author: AUGUSTUS N. HAND, Circuit Judge.

text:
    ROSENBERG et al. v. CARR FASTENER CO.
    No. 412.
    Circuit Court of Appeals, Second Circuit.
    July 21, 1931.
    Clarence M. Crews, of New York City, Edgar M. Kitchin, of Washington, D. C., and David L. Podell, Edmund Quincy Moses, and Jacob J. Podell, all of New York City, of counsel), for appellants.
    Emery, Booth, Varney & Whittemore, of New York City (Preston Upham and L. G. Miller, both of Boston, Mass., of counsel), for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

This is the usual patent suit for infringement of letters patent Nos. 1,299,232, 1,411,-184, and 1,465,143, granted by the United States to Heyman Rosenberg. The suit is by the patentee and Parker-Kalon Corporation, an exclusive licensee. Infringement was admitted by the defendant. The trial court dismissed the bill as to all three patents for invalidity.

The patents relate to improvements in the art of fastening together sheets of metal with screws.

Patent No. 1,299,232, granted upon an application filed April 16, 1917, is for the process.

Patent No. 1,411,184, granted upon an application filed April 16, Í917, is for the metallic structure.

Patent No. 1,465,148’, granted upon an application filed January 18, 1917, is for the screw designed for insertion in the sheets of metal or other material.

Rosenberg, the inventor, testified that, in order to get away from the expensive mode of joining strips of metal by inserting bolts through drilled holes and heading the bolts with nuts, he tried the method of punching a hole in the strips and then screwing down ordinary screws» to hold them together. This, he said, he did in 1905 or 1906. He found that it did not work and the fastenings got loose because the upper parts of the screws just under the heads were not threaded. Thereafter he used screws threaded all the way to their heads, but still found that they worked loose in time. Finally, in 1913, he adopted the plan of hardening the teeth on the screws so that they would not wear down when being inserted in the metal or break down under subsequent vibrations or other strains. In the early years of his experimentation he says that he used tapering screws. These did not work out well, for it took too much power to screw them in, and beside they would “throw the burr away,” and, under vibration, would come loose. He supplanted them in, 1913 by screws of the type of the ordinary wood screw which Professor Rautenstrach, of Columbia, defined as “a screw with a cylindrical body and a tapering point.” The result was that a screw •such as Rosenberg used, for which a proper hole had been punched, would stand up for a long time against heavy strains, and the-•screws and strips of metal in which they were inserted had a great commercial success. Rosenberg also laid great stress in his testimony on the kind of punch which he used and the cylindrical hole which was bored in the sheets of metal for the insertion of the screw. He at first used a tapered punch and left it to the individual workman to determine how far to insert it and thus how large a hole to make in each ease. This resulted in lack of adaptation of the hole to the screw. He accordingly standardized his tools so as to have punches of the size required for the particular screws to be used, with a stop shoulder to limit the extent of the insertion and of equal diameter for the whole length of each punch except at the point. These stop punches have been used from 1917 on, but customers are still told that they can use a tapering punch if they prefer.

The gist of Rosenberg’s invention in all his patents was a cylindrical screw having a hardened thread and threaded the entire length.

On November 11, 1913, Rosenberg had filed an application in the Patent Office for an improved screw for screwing sheet metal structures together. He said that “to secure two or more sections of pipe or duets or any other elements” he first punched a hole with the end of the screw slightly smaller than the body of the screw to be used. He then inserted the screw and turned it, the screw cutting its own thread or acting as a tap as it turned and passed through the punch opening; that the screw should be “made of steel and properly tempered” so that it would readily cut a thread in the pipes or duets which are usually made of relatively soft material, such as iron. He added that, in order that the screw should “not back off,” he made the shank straight and tapered the point; the thread extending through the length of the shank and around the tapered end which acted to start the thread in the punched opening. In order further to prevent the screw from backing off, he stated that he “preferably” formed teeth or serrations on the under surface of the .head which would eat into the middle of the element to which the screw was applied and lock the screw and thus prevent it from turning after it had been forced home. The original application contained five claims. The first claim was for “a screw, consisting of a straight shank, having a tapered end, a head, and a thread extending through the entire length of the shank and tapered end.” All of the other claims, though varying slightly from one another, provided as an additional element for “projections on the under surface of the head.”

The claims were rejected by the Commissioner on the prior art in a letter under date of March 12, 1914, to Morris Bloek, the then attorney for Rosenberg who had filed the usual power of attorney from the latter in accordance with the regulations.

Nothing further was done upon this application until April 6,1917, when Edgar M. Kitehin, Rosenberg’s new attorney, filed a petition in the Patent Office requesting that the old application be revived, that the claims be canceled, and two new claims be inserted. This petition was accompanied by an affidavit of Rosenberg in which he stated that the five original claims did not cover the substance of his invention and that he did not learn that it had become abandoned for lack of prosecution until on or about March 28, 1917, when his former attorney, Morris Block, so informed him. The new proposed claims did not mention such an element as “projections on the under surface of the head” which had been found impracticable and were substantially like rejected claim 1 except that they provided for a “hardened” thread instead of leaving this to be read into the claims from the words in the specification “made of steel and properly tempered.” The Commissioner, in a letter dated April 27, 1917, denied the petition to revive “without prejudice,” whereupon two years later, on May 24, 1919, a further petition to revive was filed. That petition attempted to excuse delay in the prosecution of the former application because of the misunderstanding of the application by the former attorney, applicant’s own ignorance that certain features of his invention had been disclosed in 1913 in a printed publication, and his belief that he had adequate protection by reason of certain other applications then pending before the Patent Office, on one of which patent No. 1,299,232 had been granted. This petition to revive was denied by the Department after a rehearing on the ground that the showing did not establish that the delay between April 27, 1917, and the new petition of May 29, 1919, was unavoidable.

Under Rev. St. § 4886 (35 USCA § 31) a patent is absolutely barred if the subject-matter of the invention was described in a printed publication or was used or sold in this country more than two years before the application was filed. The applications for the patents in suit were filed in 1917, and the Parker Supply Company, of which Rosenberg was an officer, was advertising the screws in 1913 and 1914, which he sought to patent in his abandoned application of November 11, 1913. Goldberg testified that he had personally prepared the advertisements in trade papers for the Parker Supply Company, and that the company had sold several thousand in 1913. This was all more than two years before the applications for the patents in suit were filed. Therefore these patents are barred so far as they related to articles described, used, and sold in 1913 and 1914, unless Rosenberg’s original application of November 11, 1913, was not in law abandoned.

The complainants seek to avoid the prior publication, use,, and sale by treating Rosenberg’s old application as still alive. But Rev. St. § 4894, as amended, provides that “all applications for patents shall be completed and prepared for examination within one year after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within one year after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable. * * * ” Title 35, U. S. Code, § 37 (35 USCA § 37).

If the notice of the rejection of the claims, of the original application was properly given (a matter which we shall discuss later) y we feel no doubt that the Commissioner acted within his rights in deelinirfg to revive the application. The attorney Block, who evidently lost faith in the invention, regarded the application as hopeless, and did nothing for three years after the last action therein. The next attorney likewise failed to renew his petition to revive for two years after the first was denied “without prejudice.” If this was not an abandonment, it would be hard to know what would be one. Certainly we cannot say that when the Commissioner was not satisfied that the “delay was unavoidable” he exercised his jurisdiction in a capricious or arbitrary manner. Hayes-Young-Tie Plate Co. v. St. Louis Transit Co. (C. C. A.) 137 F. 80, 82; Martin v. Robertson, 59 App. D. C. 270, 39 F.(2d) 520.

In Hayes-Young Tie Plate Co. v. St. Louis Transit Co., supra, Judge Sanborn said: “The abandonment of an application destroys the continuity of the solicitation of the patent. After abandonment a subsequent application institutes a new and independent, proceeding, and the two years’ public use or sale which may invalidate the patent issued upon it must be counted from the filing of' the later application.” See, also, Diamond Power, etc., Co. v. Bayer Co. (C. C. A.) 13 F.(2d) 337, 340, and Lay v. Indianapolis, etc., Co. (C. C. A.) 120 F. 831, 836.

There can be no doubt that, if the old' application was abandoned, it cannot be-treated as copending with the applications of. the patents in suit so as to date back those applications to November 11, 1913, under the familiar rule (Victor Talking Mach. Co. v. American Graphophone Co. [C. C. A.] 145 F. 350; General Electric Co. v. Independent Lamp & Wire Co. [D. C.] 267 F. 824, at page 836), and thus to obviate the bar of the publications and sales in 1913 and 1914.

It is admitted that, if the application of November 11, 1913, is abandoned the claims relied on are barred by publication, prior sale and use in 1913, with the exception of claim 7 of patent No. 1,299,232, and claims 3 and 5 of patent No. 1,411,184. The question, therefore, arises whether the notice of rejected claims given to Block in the letter of March 12, 1914, was sufficient to work an abandonment in view of the subsequent delay in prosecuting the application.

Notice of the last action of the Patent Office upon the application was given by letter dated March 12,1914, from the Examiner to Block, in which the last claims of the application were rejected. Block had been appointed attorney by Rosenberg under a power filed November 11, 1913, authorizing him “to prosecute this application, to make alterations and amendments therein, to receive the patent, and to transact all business in the Patent Office connected therewith.” Certainly such broad powers, relating to matters of an occult art abounding in mysteries, would seem to involve the right to determine whether to file further claims or take other additional action or to take no action. Block thought that nothing more could be done, and did nothing. The consequence of inaction persisting for a year after the rejection was constructive abandonment by virtue of Rev. Bt. § 4894, for that section specifies that such shall be the result where nothing is done for that period of time.

Appellants say that this cannot be so, because section 4894 provides for “notice * * * to the applicant” in such cases, and makes no mention of his attorney or agent. But Rev. St. § 4903 (35 USCA § 51), also provides for notice to “the applicant” of a rejected claim with the reasons for such rejection, and for the greater part of a century notices of rejection and of similar matters have been given to the attorney for the applicant and all correspondence had wit£ him. The language of section 4903 as to notice was taken directly from section 7 of the act of 1836 codifying the Patent Act (5 Stat. 120, § 7). In the Office Regulations of 1849 the statement appears that “no double correspondence can be sanctioned. When an inventor employs an agent, the office will correspond with either, but not with both.” Likewise under the Rules of March 1, 1853, section II, there was the regulation that, “where an agent has filed his power of attorney, duly executed, the correspondence will, in ordinary eases be held with him only. * * * If the principal becomes dissatisfied he must revoke his power of attorney.”

This rule continued in substance from those early days, and we find practically the same language now in rule 7 of the Patent Office.

It is true that the portion of section 4894 relating to giving notice as a condition of treating an application as abandoned was not enacted until 1870, but as soon as it was enacted a series of rules went into effect, culminating in present rule 31, which prescribed notice to the applicant “or his agent.”

Thus there has been such a continuous departmental interpretation of the words “notice to the applicant” by the rules of the Patent Office as to leave no doubt that notice to an “applicant” under the practice of the Patent Office is satisfied by notice to his attorney.

When Congress codified the patent laws in 1870 and introduced the subject-matter relating to abandonment for failure to reply to office action, it adopted the well-understood language of the act- of 1836 and used the words “notice to the applicant” in their long-settled meaning. In rules 7 and 39 of August 1,1871, the Patent Office prescribed that such notices might be given to the applicant “or his agent.” When Congress repealed the codification of the patent laws of 1870 by Rev. St. § 5596, it re-enacted them in the Revised Statutes of 1874, and in doing so necessarily adopted the administrative interpretation. The word “applicant” naturally includes an authorized agent, but, even if its meaning were ambiguous, the settled administrative definition would determine its legal effect. Brewster v. Gage, 280 U. S. 327, at page 337, 50 S. Ct. 115, 74 L. Ed. 457. Edwards v. Wabash Ry. Co. (C. C. A.) 264 F. 610.

Moreover, in Ex parte Murray, 1891 C. D. 130, a notice of rejection of certain claims was mailed to the applicant in care of his attorneys, who failed to notify him of the rejection. No further prosecution of the application occurred for more than two years. In these circumstances the Commissioner held that neither the failure of the applicant’s attorneys to notify him of his rights, nor the alleged neglect on their part to pros-eeute the case, rendered the delay unavoidable. He said: “It is a general rule of law that a party is bound by the deliberate acts of his attorney acting in good faith and within the scope of his authority. If then the neglect or omission of the attorneys to take an appeal is that of the applicant by construction, the delay was not unavoidable.” See, also, In re Mattullath, 38 App. D. C. 497.

Ex parte Gourtoff, 1924 C. D. 153, cited by' appellants, has no bearing on the present ease. There the notice under section 4894, relied on to work an abandonment, never reached either the applicant or his attorney. The decision involved only the conclusion that it must in fact do this. In Ex parte Lasscell, 1884 C. D. 42, it was held that an attorney was without power to cancel all the claims in an application and thus to work an abandonment where the rule of the Department required a declaration of abandonment to be signed by the applicant. There is -a distinct difference between the failure of an attorney to prosecute where the management of the prosecution is wholly intrusted to him and his affirmative act in canceling elaiihs which is equivalent to a.formal abandonment that can only be effected by the applicant. He may know of no justifiable way to prosecute further. Such nonfeasance is not equivalent to affirmative action, though each may involve the same consequence.

Appellants argue that Rev. St. §§ 4885 and 4897 (35 USCA §§ 38, 41), show that, where Congress intended to allow notice to an attorney, it has said so. These sections relate to fees for issuing patents and provide that an applicant who fails to make payment within six months from the time a patent has. been allowed “and notice thereof was sent to the applicant or his agent” shall 'not have the right to obtain the patent or to make an application for the invention covered by the original application. Rev. St. § 4885, providing for notice “sent to the applicant or his agent” originated in the Patent Act of 1863,12 Stat. 796, § 3. Rev. St. § 4897, originated in the Patent Act of 1864, 13 Stat. 194. But the language of sections 4903 and 4894 originated in 1836, and has since that time been continuous in the law regarding notification of the applicant of rejections by the Patent Office. As we have already said, it was copied in the codification of 1870, while the language of sections 4885 and 4897 originated in separate acts of 1863 and 1864, and was copied in the codification. Even if this were not so, it cannot be said that because sections 4885 and 4897 explicitly provide that notice must be given to the applicant, or his agent, another section must be changed from its long-settled meaning to include personal notice. The continuous interpretation 'of section 4894 as allowing notice to an agent is not, in our opinion, negatived by the different language of the fee statute.

As a result of the foregoing we hold the patents in suit barred by prior publication, sale, and use as to all matters not embraced in claim 7 of patent No. 1,299,232 and claims 3 and 5 of patent No. 1,411,184. This is because all other claims involved are completely within the prior publications and sales testified to by Goldberg. They merely followed the disclosure of Rosenberg’s application of November 11, 1913.

We need not say whether the old art of inserting a screw of proper temper threaded to the head in a metal sheet, in order to fasten it, shown by British patent No. 17,477, A. D. 1895; to Williams left anything for Rosenberg to invent. Indeed, the Williams patent was a complete anticipation of everything of value disclosed in Rosenberg’s original application, unless the slight taper shown in the illustration of the Williams screw differentiates it. But, irrespective of this, the advertisement in the November, 1913, edition of Sheet Metal, and in subsequent publications which were prepared by Goldberg, precludes any broad claims of Rosenberg’s invention, mentioning, as it does, even his “process of hardening,” and the sales by the Parker. Supply Company in 1913 and 1914 have the same effect.

The question remains whether there is any patentable improvement covered by claim 7 of patent No. 1,299,232 or claims 3 and 5 of patent No. 1,411,184. Appellants’ brief indicates that the stop punch and a cylindrical hole for the insertion of the screw are the novel features added by these claims to the invention of 1913.

The process patent No. 1,299,232 mentions and illustrates a stop punch to make the hole in overlapping sheets of metal. The stop punch is neither patented nor called for by the claims. But the words “forming an entering opening” are used in claim 7. The entering might, however, be formed either by a stop punch or a tapered punch, or by driving in the pointed end of the screw, as seems to have been the method suggested in the abandoned application. Claim 7 says that the “entering opening” shall be of “no greater diameter than the body of the screw.” That the hole should be small enough to allow the hardened threads to cut the metal as deeply as possible is wise enough, but hardly requires inventive thought. ■

In patent No. 1,411,184 the specification mentions and illustrates a stop punch as a suitable tool to make the hole for the screw. Claim 3 calls for an opening, the wall of which is “substantially cylindrical, throughout that portion extending through the material of the sheets themselves,” but what originality can there be in having an opening ■“substantially cylindrical” ? Any round punch would make it, and such punches are as old as the hills. While the hole made is in a geometric sense frusto-eonical, and not cylindrical, it probably is “substantially cylindrical” in the ordinary meaning of the words. Claim 5 calls for “an entering opening of a diameter less than the greatest distance between substantially diametrically opposite points of the larger portion of the thread.” This inevitable requirement phrased in the complicated jargon of the file wrapper is certainly neither original nor illuminating. It is that a hole for the insertion of a screw must not be so large that the screw will drop through it and thus fail to cut the metal in which it is to be anchored.

The patentee evidently hoped that he would meet no prior publications or prior uses. He accordingly inserted in claim 2 and other claims of the above patents only the disclosure of his invention of 1913. But in claim 7 of Patent No. 1,299,232 and claims 3 and 5 of Patent No. 1,411,184, he added elements of the most obvious kind which he now grasps “in naufragio” as the last chance to save his venture.

A stop punch of uniform diameter may be a good thing, and so would be a drill of constant diameter. Each will prevent possible variations in the size of the opening. If a workman had training and skill enough not to insert a tapered punch, either too far or not far enough, he would save his employer the trouble of furnishing a variety of stop punches to fit screws of different sizes. Some workmen may be skillful enough to work with tapered punches and produce the very best results. But it seems unreasonable to say that the use of either type involves invention. An opening “substantially cylindrical” may be a wise choice, but such an opening seems to us almost inevitable. It is a tribute to the old maxim that “a round peg doesn’t fit a square hole,” rather than to inventive genius. Such trivial modifications of a process or product otherwise unpatentable do not show invention. Very recent decisions of the Supreme Court indicate that a substantial step beyond the prior art must be taken in order to support a valid patent. Here the advance over the invention of 1913, if it be thought to have occurred, was altogether too slight and obvious. De Forest Radio Co. v. General Electric Co., 51 S. Ct. 563, 75 L. Ed. 1339, decided May 25, 1931; Carbice Corporation v. American Patents Development Corporation, 51 S. Ct. 496, 75 L. Ed. 819, decided May 18, 1931; American Fruit Growers, Inc., v. Brogdex Co., 283 U. S. 1, 51 S. Ct. 328, 75 L. Ed. 801; Smith v. Springdale Amusement Park, Ltd., 283 U. S. 121, 51 S. Ct. 368, 75 L. Ed. 878.

The decree is affirmed.


source: Caselaw Access Project

author: L. HAND, Circuit Judge.

license: Public Domain

text:
    UNITED STATES ex rel. MIGNOZZI v. DAY, Commissioner of Immigration.
    No. 401.
    Circuit Court of Appeals, Second Circuit.
    July 7, 1931.

      CHASE, Circuit Judge, dissenting.
    Gaspare M. Cusumano, of New York City, for appellant.
    George Z. Medalie, U. S. Atty., of New York City (Morton Baum, Asst. U. S. Atty., of New York City, of counsel), for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   L. HAND, Circuit Judge.

Mignozzi, the relator, a barber by trade, came to the United States from Italy as a boy of thirteen or fourteen. Since then he has always lived here, has married a woman born in this country, and has a child eleven years old. All his relatives are in this country; he has never become a public charge, except for eleven days in a hospital while sick of pneumonia. On June 15, 1925, he pleaded guilty to two indictments, one in a single count, the other in two, upon all of which he was sentenced generally by the District Court of the Southern District of New York to a term of seven years, the “sentence to run concurrently.” The first indictment was for possessing on April 21, 1925, a counterfeit twenty dollar bill with intent to defraud; with him was indicted one Day, as an abettor. The first count of the second indictment was for abetting, along with Helen Prinee, Day and Arthur Sehieble, on April twentieth, one Bernard Prinee, in passing another twenty dollar bill. The second count of the same indictment was for abetting, along with Day, Bernard Prince and Sehie-ble, on April twenty-first, Helen Prinee in the possession of three twenty dollar bills with intent to defraud. One of these was the same as that alleged to have been already passed by Bernard Prinee on April twentieth.

The relator was ordered deported as an alien who had been “sentenced more than once to * * * a term of imprisonment” of one year or more (section 155, title 8, U. S. C. [8 USCA § 155]); and this is the only question involved. We held in Johnson v. U. S. ex rel. Pepe, 28 F.(2d) 810, when an alien was sentenced to consecutive terms of one year for separate arsons, committed at different times and of different buildings, that it made no difference that the crimes were prosecuted in a single indictment. To this we adhere. The Ninth Circuit went farther in Nishimoto v. Nagle, 44 F.(2d) 304, and sustained a deportation where an alien in California had issued five fraudulent cheques at separate times, had been prosecuted for these offenses under several counts in one indictment, and had. been sentenced upon each count, the sentence to be executed concurrently, as here. The court relied in part upon the peculiar system of punishment obtaining in California, by which the parole board of that state may deal with such sentences separately, but in addition held that two convictions were enough, provided that there was a formal sentence on each. Sibley, C. J., in Opolich v. Fluckey, 47 F.(2d) 950, held the opposite in a case which, so far as we can see, is the same as that at bar; though he supposed that to do so he must decline to follow Johnson v. U. S. ex rel. Pepe, supra. With these exceptions we have not found any decisions dealing with the question.

Congress might have made the test merely the conviction for any shameful crime, or conviction for such a crime if a sentence of one year might be imposed. Either would have embodied an intelligible policy, but neither was chosen. On the contrary, a judge must actually sentence the alien to imprisonment for a year, and thus indicate that the particular circumstances of the offense warrant so much reprobation. If the alien has lived here for five years, the judge must do this twice. We agree that each count in an indictment, like each indictment itself, is a separate charge, and that nothing is lost or gained by the form of pleading adopted.Moreover, there must be a judgment upon each charge, however pleaded, in order to dispose of it; the only judgment in a criminal case is the sentence; proeedurally a general sentence to “run concurrently” is a separate sentence on each count. We are as clear, however, that although a judge does in this sense impose more than one sentence in such a situation, he sentences the convict to one term only; that though he imposes several sentences, he exacts hut one punishment; in short that he does not “more than once” sentence “to a term of imprisonment.” It is the duplication of penalties which counts; and the test of these is practical, not procedural. Any other construction leads to absurd results.

First, it is a fiction to regard the covering of several offenses by a single penalty, as the imposition of the same imprisonment anew each time. Punishment consists in the pains endured, and the lapse of the term ends these; they cannot be exacted a second time. Congress can scarcely have been partial to a multiplication of the scholastic substance, while all the accidents remain single. Second, on any other theory it will follow that concurrent sentences upon any counts whatever, though they be no more than formal variants, will satisfy the statute. Such a result would certainly pervert the meaning. A single sale of opium, for example, may be laid as a violation of that statute which requires the seller to have a permit, and again of that other which requires the same of the buyer. A counterfeiter may be indicted, as here, in one count for possessing a bill, and in another for passing it, though he cannot pass it without having possession. In each ease two crimes are charged, and judges have indeed been found willing to -impose consecutive sentences in such eases. But ordinarily a judge will dispose of all the counts at once, since there has been really only one offense. Yet if the government is right, the alien must be deported. We cannot ascribe to Congress a purpose to stake so grave a consequence on verbal tricks, or to put vital interests in peril on a prosecutor’s whim.

We have suggested a single crime, proee-durally proliferated. Probably this was just that, and for this reason the judge dealt with it by a single sentence. The record is indeed extremely meagre, but it is consistent with all three counts that Mignozzi with four confederates had guilty possession of four counterfeit twenty dollar bills, of which they succeeded in passing one. If so, Mignozzi may have been formally guilty (1) of passing the bill, (2) of its possession before passing, and (3) of the possession of each of the other three. Whether all this could be treated as four, or even five, crimes is immaterial; morally the transaction was a single wrong, to be expiated by a single punishment, and the judge seems so to have regarded it.

In general we are not disposed to read, this particular provision with large latitude. It is of course true that all aliens are here on sufferance; we may deport them when we please, and indeed nobody can much complain who finds himself ousted within a period, say of the five years which mark the line. But this alien has grown to manhood here. To root up all those associations which we call home, to banish him to be an outcast in a country of whose traditions and habits he knows nothing, and where his alienage is a daily, living fact, not a legal imputation— these are consequences whose warrant we may properly scrutinize with some jealousy, and insist that logic shall not take the place of understanding. While of course the judge could have reached the same result as he did by dividing the sentence between the counts and cumulating the divisions, we cannot change the record in that way. Dimmick v. Thompson, 194 U. S. 540, 551, 24 S. Ct. 780, 48 L. Ed. 1110; U. S. v. Peeke, 153 F. 166, 168, 12 L. R. A. (N. S.) 314 (C. C. A. 3). The result would not express his apparent purpose, nor the meaning of the law. A single crime visited with more than two years’ imprisonment is quite another thing from two crimes, each punished by a year; and the judge who proceeds in one way means something different from one who proceeds in the other.

Order reversed; relator discharged.

CHASE, Circuit Judge, dissents without opinion.


author: L. HAND, Circuit Judge. CHASE, Circuit Judge

text:
    UNITED STATES ex rel. ROBINSON v. DAY, Commissioner of Immigration.
    No. 419.
    Circuit Court of Appeals, Second Circuit.
    July 7, 1931.
    CHASE, Circuit Judge, dissenting.
    Edwin L. La Crosse, of New York City, for appellant.
    Morton Baum, of New York City, for ap-pellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   L. HAND, Circuit Judge.

Robinson, the relator, entered the United States from Canada in 1920 and stayed here till February, 1929, when he made a short trip to his home. He re-entered on February 7, 1929, and in the following May was indicted for forgery in the second degree in the Court of General Sessions of the City of New York. He pleaded guilty to the crime of forgery in the third degree, and was sentenced to state’s prison for not less than one year and six months, and not more than two years and six months; “the said sentence to remain wholly unexecuted as long as the defendant continues to contribute eight dollars a week towards the support of his child by his marriage with Angelina D. Seorpa.” He was never imprisoned, as he continued to make the required payments, but he was arrested for deportation in August, 1929, and ordered deported as an alien who had been sentenced to a term of imprisonment of more than one year. He sued out a writ of habeas corpus which the District Judge dismissed, and now appeals from the order.

Forgery in all its degrees, as defined by the Penal Code of New York (Penal Law, § 880 et seq.), involves an intent to defraud, and is thus a crime of moral turpitude. Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. U. S. ex rel. Mylius v. Uhl, 210 F. 860 (C. C. A. 2); Howes v. Tozer, 3 F.(2d) 849 (C. C. A. 1); U. S. ex rel. Castro v. Williams (D. C.) 203 F. 155; U. S. ex rel. Griffo v. McCandless (D. C.) 28 F.(2d) 287. Conversely, when it does, no evidence is competent that he was in fact blameless. Tillinghast v. Edmead, 31 F.(2d) 81, 82 (C. C. A. 1). In that ease he is remitted to a pardon or to the recommendation of the judge at the time of sentence. We are therefore confined to considering whether the relator was “sentenced to imprisonment for a term of one year or more.”

Formally indeed he was; the sentence so read. Actually he never was, because he was not to be imprisoned unless he defaulted in the weekly payments to his child. The sentence was absolute; the imprisonment was conditional. It is the sentence which marks the gravity of the offence; through it the statute takes account of the particular circumstances, which it ignores in making the definition of the crime conclusive. The notion is that the judge, in the light of all the surroundings, must appraise the alien’s conduct as deserving a year’s imprisonment, and must impose it. It is not enough that the crime necessarily involves immoral conduct; it must be heinous enough to require punishment in prison. If the sentence be out and out suspended, obviously that condition is not fulfilled; he may never be imprisoned at all. If it be imposed, but execution conditionally suspended, the same is true; for the punishment is only held in terrorem to insure performance, and performance will avoid it altogether. The judge has not fixed imprisonment as a penalty for the crime. Indeed, the only difference in substance between the two is that in the second the conditions and the penalty are both defined, while in the first each is left open for future determination.

Therefore, unless we are to close our eyes to the substance and go merely on form, a sentence whose execution is conditionally suspended is not a sentence to imprisonment at all; it is no more than a device to compel the offender to a course of conduct deemed desirable. It is not punitive, but reformator ry, or as here compensatory, precisely like a suspended sentence. But the statute speaks in punitive terms, though it may not. be tolled by parole or commutation, once the judge has committed the offender. The ease is in some aspects not unlike U. S. ex rel. Mignozzi v. Day (C. C. A.) 51 F.(2d) 1019, decided at the same time. Strictly it is one of first impression, for so far as we can find Wilson v. Carr, 41 F.(2d) 704 (C. C. A. 9), is the only decision which strikes close to it. While some of Judge Budkin’s language is in accord with what we have said, the facts did not present the point before us.

Oi'der reversed; relator discharged.

CHASE, Circuit Judge

(dissenting).

Although the sentence imposed was to remain unexecuted as long as the relator made certain payments, he was none the less sentenced. People v. Kaiser, 95 Misc. Rep. 681, 159 N. Y. S. 322. All other requirements of 8 USCA § 155, under which he was ordered deported, were satisfied. Congress did not make deportation contingent upon actual confinement in prison after sentence. It provided for the deportation of aliens who were merely “* * * sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, * * * ” and it might well, as it did, make that alone a ground of deportation. If the enforcement of this plain provision of the statute works too great hardship in some instances, the sole power to remedy that lies in the legislative body responsible for its enactment.

I would affirm the order of deportation.


text:
    TILLMAN v. RUSSO ASIATIC BANK.
    No. 402.
    Circuit Court of Appeals, Second Circuit.
    July 7, 1931.
    As Modified on Denial of Rehearing July 24, 1931.

      Borris M. Komar, of New York City, for appellant.
    Evarts, Choate, Sherman & Leon, of New York City (Maurice Leon, of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

Two causes of action are involved in this appeal. In the first cause of action the following facts are alleged:

The plaintiff opened a current checking account with the defendant, a Russian bank in the city of Petrograd. On September 18, 1918, he had to his credit in the account upwards of 114,000 rubles, and drew a cheek on the bank for 72,000 rubles to the order of one Heidemann, which was dishonored upon presentation. The' plaintiff paid the amount of the cheek to Heidemann. Thereafter on August 24, 1927, plaintiff brought suit against the defendant for failing to pay the check, and sought recovery in the sum of $37,008, with interest from September 18, 1918,-up on the theory that the value of rubles was 51.4 cents in United States currency. Upon the trial, the jury rendered a verdict in favor of the defendant on the first cause of action.

In the second cause of action the following facts were alleged:

On November 18, 1919, the defendant bank delivered its draft to one Fajans, dii'eeted to its office in Novorossiysk, Russia, wherein it required such office to pay Fajans 100,-000 rubles within four months.. This draft was duly indorsed and delivered to the plaintiff. The office could not be found and the draft was not paid, whereupon Fajans indorsed and delivered it to the plaintiff who sued to recover $51,400, with interest from March 18, 1920, alleging, as upon the first cause of action, that rubles were worth 51.4 cents in United States currency. On the second cause of action the court directed a verdict for the defendant on the ground that no proof had been offered of the value of rubles in 1927.

It appeared that the plaintiff was a citizen of the United States. The citizenship of Fajans was neither alleged nor proved.

Various defenses to each cause of action were raised, but the principal question was whether any proof was made of the value of the rubles in United States currency. Where a debt is due in a foreign country payable in the currency of that country, and suit is brought on it in the United States, the Supreme Court has held the plaintiff should recover what that currency is worth in this country on the day of judgment. Justice Holmes, who laid down the foregoing rule in Deutsche Bank v. Humphrey, 272 U. S. 517, 47 S. Ct. 166, 71 L. Ed. 383, said that the date of judgment, and not the date of the breach, was the proper time for figuring the rate of exchange because “a suit in this country is based upon an obligation existing under the foreign law at the time when the suit is brought, and the obligation is not enlarged •by the fact that the creditor happens to be able to catch his debtor here.”

It is therefore necessary to determine the extent of the obligation of the defendant in Russia. The difficulty with the plaintiff’s case is that he failed to establish this and neglected to show that the rubles which the defendant was bound to pay had any value in United States currency at the date of judgment. It is argued that he was precluded from making such proof because the court struck out testimony of his witness Bolotov-sky through whom he attempted to show the value of the ruble. Indeed, the exception which is most relied on was directed to the elimination of Bolotovsky’s testimony. But this exception cannot avail, for, if we take the Bolotovsky testimony at its face value, it does not establish that the rubles which the defendant negleeted to pay were worth anything at the date of judgment. Bolotovsky testified that Romanoff rubles had then practically disappeared, and that Denikin rubles and Kerensky rubles had become worthless. To be sur© he said that, by decrees of the Soviet government in 1922 and 1924, a gold standard was established and that the ruble of the New Soviet currency was worth 53 cents at the time when he testified. But the text of these decrees was not proved, and no attempt was made to show whether they wiped out the preexistent rubles as legal tender or established any ratio of exchange for the old currency. We are asked to hold that obligations originally payable in rubles which had disappeared or become worthless should be liquidated in new Soviet rubles worth 53 cents.

' In Thorington v. Smith, 8 Wall. 1, 19 L. Ed. 361, where a resident of the Confederate States agreed to pay another resident' of those states $10,000 for a purchase of land, the Supreme Court held that the debt was to be liquidated in Confederate notes rather than in lawful money of the United States and that the plaintiff was entitled to recover in money of the United States the value of the Confederate money contracted to be paid. The decision in Effinger v. Kenney, 115 U. S. 566, 6 S. Ct. 179, 29 L. Ed. 495, was to the same effect.

It is perfectly true that an obligation payable “in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it.” Deutsche Bank v. Humphrey, 272 U. S. at page 519, 47 S. Ct. 166, 167, 71 L. Ed. 383. See, also, Legal Tender Cases, 12 Wall. 457, 20 L. Ed. 287; Richard v. American Union Bank, 241 N. Y. at page 167, 149 N. E. 338, 43 A. L. R. 512; Matter of James, 248 N. Y. at page 6, 161 N. E. 201. But the question here is whether the rubles which the defendant agreed to pay were the same currency that the Soviet decrees of 1922 and 1924 established as governmental currency or had anything in common with the latter except the name. There is no proof of equivalence between the Soviet ruble which Bolotovsky said was worth 53 cents and the earlier Ro-manoff, Denikin, or Kerensky rubles. Indeed, the only testimony seems to indicate that the old rubles had no such equivalence, for they were said to have disappeared or to have become worthless. There was no proof that the Soviet decrees required debtors to pay obligations existing prior to their enactment in the new currency. We think that proof of the value of the rubles which the plaintiff sought to recover upon either the first or second cause of action was wholly lacking.

Moreover, if, as the plaintiff once contended at the trial, the indebtedness of the bank might be liquidated either in Romanoff, Denikin, Kerensky, or Soviet rubles, the debt- or had the privilege of paying in currency of the least value. Restatement of the Law of Contracts by American Law Institute, § 335; Williston on Contracts, § 1407; Matter of People (Russian Reinsurance Co.) 255 N. Y. at page 423, 175 N. E. 114. The old rubles had no, or certainly no proved, value at the time of the trial. Under the charge, the jury evidently found that the rubles which the bank contracted to pay were worthless when the suit was brought on August 24, 1927. This date, rather than the date of judgment, the court inadvertently adopted as the time for fixing the value of rubles in United States currency, but it was admitted at the argument before us that values had not changed between the date mistakenly adopted and the date of judgment. We can discover no proof that the rubles which the bank had agreed to pay had any value at either date, and we accordingly hold that on the merits the defendant was entitled to the direction of a verdict on the first cause of action. Other considerations affect the second cause of action which we shall diseuss hereafter.

The plaintiff greatly relies on the recent decision of the New York Court of Appeals in Matter of People (First Russian Ins. Co.) 255 N. Y. 428, 175 N. E. 118, 119. There the holder of a policy in a Russian insurance company, who was entitled to the payment of 10,000 rubles in June, 1923, was allowed to recover at the rate of 51% cents per ruble. Judge Cardozo interpreted the record as establishing that in June, 1923, “the Russian ruble was again on a gold basis, and that, where token rubles were paid in satisfaction of a debt, the number would have to be increased to the extent necessary to make the payment equivalent to one in gold.” In other words, he in effect treated the obligation as calling for payment in gold-and requiring liquidation in Soviet rubles of the new gold standard. But he most carefully added: “We do not attempt to say to what extent a different record, exhibiting in a different light the history of the ruble, would exaet a different conclusion.”

In the ease at bar the evidence goes no farther than to indicate that a gold Soviet ruble was of the same value as an Imperial gold ruble coin. There is no proof that the defendant bank was bound to pay its obligations in gold. The old currency in which the drafts were originally payable had become worthless. When the Soviet government established a new currency, it is not shown to have provided by its decrees that old obligations were to be payable in the new currency, ruble for ruble. Indeed, that such was the meaning or effect of the decrees seems inherently unlikely. The plaintiff should have produced the decrees and proved their contracts, if it sought to establish that the claims having a value, nominal at the time, were made payable in a new currency worth 53 cents per ruble. It had the burden of proving the value of the rubles in United States currency at the date of judgment. That burden it has not sustained.

For the foregoing reasons the judgment as to the first cause of action is right.

The judgment upon the second cause of action was rendered without jurisdiction. The lack of jurisdiction was not mentioned in the briefs filed for argument or upon the argument, but has since been called to our attention and discussed in supplemental memoranda. Affidavits submitted with the memoranda are no part of the record and will not be filed, but it may be added that, if they were open to consideration, they could not possibly affect the result of the decision.

The District Court had no jurisdiction over the second cause of action because of the provisions of the statute affeeting suits based on diverse citizenship. After conferring jurisdiction where the matter in controversy exceeds, exclusive of interest and costs, $3,000, and is between citizens of a state and foreign states, citizens, and subjects, the act goes on to provide that: “No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in aetion in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in aetion if no assignment had been made. * * * ” Title 28, U. S. C., § 41 (28 USCA § 41).

There is no allegation or proof of the citizenship of Fajans in whose favor the draft for 100,000 rubles was made, so that the suit upon the draft could not have been prosecuted by Fajans against the defendant, a Russian corporation. Therefore the plaintiff, an American citizen, could only sue in the District Court in ease the draft is to be regarded as (1) a “foreign bills of exchange,” or (2) as “payable to bearer and * * * made by any corporation.” Turner, Administrator of Stanley, v. Bank of North America, 4 Dall. 8, 1 L. Ed. 718; Sheldon v. Sill, 8 How. 441, 12 L. Ed. 1147; New Orleans v. Quinlan, 173 U. S. 191, 19 S. Ct. 329, 43 L. Ed. 664.

The draft in question was not a “foreign bill of exchange,” for it was not drawn in one country upon a person in another. This was Blackstone’s definition of a foreign bill of exchange which was adopted by the Supreme Court in Buckner v. Finley, 2 Pet. 586, 7 L. Ed. 528, and employed to justify its decision that a bill drawn in Maryland upon a drawee in New Orleans was “a foreign bill” within the exception of the statute. If we were to treat bills drawn in another state upon persons in that state as foreign bills of exchange, we should open the United States courts to any litigant who chose the simple expedient of assigning his hill of exchange to a citizen of a state other than that in which it was drawn. It seems clear that the draft for 100,-000 rubles drawn by the defendant in Russia, upon its branch there, was not a foreign bill of exchange within the meaning of the* statute.

Nor can the draft be thought to have been made by a corporation and “payable to bearer.” It was made “to the order of * * * Fajans,” and not “to bearer.” The authorities are clear that such an instrument is not within the terms of the statute. New Orleans v. Benjamin, 153 U. S. 411, at page 432, 14 S. Ct. 905, 38 L. Ed. 764; Thomson v. Town of Elton (C. C.) 100 F. 145; Rollins v. Chaffee County (C. C.) 34 F. 91; State Nat. Bank of Denison v. Eureka Springs Water Co. (C. C.) 174 F. 827. "

The remaining questions are whether the second cause of action should be retained because it is coupled with the first over which there is jurisdiction, or whether both should be dismissed for lack of jurisdiction of the suit as a whole, or whether the second cause of aetion should be remanded to the state court and the judgment so far as it relates to the first should be affirmed.

The plaintiff argues that, because the first cause of action was one over which the court had jurisdiction, both causes of aetion should be held in the District Court under the “separable controversy” section of the United States statutes. Title 28, U. S. C., § 71 (28 USCA § 71). But the “separable controversy” section does not apply where, as here, the removing defendant was an alien. The above section only covers eases where the controversy is wholly “between citizens of different states.” King v. Cornell, 106 U. S. 395, 1 S. Ct. 312, 27 L. Ed. 60; Merchants’ Cotton Press & Storage Co. v. Ins. Co. of North America, 151 U. S. at page 386, 14 S. Ct. 367, 38 L. Ed. 195; Laden v. Meck (C. C. A.) 130 F. 877; Bailey v. Texas Co. (C. C. A.) 47 F.(2d) 153. But, in addition to this fatal objection, the controversy here was not “separable.” On the contrary, there were joined in the complaint two entirely disconnected causes of aetion having neither a common subject-matter nor any other relation except that the plaintiffs and defendants were the same and the causes of action were, and under the practice might he, united in the same declaration. While the causes of action were in every sense “separate,” there was no “separable controversy” within the meaning of the statute. A “separable controversy” does not arise from a joinder of numerous unrelated causes of aetion in order to eliminate many trials. Pacific Railroad Cases, 115 U. S. at page 23, 5 S. Ct. 1113, 29 L. Ed. 319; Mississippi Mills v. Cohn, 150 U. S. 202, 14 S. Ct. 75, 37 L. Ed. 1052; Stewart v. Nebraska Tire & Rubber Co. (C. C. A.) 39 F.(2d) 309; Drovers’ Deposit Nat. Bank v. Tichenor (D. C.) 202 F. 1013; Tullar & Tullar v. Illinois Cent. R. Co. (D. C.) 213 F. 280; Manufacturers’ Commercial Co. v. Brown Alaska Co. (C. C.) 148 F. 308; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co. (C. C.) 152 F. at page 830. In such a situation the entire suit should not have been removed to the United States court, as is done where a “separable controversy” exists (Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514), but only the cause of aetion over which jurisdiction by reason of diversity of citizenship might be exercised. This was the exact practice which we approved in Young v. Southern Pacific Co. (C. C. A.) 15 F.(2d) 280. This is because the Removal-Act allows removal only of suits of which the District Courts are given original jurisdiction. Title 28, U. S. C., § 71 (28 USCA § 71).

The second cause of action is in every fundamental sense a separate suit, and should be remanded to the state court. Pacific Railroad Removal Cases, 115 U. S. at page 23, 5 S. Ct. 1113, 29 L. Ed. 319; Young v. Southern Pac. Co. (C. C. A.) 15 F.(2d) 280; Lucania Societa, etc., v. U. S. Shipping Board, etc. (D. C.) 15 F.(2d) 568; Stewart v. Nebraska Tire & Rubber Co. (C. C. A.) 39 F.(2d) 309; State of Idaho v. American Surety Co. (D. C.) 218 F. 678.

It is true that in Tullar & Tullar v. Illinois Cent. Ry. Co., 213 F. 280; the whole suit was remanded, though the District Court had jurisdiction of one of the entirely separate causes of aetion, and in Sharkey v. Port Blakely Mill Co. (C. C.) 92 F. 425, and Hoge v. Canton Ins. Office (C. C.) 103 F. 513, Judge Hanford retained both causes of action when the circumstances were similar. But these three cases run counter to our own decision in Young v. Southern Pac. Co., supra, which cited with approval that of Judge Dietrich in State of Idaho v. American Surety Co., supra, as well as Pacific Railroad Removal Cases and Stewart v. Nebraska Tire & Rubber Co., supra.

As a further ground for retaining both causes of aetion, the plaintiff says that it does not lie in the mouth of the defendant, who removed the suit, to objeet to jurisdiction. But jurisdiction cannot be conferred by consent, and where the case which has been removed was one over which a federal eourt could never have had jurisdiction, it must be remanded,, and the suggestion for remand may come from the removing party. Mansfield, C. & L. M. Railway Co. v. Swan, 111 U. S. 379; 4 S. Ct. 510, 28 L. Ed. 462; Torrence v. Shedd, 144 U. S. 527, 12 S. Ct. 726, 36 L. Ed. 528; Mexican National Railroad v. Davidson, 157 U. S. 201, 15 S. Ct. 563, 39 L. Ed. 672; Gainesville v. Brown-Crummer Co., 277 U. S. 59, 48 S. Ct. 454, 72 L. Ed. 781.

For the foregoing reasons, the judgment so far as it relates to the first cause of aetion is affirmed, but, so far as it relates to the second cause of aetion, is reversed, with direction to the District Court to remand such second cause of aetion to the Supreme Court of the state of New York.


author: GARDNER, Circuit Judge.

text:
    SERPELL-WINNER-JORDAN, Inc., v. CRETE MILLS.
    No. 9063.
    Circuit Court of Appeals, Eighth Circuit.
    July 30, 1931.
    Claude S. Wilson, of Lincoln, Neb. (Roy F. Gilkeson and Hyman Rosenberg, both of Lincoln, Neb., on the brief), for appellant.
    Don W. Stewart, of Lincoln, Neb. (Stewart, Stewart & Whitworth, of Lincoln, Neb., on the brief), for appellee.
    Before STONE and GARDNER, Circuit Judges, and MARTINEAU, District Judge.
   GARDNER, Circuit Judge.

The appellant, as plaintiff in the court below, brought aetion to recover upon a judgment secured by it against the defendant in the circuit court of the city of Norfolk, Va., which was a eourt of general and original jurisdiction. The defendant is a corporation organized under the laws of the state of Nebraska, Service of process upon defendant in the state of Virginia was had by serving an agent of the defendant, described in the return of the officer making the service as “Eastern Sales Manager and Agent, of the said The Crete Mills, a corporation.” The Crete Mills, in response to the attempt to so serve it in the.state of Virginia, entered a special appearance and moved to quash the service of the writ, and objected to the jurisdiction of the court. Its motion being overruled, it answered, reciting in its answer that, “without waiving pleas heretofore filed to the jurisdiction of the court, but insisting most strenuously upon same, files this its plea,” etc.

The defense was limited to defensive matter proper, no affirmative relief being demanded by the defendant. On trial of the merits of the action, plaintiff recovered judgment, and the judgment so recovered is the basis of the present action.

In answer to plaintiff's petition filed in the lower court, pleading this Virginia judgment, defendant denied that any summons had ever been served upon it in that action, and alleged that it was not, at the time of the commencement or pendency of the action in Virginia, doing business in that state, and that the judgment sued on was entered without jurisdiction over the defendant, in violation of section 1 of Amendment 14 of the Constitution of the United States.

The action was tried to the court without a jury, on stipulation of the parties. The lower court held that the defendant, at the time of the attempted service of process upon it in the state of Virginia, was not doing business in that state in such a sense as made it subject to service of process in a civil suit brought therein, and hence it was not bound by the judgment, and accordingly entered a judgment in favor of the defendant, dismissing plaintiff's petition.

The Virginia court was one of general jurisdiction, and was not inherently lacking in jurisdiction or authority to determine the issues involved. Its jurisdiction, however, was dependent upon the existence or nonexistence of certain facts, and not dependent upon a question of law. When the defendant entered its special appearance in the Virginia .court, it challenged the jurisdiction of that court on the ground that it was not doing business in that state in such a sense as to subject it to service of process therein. This presented a mixed issue of law and fact. The Virginia court had judicial power to hear and determine the question of its own jurisdiction, and the defendant had its day in court on that question, and the court’s decision was as effective and conclusive as its decision on any other matter within its jurisdiction. Its jurisdiction was dependent upon a fact which, on the special appearance of the defendant, it was required to ascertain. It determined that fact, and its determination was not appealed from and has never been set aside or reversed by a direct proceeding. It is well settled that, where a question proper for judicial determination is directly put in issue and finally determined by a court having authority and jurisdiction to hear and determine the question, such determination will be deemed final and conclusive in all future litigation between the parties in which the same question arises, so long as the judgment remains unreversed.

In Baldwin v. Iowa State Traveling Men's Ass’n, 283 U. S. 522, 51 S. Ct 517, 75 L. Ed. 1244, the precise question here involved was before the Supreme Court. In an opinion by Mr. Justice Roberts, it is there said:

“The substantial matter for determination is whether the judgment amounts to res, judicata on the question of the jurisdiction of the court which rendered it over the person of the respondent. It is of no moment that the appearance was a special one expressly saving any submission to such jurisdiction. That fact would be important upon appeal from the judgment', and would save the question of the propriety of the court’s decision on the matter, even though, after the motion had been overruled, the respondent had proceeded, subject to a reserved objection and exception, to a trial on the merits. Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Goldey v. Morning News, 156 U. S. 518, 39 L. Ed. 517, 15 S. Ct. 559; Toledo R. & Light Co. v. Hill, 244 U. S. 49, 61 L. Ed. 982, 37 S. Ct. 591; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 62 L. Ed. 260, L. R. A. 1918C, 497, 38 S. Ct. 65, Arm. Cas. 1918B, 461; Morris & Co. v. Skandinavia Ins. Co., 279 U. S. 405, 73 L. Ed. 762, 49 S. Ct. 360. The special appearance gives point to the fact that the respondent entered the Missouri court for the very purpose of litigating the question of jurisdiction over its person. It had the election not to appear at all. If, in the absence of appearance, the court had proceeded to judgment, and the present suit had been brought thereon, respondent could have raised and tried out the issue in the present action, be- ' cause it would never have had its day in court with respect to jurisdiction. Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Pennoyer v. Neff, 95 U. 8. 714, 24 L. Ed. 565; Hart v. Sansom, 110 U. S. 151, 28 L. Ed. 101, 3 S. Ct. 586; Wetmore v. Karrick, 205 U. S. 141, 51 L. Ed. 745, 27 S. Ct. 434; Bigelow v. Old Dominion Copper Min. & Smelting Co., 225 U. S. 111, 56 L. Ed. 1009, 32 S. Ct. 641, Ann. Cas. 1913E, 875; McDonald v. Mabee, 243 U. S. 90, 61 L. Ed. 608, L. R. A. 1917E, 458, 37 S. Ct. 343. It had. also the right to appeal from the decision of the Missouri District Court, as is shown by Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237, supra, and the other authorities cited. It elected to follow neither of those courses, but, after having been defeated upon full hearing in its contention as to jurisdiction, . it took no further steps, and the judgment in question resulted.
“Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.”

This decision, which reversed a prior decision of this court (40 F.(2d) 357), we think conclusive of the present issue. The lower court doubtless based its decision upon the holding of this court in Baldwin v. Iowa State Traveling Men’s Ass’n, 40 F.(2d) 357.

The judgment of the lower court is, therefore, reversed, and the cause remanded for further proceedings consistent herewith.


text:
    UNITED STATES v. DOWNING et al.
    No. 443.
    Circuit Court of Appeals, Second Circuit.
    July 17, 1931.
    William B. Mahoney, of Buffalo, N. Y., for appellant Downing.
    John S. McGovern, of Buffalo, N. Y., for appellant Downey.
    Richard H. Templeton, of Buffalo, N. Y. (Justin C. Morgan, of Buffalo, N. Y., of counsel), for the United States.
    Before L. HAND, SWAN, and CHASE, Circuit Judges.
   L. HAND, Circuit Judge.

Downing and Downey were convicted of conspiring to import from Canada a cargo of intoxicating liquor into the United States-at Buffalo. The evidence of the prosecution was that one, Devine, met Downing in Hamilton, Ontario, and agreed with him to bring a thousand eases of ale into the United States. Later he had a telephone talk with Downing, and arranged to have the ale brought in by some one else, as Devine was leaving Buffalo for a time. He thereupon posted a letter to one, Cullen, giving Downing’s name and address in Buffalo, and Cullen undertook the job, writing Downing when he would reach Hamilton with his barge to load the ale. He took her to Hamilton, and after some delay received the cargo at Port Colborne, whence he carried it to Buffalo, and delivered it with the help of Devine, who had returned. Downey helped to load the barge at Port Colbome and to discharge her at Buffalo.

On this evidence Downing argues that there was no proof of any conspiracy within the United States, and that the indictment should have been dismissed. If Downing was in Buffalo when Devine agreed on the telephone to get a substitute, this would alone have been enough. Possibly the evidence is not entirely clear as to where he was at that time, though Devine gave Cullen a Buffalo address. However, when the barge came in, Devine advised Downing at Downing’s request, who was then at any rate in Buffalo. But all this is quite beside the point, since it was not necessary that Downing should have come to the United States at all. Conspirators are considered by a fiction as repeating their agreement wherever any part of it is executed. Thus, when Cullen brought the laden barge to Buffalo, and Devine and Downey discharged her, under an arrangement with Downing to that effect, all the parties to the original agreement could be treated as conspiring afresh. Hyde v. U. S., 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. It is true that that case and its companion, Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, both involved the defendant’s removal for trial from one part of the United States to another, and conceivably a distinction might be drawn, though not a good one; but Ford v. U. S., 273 U. S. 593, 47 S. Ct. 531, 71 L. Ed. 793, is precisely on all fours with the ease at bar and lays all doubts, if any could arise.

Again, it is true that in those cases the indictment laid, and the evidence proved, an overt act within the jurisdiction, and that it was upon this that the court relied. That was not true here, because while the indictment laid overt acts in Buffalo, the proof broke down as to them, being sufficient only as to an overt act laid in Ontario. However, the conspiracy is the crime (Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 766, 56 L. Ed. 96); the overt act is necessary only to show that performance has begun, and it may be laid outside the jurisdiction [Dealy v. U. S., 152 U. S. 539, 547, 14 S. Ct. 680, 38 L. Ed. 545; Chew v. U. S., 9 F.(2d) 346, 353 (C. C. A. 8) ]. Since jurisdiction depends upon where the crime is committed, and it is committed wherever any part of the agreement is performed, the act of performance relied upon need not be an overt act laid in the indictment. We can see nothing in Downing’s appeal to warrant a reversal.

At the argument Mr. McGovern appeared for Downey and with the consent of the district attorney, adopted Downing’s assignments of error. We may assume arguendo that this was permissible, if Downey had appealed. The difficulty is that, so far as appears, he has never appealed at all, and we are without jurisdiction as to him. Indeed, there is in addition no bill of exceptions, which alone could present any of the errors argued. The transcript does indeed contain what purports to be a complete copy of all that took plaee upon the trial, headed “Defendant’s Bill of Exceptions,” and the transcript is certified by the clerk as “a full, true and correct transcript of the record,” whatever that may mean. But the judge never settled "any bill of exceptions, and his certificate is essential to our consideration of what took plaee upon the trial. Only then does any part of it come into the record. Clune v. U. S., 159 U. S. 590, 593, 16 S. Ct. 125, 46 L. Ed. 269; Metropolitan R. R. Co. v. Columbia, 195 U. S. 322, 330, 332, 25 S. Ct. 28, 49 L. Ed. 219; Reilly v. Beekman, 24 F.(2d) 791 (C. C. A. 2). Indeed, we are equally without power to consider the points raised by Downing, which we have discussed only because it is desirable to show that he has suffered no harm by his failure to conform with the formalities. Our inability is even deeper as to Downey, because of the absence of an appeal.

There is indeed but one point which could in any event be debatable. Downey took the stand and was asked whether he had not already been convicted of violating section 593 (a) of the Tariff Act of 1922 (19 US CA § 496); that is, of introducing goods into the United States by fraudulent practices. He so admitted, and the evidence was competent [Weiner v. U. S., 26 F.(2d) 522 (C. C. A. 3) ]; competent indeed even in such jurisdictions as require the impeaching crime to affect the witness’ credibility directly. Had the matter rested there, there could have been no doubt; but it did not. The judge charged the jury that they might take the earlier conviction “into account as bearing upon the likelihood of a person who had been engaged in a crime such as he admitted, of again engaging in a similar transaction.” This he refused to modify when his notice was called to the error, for of course it was plainly such. Wigmore, § 192.

It is quite true that jurors will often make no distinction between an accused’s credibility and his guilt. And indeed, although the law may be justified in refusing to recognize the inference from the commission of one crime to that of another, most people feel its force, and this is the source of the danger in admitting sueh evidence for a different purpose. The least courts can do, accepting the rule as authoritative, is to advise the jurors that they should not do exactly what the judge here told them that they might. Nor are we disposed to regard sueh an admonition as a ritualistic formality, whose disregard we should ignore, except in a very plain ease. Some jurors are wilful, some somewhat pathetically docile; it is impossible to say a priori that none will be influenced by an instruction which it is not impossible in practice to observe. Indeed unless we are to abdicate altogether, we may not proceed on the assumption that whatever a judge says, the result will be the same. We are all curiously ignorant of the actual working of the institution to'which we so jealously adhere, but so far as any inference is justified, we should not presuppose that all sueh cautions are a waste of words.

Of course when the guilt of the accused is altogether plain, we can and should disregard sueh incidents. In the ease at' bar Downey was connected with the enterprise only by Devine and Cullen. Devine had been an accomplice, though he was not indicted; Cullen was indicted and had pleaded guilty. Downey denied any connection with the transaction. If the matter was open to us, we might hesitate to say that in sueh a setting it could have made no difference that the judge positively told the jury that they might reason from the accused’s former crime to his commission of another. We cannot therefore say that the absence of any appeal and bill of exceptions did no harm. Unfortunately we have no alternative but to dismiss the appeal for the reasons already given.

Judgment affirmed as to Downing.

Appeal dismissed as to Downey.


author: CHASE, Circuit Judge.

text:
    WESTERN UNION TELEGRAPH CO. v. TOMPA.
    No. 428.
    Circuit Court of Appeals, Second Circuit.
    Argued May 22, 1931.
    Decided July 17, 1931.

      Francis R. Stark, of New York City (Denis O’L. Cohalan, of New York City, of counsel), for appellant.
    Kremer & Leavitt, of New York City (Samuel Leavitt, of New York City, of counsel), for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   CHASE, Circuit Judge.

At the time this suit was brought, the defendant was not a citizen of the United States. The plaintiff was a New York corporation with its principal place of business in that state. It is undisputed that the jurisdictional amount is involved.

The plaintiff employed the defendant to work as a cook on its work trains. While so employed on a train operated over the right of way of the. New York Central Railroad Company in the state of New York, she was injured when the plaintiff’s train, on which she was working, collided with one of the railroad’s trains at a siding at Cohoes, N. Y., ■on September 23, 1927. The plaintiff was, and is, willing and able to pay her compensation for the injury in accordance with the provisions of the New York Workmen’s Compensation Law (Consol. Laws N. Y. c. 67), and did make one payment to her on January 30,1928. Thereafter she brought suit in the New York Supreme Court against the New York Central Railroad Company to recover her damages for the injury. That company thereupon notified this plaintiff that it would look to it for reimbursement for all damage and expense suffered by reason of such suit in accordance with a contract of which the material part is later summarized. The plaintiff then brought this suit to restrain the defendant from proceeding with her action against the railroad company and to require her specific performance of an agreement she made with the plaintiff relating to compensation for injuries or death.

At the time the defendant was employed by the plaintiff, and continuously up to and including the date she was injured, there was in force between the plaintiff and the railroad company a contract which the railroad company’s predecessor had made with the plaintiff to the effect, inter alia, that, if any employee of the plaintiff was injured in the course of his employment and while on the premises of the railroad company, the plaintiff would indemnify and save the railroad company harmless from all loss or damage of any kind arising from such injury to such, employee.

When the defendant entered the employ of the plaintiff, she signed the following-agreement:

“Whereas, The Western Union Telegraph-Company has adopted and now has in- effect a relief plan for the payment of compensation to its. employees in the event of their accidental injury or death occurring in the course of their employment; and whereas in the course of my duties as an employee of the above named company, it will be necessary for me from time to time to travel over lines of railroads which the above named company has contracted to indemnify against any liability for injury to or death of persons in its employ while traveling or being on the railroad companies’ premises or rights of way in connection with the telegraph, compa-, ny’s business, either on a pass or otherwise) now therefore, it is stipulated and agreed to-by me, in consideration of my employment by the said company, and as a term or condition of such employment, that in case of my áeeidental injury or death in the course of my employment for the said company-while traveling or being on the premises or right of way of any such railroad, I, or my personal representatives, will look for compensation solely to The Western Union Telegraph Company’s relief plan before referred to, of which I have been furnished a copy and with which I am familiar, or to the Workmen’s Compensation Act, if any, which may apply in such ease, and that no railroad ■company which my said employer may have agreed to indemnify against liability for my injury or death shall be liable to me or to my personal representative for such injury or death, whether or not the same shall be caused by the negligence of such railroad company or its servants.
“Ester Tompa Cook [Signature].
“January 25, 1927 [Date].
“Geo. Hillman, Witness.”

It remained unchanged at the time she was injured, and the District Court decided, after hearing and considering evidence on that subject, that, when she signed the agreement, she did so freely after it was explained to her and she understood its meaning. Insisting that it is bound to indemnify the railroad for any loss or damage it may suffer by reason of the suit the defendant has brought against it and relying upon the defendant’s agreement above set forth, the plaintiff now seeks injunctive relief on the theory that it has no complete and adequate remedy at law,’ in that the defendant has no property and so is judgment proof. The defendant has taken the position that the plaintiff has no remedy at all in this aetion because 28 USCA § 379, forbids the issuance of an injunction and also because there is no equity in this suit, since the agreement of the defendant is against public policy and void.

The agreement does not limit the liability of the plaintiff to any private plan of its own for the payment of compensation to its injured employees, but leaves such liability as there may be under the provisions of the New York Workmen’s Compensation Law unimpaired. It does deny to the plaintiff the right to sue a third person. We think that such •agreements as that made by the defendant have already been held by controlling authority not to be contrary to public policy but valid and enforceable. Wells Fargo & Co. v. Taylor, 254 U. S. 175, 41 S. Ct. 93, 65 L. Ed. 205. Compare, Baltimore & Ohio Southwestern Railway Co. v. Voigt, 176 U. S. 498, 20 S. Ct. 385, 44 L. Ed. 560.

The District Court was of the same opinion regarding the validity of the defendant’s agreement, but, believing that this suit was for an injunction forbidden by section 265 of the Judicial Code (28 USCA § 379), dismissed the bill. This section provides that “the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in eases where such injunction may be authorized by any law relating to proceedings in bankruptcy.”

Without dwelling upon the reasoning which has lead to the distinction, for that is abundantly shown in the eases to be cited, the prohibition of the above statute does not extend to the issuance of an injunction against the enforcement of a judgment obtained in a state action where the prosecution of the state suit would be enjoined but for the statute above quoted. Wells Fargo & Co. v. Taylor, supra; Essanay Film Co. v. Kane, 258 U. S. 358, 42 S. Ct. 318, 66 L. Ed. 658; Simon v. Southern Railway Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492; Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870; Atchison, T. & S. F. R. Co. v. Wells, 265 U. S. 101, 44 S. Ct. 469, 68 L. Ed. 928.

The prosecution of the defendant’s pending suit is in violation of her agreement with the plaintiff, and the plaintiff has no adequate remedy at law. Even if we assume that the plaintiff has a remedy in an independent action in equity in the state court or, without deciding, by petition to intervene in the now pending suit, such a remedy does not deprive it of the right to seek redress in this action, curtail the power, or do away with the duty of a federal court to grant relief within the limits,, and to the full extent, of its own jurisdiction. Simon v. Southern Railway Co., supra; Hyde & Oglesby v. Stone, 20 How. 175, 15 L. Ed. 874.

Under these circumstances, it only remains to be determined whether we must wait until the threatened judgment is obtained and then enjoin its enforcement (see Langnes v. Green, 282 U. S. 531, 51 S. Ct. 243, 75 L. Ed. 520) or so act now that the defendant may proceed in that action, if proceed she must, with knowledge in advance of the futility of doing so in violation of her agreement. There is nothing in 28 USCA § 379, to deprive the District Court of jurisdiction of the subject-matter of this suit. Smith v. Apple, 264 U. S. 274, 44 S. Ct. 311, 68 L. Ed. 678. The plaintiff is not only threatened now With having to indemnify the railroad from loss or damage occasioned by the defense of that suit, but from all the consequences 'which may flow from the maintenance of that action. The fact that a federal court of equity is prevented, by the limitation imposed by the above statute, from granting complete relief, should not be taken as an excuse for not doing presently what will eventually have to be done if the threatened injury to the plaintiff should become more imminent in the event that the defendant does recover a judgment against the railroad. Indeed, the difference between the threat now of unlawful injury from such a judgment and what it will be if the defendant prevails in her state suit is only one of degree. It is too plain for discussion that her real purpose and intent is not only to obtain a judgment against the railroad, but to collect it. We cannot prevent her doing all she can to obtain one, but, since it already appears that it will inevitably be against equity and good conscience to permit her to collect it, we will now grant such relief as we think the statute permits by enjoining her from doing anything to enforce any judgment she may obtain and leave her otherwise free to proceed as she may be advised.

Decree reversed, with directions to enter a decree in accordance with this opinion.


text:
    DOLLAR S. S. LINE v. ELTING, Collector of Customs.
    No. 399.
    Circuit Court of Appeals, Second Circuit.
    July 7, 1931.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Dalbert M. Tibbetts, of New York City, of counsel), for appellant.
    George Z. Medalie, U. S. Atty., of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

On October 6, 1927, the plaintiff brought from Italy to the United States an alien Bonaria Capula. After examination at the port of New York by publie health surgeons, the alien was found to be afflicted with trach-oma, a dangerous contagious disease, which might have been detected before she sailed by means of a competent medical examination at the foreign port of embarkation.

The alien had purchased passage on the plaintiff’s steamship President Adams from Genoa to Havana, Cuba. The vessel was to proceed to New York and thence to Havana. In addition to her ticket, the alien had a sailing permit from the Italian government and a “transit permit” issued by the United States consul at Genoa. The President Adams arrived at New York October 6, and was booked to leave for Havana on October 13. Upon arrival in New York, the alien evidenced a desire to remain in the United States other than as a transient, and, after examination, was excluded as being afflicted with trachoma.

The Secretary of Labor having found that the existence of the disease trachoma might have been detected by the Dollar Steamship Line by means of a competent medical examination at the time of foreign embarkation, imposed upon the line a fine of $1,000 and in addition the payment of the sum of $218, paid by the alien for passage money as far as New York.

■ The Dollar Line paid these sums under protest, and brought this action to recover them. The trial judge held that it was the duty of the plaintiff “to examine every alien for contagious disease * * * put on a boat, who by any possibility might go ashore in the United States,” and accordingly directed a verdict in favor of the defendant. From the judgment in favor of the defendant entered upon the foregoing verdict, the plaintiff appeals.

Immigration Rule 3, subd. H, paragraph 6, adopted May 25, 1927, provided that: “Aliens who are through passengers on vessels touching at ports of the United States may land temporarily without visaed passports, for the limited period of time during which the vessel lies over in port, in cases where the examining officer is satisfied that they will depart on the vessel at the time it proceeds on the same voyage. * * * Aliens landing with the intention of remaining beyond the period for which the vessel is to be at port must present visaed passports' and be examined in the same manner and to the same extent as any other alien applying for temporary admission.”

It appears from the foregoing that a-transit visa was not required for the alien Capula. While she possessed one, and we may assume that the line was aware of this, it was not in reason bound to apprehend that an alien, who had purchased a through ticket, had, any purpose to remain in this country beyond the stay of the ship. She could properly use the transit visa only as a means of going overland to Key West and thence by water to Havana. To abandon her passage from New York on the President Adams and purchase additional tickets by another route was too fantastic a plan to be regarded .as a reasonable supposition under the circumstances. ' The only fair reason for obtaining the transit visa was because it was thought to be necessary when the vessel touched at New York. We think that the line stood in the same position as though the alien had had no transit visa. That permit, in view of the purchase of a through ticket, showed no intent to leave the ship permanently, but rather a purpose on her part to arm herself with a paper which she might suppose was required either to touch at New York or to go ashore while the vessel was in port. She was apparently only exercising precautions. We differ with the ruling of the Department that the possession of a transit visa was notice to the steamship line that the alien was an applicant for entry into the United States and that it should have used reasonable diligence to ascertain prior to embarkation whether she was admissible.

Section 9 of the Immigration Act as amended in 1924, (U. S. C. title 8, § 145 [8 USCA § 145]) provides: “It shall be unlawful for any * * * transportation company * .* * to bring to the United States * * * any aüen afflicted with * * * a lotfisome or dangerous contagious disease, and if it shall appear to the satisfaction of the Secretary of Labor that any alien so brought to the United States was afflicted with any of the said diseases * * * at the time of foreign embarkation, and that the existence of such disease or disability might have been detected by means of a competent medical examination at such time, such * * * transportation company * * * shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000, and in addition a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, for each and every violation of the provisions of this section, such latter sum to be delivered by the collector of customs to the alien on whose account assessed.”

If taken literally, section 9 might be regarded as justifying the action of the Department. But the interpretation by the Supreme Court of similar provisions calls for a contrary result. In Taylor v. United States, 207 U. S. 120, 28 S. Ct. 53, 54, 52 L. Ed. 130, a sailor had deserted his ship while on shore leave. Section 18 of the Immigration Act of 1903 (32 Stat. 1217), then in force, provided that the owner or officer of a vessel who should “land or permit to land any alien at any time or place other than that designated by the immigration officers” should be subject to a fine. It further provided that it should be the duty of such an owner or officer “bringing an alien to the United States to adopt due precautions to prevent the landing of any such alien.”

Justice Holmes writing for a unanimous court said that the words “bringing an alien to the United States” meant “transporting with intent to leave in the United States and for the sake of transport, — not transporting with intent to carry back, and merely as incident to employment on the instrument of transport.” In the same way the words of section 9 as amended by section 26 of the present Immigration Act, making it unlawful “to bring to the United States * * * any alien afflicted with “ a * * * dangerous contagious disease,” do not include persons having through tickets who are brought to our shores merely as a step in the voyage of a vessel to a foreign country. It is true, in the ease of both sailors and passengers en route to a foreign country, disease may be spread if they go ashore at a port of call. But in the ease of sailors it was thought sufficient to leave their shore privileges to regulations and inspection at the port of call, and it has been the construction of immigration statutes, both by the Supreme Court and by the Immigration Department, that a sailor is not brought into the country when he lands on shore leave. We can see no difference between a sailor on shore leave and a passenger who comes to the port in a ship bound for a foreign country with a through ticket to the port of destination.

It is unnecessary for us to say whether the steamship line would have transgressed section 9, supra, if it had transported an alien having a transit visa with a ticket for New York, and not beyond. In Lloyd Sabaudo, etc., v. Elting (D. C.) 45 F.(2d) 405, 406, Judge Patterson held that to do this would be "to bring to the United States” an alien, and would subject the shipowner to a fine if he turned out to have trachoma and the disease might have been detected by means of a competent medical examination at the time of foreign embarkation. Here the apparent purpose of the alien was not to go in transit through the United States but to go to Havana and only to stop at New York in the course of the voyage. Neither custom nor departmental regulations, in such a ease as this, seem to have required an examination prior to embarkation. The mere possession of a transit visa was insufficient to warn the steamship line of an intention on the part of the alien to abandon her voyage.

Upon such defective proof of any purpose apparent to the steamship line to enter the United States in violation of law, we think the provisions of section 9 ought not to be held applicable. In a case like this, the landing of the alien should be left to quarantine regulations, and no fine should be imposed, upon the steamship line because of failure to discover that she was afflicted with trachoma at the time of embarkation.

The testimony of Moss, the Italian agent of the steamship line, was objected to by the defendant on the ground that nothing but the facts laid before the Department of Labor was competent evidence of the propriety or impropriety of its action. Judge Patterson in Lloyd Sabaudo, etc., v. Elting, supra, held such to be the limit of judicial review. We have not referred to the testimony of Moss, and the letters introduced in the course of it, because it is unnecessary for us to decide whether that evidence in direct support of the plaintiff’s claim was properly received by the trial court. The favorable inferences implicit in the purchase and possession of a through ticket far outweighed any proof of intent to enter the United States illegally arising from the possession by the alien of a transit visa. Indeed it is difficult to suppose that she obtained that document to facilitate remaining in the country, for she was likely to have had as good a chance of remaining if she had secured ordinary shore leave, while her ship was in port, without subjecting herself to all the restrictions imposed upon “aliens in transit” under rule 5 of the Immigration Rules of March 1,1927, and had then disappeared.

The’ judgment is -reversed.