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It is urged for reversal that the prohibit- 166 U. S. 391, 17 S. Ct. 595, 41 L. Ed. ed literature was obtained by the entry in- 1045; Stallings v. Splain, 253 U. S. 339, to appellant's house of a government agent 343, 40 S. Ct. 537, 64 L. Ed. 940. without a search warrant, and that there- See, also, Antolish v. Paul, 283 F. (7th fore its taking and use were illegal; that C. C. A.) 957. there is nothing to show that appellant The order of dismissal is affirmed. knew the contents of the literature; and that the deportation warrant is invalid because, in the body of the warrant, instead of stating one specific thing, all of the matters specified in the act are alleged disjunctively, that is, the warrant says "that STATE OF OREGON, for Use of CLYDE

EQUIPMENT CO. v. SECURITY he writes, publishes, or causes to be writ

CONST. CO. et al. ten or published, or knowingly circulates, etc.

(District Court, D. Oregon. January 26, 1925.) [1] The uncontradicted testimony of the

No. 9290. government agent is that when he went to

1. Courts no 366(1)-Federal courts bound the alien's house the door was open, that

by decision of highest state court on conhe saw a lot of literature upon the table struction of state statute. and entered, and that he asked and was Federal courts are bound by the interpregranted permission to look at the literature. tation of a state statute by the highest court There is no evidence of any protest either of the state. against the entry or the taking of the liter. 2 States Om 101-Contractor's bond held to ature. No demand was ever made for its include payment to subcontractor of rental

value of equipment used on public contract. return, and no objection was made to its introduction or use in evidence. The alien

Where contractor had agreed to furnish all

necessary machinery, tools, and apparatus, his had been in this country nine years, and bond, executed under Or. L$ 2991, covering that he understood what he was doing is faithful performance, included payment of rentquite evident. He had the literature for al value of crushers and other machinery furthe purpose of distribution, for which he nished subcontractor for the time same were

used in construction work, notwithstanding was compensated, and he had already dis- such appliances constitute contractor's pertributed considerable of such literature. manent outfit for doing the work it agreed to He had bought and paid for, and had in perform. his possession, organization stamps and 3. Pleading w34(6)--Complaint entitled to stamps for dues in the Communistic party. liberal construction on demurrer to evidence. In his room there were numerous books. On demurrer to evidence, the complaint is On cross-examination by alien's attorney, entitled to a liberal construction. the government's agent was asked: “Was 4. States Em 101-Contractor's bond held to there anything about most of the other include cost of loading, transporting, unloadbooks that you would consider illegal ? A.

Ing, and returning equipment used on public

contract. Well, he was pretty well posted himself.

Contractor's bond. executed under Or. L. $ He told me 'those books are legal and those 2991, held to include items for the cost of loadbooks illegal.' He knew the difference be- ing, transporting, and unloading equipment tween the books himself.” There used on the work under public-contract, as well abundant evidence to justify the deporta

as the cost of returning the same. tion.

5. States 101-Contractor's bond held not [2] It appears from the record that in to include cost of equipment subcontractor such a proceeding blank forms to fit many

was bound to furnish, and which was not con

sumed in work. conditions are used, and that there was no

The value of equipment furnished subconeffort to make the changes that would cause

tractor, which latter was bound to provide for the blanks to fit the case in hand. The Su- carrying on his work, and which was not conpreme Court has said in Bilokumsky v. Tod, sumed on the job, is not included in the con263 U. S. 149, 158, 44 S. Ct. 54, 57, 68 tractor's bond, under Or. L. $ 2991, as debts L. Ed. 221:

incurred in performance of work. "If sufficient ground for his detention by 6. States 101-Attorney's fees allowable in the government is shown, he is not to be suit on contractor's bond given under public

contract. discharged for defects in the original arrest or commitment"-citing Nishimura

Under Or. L. $ 2991, and section 6719 as

amended by Sess. Laws 1921, p. 653, attorney's Ekiu v. U. S., 142 U. S. 651, 662, 12 S. Ct. fees are recoverable in a suit on a bond given 336, 35 L. Ed. 1146; Iasigi v. Van de Carr, by a contractor under a public contract.

was

8 F.(20) 274 At Law. Action by the State of Oregon, Multnomah County v. United States Fidelity for the use and benefit of the Clyde Equip- & Guaranty Co., 92 Or. 146, 180 P. 104. By ment Company, against the Security Con- this interpretation of the statute I am struction Company and another. Decree for bound. Of course, the rental must be only plaintiff.

for the time the appliance is used in conWm. B. Layton and Edward A. Boyrie, struction work. Portland v. O'Neill, 98 Or. both of Portland, Or., for plaintiff.

162, 192 P. 909. A. A. Smith, of Baker, Or., and F. S.

[3] It is insisted that the complaint does Ivanhoe and Robert S. Eakin, both of La not show that the machinery was, in fact, Grande, Or., for defendants.

used in construction work. But coming, as

the objection does, as a demurrer to the eviWOLVERTON, District Judge. This dence, the complaint is entitled to a liberal case was submitted to the court for decision, construction, and, in the present case, it sufwithout the intervention of a jury.

fices to state a cause. The claim of $2,220 The contractor, namely, the Security Con- as rental for this equipment will be allowed. struction Company, agreed to furnish all [4] The next item is for cost of loading, necessary machinery, tools, apparatus, ma- transporting, and unloading equipment for terials, and labor for doing the work as

which rental is claimed, $789.50. This is alsigned. The bond of the National Surety lowable on the same principle ds the rental. Company covers the faithful performance It was paid by Clyde Equipment Company, of the work. The matters for decision com

and was essential for the delivery of the prise certain claims, made on behalf of equipment on the ground. Illinois Surety Clyde Equipment Company, for which it Co. v. John Davis Co., 244 U. S. 376, 37 maintains it should be compensated, as aris- S. Ct. 614, 61 L. Ed. 1206. ing under the contract, and for the payment

The item of $231.84 is allowable on the of which the bond stands as surety. This like basis. The subcontractor agreed to reentails a review of the items, in groups, of turn the equipment in good order—the usual the account rendered.

wear and tear excepted. The first group comprises rentals agreed

[5] Item $186.75 for screen. The evito be paid by a subcontractor, namely, of dence shows that this article of equipment $600 per month on a No. 2 and a No. 3 was not consumed, through its use on the Gates gyratory crusher, a dragline hoist, job, and it was an equipment which the suband a “Ceco" drag scraper, and $500 per contractor was bound to provide for carrymonth on a No. 6—K Gates gyratory crush- ing on his work. Clatsop County v. Felder and screen. The amount claimed is $2,- schau, 99 Or. 680, 196 P. 379; American 220.

Surety Co. v. Lawrenceville Cement Co. (C. It is questionable whether this item should C.) 110 F. 717; National Surety Co. v. be allowed on the ground and for the rea- United States, 228 F. 577, 143 C. C. A. 99, son that these crushers, and the hoist, scrap- L. R. A. 1917A, 336. This item is disaler, and screen, constitute the plant and per- lowed. manent outfit of the contractor Cor doing So of the item of $364.94 for belting. the work which it agreed to perform, and This item of equipment was not consumed therefore are not referable to material and on the contract. labor, under the statute and the bond given The same result must follow as to the for insuring payment to those furnishing items Cleveland rock drill, $170, and bucksuch material. La Grande Iron Works v. et elevator, $500. This is supported by the Neal & Gaskell, 231 P. 645 (recently decid- preceding authorities. These items ed by the Supreme Court of Oregon); Na- sought to be sustained as within the provitional Surety Co. v. United States, 228 F. sions of the bond to pay "all just debts, 577, 143 C. C. A. 99, L. R. A. 1917A, 336. dues, and demands incurred in the performIf it were a case of first impression, I should ance of such work.” I am not assured that be inclined so to hold. This would allocate this clause helps the plaintiff as respects the renting expense to the contractor, and these items. Where the contractor furnishthere would be no relief under the statute. es his own machinery and equipment, which

[1,2] The Oregon Supreme Court has constitute a part of his plant for prosecutspoken, however, to the subject, and brings ing the work, a debt incurred in the purthe rental in such a case within the purview chase of the same would not seem to be one of the statute and bond. Multnomah Coun- incurred in the performance of the work ty v. United States Fidelity & Guaranty Co., which he agrees to accomplish. The expres87 Or. 198, 170 P. 525, L. R. A. 1918C, 685; sion of the court in Multnomah County v.

are

United States Fidelity & Guaranty Co., 87 Comp. St. Ann. Supp. 1919, $ 428974b), is
Or 108 206
Or. 198, 206, 170 P. 525, 527 (L. R. A.
170 P 525 597 i R A subject to deportation, under section 19 (sec-

* tion 428914jj). 1918C, 685), that "the statute should not be extended to include the use of material not 2. Alle sense of material not 2. Aliens 46-Use of semicolon and comma

in immigration Act defined. intended to be protected by it or by the con

In Immigration Act Feb. 5, 1917, § 19 tract and bond, such as claims for the pur- (Como. St. 1918° chase of an engine, hoisting apparatus, or $428944jj), the semicolons separate various the like," is as pertinent now as when it was classes of aliens subject to deportation, and written. So of the expression found in the comma only shows subdivisions of a class. Portland v. O'Neill, supra, namely: "It is

In Error to the District Court of the the labor and material supplied for the pros

United States for the Eastern District of ecution of the work which is protected, and

Wisconsin. not some obligation incurred by the contractor which does not approximate the Proceeding by the United States against construction contracted to be done." So I Yela Grkic. From an adverse order, desay the more recent "just debts” clause does fendant brings error. Affirmed. not enlarge the operation of the statute or A. W. Richter, of Milwaukee, Wis., for the bond so as to comprise dues and debts plaintiff in error. not incurred in the performance of the work. Roy L. Morse, of Milwaukee, Wis., for

The remaining items of the account will the United States. be allowed.

Before ALSCHULER, EVANS, and [6] Defendants insist that reasonable at PA

PAGE, Circuit Judges. torney fees are not recoverable by the preváiling party in the present action; it being

PAGE, Circuit Judge. The order of desubmitted that the action is instituted wholly portation found that appellant entered the within the purview of section 2991, Oregon United States for an immoral purpose. The Laws. This section contains no provision evidence, under the interpretation of United respecting attorney fees recoverable by ei- States v. Bitty. 208 U. S. 393. 28 S. Ct. 396. ther party. Plaintiff, on the other hand, 52 L. Ed. 543, brings appellant squarely insists that such fees are allowable, under within the provisions of section 3 of the Imsection 6719, Oregon Laws, as amended migration Act of February 5, 1917 (39 (Session Laws 1921, p. 653). These two Stat. 29, p. 874 [Comp. St. 1918, Comp. St. sections—2991 and 6719 as amended-treat Ann. Supp. 1919, § 42897461). principally of the same subject-matter; the [1] The only contention here is that apone being of public contracts, and employ- pellant is not subject to deportation unment thereon, and the other of contract on der section 19 of said act because, it is bond for public contracts, and hours of em- claimed, she is not one of the persons thereployment. The latter section goes further in specifically enumerated. Section 19, in than the former, and provides for the recov- one sentence, terminating with the words ery of attorney fees. In effect, there is "shall, upon the warrant of the Secretary much of duplicate legislation in these two of Labor, be taken into custody and deportsections, and, inasmuch as the subject-mattered,” enumerates all of the persons subject is so largely the same, I am of the opinion to deportation thereunder. A portion of that attorney fees are recoverable in this section 19 is as follows (39 Stat. p. 889 action. The court will allow, as a reasona- Comp. St. 1918, Comp. St. Ann. Supp. ble fee for the prosecution of the action, 1919, § 428914jj]): the sum of $250.

“That at any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes

excluded by law; any alien who shall have GRKIC V. UNITED STATES. entered or who shall be found in the United (Circuit Court of Appeals, Seventh Circuit.

States in violation of this act, or in violation October 18, 1924.)

of any other law of the United States; any

alien who at any time after entry shall be No. 3392.

found advocating or teaching the unlawful 1. Aliens Om51--Alien entering United States destruction of property, or advocating or for immoral purposes held subject to depor.

teaching anarchy, or the overthrow by force tation.

or violence of the government of the United Alien entering United States for immoral purposes, belonging to class excluded by Immi States or of all forms of law or the assasgration Act Feb. 5, 1917, 8 3 (Comp. St. 1918, sination of public officials; any alien who

revd 16

} (ad) 79.

3 F.(20) 277 within five years after entry becomes a pub- ply supports the findings made by the Second lic charge from causes not affirmatively

not affirmatively

AS
Assistant Secretary of Labor to the effect that

appellant was "connected with the management shown to have arisen subsequent to landing; of a house of prostitution * . after hav. except as hereinafter provided, any alien ing entered the United States." who is hereafter sentenced to imprisonment The fact that such connection did not occur for a term of one year or more because of

until more than five years subsequent to his

entry, is immaterial. Grkic v. United States conviction in this country of a crime involv- (D. C.) 3 F.(20) 276. ing moral turpitude, committed within five The order appealed from is affirmed. years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpi

KRAUS v. CHICAGO, B. & 'Q. R. CO. et al. ture, committed at any time after entry; (District Court. D. Wyoming. January 12, any alien who shall be found an inmate of

1925.) or connected with the management of a

No. 1490. house of prostitution or practicing prosti

1. Removal of causes 36-Fraudulent join. tution after such alien shall have entered "

der cause for removal. the United States. . . * "

Fraudulent joinder of resident defendant is [2] Appellant erroneously printed the cause for removal to federal court, although above part of section 19 by using commas not statutory ground therefor, in view of court instead of semicolons. In punctuation, the

decisions. semicolon is used to separate a completed 2. Removal of causes fm 107(4)—Questions of thought in one clause from other related fact determinable by federal courts. matter in another clause of the sentence. In Questions of fact arising in connection with section 19 the comicolon has hoon used to removal of cause, such as that of fraudulent

joinder, are determinable by the federal courts. separate the various classes subject to deportation. The comma is only used in the 3. Removal of causes Om 107(5)-Verified peconstruction of the clauses to show the sub

tition for removal, alleging fraudulent joinder,

held to warrant refusal to remand, where no divisions of a class. In the first class is in

issue joined on question of fraudulent joinder. cluded "any alien who at the time of entry Defendant's verified petition for removal. was a member of one or more of the classes alleging fraudulent joinder of resident codeexcluded by law.” As shown, appellant be fendant for purpose of defeating right of relongs to a class excluded by section 3 of the

moval, is sufficient to sustain charge and to

warrant federal court's refusal to remard, Immigration Act, and is therefore subject

where motion to remand alleges merely that to deportation.

codefendant is resident of same state as plainThe order of the District Court is affirmed. tiff, and does not join issue on question of

fraudulent joinder.
4. Removal of causes 36—Pecuniary irre.
sponsibility of resident defendant, or motive

of plaintiff in making him party, cannot be Dennis TZARKIS, Appellant, v. Howard D. considered. EBEY, Inspector in charge of Immi.

Pecuniary irresponsibility of resident degration Bureau, Appellee.

fendant, or motive of plaintiff in making him a (Circuit. Court of Appeals. Seventh Circuit. party, cannot be inquired into in determining November 25, 1924. Rehearing De

whether cause is removable. pied January 2, 1925.)

5. Statutes 226–State statute construed by No. 3409.

federal court in accordance with construction

of statute of other state from which it was Appeal from the District Court of the United adopted. States for the Eastern Division of the North The District Court, in determining, on moern District of Illinois.

tion to remand, whether resident engineer was Wm. G. Anderson and Edward M. Seymour, properly joined with railroad in negligence acboth of Chicago, Ill., for appellant.

tion under Comp. St. Wyo. 1920, § 5593, will J. A. O'Callaghan, of Chicago, Ill., for appel construe such statute in accordance with con

struction of statute of other state from which Before ALSCHULER, EVANS, and PAGE, it was adopted, by Supreme Court of such other Circuit Judges.

state, in absence of construction by Supreme

Court of Wyoming, or by Circuit Court of ApPER CURIAM. Appellant appeals from an peals of the circuit, or the Supreme Court of order discharging writ of habeas corpus sued the United States. out upon an order of the Secretary of Labor for appellant's deportation. From an examina- AT Law.

At Law. 'Action by Harry B. Kraus

Action by tion of the record we are satisfied that it am- against the Chicago, Burlington & Quincy

lee.

Railroad Company and another. On plain- become not unusual in negligence cases. tiff's motion to remand to state court. Over- Where, for example, some one has suffered ruled.

an injury upon a railroad operated by a H. C. Brome and Thomas M. Hyde, both

nonresident corporation, the plaintiff may

bring suit against the railroad, uniting as deof Basin, Wyo., and W. L. Walls, of Chey

fendants some of its employees who happen enne, Wyo., for plaintiff.

to be citizens of the state." E. T. Clark, of Billings, Mont., and A. C.

In speaking of this subject the Supreme Campbell, of Cheyenne, Wyo., for defend

Court, through Mr. Justice Day, in the case ants.

of Alabama Southern Ry, v. Thompson, 200

U. S. 206, at page 218, 26 S. Ct. 161, 165, KENNEDY, District Judge. This cause 50 L. Ed. 441, 4 Ann. Cas. 1147, says: is before the court upon a motion to re- "It is to be remembered that we are not mand. It appears that the suit was insti- now dealing with io

now dealing with joinders, which are shown tuted in the district court of the Fifth judi- by the petition for removal. or otherwise. cial district in and for the county of Big to be attempts to sue in the state courts with Horn, state of Wyoming, against the Chica- a view to defeat federal jurisdiction. In go, Burlington & Quincy Railroad Company such cases entirely different questions arise. and one F. D. Stone, one of its locomotive and the federal courts may and should take engineers, seeking damages against the de- such action as will defeat attempts to wrong. fendants on account of their joint negligence fully deprive parties entitled to sue in the in the operation of a train of cars at Grey- federal courts of the protection of their bull, in said county of Big Horn, in con- rights in those tribunals.?? sequence of which plaintiff suffered injuries. [2] Where questions of fact arise in con

Within the time permitted by statute, the nection with the removal of a cause, those defendant Chicago, Burlington & Quincy questions are determinable by the federal Railroad Company filed its petition for re- courts. Burlington, Cedar Rapids and moval of the cause to this court, duly veri. Northern Railway Company v. Dunn, 122 fied, and the plaintiff in turn here filed his U. S. 513. 7 S. Ct. 1262. 30 L. Ed. 1159. motion to remand. The grounds of the re- Manifestly the question of fraudulent joinmoval, as alleged in the removal petition, are der is a question of fact, which in no way that the defendant Stone is fraudulently appears from the original declaration in the joined as a party to the cause for the pur- cause, or otherwise upon the record, except pose of defeating the other defendant in its in the allegation of the petition for removal. right of removal, and that a separable con- This verified petition, alleging the fraudutroversy exists between the plaintiff and the lent joinder in the case at bar, therefore railroad defendant.

tenders an issue to the plaintiff; but the The substance of the motion to remand is issue appears to be in no way met by the that it appears upon the face of the record plaintiff, in its motion to remand or otherthat this court has no jurisdiction for the wise, as in the motion to remand the plainreason that the plaintiff and the defendant tiff relies solely upon his legal rights, which Stone are both residents of the state of Wy- may appear upon the face of the declaraoming, that the suit was properly brought tion or the record in the cause. In regard in the state court, and that it appears from to a similar situation, the Circuit Court of the face of the record that the suit is not Appeals of the Sixth Circuit, in the case of one which may be properly removed from Dishon v. Cincinnati, N. 0. & T. P. Ry. Co., the state court to the United States court. 133 F. 471, at page 475, 66 C. C. A. 345,

[1] Fraudulent joinder in this class of 349, says: cases as a cause for removal does not appear "No answer was filed; no issue in any to be a statutory ground, but has grown other way was taken. The plaintiff conup to the stature of a full-fledged doctrine tented himself with making a motion to rethrough court decision. In Rose on Federal mand, and which only raised a legal quesJurisdiction and Procedure (2d Ed.) at sec- tion, namely, whether, upon the facts stattion 285, page 334, is found the following ed in the petition for removal, taken in conlanguage:

nection with the record, a case for removal "A much more common way, however, of was made out." preventing the removal of a case from the [3] That court then enters upon a disstate to the federal courts, is for the plaintiff cussion of the holding of various courts in to join in one action the nonresident defend the cases there cited, to the effect that, if no ant with others who are residents. This has issue is joined upon the question of fraudu

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