimed by it against the District National Bank. There is no privity of contract between the two, nor is there any allegation of fraud or insolvency against any of the parties. Nor can its claim against the Princess Company be adjudicated in this ease. Accordingly these parties should be dismissed from the case.

The decree of the lower court is reversed, and the cause is remanded, with directions to vacate the injunction against' Palm, and to enter a decree finding the amount due to him under the conditional sale agreement, and enjoining Bachrach from interfering with the removal of the elevator by Palm, if that amount be not paid.

Reversed, with costs against Bachrach, Incorporated, and remanded.


text:
      J. E. BATES & CO., Inc., v. A. J. BATES CO.
    (Court of Appeals of District of Columbia.
    Submitted January 19, 1925.
    Decided April 6, 1925.)
    No. 1714.
    Trade-marks and trade-names and unfair competition <@=a2l —Division of assets on dissolution of partnership held to entitle assignee of one partner to registration of trade-mark.
    Dissolution of partnership which had been using particular trade-mark, and transfer of shoe factory to one partner, with all assets . pertaining thereto, held to transfer right to use that mark and authorize such partner’s as-signee to registration of mark under 10-year clause of Act Feb. 20, 1905, § 5 (Comp. St. § 9490).
    Appeal from Commissioner of Patents.
    Proceeding for cancellation of trade-mark by J. E. Bates & Co., Ine., against the A. J. Bates Company. Decree for the latter, and the former appeals.
    Affirmed.
    W. F. Hall, of Washington, D. C., for appellant.
    E. T. Fenwick, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.
   MARTIN, Chief Justice.

This is an appeal by J. E. Bates & Co., Inc., from a decision of the Assistant Commissioner of Patents, denying a petition of the appellant, seeking a cancellation of the registration of “The Bates Shoe” as a trade-mark of the appellee.

The record contains extended evidence, but the controlling facts are plain. In the year 1866 A. J. Bates and J. E. Bates were co-partners, engaged in the wholesale and retail shoe business in New York City. In the year 1885 the firm, as part of its going business, established a shoe factory at Webster, Mass. From 1886 until 1905 the factory put out certain lines of shoes under the trade-name of “The Bates Shoe,” chiefly but not exclusively for sale at the company’s New York store. In the year 1905 the partnership was dissolved by mutual agreement, and the assets, including the factory and store, were divided between the two partners. In conformity with the terms of the agreement, the firm made over to the partner A. J. Bates the said factory, including all the property of the copartnership of every name and nature owned by the firm in and about Webster, Mass., consisting of all machinery, tools, implements, lasts, and other personal property used in the manufacture of shoes at the “plant of said firm” in Webster, including all merchandise and stock on hand, whether raw material, finished or unfinished, all bills receivable standing on the books of the firm at Webster, whether in the name of the firm or in the name of the Webster Shoe Company, all notes payable to said firm at Webster, all cash on hand or in bank in Webster, all unexpired insurance, “and other assets of every name and nature pertaining to the business at Webster, Mass., intending to include hereby not only the items above specifically mentioned, but all others that may be there located.” By the terms of the agreement the partner, J. E. Bates, acquired the New York store.

The trade-mark now in question had not been registered prior to this time, but in January, 1906, the appellee, A. J. Bates Company, as assignee of A. J. Bates, filed an application for its registration, and it was regularly registered on June 5, 1906, under the 10-year clause of section 5 of the. Act of February 20, 1905 (Comp. St. § 9490). The mark has been used continuously by A. J. Bates and the appellee, as his successor, at the Webster factory since that time. •

The appellant, J. E. Bates & Co., Inc., in succession to J. E. Bates, continued the business of the New York store, and in 1918 also established a factory for the manufacture of shoes. In 1922 the appellant filed the present petition for a cancellation of the trademark in question. The petition was sustained by 'the Examiner of Interferences, but upon appeal was dismissed by the Assistant Commissioner of Patents.

The facts above recited fully justify the conclusion that the transfer to A. J. Bates of the Webster factory, with all of its assets, carried with it all of the firm’s rights in and about the factory as a going business, including the trade-marks or trade-names under which the factory’s production had been put out and marketed, and that among these was the mark “The Bates Shoe,” which at the time of the dissolution had been in continuous use by the factory for more than 10 years. Accordingly, under the 10-year provision of the statute, the registration of the mark was lawful, and the Assistant Commissioner was correct in denying the appellant’s petition for its cancellation.

The decision is therefore affirmed.


author: ANDERSON, Circuit Judge.

text:
    HORWITZ v. UNITED STATES. LIPSITT v. SAME.
    (Circuit Court of Appeals, First Circuit.
    May 5, 1925.)
    Nos. 1672, 1673.
    1. Conspiracy <§=23 — Success or failure of conspiracy to defraud is immaterial in prosecution therefor. '
    In prosecution for conspiracy to defraud the United States, success or failure of conspiracy is immaterial.
    2. Conspiracy <§=33 — Intoxicating liquor is merchandise, and conspiracy to avoid statutory provisions relating to manifest, etc., would be conspiracy to d'efraud United States.
    Under Rev. St. § 2766 (Comp. St. § 5785), intoxicating liquor is still merchandise, and can only be imported under provisions of Rev. St. §§ 2770, 2806-2809, 2872, 2884 (sections 5466, 5503-5506, 5576), as to manifest, ports of entry, right of inspection, etc., and for permits under National Prohibition Act, tit. 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138%aa) and Regulations of Treasury Department, Prohibition Unit, §§ 1630, 1631, 1637 et passim; and conspiracy to avoid any of these provisions by smuggling liquor into United States would be conspiracy to defraud United States.
    3. Conspiracy <@=47 — Evidence held to warrant finding that cablegrams constituted overt acts committed in district in conspiracy to defraud government.
    Evidence held to warrant finding that cablegrams constituted overt acts committed in district of prosecution for conspiracy to defraud United States by smuggling liquor into country.
    4. Criminal law <§=970(I) — Presence of special assistant United States attorney in grand jury 'room held not ground for arrest, of judgment.
    Motion to arrest judgment after verdict, on ground that special assistant United States attorney had improperly been allowed in grand jury room during presentation of evidence leading to indictment, was properly denied, where he had been directed by letter from Attorney General to conduct grand jury proceedings, and district attorney directed him to assist in the presentation of evidence in particular case, though Attorney General’s letter did not designate particular case.
    5. Criminal law <§=972 — Judgment will be arrested after conviction only for matter of record rendering judgment erroneous.
    General rule is that judgment will be arrested after conviction only for matter of record rendering judgment erroneous, evidence being no part of record for such purpose.
    In Error to the District Court of the United States for the District of Massachusetts; Julian W. Mack, Judge.
    Israel Horwitz and Joseph Lipsitt were convicted of conspiring to defraud United States hy smuggling intoxicating liquors into the United States, and they bring error.
    Affirmed.
    Leo A. Rogers, of Boston, Mass. (Daniel A. Shea, of Boston, Mass., on the brief), for plaintiffs in error.
    George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Atty., of Boston, Mass., on the brief), for the United States.
    Before BINGHAM, JOHNSON, and ANDERSON, Circuit’ Judges.
   ANDERSON, Circuit Judge.

On December 16,1921, Israel Horwitz, Joseph M. Bar-bosa, Joseph Lipsitt, Roy Texeira, William S. Senior, and A. B. Cotnoir were indicted for conspiring at New Bedford to defraud the United States, by causing “to be clandestinely brought into the United States,” by the schooner Romance, from foreign ports, large quantities of intoxicating liquor of foreign manufacture, planning to conceal the liquor aboard the Romance “with the view and purpose of depriving” the government and its officers “of the right to inspect said liquors for the . purpose of ascertaining whether the said liquors should be landed into the United States.”

The indictment then alleges various purchases of liquor in foreign ports by Barbosa, Texeira, and Horwitz. As overt acts, it is 'alleged that Horwitz, on October 28, 1921, sent a cablegram to Lipsitt at New Bedford, relative to this intoxicating liquor, and that Lipsitt at New Bedford, on the same date, received said cablegram and also sent a cablegram to Horwitz at Bermuda “relative to said intoxicating liquor which was then and there on board thé said vessel called Romance.” Also that Cotnoir, on November 11, 1921, at New Bedford, made arrangements with Lipsitt to furnish boats to meet the schooner on arrival; and that on November 19, 1921, Senior caused the schooner carrying intoxicating liquor to enter the New Bedford harbor for the purpose of landing said liquor in the United States.

At the trial before Circuit Judge Mack in August, 1922, a ver’diet of guilty was returned against defendants Horwitz, Lipsitt, Senior, and Texeira, and of not guilty against the defendants Barbosa and Cotnoir.

On October, 1922, the United States attorney entered a nolle prosequi against Senior, on the ground that he had been “of material assistance to the government in the investigation and trial of this ease.” Texeira was sentenced to pay a fine of $100, and Horwitz and Lipsitt were sentenced to pay fines of $500 each and to be imprisoned in the House of Correction for three months each. Horwitz and Lipsitt have brought the ease to this court on writs of error.

The record is bulky, containing the evidence, somewhat abbreviated, of nineteen witnesses, including the six defendants, as well, by reference, of a very large number of exhibits. Not unnaturally, the evidence was markedly conflicting, fully justifying the observation of the trial court in his charge to the jury: “It is perfectly clear, I take it, that there has been some pretty tall lying done in this case.”

The ease was, in essence, one of fact for the jury, in which credibility played a large part. It was submitted to the jury under instructions, admittedly containing all legally necessary precautions as to the weight to be given to the evidence of an accomplice. Senior, captain of the Romance, testified for the government.

In outline: There was evidence tending to show that Capt. Senior was a one-third owner of the Romance; that the other two-thirds belonged to the Insular Trading Company, a group of Portuguese and American citizens, of which the defendants Texeira and Barbosa were respectively president and treasurer; that in early July, 1921, an agreement, or conspiracy, was entered into at New Bedford, pursuant to which, on July 14, 1921, the Romance cleared for Cape Verde Islands under Senior’s command, with Tex-eira on board listed as a messman; that at the Islands, Senior met the defendants Bar-bosa, Cotnoir, and Horwitz; that these three were signed on as members of the crew at a wage of $5 a month, which was in fact not paid; that Lipsitt, a lawyer and a brother-in-law of Horwitz, stayed in New Bedford; that substantial quantities of liquor were bought in French and Portuguese possessions; that cablegrams were sent by Horwitz to Lipsitt in New Bedford; that at Brava, Horwitz told Senior that he (Horwitz) was to arrange to send Cotnoir by steamship from Bermuda to New Bedford; that he (Horwitz) had arranged with Lipsitt to have a boat come out to meet the Romance off No Man’s Buoy on Friday, November 18; that the schooner arrived off No Man’s Buoy at 2 a. m., Saturday, November 19; that the weather was then foggy; that during the morning, Horwitz said the boat which was to meet them ought to be out at any time; that the crew, under Senior’s direction, started to get the cargo of whisky and liquor on deck; that about 2 p. m. a revenue cutter came in sight, necessitating a change of program; that in the manifest which had previously been made out, showing no liquor, Senior then inserted an item showing the liquor; that about 7 or 8 o’clock in the evening, while the revenue cutter was bringing the Romance in, Capt. Senior was hailed by some one in a motorboat, whose voice he recognized as that of the defendant Cotnoir; that other evidence indicated that this was the boat sent pursuant to the plan for landing the liquor as originally made.

The gist of the alleged crime is, of course, the conspiracy to defraud; its success or failure is immaterial. United States v. Rabinowich, 238 U. S. 78, 86, 35 S. Ct. 682, 59 L. Ed. 1211.

Defendant’s fundamental contention is that there was no evidence for the jury of a conspiracy to defraud the United States. The argument is 'that, as R. S. § 3082 (Comp. St. § 5785), was held by a majority of this court in Bruno v. United States (C. C. A.) 289 F. 649, inapplicable to liquor smuggling, the United States could not be thus defrauded by such smuggling, pending reinstatement of section 3082 by the Supplemental Prohibition Act of November 23, 1921, 42 Sts. p. 222, § 5 (Comp. St. Ann. Supp. 1923, § 10138%c). This contention is unsound. Section 3082 was held inapplicable to liquor smuggling simply on the ground that the penalty therein provided for that offense was greater than the penalty for the same offense provided in the National Prohibition Act, title 2, § 29 (Comp. St. Ann. Supp. 1923, § 10138%p). But this court did not hold that all the other provisions, both of the old customs law and of the new prohibition act, were not applicable to importations of intoxicating liquor. Liquor is still merchandise. R. S. § 2766 (Comp. St. § 5462) United States v. Santini (C. C. A.) 279 F. 534. It can only be imported under the provisions 'as to manifest, ports of entry, right of inspection, etc., found in the old customs law, R. S. §§ 2770, 2806-2809, 2872, 2884 (Comp. St. §§ 5466, 5503-5506, 5576); and for permits found in the National Prohibition Act, title 2, § 3 (Comp. St. Ann. Supp. 1923, § 10138%aa), and Regulations of the Treasury Department, Prohibition Unit, §§ 1630, 1631, 1637 et passim. A conspiracy to avoid any of these applicable provisions would be a conspiracy to defraud the United States. Cf. Curley v. United States, 130 F. 1, 64 C. C. A. 369,

The defendants also contend that the evidence failed to establish any of the overt acts alleged within this district. Plainly this is not so. The evidence warranted the jury in finding that Lipsitt, in New Bedford, received from Horwitz a cablegram relative to the intoxicating liquor, and that Lipsitt, in New Bedford, sent a cablegram to Horwitz at Bermuda. It is true that the cablegrams do not in express terms refer to the liquor. Horwitz’ first cablegram sent from Dominica, October 28, 1921, to Lipsitt, reads:

“Do you need Barboza. Rush answer. Two days rough trip.”
And Lipsitt’s answer sent from New Bed-ford on the same day reads:
“Send Barboza by steamer from Bermuda.”

But these cablegrams, read in connection with the evidence, fully warranted, perhaps required, the jury to find that they were sent and received as communications relative to the intended unlawful landing of the liquor at or near New Bedford. Barbosa and Cot-noir both left the Romance at Bermuda and came bach to New York by steamship, and thence to New Bedford, thus arriving a day or two before the Romance. The jury were not required to believe their testimony as to their reasons for choosing this method of reaching New Bedford ahead of the Romance.

It is not necessary to refer to many other parts of the record which might well have led the jury to conclude that these cablegrams had no purpose except to effectuate the conspiracy entered into the previous July. Burton v. United States, 202 U. S. 344, 373, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Humes v. United States, 170 U. S. 210, 212, 18 S. Ct. 602, 42 L. Ed. 1011. We need not consider whether there was evidence for the jury of other overt acts within this district.

After the verdict, the defendants Horwitz and Lipsitt moved that the judgment be arrested, on the ground that a special assistant United States attorney had improperly or illegally been allowed in the grand jury room during the presentation of the evidence which led to the indictment.

It appeared that, under date of April 22, 1921, the special assistant United States attorney received from the Attorney General an appointment, the material parts of which are as follows:

“You are hereby appointed a special assistant to the United States attorney, district of Massachusetts, in the following cases: (Then follows a list of six cases, not including the eases now at bar) and in such other cases and matters as may be assigned to you. You are hereby authorized and directed to conduct grand jury proceedings in the district of Massachusetts in connection with these cases and matters, including such as may be assigned to you hereafter. * * * ”

It is agreed that this special assistant United States attorney appeared before the grand jury in this case, and had no authority other than this letter of appointment directly from the Attorney General, but did have oral direction from the United States attorney for this district to appear before the grand jury and assist in the presentation of the evidence against the said defendants.

In the District Court, the motion was denied, on the ground that the letter of the Attorney General, supplemented by the oral direction of the United States attorney, was sufficient to authorize the presence of the special assistant United States attorney in the grand jury room, and that his presence did not,, as matter of law, invalidate the indictment.

The exact question now sought to be raised by the plaintiffs in error was before Judge Morton on motion to quash, seasonably and properly made, in United States v. Martins (D. C.) 288 F. 991, who ruled as did Judge Mack, in the case at bar.

This precise question seems not to have been determined by the Supreme Court or by any Court of Appeals. On this record, it is unnecessary to decide whether, if the question had arisen on a motion to quash, the indictment would have been held invalid.

Plainly, the general rule is that judgment in a criminal case will, after conviction, be arrested only for matter appearing of record which would render the judgment, if entered, erroneous; the evidence being no part of the record for such purpose. The motion for arrest was properly denied. Compare May v. United States, 236 F. 495, 500, 149 C. C. A. 547, and cases cited; United States v. Maxey (D. C.) 200 F. 997; United States v. Rosenthal (C. C.) 121 F. 862; United States v. Heinze (C. C.) 177 F. 770.

In each case the judgment of the District Court is affirmed.


author: ROSS, Circuit Judge.

text:
    HACKER v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    April 6, 1925.
    Rehearing Denied May 11, 1925.)
    No. 4434.
    1. Criminal law <5=878(4) — Conviction for conspiring to maintain nuisance held not inconsistent with acquittal for sale and possession.
    Conviction for conspiring to maintain common nuisance by unlawfully selling intoxicating liquor on premises, in violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), under one count, helé not inconsistent with acquittal for sale and possession of liquor charged in other counts.
    2. Conspiracy <5=47 — Evidence held to sustain conviction for participating in conspiracy to maintain common nuisance in violation of National Prohibition Act.
    Evidence helé to sustain conviction of attorney for roadhouse for participating in conspiracy to maintain roadhouse as common nuisance, in violation of National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.).
    In Error to the District Court of the United States for the District of Nevada; Edward S. Earring-ton, Judge.
    W. L. Hacker was convicted of participating in conspiracy to maintain common nuisance in violation of National Prohibition Act, and he brings error.
    Affirmed.
    L. B. Fowler, of Reno, Nev., for plaintiff in error.
    George Springmeyer, U. S. Atty., and Chas. A. Cantwell, Asst. U. S. Atty., both of Reno, Nev., and George A. Whiteley, Asst. U. S. Atty., of Carson City, Nev.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   ROSS, Circuit Judge.

The plaintiff in error was, with Lee Rickman, Louis Svee, Jack 'Wirt-, Ellen Wirt, and T. J. Grant, charged with having on the 7th day of April, 1923, and within the jurisdiction of the court below, unlawfully and corruptly conspired together to, among other things, “maintain a common nuisance at and in those certain premises situated on the Virginia road, county of Washoe, state and district of Nevada, commonly known as and called.“ ‘Quinn’s Resort,’ by unlawfully, willfully, and knowingly keeping therein for sale intoxicating liquor, to wit, whisky, in violation of the National Prohibition Act, * * * and that such conspiracy continued and was in process of execution by said defendants during all the times from on or about the 7th day of April, 1923) to on or about the 23d day of August, 1923, and at the times of the commissions of each and every of the overt acts in this count hereinafter set forth.” That count (which was the first of the indictment) then proceeded to set out various overt acts alleged to have been committed by the defendants, including the plaintiff in ' error Hacker.

The remaining 27 counts of the indictment charged the defendants, including the plaintiff in error Hacker, with having, at various specified times within the jurisdiction of the court, knowingly and unlawfully sold or possessed intoxicating liquor. The plaintiff in error was found guilty under the first count, but acquitted under each of the remaining 27 counts. We see no inconsistency in the verdicts. The plaintiff in error is an attorney at law, and as such represented the owner of the Quinn Resort property in a suit brought by the government to abate it as a nuisance, and in that capacity, according to the record, made and argued a motion May 14, 1923, to dismiss that proceeding, and on July 10, 1923, made and, argued a motion for the postponement of the trial of that action.

The record in those proceedings was offered in evidence by the government, and admitted (over- the objections of the plaintiff in error), as showing his connection with the transactions oeeurriñg in the roadhouse, called Quinn’s Resort, alleged in the indictment. Some of those transactions were thus stated by the witness Hemphill for the government :

“I am a general prohibition agent, with headquarters at Los Angeles. I am acquainted with the defendants W. L. Hacker, Louis Svee, and Mrs. Ellen Wirt. I was first in Quinn’s roadhouse August 21, 1923, with Agents Adams and Kyle, and two ladies. Arrived there between 9 and 9:30 p. m.; got out of taxi, rang door bell, and were admitted by Louis Svee. Hacker was present at that time. Hacker was introduced to Agent Kyle by the two ladies. Kyle and Hacker talked for about three minutes. Hacker then went through a door leading into the barroom, and told Louis Svee that it was all right for us to purchase intoxicating liquor. - Hacker informed Kyle that drinks would have to be purchased at the bar; that sales would not be made in the ballroom. Agent Kyle purchased 42 drinks. Agent Adams purchased 14 drinks, and witness purchased 35 drinks. These were not all drank by the agents. The whole party, Mr. Hacker, Louis Svee, and several other parties, had come in. We were introduced to them. Witness was sober all evening. Purchases of drinks were made from Louis Svee, who gave the name of Schmidt. License of the Quinn’s roadhouse issued in name of Svee. I took the name from there. I did not see any of the other defendants there. We remained there until about 2:30 a. m. Mr. Hacker, while standing there at the bar, stated in the presence of Agents Adams and Kyle and myself that this place had been raided several times, evidence had been secured of violation of the National Prohibition Act, and that he was attorney for the Quinn’s roadhouse. He told us of Agents English and Cooper having come to Reno and posed as being here for the purpose of getting a divorce, and securing the confidence of certain attorneys, and having been introduced by him into these places, told us that he thought it was very clever, the manner in which they had secured their evidence, and he stated that he had advised the place to continue in operation; that they had as much on them as they could; that they could not do any more under the charges that had already been brought.
“Mr. Hacker stated that, if he were running a place, he would build, he would have two houses; one, when it was abated under the law, he would move into the other and continue operation. By the time the second place would be abated, he would move back to the original place, the abatement by that time having been lifted. Mr. Hacker made reference to the fact that the Quinn’s roadhouse had been raided; liquor violations had been found on these premises. Hacker did not say anything about an abatement or an injunction. Met Mrs. Wirt at Quinn’s roadhouse on August 23d, when he was accompanied by Agents Adams, Kyle, and Hacker. On the afternoon in company with Agent Kyle had a conversation with Hacker at his office. Hacker read to witness and Agent Kyle several affidavits being prepared in the case to be tried on Quinn’s roadhouse, and he stated, relative to a ease, that he had Mir. English — that is, Agent English and Agent Cooper seared; in fact, he stated, to repeat his words, that he would trip the pants off them if they ever come back here in this state,’ and they would never show up in court for these cases; and he said there was several lawyers, or a lawyer, I don’t remember precisely, that could get things by in this state. Hacker said that he was attorney for Quinn’s roadhouse, that he expected to beat the case, that the agents would never appear, and he read to us parts of the affidavits.”

The credibility of the witness was, of course, for the jury to determine; but we think, as did the trial court, that the record offered and admitted tended to show that the action of the plaintiff in error in seeking to delay the trial of the abatement suit was in the interest of the maintenance of the roadhouse.

The judgment is affirmed.


author: WESTENHAVER, District Judge.

text:
    BALDWIN v. UNITED STATES.
    (Circuit Court of Appeals, Sixth Circuit.
    April 6, 1925.)
    No. 4164.
    1. Criminal law <@=3901, 1044 — Motion for directed verdict waived by introducing evidence; sufficiency of evidence not reviewable, unless motion is renewed.
    A motion to direct a verdict for defendant, made at the close of the government’s case, is waived by the subsequent introduction of evidence, and, unless renewed at the conclusion of all the testimony, the question of the sufficiency of the evidence cannot be considered by the appellate court.
    2. Criminal law <@=3| 158(4) — Ruling on preliminary question of admissibility of evidence not reviewable, except for manifest error.
    The finding of the trial judge on a preliminary question as to admissibility of evidence at least carries the same weight as the finding of a jury on a disputed question of fact, and will not be disturbed by a reviewing court unless error is manifest.
    3. Criminal law <@=542 — Testimony of deceas--ed witness, given at preliminary hearing, held admissible.
    Testimony of a witness at the preliminary hearing is admissible on the trial, on a showing, first, of his death, and, second, that the accused was personally present when he testified and had opportunity to cross-examine, whether he did so or not.
    4. Criminal law <@=547(4) — Former testimony of deceased witness may be read to- jury.
    Where the testimony given by a witness, since deceased, at the preliminary hearing, was reduced to writing in narrative form and signed by him, it may be read to the jury, instead of being used merely to refresh recollection of witness identifying it.
    In Error to tbe District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge.
    Criminal prosecution by the United States against N. M. Baldwin. Judgment of conviction, and defendant brings error.
    Affirmed.
    See, also, 300 E. 479, 1002.

      T. J. Cline and A. Y. Burrows, both of Knoxville, Tenn., for plaintiff in error.
    George C. Taylor, U. S. Atty., of Knoxville, Tenn.
    Before DENISON and DONAHUE, Circuit Judges, and WESTENHAVER, District Judge.
   WESTENHAVER, District Judge.

Plaintiff in error, a registered physician, was charged by indictment with haying sold and dispensed morphine sulphate, not in the bona fide course of professional treatment of a patient, in violation of section 2, Harrison Anti-Narcotic Act (Comp. St; § 6287h). The indictment contained two counts charging two separate transactions. He was found guilty, and sentenced to two .years’ imprisonment and fined $200 upon each count; both fine and imprisonment thus imposed being concurrent.

No exception was taken to the charge. The assignment of error that the evidence was insufficient to sustain a conviction cannot be considered. A motion to direct a verdict of not giiilty for insufficient evidence was made at the conclusion of the government’s testimony, but was waived by proceeding thereafter to introduce testimony on behalf of the defendant, and was not renewed at the conclusion of all the testimony. It is too late to question the sufficiency of the evidence on a motion for a new trial. See Loewenthal v. United States (6 C. C. A.) 274 F. 563, 568; Lockhart v. United States (6 C. C. A.) 264 F. 14; Moore v. United States, 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed. 996.

The only errors properly preserved and assigned pertain to the admission of testimony. Of these, one only is substantial. The second count is based on a sale to one C. E. Everett of morphine sulphate. The government introduced evidence tending to show that Everett was dead, and was then permitted to prove his testimony given at a preliminary hearing before the United States commissioner. It is urged that there was no adequate showing of Everett’s death, and that, in any event, testimony, of a deceased witness at a preliminary hearing is not admissible on a later trial. Proof of death, so as to make former testimony admissible, is addressed to the trial judge and is determined by him. According to some authorities, his finding upon a preliminary question of admissibility is conclusive and will not be reviewed; but, in any event, his finding carries the same weight as the finding of a jury upon a disputed issue of fact and will not be disturbed by a reviewing court unless the error is manifest. Reynolds v. United States, 98 U. S. 145, 154, 25 L. Ed. 244; Greenleaf on Evidence, § 49; Jones on Evidence, § 796; Whar. on Cr. Ev. §§ 275b, 447. In our opinion, the evidence in this ease sufficiently supported the trial judge’s finding. The evidence is quite adequate to support a finding that the Everett named in the second count was the Everett who had died and who had testified before the commissioner. Nor is it discredited by the fact that the witness testifying to his death knew him only as Charlie Everett, and not as Charles E. Everett.

Former testimony of a witness at a preliminary hearing is admissible at the trial upon a showing, first, of death, and, second, that the accused was personally present when he so testified and had the opportunity to cross-examine. It is not essential that the accused should have in fact so cross-examined or have been then represented by counsel. It is sufficient if he was personally present, was confronted by the witness, and might have had counsel or have cross-examined if he had so desired. All these conditions were fully established. The law to this effect is so well settled that it is deemed sufficient to cite the authorities without reviewing them. Reynolds v. United States, 98 U. S. 145, 158, 25 L. Ed. 244; Mattox v. United States, 156 U. S. 237, 240, 15 S. Ct. 337, 39 L. Ed. 409; Motes v. United States, 178 U. S. 458, 471, 474, 20 S. Ct. 993, 44 L. Ed. 1150; West v. Louisiana, 194 U. S. 258, 262, 263, 24 S. Ct. 650, 48 L. Ed. 965; 1 Wharton Cr. Ev. (10th Ed.) §§ 227, 228; Wigmore on Evidence, § 1398; note 25 L. R. A. (N. S.) 868.

The commissioner reduced Everett’s testimony to writing in narrative, form and had him sign and swear to it in the presence of the accused. After the commissioner had so testified and identified the written testimony, it was read in evidence. It is urged that this was error, and- that proper practice permitted'the witness to use the same only for the purpose of refreshing his recollection and did not permit its being read after this proof of its authenticity and accuracy. The objection is without merit. The practice followed was proper if not preferable. See Wigmore on Ev. §§ 747, 754; Ruch v. Rock Island, 97 U. S. 693, 695, 24 L. Ed. 1101.

Due consideration has been given to all other errors assigned, pertaining to the admission of the testimony of C. H. Hickman, S. E. Weisne or Wein, and R. E. Spears; but all are, in our opinion, without merit and do not call for separate comment.

Nothing in the record indicates any such substantial error or failure of justice as to warrant notice being taken thereof by this court of its own motion. The conviction and sentence is affirmed, and mandate will issue forthwith.


author: BRYAN, Circuit. Judge. HUTCHESON, District Judge

text:
    CHRISTY, Commissioner of Immigration, et al. v. LEONG DON.
    (Circuit Court of Appeals, Fifth Circuit.
    March 24, 1925.
    Rehearing Denied April 15, 1925.)
    No. 4448.
    1. Aliens <$=>32(13) — Court cannot review determination of executive officers, excluding alien, unless hearing was unfair.
    Under Act Aug. 18, 1894, § 1 (Comp. St. § 4325), amended by Act Feb. 14, 1903, § 7 (Comp. St. § 858), and Act Feb. 5, 1917, § 17 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289(45), alien seeking admission into United States is entitled to fair hearing before executive officers of government, and if hearing be fair, though summary, it is conclusive, and courts cannot review case on merits.
    2. Aliens <$=>32(13) — Absence of evidence sustaining deportation order justifies conclusion that hearing was unfair.
    Absence of any evidence sustaining deportation order would justify conclusion that hearing was unfair, because arbitrary.
    3. Aliens <$=>32(5) — Burden on Chinese person to show he is son of American citizen and entitled to admission.
    Burden is on Chinese person to show that he is son of American citizen, and therefore entitled to admission to United States, under Rev. St. § 1993 (Comp. St. § 3947).
    4. Aliens <$=>32(8) — Evidence held to sustain finding that Chinese person was not son of American citizen.
    Evidence held to sustain finding by board of special inquiry that Chinese person was not son of American citizen, entitled to admission to United States, under Rev. St. § 1993 (Comp. St. § 3947).
    5. Aliens <$=>32(13) — 'That immigration officials inquired1 into Chinese person’s relationship held not to make hearing unfair.
    It is not indicative of unfairness of hearing that immigration officers inquired into family relationship of Chinese person, who used such relationship as basis of his claim’ of citizenship, under Rev. St. § 1993 (Comp. St. § 3947).
    Hutcheson, District Judge, dissenting.
    Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.
    Application for habeas corpus by Leong Don against William T. Christy, Commissioner of Immigration, and others. From an order discharging petitioner from custody, the Commissioner appeals.
    Reversed and remanded.
    Louis H. Bums, U. S. Atty., and Wayne G. Borah, Asst. U. S. Atty., both of New Orleans, La., for appellants.
    W. J. Waguespack and Herbert W. Waguespack, both of New Orleans, La., for appellee.
    Before WALKER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
   BRYAN, Circuit. Judge.

Leong Don, a Chinese person, applied at the port of New Orleans for entry to the United States. His application was denied by the Commissioner of Immigration, whose action was affirmed on appeal by the Secretary of Labor. Leong Don then filed a petition in the District Court for a writ of habeas corpus to secure his release from the custody of the Commissioner of Immigration, by whom he was .held for deportation, alleging that he is the son of Leong Goon, a citizen of the United States, and in the most general terms that he was not given a fair hearing upon his application for admission. The answer of the Commissioner admits that Leong Goon was bom in California and is a citizen of the United States, but denies that Leong Don is his son, and also denies that the hearing, complained of was unfair.

It appears from the proceedings before a board of special inquiry that Leong Don was examined on two occasions. On the first he testified that he was bom in China, was 26 years old, and that he had no recollection of his paternal grandfather, grandmother, or of that grandfather’s brother. The hearing was continued for the purpose of examining the alleged father, Leong Gpon, who testified, in Detroit, among other things, that his father had been dead 12 years, and his mother about 8 years, and that his father’s brother was living as late as 1912 in the same village in which his father, mother, and Leong Don lived. This witness testified also that Leong Don was his son and was 26 years old. Leong Don’s alleged brother was also examined in Detroit, and contradicted him in several matters relating to family history. Shortly after this testimony was taken, Leong Don was again examined, and then testified that he remembered his grandfather and grandmother, but did not remember his great-uncle. The only explanation he offered of his previous testimony was that it was a mistake. He admitted that he had communicated with Leong Goon after his first hearing. Leong Don and Leong Goon both testified before the District Judge in the ha-beas corpus proceeding, but nothing was added to the testimony already giyen, and no explanation was given of the inconsistencies in their previous testimony. The District Judge expressed the opinion that Leong Don was Leong Goon’s son, and was therefore entitled to admission to this country as a, citizen. Accordingly an order was entered discharging Leong Don from custody. The Commissioner of Immigration appeals.

The Act of August 18, 1894 (28 Stat. 390 [Comp. St. § 4325]),- provides that the decision of appropriate immigration officials adverse to the admission of an alien into the United States shall be final, unless reversed on appeal to the Secretary of the Treasury. This provision was amended in 1903, transferring jurisdiction to the Secretary of Commerce and Labor. 32 Stat. 828 (Comp. St. § 858). Section 17 of the Act of February 5, 1917 (39 Stat. 887 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289:)4ii]), provides for the appointment of boards of special inquiry, and for an appeal through the Commissioner of Immigration at the port of arrival to the Secretary of Labor, and that the decision of a board of special inquiry adverse to the admission of an alien shall be final unless reversed on appeal. It thus appears that it has been the policy of the Congress since 1894 to make final a decision of the appropriate department. Under the law as amended from time to time, it is settled by the decisions that one applying for admission to the United States is in legal contemplation without its borders, but is entitled to a fair hearing before the executive officers of the government. If fhe hearing be fair, though summary, it .is conclusive, and is not to be set aside by the courts, even though it be considered that the decision arrived at by the appropriate department was wrong. It is only where the court finds that the hearing conducted by the department was unfair that it is authorized to hear the ease on its merits. United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Chin Yow v. United States, 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369; Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 56 L. Ed. 606; Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938; United States v. Ruiz, 203 F. 441, 121 C. C. A. 551.

The petition for writ of habeas corpus signally fails to allege wherein the hearings held by the board of special inquiry were unfair. Notwithstanding this, we have examined the entire record, and are unable to find that there was any unfairness in the hearings conducted by the immigration1 officials. Of course, if there were no evidence to sustain the order of deportation, the conclusion that the hearing was unfair because arbitrary would be justifiable. The burden was upon appellee to show that he was the son of an American citizen, and therefore entitled to admission under section 1993 of the Revised Statutes (Comp. St. § 3947). If appellee were the son of Leong Goon, he was old enough to remember his grandfather, grandmother and his grandfather’s brother. But he was unable to do this until after he had communicated with his alleged farther. There was substantial evidence upon which the conclusion might well be reached that appellee’s claim of relationship to a native-born Chinaman was unfounded in fact. It is not indicative of unfairness that the immigration officials inquired into the family relationship of one who used that as the basis of his claim of citizenship. The hearing having been fair, and there being substantial evidence to support the conclusion reached by the immigration officials, in our opinion, it was error for the District Court to substitute its judgment for that of the Department of Labor upon-the weight of the evidence.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

HUTCHESON, District Judge

(dissenting). 'The examination of the entire record in this, ease convinces me, not only that the District Judge was correct in finding that Leong Don was Leong Goon’s son, and that there was no evidence of a substantial character to warrant the finding of the Commissioner, but that the entire proceedings were such as that they showed that the authority was not fairly exercised, consistently with the fundamental principles of justice, embraced within due process of law. Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct, 359, 56 L. Ed. 606.

It is a fundamental principle of due process that no judicial or quasi judicial hearing is valid, where the maxim “audi alteram partem” is ignored, and it is therefore of the essence of a valid judgment that the body which pronounces it shall not in any manner prejudge or predetermine the issue. Sir Walter Scott, in Ivanhoe, causes one of his characters to say: “The trial moves on apace, when the judge has determined his decision beforehand.” The record in this case leaves no room for doubt that such a prejudgment had occurred.

At the outset of the proceedings an attempt was made to exclude the applicant on grounds inapplicable to him, and, this attempt failing, the proceedings thereafter were conducted in a spirit of inquisition to exclude, rather than an inquiry into the facts as to the right of exclusion, in which proceedings the examiner was in the attitude of an inquisitor, rather than of a judge, which attitude explains a judgment so contrary to the living facts arrived at by the Oommissioner in this case. While, the decision of the Secretary of Labor of such questions as we have here is final and conclusive on tile courts, unless it be shown that the proceedings are manifestly unfair, or were such as to prevent a fair investigation, it is fundamental that the decision must be after a hearing in good faith however summary. Chin Yow v. U. S., 208 U. S. 8, 28 S. Ct. 201, 52 L. Ed. 369. It must find its support in adequate evidence. Zakonaite v. Wolf, 226 U. S. 272, 33 S. Ct. 31, 57 L. Ed. 218; Kwock Jan Fat v. White, 253 U. S. 458, 40 S. Ct. 566, 64 L. Ed. 1010; Tisi v. Tod, 264 U. S. 134, 44 S. Ct. 260, 68 L. Ed. 590; Bilokumsky v. Tod, 263 U. S. 153, 44 S. Ct. 54, 68 L. Ed. 221.

In Kwock Jan Eat v. White, 253 U. S. 454, 40 S. Ct. 566, 64 L. Ed. 1010, in which the court reversed the finding because the proceeding had been conducted in a partisan way, by concealing some of the evidence in the possession of the Commissioner from the deportee, the court said:

“The acts of Congress give great power to the Secretary of Labor over Chinese immigrants and persons of Chinese descent. It is a power to be administered, not arbitrarily and secretly, but fairly and openly, under the restraints, of the tradition and principles of free government, applicable where the fundamental rights of men are involved, regardless of their origin or race. It is the province of the courts, in proceedings for review, within the limits amply defined in the eases cited, to. prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. * *' * It is better that many Chinese immigrants should he improperly admitted, than that one natural horn citizen of the United States should he permanently excluded from his country.” (Italics mine.)

An examination of the record in this case as to the identity of Don as the son of Goon, fortified as it is by affidavits taken in other proceedings more than 12 years before this controversy arose, by the positive oaths of the father and two sons taken on this hearing and rebutted by nothing except the inability of the applicant to answer satisfactorily a series of questions on matters entirely and remotely collateral to the main fact of his sonship, leaves no doubt in my mind that the hearing was not a hearing, but an inquisition, and that the finding was predetermined in advance of the hearing.

So believing, I am constrained to dissent from the conclusions of the majority.