author: MILLER, District Judge.

text:
    UNITED STATES v. DYE.
    No. 20158.
    District Court, W. D. Kentucky.
    July 6, 1945.
    David C. Walls, U. S. Dist. Atty., of Hardinsburg, Ky., for the United States.
    Robert L. Dye, pro se.
   MILLER, District Judge.

The defendant Robert L. Dye has filed a pleading captioned “Motion to Vacate Judgment in Case” in which he moves the Court to vacate the judgment rendered against him on October 18, 1939, at Louisville, Kentucky, on the ground that it is void, and to “resentence petitioner to time already served unlawfully in the United States Penitentiary at Leavenworth, Kansas, which in effect will authorize the immediate release of petitioner from further custody.”

A Grand Jury for the Western District of Kentucky at a court held at Owensboro on November 28, 1938, returned an indictment against the defendant consisting of two counts, the first count charging unlawful transportation from Missouri to a point near Elizabethtown, Kentucky, of a stolen automobile with knowledge on the part of the defendant that it was a stolen car, and the second count charging the unlawful receiving, concealing and storing of the automobile in question which had been stolen and transported in interstate commerce, with knowledge on the part of the defendant of such facts. The statute involved is Section 408, 18 U.S.GA. The case was transferred from the Owensboro docket to the Louisville docket, also in the Western District of Kentucky, and came on for trial at the October, 1939, term. At the request of the defendant the’ Court appointed counsel to represent him. He pleaded not guilty and was tried before a jury which returned a verdict of guilty on both counts. On October 18, 1939, he was sentenced to three years on each count to be served concurrently. The judgment also provided “the sentence imposed on this indictment shall be served after the defendant shall have completed the sentence he is now serving in the Iowa Penitentiary.” The record shows that on December 9, 1943, he was delivered by the United States marshal for the Southern District of Iowa to the warden of the United States Penitentiary at Leavenworth, Kansas, where he is now in custody.

Defendant’s first contention is that count 1 and count 2 of the indictment charge one and the same act; that he has accordingly received a double sentence for one crime which renders the entire judgment void. This same contention has been rejected numerous times by other United States Courts and the question is now well settled against defendant’s contention. The transportation in interstate commerce of a stolen automobile and the receiving and storing of a stolen automobile which has been transported in interstate commerce are two separate and distinct offenses, although they both may arise out of the same set of circumstances. York v. United States, 6 Cir., 299 F. 778; Doll v. Johnson, Warden, 9 Cir., 95 F.2d 838; Record v. Hudspeth, 10 Cir., 126 F.2d 215. In any event, since the two sentences ran concurrently and the sentence on count 1 is within the limits of the statute, the validity or invalidity of count 2 is immaterial.

The defendant next contends that the Court had no authority to direct that the sentence begin after the defendant completed the sentence he was then serving in the State Penitentiary of Iowa, and that he began to serve the 3-year sentence imposed in this casé on October 19, 1939, the day the sentence was rendered. This question has also been decided adversely to defendant’s contention several times. The matter is controlled by Section 709a, Title 18 U.S.C.A., which provides:

“The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.”

It is well settled under this statute that custody by State authorities or imprisonment in a State institution following the imposition of a sentence in a United States District Court does not constitute “detention to await transportation to a place at which his sentence is to be served,” and that the Federal sentence does not begin until he is delivered by the State authorities to the Federal authorities. Vanover v. Cox, 8 Cir., 136 F.2d 442; Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653; Hayden v. Warden, 9 Cir., 124 F.2d 514; Zerbst v. McPike, 5 Cir., 97 F.2d 253.

The defendant also contends that since the stolen automobile was driven to Elizabethtown, Kentucky, which is in that part of the Western District of Kentucky served by the Court at Louisville, the action of the Grand Jury at Owensboro, Kentucky, was illegal and void. Both Louisville and Owensboro are in the Western District of Kentucky. The counties assigned to the court sitting at each place is by rule of court, not by statute. Accordingly, Louisville and Owensboro are not in separate legal divisions of the Western District of Kentucky. Section 556a, 18 U.S. C.A., provides in substance that no motion to quash any indictment upon the ground of irregularity in the drawing or empaneling of the grand jury shall be sustained unless such motion shall have been filed before or within ten days after the arraignment. Accordingly, the present attack on the indictment comes too late.

The last contention of the defendant is that the jury which returned the verdict of guilty was not polled by the court. The defendant did not request that the jury be polled. While he had a right to have the jury polled, yet a failure to make such a request is a waiver of that right. Humphries v. District of Columbia, 174 U.S. 190, 194, 195, 19 S.Ct. 637, 43 L.Ed. 944.

The defendant’s motion to vacate the judgment is overruled.


source: Caselaw Access Project

author: MEANEY, District Judge.

license: Public Domain

text:
    ATAMANCHUCK v. ATAMANCHUCK et al. THE SUPPLY NO. 3.
    Civil Action No. 5575.
    District Court, D. New Jersey.
    July 16, 1945.
    Samuel F. Slaff, of Passaic, N. J. (Joseph H. Lerner, of Newark, N. J., of counsel), for libellant.
    Ernest F. Masini, of Newark, N. J. (Maurice M. Kreis, of New York City, of counsel), for claimant
   MEANEY, District Judge.

This matter is now before the Court on motion of respondent and claimant on exceptions to the libel of Michael Ataman-chuck. The exceptions are based on the ground that the facts averred in the libel fail to establish a cause of action within the Admiralty and Maritime jurisdiction of this Court, and further that the facts alleged in the libel do not give rise to any maritime liens on the oil tanker “Supply No. 3."

Libellant Michael Atamanchuck asserts that he purchased the oil tanker “Supply No. 3” on July 27, 1937, taking a bill of sale in his name and recording the same in the office of the Collector of Customs. That on or about June 27, 1938, respondent Frank Atamanchuck caused a bill of sale of the said vessel to be executed and recorded on February 5, 1944, in the Collector’s Office, that the bill of sale purported to be a transfer of ownership of the said oil tanker “Supply No. 3” and that the said bill of sale is a forgery and was not the act of libellant nor did the libellant ever transfer or authorize the transfer or sale at any time to any one. It is further alleged that libellant did not discover the fraud until February of 1945.

Libellant now seeks a decree giving him possession of the vessel and adjudging the bill of sale dated June 27, 1938, a palpable forgery and fraud.

The respondent denies the jurisdiction of this court and insists that libellant’s remedy lies in a court of equity.

The exceptions are not well taken. Were the exceptions properly conceived, respondent’s assertions would be sound, but where, as here, the libellant is seeking to enforce his legal right in this court in a petitory or possessory suit against those who have by wrong dispossessed him, he does not attempt to have adjudicated an equitable title, but seeks to enforce his legal title and obtain possession of the vessel.

Possessory suits may be brought in Admiralty in all cases to reinstate the owners of ships who have been wrongfully deprived of their property. 1 Benedict on Admiralty, 6th Ed. § 73.

An Admiralty Court will not undertake to enforce an equitable interest as against legal title. When it proceeds in a petitory suit, it proceeds upon legal title. The Amelia, C.C., 23 F. 406; The Robert R. Kirkland, D.C., 92 F. 407.

Accordingly, where libellant seeks an adjudication upon his asserted legal title, the jurisdiction of this Court in Admiralty is properly invoked, and the exceptions must be denied.


author: MOSCOWITZ, District Judge.

text:
    GRANDVIEW DAIRY, Inc., v. JONES, War Food Administrator, et al.
    Civ. No. 3884.
    District Court, E. D. New York.
    June 11, 1945.
    Harry L. Marcus, of Brooklyn, N. Y. (Herbert L. Maltinsky, of Brooklyn, N. Y., of counsel), for plaintiff.

      Miles F. McDonald, U. S. Atty., and Morris K. Siegel, Asst. U. S. Atty., both of Brooklyn, N. Y., Leonard O. Carson, Regional Atty., United States Department of Agriculture, of Philadelphia, Pa., and A. T. Radigan, Atty., United States Department of Agriculture, of Washington, D. C., for defendants.
    Alger, Peck, Andrew & Rohlfs, of New York City (Arthur J. Peck and L. F. X. Cotignola, both of New York City, of counsel), amici curiae for Sheffield Farms Co., Inc., and Purity Creamery Products, Inc.
   MOSCOWITZ, District Judge.

The action is brought pursuant to the provisions of Section 8c(15) (A) and (B) of the Agricultural Marketing Agreement Act of 1937, as amended, 50 Stat. 246, 7 U. S.C.A. § 601 et seq., to review administrative determinations made as hereinafter set forth. Jurisdiction is not disputed and both sides move for summary judgment.

Pursuant to the terms of the Act, Milk Marketing Order No, 27 was issued. Section 927.7(f) of this Order provides for an allowance or service payment to be made to handlers of milk where it is received from producers in one plant, being a receiving station which does no manufacturing whatever, and is diverted from there and the fluid market to another plant for processing, which latter plant receives no milk directly from producers and operates independently of the receiving station. Plaintiff has two plants at Webster’s Crossing, approximately fifty feet apart, connected by a sanitary pipe line, and claims to be entitled to this diversion payment.

Plaintiff’s claim for service payments based upon its diversion in June,- 1940, of milk received in its plant No. 1 to manufacturing in plant No. 2 were disallowed by the Market Administrator, whereupon administrative proceedings to review his determination were instituted and carried through the entire stage, resulting in a reversal and a direction by the Assistant Secretary of Agriculture that the claim for the month of June should be paid. This was done and the claim for the month of July, 1940, was voluntarily paid thereafter. This action is to review the disallowance at each stage of the administrative proceedings of similar claims for the months of August, 1940, through February, 1941.

Plaintiff makes three contentions-: (1) that the findings of fact and recommendations of the Presiding Officer and of the Assistant to the War Food Administrator were contrary to law, portions of the record being cited which differ from the findings made by these officers; (2) that the determination relating to the claim for payment in June, 1940, involving the same party, the same plant and identical operations is res adjudicata in the present proceeding; (3) that the delegation of the power of the Secretary of Agriculture by executive order to the War Food Administrator was in contravention of the Act of Congress creating the authority for the marketing orders and that the proceedings taken by the said War Food Administrator are therefore unauthorized and not in accordance with law.

(1) In the affidavit submitted on these motions, defendant has cited portions of the record which sustain the findings of the Administrator with reference to each of plaintiff’s objections. This evidence is substantial. The conclusion which this Court might reach upon an original consideration of the conflicting evidence presented is immaterial; there is substantial evidence from which the Administrator could reach the determinations he made. Section 8c(15) (A) and (B) specifically provide that the administrative ruling shall be final “if in accordance with law.” The court may consider on review only such evidence as was adduced at the administrative hearings and will not disturb the ruling if there is any substantial evidence to support it. New York State Guernsey Breeders’ Co-op, Inc. v. Wickard, 2 Cir., 1944, 141 F.2d 805, certiorari denied 323 U.S. 725, 65 S.Ct. 58; Queensboro Farms Products, Inc. v. Wickard, 2 Cir., 1943, 137 F.2d 969; Crull v. Wickard, 6 Cir., 1943, 137 F.2d 406; Cosgrove v. Wickard, D.C. Mass.1943, 49 F.Supp. 232; Vogt’s Dairies, Inc. v. Wickard, D.C.N.Y.1942, 45 F.Supp. 94; M. H. Renken Dairy Co. v. Wickard, D.C.N.Y.1942, 45 F.Supp. 332; New York State Guernsey Breeders Co-op., Inc. v. Wallace, D.C.N.Y.1939, 28 F.Supp. 590; see also Swayne & Hoyt, Ltd. v. United States, 1937, 300 U.S. 297, 57 S.Ct. 478, 81 L.Ed. 659; National Labor Relations Board v. Link-Belt Company, 1941, 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; Gray v. Powell, 1941, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Board of Trade of Kansas City v. United States, 1942, 314 U.S. 534, 62 S.Ct. 366, 86 L.Ed. 432; National Labor Relations Board v. Nevada Consolidated Copper Corporation, 1942, 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305; Wilmington Trust Co. v. Helvering, 1942, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1352.

The opinions of the Presiding Officer and of the Assistant to the War Food Administrator indicate a detailed examination and careful consideration of the evidence presented and the weight to be accorded to it and there is an ample and rational basis in law and fact for the rulings made.

(2) The applicability of the doctrine of res adjudicata to administrative determinations is a question which has not yet received much judicial consideration. The Administrator considered the matter fully and cited reasons and authority for his conclusion that it did not apply in this proceeding. In re Grandview Dairy, Inc., 3 A.D. 335, 354 (May 8, 1944).

Since administrative officers and boards are usually charged with administering a statute as they deem it most justly to ap.ply in individual cases, they should not be hampered by prior determinations estopping them from settling the immediate matter in the manner best suited to all parties. As long as their determination is in accordance with law, they may find in a particular case differently than they did before. See Section 183, Federal Administrative Law, F. Trobridge von Baur (1942); (1942) The Judicial Function in Federal Administrative Agencies by Chamberlain, Dowling & Hays, p. 62; Federal Trade Commission v. Raladam Co., 316 U.S. 149, 62 S.Ct. 966, 86 L.Ed. 1336.

Res adjudicata does not apply to the decisions of administrative officers and boards. In any event, the Administrator found that the record in this proceeding was more complete and disclosed many facts not available to the first tribunal and that the second proceeding involved a different claim for a different period of time than the first. This being so, it is obvious that res adjudicata would not control here even if the doctrine were applicable to administrative proceedings in general.

(3) The functions of the Secretary of Agriculture under the Milk Marketing Agreement Act of 1937 were duly transferred to the War Food Administrator by Executive Order No. 9280 (7 F.R. 10179), Executive Order No. 9322 (8 F.R. 3807), Executive Order No. 9334 (8 F.R. 5423), and Executive Order No. 9392 (8 F.R. 14783), 50 U.S.C.A.Appendix § 601 note, which Executive Orders were issued under the authority of the First War Powers Act, 1941, 50 U.S.C.A.Appendix §§ 601-605, which clearly permits the redistribution of functions and powers among various administrative tribunals by executive orders.

The motion of the plaintiff for summary judgment in its favor is denied and that of the defendant is granted.

Settle order on notice.

       It also appears that in another prior proceeding it had been determined that the plaintiff operated but one plant and thus would not be entitled to the payments claimed. In the Matter of Grandview Dairy, Inc. and Arkport Dairies, Inc., 1 A. D. 133.


text:
    THE SEABOARD NO. 59. THE LAURENT MEEUS.
    No. A-17023.
    District Court, E. D. New York.
    May 2, 1945.

      Foley & Martin, of New York City (John R. Stewart, of New York City, of counsel), for libelant.
    Reid, Cunningham & Freehill, of New York City, for claimant.
    Crowell & Rouse, of New York City, for respondent-impleaded Todd Shipyards Corporation.
    Burlingham, Veeder, Clark & Hupper, of New York City (Stanley R. Wright, of New York City, of counsel), for Dalzell Towing Co., Inc.
   MOSCOWITZ, District Judge.

This is a motion made by the Seaboard Sand and Gravel Corporation, owner of the scow Seaboard No. 59, the libellant herein, “for an order vacating and setting aside the order entered herein on March 8, 1945 4>y the Hon. Grover M. Moscowitz, withdrawing the petition of the claimant, Tanker Laurent Meeus, the answers of Todd Shipyards Corp. and the notice of appearance filed by Dalzell Towing Company, Inc., on the ground that said order entered, without notice to Libellant, is prejudicial to Libellant; or, in the alternative, for an order striking out the answer filed on behalf of Claimant, Laurent Meeus, and awarding Libellant an interlocutory decree on the ground that said answer does not set forth a defense to the libel.”

The libel seeks recovery of damages resulting from a collision between the Tanker, Laurent Meeus, and libellant’s scow, Seaboard No. 59, which was lying moored at an Erie Basin Pier. Claimant filed an answer admitting that on March 7, 1944, while the Seaboard No. 59 was lying moored at Section 8, Erie Basin, the Tanker, Laurent Meeus, being towed out from the Todd Shipyards, was backed into said scow, causing damage to it. Libellant excepted to claimant’s answer.

Thereafter claimant’s counsel advised the proctor for the libellant that the claimant was about to file a petition impleading the Todd Shipyards Corporation and Dalzell Towing Company, Inc. Such petition states that on the day of the collision the Laurent Meeus was in possession and control of respondent, Todd Shipyards Corporation, for the making of repairs, and that the latter, desiring for its own convenience to have the ship moved to a different place, engaged Dalzell Towing Company to furnish tugs to assist in the shifting. The petition further alleges that while the tugs furnished by Dalzell Towing Company were proceeding to shift the Laurent Meeus, the ship collided with libellant’s scow.

An ex parte order was signed on March 8, 1945 withdrawing the petition impleading the Todd Shipyards Corporation and Dalzell Towing Company and withdrawing the papers filed by the two impleaded parties. The libellant had no notice of the .application for such order. The libellant seeks to have the order of March 8, 1945 vacated on the ground that it did not receive notice of the application upon which the order was made. Notice of the entry of the ex parte order was given to the libellant.

The ex parte order was improperly made. The libellant received no notice of the application for the order. The impleading was pursuant to Admiralty Rule 56, 28 U.S. C.A. following section 723, the pertinent portion of which is as follows: “Thereupon such process shall issue, and if duly served, such suit shall proceed as if such vessel or person had been originally proceeded against.”

Rule 56 expressly provides that the suit shall proceed as if the vessel or person had been originally proceeded against. When a person or vessel is impleaded under this Rule, the case should be treated as if the libel had originally been filed against both. See Cuneo Importing Co. v. American Importing & T. Co., 2 Cir., 247 F. 413; The G.L. 40, 2 Cir., 66 F.2d 764; The Providence, D.C., 293 F. 595.

Motion granted.

Settle order on notice.


author: PER CURIAM.

text:
    BARRETT LINE, Inc., v. UNITED STATES et al.
    No. 881.
    District Court, S. D. Ohio, W. D.
    July 28, 1944.
    Robert E. Quirk and Norman, Quirk & Graham, all of Washington, D. C., and Charles H. Stephans, Jr., of Cincinnati, Ohio, for plaintiff.
    Edward Dumbauld, Sp. Asst. to the Atty. Gen., for defendant United States.
    Allen Crenshaw, of Washington, D. C, for defendant Interstate Commerce Commission.
    John S. Mason, of Pittsburgh, Pa., William A. McKenzie and Graydon, Head & Ritchey, all of Cincinnati, Ohio, and R. Granville Curry and Frederick M. Dolan, both of Washington, D. C, for intervenor Union Barge Line Corporation.
    Herman A. Bayless, of Cincinnati, Ohio, for intervenor American Barge Line Co.
    Harry C. Ames and Ames, Hill & Ames, all of Washington, D. C, for intervenors Campbell Transp. Co. and Mississippi Valley Barge Line Co.
    Before ALLEN, Circuit Judge, and NE-VIN and DRUFFEL, District Judges.
   PER CURIAM.

The Court is of opinion that the Interstate Commerce Commission did not misconstrue the applicable statute, nor misapply it, and that its action herein has been in conformity with its statutory authority.

The order of the Commission was entered after a full and fair hearing. The Commission did not abuse its discretion, nor act arbitrarily in entering its order. The complaint herein should be dismissed at plaintiff’s costs.

The Court adopts as its own findings of fact and conclusions of law, without repetition here, the findings and conclusions of Division 4 of the Interstate Commerce Commission, as set forth in its decision June 18, 1943, in proceeding No. W-353, and the conclusion of the Interstate Commerce Commission in its order in the same proceeding entered on December 6, 1943.

Accordingly, the Court has entered an Order dismissing the complaint at plaintiff’s costs.


author: LEAHY, District Judge.

text:
    BOWLES, Adm’r, Office of Price Administration, v. SHELLHORN et al.
    Civil Action No. 577.
    District Court, D. Delaware.
    Aug. 10, 1945.

      Robert C. Barab, Enforcement Atty., of Wilmington, Del., for Office of Price Administration.
    Morris Cohen, of Wilmington, Del., for defendants.
   LEAHY, District Judge.

Plaintiff’s motion for summary judgment is denied. If a court has discretion regarding the issuance of an injunction under the mandatory language of the Emergency Price Control Act, Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, a fortiori it has discretion regarding the issuance of an injunction under the Second War Powers Act. There are weighty reasons why the injunction should not issue. The amounts of oil involved in the instant violations, even taking the affidavits most favorably to plaintiff, are relatively and absolutely trivial, i.e., approximately 4800 gallons allegedly illegally transferred out of a total of 3,643,-762 gallons over a period of'two and a half years. And, since during part of the period a maximum of 50 gallons of oil could be delivered without receipt of coupons, it may be that the amount of the violations was even less than claimed. This, at least, is a possible inference, and.it will be accepted since it is the innocent one. Some part of the other violations are explained by normal inadvertence incident to the large amount of fuel oil handled, and inadvertence due to confusion incident to OPA’s newly acquired control over the fuel oil business. These contentions, together with defendants’ protestations of good faith, are uncontradicted by plaintiff. The Supreme Court, in the Hecht Co. v. Bowles case, says that the trial court may, in the exercise of its discretion, refuse to issue an injunction under such circumstances. It is true that in Hecht Co. v. Bowles the defendant had set up a special department in its endeavor to cope with the Regulations of the OPA. This simply evidences good faith; we are satisfied here with the good faith of the defendants.

The present holding is not at war with the views expressed in Bowles v. Swift & Co. et al., D.C.Del., 56 F.Supp. 679. .There, while the amount of poultry sold in violation of the Regulations was relatively small compared to the total volume of business done on a national basis by the defendants in that case, it nevertheless constituted a relatively large percentage of the business done in the particular vicinity of Delaware. Further, it was a large amount in absolute terms. Brown v. J. C. Penney Co., D.C., 54 F.Supp. 488, relied on by defendants in the case at bar, seems in point and should control.

Plaintiff’s motion for summary judgment is accordingly denied. At argument plaintiff made an oral motion that if its motion for summary judgment should be denied it then sought a preliminary injunction or an injunction pendente lite. The purpose of issuing a preliminary injunction is to maintain the status quo pending a final determination of the cause. There has been no necessity suggested for an immediate restraint to be placed on defendant. No one has suggested that the alleged violations are of a continuing nature or there is likelihood that violations will be repeated. There would appear at this time and on the present (record no such necessity for injunctive relief as to move the court’s discretion in issuing such a writ.


author: JAMES ALGER FEE, District Judge.

text:
    Petition of KELLY.
    No. 21676.
    District Court, D. Oregon.
    June 30, 1945.
    No appearances noted.
   JAMES ALGER FEE, District Judge.

Petitioner seeks admissipn to citizenship in the United States under the provisions of Section 310(a) of the Nationality Act of 1940, 8 U.S.C.A. § 710(a).

The examiner has recommended granting of the petition. The' examination in open court indicated the possession of a fair record and a good reputation for much more than five years, an understanding of the structure of the government of this country, the ability to understand and read English, and an apparent attachment to the principles of the federal Constitution.

The petitioner was married to a native born citizen of the United States in 1930. She was divorced in 1944 and was awarded the children of the marriage. The question was raised as to whether petitioner, on this account, was entitled to admission under the designated section. The administrative practice has been to recommend for admission any person who was similarly situated. The practice of making recommendations without calling to the attention of the court the underlying facts, or to conceal questions of law, is improper. Since the process of admission to citizenship leads to a judgment, the court should have the opportunity and the duty of applying the law to the facts. This section, however, is in plain wording. It is an axiom often disregarded, that when the intention of a legislative body is made plain, no court should legislate interstitially. In view of the fact that divorce through fault of petitioner, or even death, might remove the logical basis for admission, the policy might be quite doubtful. However, the statute makes clear the intention of Congress to permit the admission of an alien who was married to a citizen between certain dates irrespective of the fact that the marital relationship no longer exists upon proof of shorter residence, if the alien possesses the other qualifications.

The contrast between this language and that used in the subsequent section made the intention abundantly plain if there were doubt. This factor is pointed out in a case arising in the District Court of Massachusetts, In re Levine, 58 F.Supp. 622.

The petition is granted.

       “Any alien who, after September 21, 1922, and prior to May 24, 1934, has married a citizen of the United States, or any alien who married prior to May 24, 1934, a spouse who was naturalized during such period and during the existence of the marital relation may, if eligible to naturalization, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions:
      “(1) No declaration of intention shall be required;
      “(2) In lieu of the five-year period of residence within the United States, and the six months’ period of residence in the State where the petitioner resided at the time of filing the petition, the petitioner shall have resided continuously in the United States for at least one year immediately preceding the filing of the petition.”

       See In re Boric, D.C., 61 F.Supp. 133.

       See United States v. Bergmann, D.C., 47 F.Supp. 765, 767, 768, and note 1.

         8 U.S.C.A. § 711.


author: BOYNTON, District Judge.

text:
    UNITED STATES v. ONE 1941 BUICK CONVERTIBLE COUPE, MOTOR NO. A4259030.
    Civil Action No. 370.
    District Court, W. D. Texas, El Paso Division.
    July 25, 1945.
    Holvey Williams and Harold L. Sims, Asst. U. S. Attys., both of El Paso, Tex., for plaintiff.
    Fryer & Milstead, of El Paso, Tex., for claimant.
   BOYNTON, District Judge.

This is an action and proceeding in nature of one 1941 Buick Convertible Coupe, of America for condemnation and forfeiture of one 1941 Buick convertible Coupe, Motor No. A4259030, an action in rem; because of alleged exportation, or attempted exportation, of such automobile without Federal license, in violation of the provisions of Section 6 of the Act of July 2, 1940, being Section 701, 50 U.S.C.A.Appendix, as amended June 30, 1942, by Public Law 638, 77th Congress, Chapter 461, Second Session, and the Proclamations, Executive Orders and Regulations made pursuant thereto. Fay Anders appearing and filing answer herein, as alleged owner and claimant of such automobile.

While the Judge of this Court is entirely conscious of the fact able counsel, jurists and members of the Appellate Courts may differ as to correctness of the Court’s ruling, legality of same, as a legal proposition, the Court is of opinion, and here so holds, the testimony of the Government witnesses Robert R. Delgado and A. P. Cummings, Customs Inspectors, as to statements made by Raul Rodriguez, the driver in possession and control of the automobile in question at time of its exportation, or attempted exportation, from the United States of America into the Republic of the United States of Mexico, without proper permit or license issued authorizing exportation of such vehicle, under and in accordance with provisions and requirements of Section 6 of the Act of July 2, 1940, being Section 701, 50 U.S.C.A. Appendix, as amended June 30, 1942, by Public Law 638, 77th Congress, Chapter 461, Second Session, and the Proclamations, Executive Orders and Regulations made pursuant thereto; to be admissible under Admiralty law as to admissibility of •evidence, and to create a presumption of agency on the part of Raul Rodriguez— then in possession, control and operation •of such automobile. Section 405, 22 U.S. C.A., providing that in proceedings of this character, libel cases, provided for in Section 404 of 22 U.S.C.A., “shall conform, as near as may be, to the proceedings in admiralty * * *,” which is different from ■that of the common law rule as to admissibility of evidence, viz., hearsay testimony. Such testimony showing probable cause for seizure of such automobile and a prima fa-cie case on behalf of the Government.

Such presumption of agency, however, is subject to rebuttal, or to be overcome, by testimony offered on behalf of claimant. From the testimony of Fay Anders, shown by the uncontroverted testimony to be vested with title and the lawful owner of said automobile in question, and Miss Earl Lee Underwood, — who as agent of Anders drove such automobile to El Paso to be there advertised and sold under certain express restrictions and instructions, without the knowledge or intention such automobile should be exported •or taken to Mexico, by said Rodriguez, or any one else, or consent to possession of same by said Rodriguez, as testified to by the witnesses Anders and Underwood, which testimony is uncontroverted; the Court finds claimant, Fay Anders, to be the owner of such automobile, and neither he or the witness Underwood to have given possession of such automobile to Raul Rodriguez, or consented to his possession or control over same, and Raul Rodriguez to be a controverter of possession of such automobile in the exportation, or attempted ■exportation, of same to Mexico, without any consent, knowledge or intention on the part of Fay Anders, claimant herein, or witness Underwood.

According to the testimony of witnesses for plaintiff, Government witnesses, Delgado and Cummings, Customs Inspectors, as to statements made by Paul Rodriguez at the time he was stopped at the United States end of the International bridge, in ■his attempted exportation, and interrogated by such witnesses; said Raul Rodriguez first said that he was the owner of the automobile in question, and later denied that he was the owner of such automobile, saying that he had borrowed same from a friend in El Paso, that he did not know the name of such friend, and was taking the automobile to Juarez to get an estimate as to the amount of needed repairs on same. Then still later said Raul Rodriguez stated, according to the testimony of such Government witnesses, that he knew a man by the name of Joe Hall in El Paso, and said Hall had informed him a few days before that he, Hall, would have for sale an automobile, and that a day or two later some ladies drove up to Hall’s place of business and left such automobile with Hall and turned over the keys to same to Hall and Rodriguez. Rodriguez stated the car was to be sold for $1,650. Neither said Raul Rodriguez or Joe Hall were offered as witnesses or testified on trial of the case.

Conclusion.

Judgment will therefore be entered herein ordering release of such automobile by the Government, and directing delivery of possession of same to the claimant, Fay Anders, on payment of costs. Draft of such decree and judgment may be prepared by counsel for claimant, and also more detailed and specific Findings of Fact and Conclusions of Law, and submitted the Court for consideration in preparation of final Findings of Fact and Conclusions of Law to be filed by the Court herein in accordance with Rule 52, New Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

         See: United States v. Almeida, 1 Cir., 9 F.2d 15; The W. Talbot Dodge, D.C., 15 F.2d 459, 460; United States v. One Reo Speed Wagon, D.C., 5 F.2d 372.


author: GIBSON, District Judge.

text:
    UNITED STATES ex rel. COLANGELO v. BROMBERG, Acting Officer in Charge of Immigration and Naturalization Service.
    No. 130.
    District Court, W. D. Pennsylvania.
    Aug. 3, 1945.
    S. V. Albo, of Pittsburgh, Pa., for relator.
    Charles F. Uhl, U. S. Atty., of Pittsburgh, Pa., and Edward C. Boyle, Asst. U. S. Atty., of Pittsburgh, Pa., for respondent.
   GIBSON, District Judge.

On July 19, 1945, pursuant to petition of the relator, the instant writ of habeas corpus issued. At the time it was served C. Garfinkel, Officer in Charge of Immigration and Naturalization Service, Pittsburgh, was in charge of the petitioner, and he made return to the writ.

The relator entered the United States in 1925, at which time he was not in possession of a valid visa. On April 23, 1931, he received a naturalization certificate at Youngstown, Ohio. Later it was discovered that he had not been in the United States for a part of the period set forth in his petition, and he was indicted for perjury and entered a plea of guilty. His certificate of naturalization was cancelled. It was developed at or prior to his plea to the perjury indictment that he had entered the United States without a valid visa and deportation proceedings were begun upon that charge on December 13, 1935. After hearing the Assistant Secretary of Labor issued the warrant for his deportation on February 17, 1936.

At the hearing upon the writ the relator testified to his inability to speak or understand the English language well, and alleged that he had no real knowledge of the significance of his deportation hearing, as he was not represented by counsel. His contention in this respect is contradicted by the action of the Assistant Secretary of Labor, and to give force to it the record of the hearing should have been produced or the essential parts of it set forth. O’Connell ex rel. Kwong Han Foo v. Ward, 1 Cir., 126 F.2d 615; Low Wah Suey v. Backus, 225 U.S. 460, 472, 32 S.Ct. 734, 56 L.Ed. 1165.

The relator urges that a deportation order should be promptly executed and points to the fact that nine years have intervened between the issuance of the order of deportation and the present order to report for execution of the order. There is an explanation of this delay found in the practice of the Kingdom of Italy to refuse visas to its nationals who have attempted to change their allegiance, especially where criminal charges have been made against them, and even though the delay may seem to have been unconscionable, the explanation of it cannot be ignored.

While the relator has attacked the method by which he was given a hearing, he still has admitted the fact upon which the deportation order was based, namely, his unlawful entry into the United States in 1925, and has also admitted the falsity of testimony in support of his application for citizenship. These admissions make it quite plain that sufficient testimony was before the Department to form a base for the order of deportation.

This court is far from asserting any right in it to set aside or overrule any deportation order made by the proper Department which is based upon sufficient evidence and due procedure. With an understanding to this effect, we trust we will be permitted to state that some facts exist which might lead the Department to show some leniency to the relator. He first came to the United States in 1913, returning to Italy in 1921, and again entering the United States in 1925, without a visa as stated supra. His failure to state his absence from this country in 1921-1925 led to the perjury charge against him. When in Youngstown, Ohio, prior to 1933, he was employed by the Republic Steel Company, and continuously since 1933, with a four months interval, he has been employed by the Jones & Laughlin Steel Corporation. During the nine years subsequent to the deportation order his conduct has not been questioned. His two sons have been admitted to citizenship. He has been resting under the belief that the order of deportation was not in force. Under these circumstances the Department might feel inclined to vacate the order. With this possibility in mind this court will not make an order herein for one month from date to allow the relator to apply to the Board of Immigration Appeals or other proper authority to vacate or modify the order now in force.


author: BYERS, District Judge.

text:
    THE NO. 7. THE SANTIAGO. SANTIAGO S. S. CO., Limited, v. UNITED STATES. THE NO. 152.
    Nos. A-16793, A-16824.
    District Court, E. D. New York.
    July 16, 1945.
    Hagen & Eidenbach, of New York City, for Great Lakes Dredge & Dock Co.
    Kirlin, Campbell, Hickox & Keating, of New York City (Robert S. Erskine, of New York City, of counsel), for claimant Santiago Steamship Co., Ltd.
    Miles F. McDonald, U. S. Atty., of Brooklyn, N. Y. (Nicholas J. Healy, 3d Sp. Asst. to Atty. Gen., of counsel), for the United States.
   BYERS, District Judge.

On March 12, 1943, Drill Boat No. 7 lay about 300 feet off Jackson Street in the East River, held in place by four spuds, and on her offshore side a scow was made fast, loaded with dynamite. At about 10:45 A.M., E.W.T., these vessels were struck by the S. S. Santiago which was descending the East River; the dynamite scow being sunk, and the Drill Boat suffering structural damage.

These causes present the single question of whether the collision was the result of faulty navigation on the part of the S. S. Santiago, or of faulty navigation on the part of U.S.S. D.D. No. 152, which at about 10:42 A.M. crossed the river from the Navy Yard, and was so maneuvered that she crowded the S. S. Santiago and forced her to strike the other two vessels.

In the first cause, the owner of Drill Boat No. 7 and the scow seeks recovery against the S. S. Santiago and the United States of America, alleging fault by each vessel; and in the second cause the owner of the S. S. Santiago seeks recovery from the United States of America for the damages alleged to have been suffered by the steamship. In both causes, relief is sought against the Government under the Public Vessels Act, § 1, 46 U.S.C.A. § 781, in rem and in personam.

Findings

1. Ownership and operation of the several vessels involved were stipulated in both causes to be as pleaded, and are so found.

2. Drill Boat No. 7 has a steel hull, and her dimensions are 136 feet by 41 feet by 10-foot sides. She was equipped with four spuds, one on each corner, and four drill frames. The scow was made fast on the lower offshore corner of the Drill Boat, and her dimensions were 12 feet by 4% feet (depth not given).

3. The width of the river, measured from the end of pier 44 (just below the Drill Boat) to the opposite pier on the Brooklyn side, is about 1,000 feet, and the distance from the outshore side of the Drill Boat No. 7 to an imaginary line drawn from pier A in the Navy Yard to pier J, to establish the entrance to the Yard for present purposes, is but little less.

4. At about 10:45 A.M. on the day in question, there was a flood tide of the agreed strength of 3 knots an hour, which at this time tended to set against the Manhattan shore; there was no effective wind, and visibility was good.

5. The S. S. Santiago is a steel ship, single screw, and her dimensions are 346.1 feet by 49.6 feet by 26 feet, and she was loaded to her full capacity. Her indicated horse power was 750, and full speed upon her engines developed a speed of 7% knots an hour. She is owned by a Greek corporation and was operating under Panamanian registration.

6. On this day, the S. S. Santiago left City Island, bound for an anchorage in the North River, preparatory to joining an overseas convoy; at Hunt’s Point, she picked up the steamtug John T. Timmins, which was made fast on the steamer’s starboard side near the bow.

Coming down the East River and passing under the Williamsburg Bridge, the S. S. Santiago was making not to exceed 7% knots through the water, which was about 4% knots over the ground.

7. As the Santiago approached Cor-lears Hook, she was close to the center of the river but favoring the New York shore.

8. The navigation of the Santiago was. in charge of William H. Myers, a licensed pilot for these waters for the past thirty years, who began his duties at City Island,, from which departure was had at about 7:30 A.M.; the ship’s master was not on board; his presence being required at a conference of convoy captains.

9. Myers was on the bridge as was also the chief officer Zolotas and also a helmsman.

10. A boatswain and a sailor were on the forecastle head, tending the anchor, and ready to drop it in the event of emergency. There were also two representatives of the Coast Guard on deck, who did. not act as members of the crew. The men on the forecastle head were in a position, to act as lookouts.

11. After passing under the Williams-burg Bridge and as Corlears Hook was. reached, the Santiago was put under right rudder to make the necessary turn to starboard, and approached Drill Boat No. 7' so as to clear it by about 300 feet, and would have done so, had her course not been changed of necessity, in order to. avoid collision with the No. 152, which was headed on a course which would have caused her to come close to or collide with. Drill Boat No. 7, had her own helm not been so ordered that she rounded to her port hand directly ahead of the course of' the Santiago as it was before the latter veered sharply to the right, causing her to-strike the Drill Boat No. 7 and the dynamite scow.

12. The No. 152 is a 4-stack, twin screw-destroyer, described as of World War One vintage; her dimensions are 314 feet by 31 feet and draft 12% feet, and at the time in question she had two boilers in use, and. her indicated horse power was 14000. Her standard speed as set for this trip was 15 knots, and two-thirds speed was 10 knots, and one-third speed was 5 knots.

13. She crossed the imaginary line heretofore stated as indicating the entrance to the Navy Yard, at 10:42 A.M., and her quartermaster’s record as to engine and rudder movements is as follows: •

“10.42 Rudder amidships
All engines % ahead
Full left rudder — 2 Bis. (Blasts?)
“10.43 All engines ahead Standard — 2 long blasts
. “10.44 2 Blasts. Rudder amidships. 1 long blast
“10.45 All engines stop — Full left rud■der
“10.46 All engines % ahead. 1 blast
Left Rudder 15°
All engines stop
1 Blast — Full left rudder
Rudder amidships
All engines % ahead
“10.47 Rudder amidships. Left rudder 15°
Ease and meet
“10.49 Pilot S. J. Kelly left ship. Captain takes con.”
takes Con.”

14. As the No. 152 started from the Navy Yard entrance to cross the river, a Pennsylvania Railroad tow, composed of 5 loaded barges and a helper tug, was ascending in charge of the tug Overbrook, and the latter was about off Gold Street on the Brooklyn side, about 700 feet below the No. 152.

15. The presence of the said Pennsylvania tow was known to the No. 152, but ■did not interfere with her navigation.

16. The presence of the Santiago, as she was about to round Corlears Hook, was observed by the pilot of the No. 152.

17. The No. 152 was in charge of Commander James G. Marshall, U.S.N.; the ■executive officer was Lt. Commander David M. Kellogg, who was on the bridge at the time in question. Navigation was conducted by pilot Sidney J. Kelly, described as a regular Navy Yard pilot holding licenses as master and pilot in New York Bay and the East River to Stepping Stones. The helmsman was Jules P. Herbert, whose rating is that of chief torpedo man.

18. The course of the No. 152, as she headed out of the entrance to the Navy Yard, was in the direction of Drill Boat No. 7, and the flood tide took effect on her port side as she crossed the river under the full left rudder noted in the quartermaster’s record, and she turned directly ahead of the Santiago after having appeared to be headed into collision with her, and finally straightened away down the river after having cleared the bow of the Santiago by not more than 50 feet.

19. The two blast whistle signal blown by the No. 152 as she passed out of the entrance to the Navy Yard was directed to the Santiago.

20. That signal was not observed by or heard aboard the Santiago, and was not answered.

21. No alarm signal was blown by the Santiago.

22. The No. 152 when first observed from the Santiago was close aboard to port, and was traveling at such a speed and on such an apparent heading as to cause the pilot of the Santiago to fear that there would be a collision between the two vessels, and accordingly he put his engines full astern and ordered a hard right rudder almost simultaneously, in order to avoid such collision, and his decision was made in an emergency.

23. As soon as it was seen on the Santiago that the danger of collision with the No. 152 was no longer present, the Santiago sought to avoid collision with the Drill Boat No. 7 and the dynamite scow, by moving full ahead under a left rudder with the help of the tug Timmins, which caused the Santiago to swing to her own port; this brought her starboard quarter into contact with the dynamite scow and the Drill Boat No. 7, causing the damage for which the libel in the first cause was filed.

24. Had the Santiago not been crowded by the No. 152, she would have cleared both the Drill Boat No. 7 and the dynamite scow by not less than 100 to ISO feet.

25. The striking of the Drill Boat No. 7 and the dynamite scow by the Santiago was due solely to the manner in which the No. 152 was navigated, and was not due to any fault in the navigation of the Santiago.

Discussion

The episode which it has been the object to portray in the foregoing dissected form is really not in dispute in its essential elements. The situation may be clarified by the following sketch traced from the chart, Government Exhibit No. 1:

t No one argues that the No. 152 did not cross the river and did not turn abruptly from a position close alongside to port of the Santiago, to one directly ahead of her course down the river, and the advocacy of the Government is directed almost entirely to the contention that the Santiago should be deemed to have contributed a measure of fault, because of the lack of a competent lookout who would have been in a position to warn .the pilot of the two blast signal given by the No. 152 at 10:42 A.M. as above stated.

The difficulty with that argument is that Kelly, the pilot of the No. 152, was unwilling to commit himself flatly to this being a crossing situation in which his was the burdened vessel, although he seemed at times to realize that such might be the fact. His vacillation will appear from the following quotations: After saying that, as he was passing out of the entrance, he had a full vision of the river:

“Q. What did you blow 'the two blasts for? A. For the steamer that was approaching from up river to signify that I was directing my course to port and going down the river.
“Q. Do you say that there is a rule in the Rules of Inland Navigation which permits you to blow a two blast signal indicating that you were putting your wheel to port — is there any such rule? A. I didn’t say there was.”

As to the second two blast signal:

“Q. Will you read the entry at 10:43? A. ‘All engines ahead, standard, two long blasts.’ (He continues his answer) 10:42 there is two blasts, too. At
“Q. At this time this steamer, if it was the Santiago, was off your starboard quarter and you were straightened down the river? A. That is right, running free and going down the river.
“Q. Who were you blowing the two blasts to? A. The Santiago.
“Q. What did you mean to signify? A. A signal of intention that I was proceeding. He was climbing up on my starboard quarter at that time. There was no imminent danger of collision but it is merely a courtesy signal of intention and that was blown.
* * * * *
“Q. You were just being courteous to the Santiago? A. It means that.
*****
“Q. What speed were you going after 10:42? A. The engine speeds indicated here after 10:42 is two-thirds on both engines.
“Q. That is ten knots? A. Making turns for ten knots. It don’t necessarily mean that they were making ten knots.
*****
“Q. Did you obtain permission from the Santiago to cross her course ? A. No, I did not and I did not cross her course.
“The Court: Please try again. When you gave him the two blast signal, did you intend to cross his course?
“The Witness: Well, yes.
*****
“The Court: I think we ought to exhaust the subject further.
“(To witness) When you blew the first two blast signal, you intended to cross his course ?
“The Witness: We were across his course.
“The Court: At the first two blasts?
“The Witness: Yes, he was then ranging from up river. His position then was about one point off my starboard quarter. We never at any time came out of the Basin at a ninety degree turn, we came out at an angle turn.
*****
“Q. At the time that you crossed the line, which you think was at 10:42, where the quartermaster shows the first signal of two blasts, did you blow that two blasts to this steamer to indicate that you were going to cross her ? A. Yes.
“The Court: (To witness) Now, did you expect to get an answer to that?
“The Witness: From the position of the vessels, yes.
“The Court: Did you get an answer?
“The Witness: No.
“The Court: Was that vessel the privileged vessel?
“The Witness: No.
“The Court: Why not?
“The Witness: Due to the fact from her position at that point she was — her bearing was one point abaft my starboard quarter and it would be merely a courtesy signal and it was not answered.”

The witness’ vacillation is thought to indicate that he did not realize at once, as the No. 152 made out of the Yard and across the imaginary line, that a crossing situation would be necessarily involved, and that he decided to proceed in the general direction of the Drill Boat No. 7, trusting to be able to effect a turn to port and down the river at about the center, but that the force of the flood tide, against his port side on the way across, tended to widen the arc of turn so that he found himself unable to complete it without crossing the expectable course of the Santiago; and while he was able to bring off the delayed maneuver so as to avoid collision with the steamer, it was a rather close thing, and he did not succeed in straightening away until the No. 152 was directly ahead of the Santiago and at a distance of not more than fifty feet.

If this is the true explanation, it is difficult to see how the lookout on the Santiago would have been able to interpret the two blast signal, which Kelly describes as a gesture of courtesy, as actual notice that it was intended to put the privileged vessel in a crossing situation under the necessity of reversing her engines and otherwise surrendering her privilege: Postal Steamship Corporation v. El Isleo, 308 U.S. 378, 60 S.Ct. 332, 84 L.Ed. 335.

The precise heading of the No. 152 moving out of the entrance to the Yard is not shown in convincing manner. That initial heading would determine, subject to the pressure of the tide, the course of the No. 152 in moving into the stream and down toward the Battery.

The impression that I derived from Kelly’s testimony and manner on the stand was, that the vessel in his charge was entitled to proceed, even so small a matter as 3% times her own length, pretty much as she chose, and that other craft of civilian status must govern themselves accordingly.

The inference as to what actually happened, which has been stated, is somewhat fortified by the testimony of Bennett, the captain of the Dalzell tug which assisted the No. 152 to make her turn while she was yet in the Navy Yard, and which followed her down the river for the purpose of taking off the pilot. Referring to a statement which he was thought to have made, he testified:

“A. * * * I said that I did not pay much attention but I did not know what caused her (the No. 152) to go way across the river.
*****
“Q. Didn’t she go over close to the New York side? A. Well, she was pretty well over.”
(See full left rudder at 10:45, finding 13)
The testimony of Commander Marshall and Lt. Commander Kellogg, to the effect that as they observed the Santiago she was coming up so fast that it was necessary for the No. 152 to get out of her way, should in charity be attributed to a lapse of memory. The former estimated the speed of the Santiago at eleven or twelve knots through the water, which -would be eight or nine knots over the ground. And the Lt. Commander said: “As we were about halfway across the river I noticed the Santiago to be overtaking us rapidly * *

How a vessel that was making four and one-half knots over the ground could be overtaking a destroyer moving at ten knots, being two-thirds full speed, is difficult to understand — to indulge in an understatement.

It results that the fault of the No. 152, in crossing the Santiago’s course, and in crowding her as stated, is found to have been the sole effective cause of the collision between the Santiago and the Drill Boat No. 7 and the dynamite scow; in consequence it is concluded that in the first cause the libelant should have a decree against the United States of America with costs, and the libel against the Santiago should be dismissed without costs; and in the second cause that the libelant should have a decree against the United States of America with costs.

Settle interlocutory decree.