ÆäÀÌÁö À̹ÌÁö
PDF
ePub

It is urged for reversal that the prohibited literature was obtained by the entry into appellant's house of a government agent without a search warrant, and that therefore its taking and use were illegal; that there is nothing to show that appellant 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 he writes, publishes, or causes to be written or published, or knowingly circulates, etc."

[1] The uncontradicted testimony of the government agent is that when he went to the alien's house the door was open, that he saw a lot of literature upon the table and entered, and that he asked and was granted permission to look at the literature. There is no evidence of any protest either against the entry or the taking of the literature. No demand was ever made for its return, and no objection was made to its introduction or use in evidence. The alien had been in this country nine years, and that he understood what he was doing is quite evident. He had the literature for the purpose of distribution, for which he was compensated, and he had already distributed considerable of such literature. He had bought and paid for, and had in his possession, organization stamps and stamps for dues in the Communistic party. In his room there were numerous books.

On cross-examination by alien's attorney, the government's agent was asked: "Was there anything about most of the other books that you would consider illegal? A. Well, he was pretty well posted himself. He told me 'those books are legal and those books illegal.' He knew the difference between the books himself." There was abundant evidence to justify the deportation.

[2] It appears from the record that in such a proceeding blank forms to fit many conditions are used, and that there was no effort to make the changes that would cause the blanks to fit the case in hand. The Supreme Court has said in Bilokumsky v. Tod, 263 U. S. 149, 158, 44 S. Ct. 54, 57, 68 L. Ed. 221:

"If sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment"-citing Nishimura Ekiu v. U. S., 142 U. S. 651, 662, 12 S. Ct. 336, 35 L. Ed. 1146; Iasigi v. Van de Carr,

166 U. S. 391, 17 S. Ct. 595, 41 L. Ed. 1045; Stallings v. Splain, 253 U. S. 339, 343, 40 S. Ct. 537, 64 L. Ed. 940.

See, also, Antolish v. Paul, 283 F. (7th C. C. A.) 957.

The order of dismissal is affirmed.

STATE OF OREGON, for Use of CLYDE EQUIPMENT CO. v. SECURITY .CONST. CO. et al.

(District Court, D. Oregon. January 26, 1925.) No. 9290.

1. Courts 366(1) -Federal courts bound by decision of highest state court on construction of state statute.

Federal courts are bound by the interpretation of a state statute by the highest court of the state.

2. States 101-Contractor's bond held to include payment to subcontractor of rental value of equipment used on public contract.

Where contractor had agreed to furnish all necessary machinery, tools, and apparatus, his bond, executed under Or. L. § 2991, covering faithful performance, included payment of rental value of crushers and other machinery furnished subcontractor for the time same were used in construction work, notwithstanding such appliances constitute contractor's permanent outfit for doing the work it agreed to perform.

3. Pleading 34 (6)-Complaint entitled to liberal construction on demurrer to evidence.

On demurrer to evidence, the complaint is

entitled to a liberal construction.

4. States 101-Contractor's bond held to include cost of loading, transporting, unloading, and returning equipment used on public contract.

Contractor's bond. executed under Or. L. § 2991, held to include items for the cost of loading, transporting, and unloading equipment used on the work under public contract, as well as the cost of returning the same.

5. States 101-Contractor's bond held not to include cost of equipment subcontractor was bound to furnish, and which was not consumed in work.

The value of equipment furnished subcontractor, which latter was bound to provide for carrying on his work, and which was not consumed on the job, is not included in the contractor's bond, under Or. L. § 2991, as debts incurred in performance of work.

6. States 101-Attorney's fees allowable in suit on contractor's bond given under public contract.

Under Or. L. § 2991, and section 6719 as amended by Sess. Laws 1921, p. 653, attorney's fees are recoverable in a suit on a bond given by a contractor under a public contract.

8 F.(2d) 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 construction work. Portland v. O'Neill, 98 Or. 162, 192 P. 909.

Wm. B. Layton and Edward A. Boyrie, both of Portland, Or., for plaintiff.

A. A. Smith, of Baker, Or., and F. S. Ivanhoe and Robert S. Eakin, both of La Grande, Or., for defendants.

This

WOLVERTON, District Judge. case was submitted to the court for decision, without the intervention of a jury.

The contractor, namely, the Security Construction Company, agreed to furnish all necessary machinery, tools, apparatus, materials, and labor for doing the work assigned. The bond of the National Surety Company covers the faithful performance

of the work. The matters for decision comprise certain claims, made on behalf of Clyde Equipment Company, for which it maintains it should be compensated, as arising under the contract, and for the payment of which the bond stands as surety. This entails a review of the items, in groups, of the account rendered.

The first group comprises rentals agreed to be paid by a subcontractor, namely, of $600 per month on a No. 2 and a No. 3 Gates gyratory crusher, a dragline hoist, and a "Ceco" drag scraper, and $500 per month on a No. 6-K Gates gyratory crushThe amount claimed is $2,

er and screen. 220.

It is questionable whether this item should be allowed on the ground and for the reason that these crushers, and the hoist, scraper, and screen, constitute the plant and permanent outfit of the contractor for doing the work which it agreed to perform, and therefore are not referable to material and labor, under the statute and the bond given for insuring payment to those furnishing such material. La Grande Iron Works v. Neal & Gaskell, 231 P. 645 (recently decided by the Supreme Court of Oregon); National Surety Co. v. United States, 228 F. 577, 143 C. C. A. 99, L. R. A. 1917A, 336. If it were a case of first impression, I should be inclined so to hold. This would allocate the renting expense to the contractor, and there would be no relief under the statute.

[1, 2] The Oregon Supreme Court has spoken, however, to the subject, and brings the rental in such a case within the purview of the statute and bond. Multnomah County v. United States Fidelity & Guaranty Co., 87 Or. 198, 170 P. 525, L. R. A. 1918C, 685;

[3] It is insisted that the complaint does not show that the machinery was, in fact, used in construction work. But coming, as the objection does, as a demurrer to the evidence, the complaint is entitled to a liberal construction, and, in the present case, it suffices to state a cause. The claim of $2,220 as rental for this equipment will be allowed. [4] The next item is for cost of loading, transporting, and unloading equipment for which rental is claimed, $789.50., This is allowable on the same principle as the rental. It was paid by Clyde Equipment Company, and was essential for the delivery of the equipment on the ground. Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 S. Ct. 614, 61 L. Ed. 1206.

The item of $231.84 is allowable on the like basis. The subcontractor agreed to return the equipment in good order-the usual wear and tear excepted.

[5] Item $186.75 for screen. The evidence shows that this article of equipment was not consumed, through its use on the job, and it was an equipment which the subcontractor was bound to provide for carrying on his work. Clatsop County v. Feldschau, 99 Or. 680, 196 P. 379; American. Surety Co. v. Lawrenceville Cement Co. (C. C.) 110 F. 717; National Surety Co. v. United States, 228 F. 577, 143 C. C. A. 99, L. R. A. 1917A, 336. This item is disallowed.

So of the item of $364.94 for belting. This item of equipment was not consumed on the contract.

The same result must follow as to the items Cleveland rock drill, $170, and bucket elevator, $500. This is supported by the preceding authorities. These items are sought to be sustained as within the provisions of the bond to pay "all just debts, dues, and demands incurred in the performance of such work." I am not assured that this clause helps the plaintiff as respects these items. Where the contractor furnishes his own machinery and equipment, which constitute a part of his plant for prosecuting the work, a debt incurred in the purchase of the same would not seem to be one incurred in the performance of the work which he agrees to accomplish. The expression of the court in Multnomah County v.

United States Fidelity & Guaranty Co., 87 Or. 198, 206, 170 P. 525, 527 (L. R. A. 1918C, 685), that "the statute should not be extended to include the use of material not intended to be protected by it or by the contract and bond, such as claims for the purchase of an engine, hoisting apparatus, or the like," is as pertinent now as when it was written. So of the expression found in Portland v. O'Neill, supra, namely: "It is the labor and material supplied for the prosecution of the work which is protected, and not some obligation incurred by the contractor which does not approximate the construction contracted to be done." So I say the more recent "just debts" clause does not enlarge the operation of the statute or the bond so as to comprise dues and debts not incurred in the performance of the work. The remaining items of the account will be allowed.

[6] Defendants insist that reasonable attorney fees are not recoverable by the prevailing party in the present action; it being submitted that the action is instituted wholly within the purview of section 2991, Oregon Laws. This section contains no provision respecting attorney fees recoverable by either party. Plaintiff, on the other hand, insists that such fees are allowable, under section 6719, Oregon Laws, as amended (Session Laws 1921, p. 653). These two sections-2991 and 6719 as amended-treat principally of the same subject-matter; the one being of public contracts, and employment thereon, and the other of contract on bond for public contracts, and hours of employment. The latter section goes further than the former, and provides for the recovery of attorney fees. In effect, there is much of duplicate legislation in these two sections, and, inasmuch as the subject-matter is so largely the same, I am of the opinion that attorney fees are recoverable in this action. The court will allow, as a reasonable fee for the prosecution of the action, the sum of $250.

[blocks in formation]

Comp. St. Ann. Supp. 1919, § 42894b), is subject to deportation, under section 19 (section 42894jj).

2. Aliens 46-Use of semicolon and comma in Immigration Act defined.

In Immigration Act Feb. 5, 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj), the semicolons separate various classes of aliens subject to deportation, and the comma only shows subdivisions of a class.

In Error to the District Court of the United States for the Eastern District of Wisconsin.

Proceeding by the United States against Yela Grkic. From an adverse order, defendant brings error. Affirmed.

A. W. Richter, of Milwaukee, Wis., for plaintiff in error.

Roy L. Morse, of Milwaukee, Wis., for the United States.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge. The order of deportation found that appellant entered the United States for an immoral purpose. The evidence, under the interpretation of United States v. Bitty, 208 U. S. 393, 28 S. Ct. 396, 52 L. Ed. 543, brings appellant squarely within the provisions of section 3 of the Immigration Act of February 5, 1917 (39 Stat. 29, p. 874 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894b]).

[1] The only contention here is that appellant is not subject to deportation under section 19 of said act because, it is claimed, she is not one of the persons therein specifically enumerated. Section 19, in one sentence, terminating with the words "shall, upon the warrant of the Secretary of Labor, be taken into custody and deported," enumerates all of the persons subject to deportation thereunder. A portion of section 19 is as follows (39 Stat. p. 889 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj]):

"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 entered or who shall be found in the United States in violation of this act, or in violation of any other law of the United States; any alien who at any time after entry shall be found advocating or teaching the unlawful destruction of property, or advocating or teaching anarchy, or the overthrow by force or violence of the government of the United States or of all forms of law or the assassination of public officials; any alien who

3 F.(2d) 277

within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing; except as hereinafter provided, any alien who is hereafter 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, 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 turpiture, committed at any time after entry; any alien who shall be found an inmate of or connected with the management of a house of prostitution or practicing prostitution after such alien shall have entered the United States.

[2] Appellant erroneously printed the above part of section 19 by using commas instead of semicolons. In punctuation, the semicolon is used to separate a completed thought in one clause from other related matter in another clause of the sentence. In section 19 the semicolon has been used to

separate the various classes subject to deportation. The comma is only used in the construction of the clauses to show the subdivisions of a class. In the first class is included "any alien who at the time of entry was a member of one or more of the classes excluded by law." As shown, appellant belongs to a class excluded by section 3 of the Immigration Act, and is therefore subject to deportation.

ply supports the findings made by the Second Assistant Secretary of Labor to the effect that of a house of prostitution * appellant was "connected with the management after having entered the United States."

The fact that such connection did not occur until more than five years subsequent to his entry, is immaterial. Grkic v. United States (D. C.) 3 F. (2d) 276.

The order appealed from is affirmed.

revd 165 (2d) 79.

KRAUS v. CHICAGO, B. & Q. R. CO. et al. (District Court. D. Wyoming. January 12, 1925.)

No. 1490.

1. Removal of causes 36-Fraudulent joinder cause for removal.

Fraudulent joinder of resident defendant is cause for removal to federal court, although not statutory ground therefor, in view of court decisions.

2. Removal of causes

107 (4)-Questions of fact determinable by federal courts.

Questions of fact arising in connection with removal of cause, such as that of fraudulent

joinder, are determinable by the federal courts. 3. Removal of causes 107(5)-Verified petition for removal, alleging fraudulent joinder, held to warrant refusal to remand, where no issue joined on question of fraudulent joinder.

Defendant's verified petition for removal. alleging fraudulent joinder of resident codefendant for purpose of defeating right of removal, is sufficient to sustain charge and to warrant federal court's refusal to remand,

where motion to remand alleges merely that

codefendant is resident of same state as plain

The order of the District Court is affirmed. tiff, and does not join issue on question of

Dennis TZARKIS, Appellant, v. Howard D. EBEY, Inspector in Charge of Immigration Bureau, Appellee.

(Circuit Court of Appeals, Seventh Circuit. November 25, 1924. Rehearing Denied January 2, 1925.)

No. 3409.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Wm. G. Anderson and Edward M. Seymour, both of Chicago, Ill., for appellant.

J. A. O'Callaghan, of Chicago, Ill., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PER CURIAM. Appellant appeals from an order discharging writ of habeas corpus sued out upon an order of the Secretary of Labor for appellant's deportation. From an examination of the record we are satisfied that it am

fraudulent joinder.

4. Removal of causes

36-Pecuniary irresponsibility of resident defendant, or motive of plaintiff in making him party, cannot be considered.

Pecuniary irresponsibility of resident defendant, or motive of plaintiff in making him a party, cannot be inquired into in determining whether cause is removable.

5. Statutes 226-State statute construed by federal court in accordance with construction of statute of other state from which it was adopted.

The District Court, in determining, on motion to remand, whether resident engineer was properly joined with railroad in negligence action under Comp. St. Wyo. 1920, § 5593, will construe such statute in accordance with construction of statute of other state from which it was adopted, by Supreme Court of such other state, in absence of construction by Supreme Court of Wyoming, or by Circuit Court of Appeals of the circuit, or the Supreme Court of the United States.

At Law. Action by Harry B. Kraus against the Chicago, Burlington & Quincy

[blocks in formation]

KENNEDY, District Judge. This cause is before the court upon a motion to remand. It appears that the suit was instituted in the district court of the Fifth judicial district in and for the county of Big Horn, state of Wyoming, against the Chicago, Burlington & Quincy Railroad Company and one F. D. Stone, one of its locomotive engineers, seeking damages against the defendants on account of their joint negligence in the operation of a train of cars at Greybull, in said county of Big Horn, in consequence of which plaintiff suffered injuries.

Within the time permitted by statute, the defendant Chicago, Burlington & Quincy Railroad Company filed its petition for removal of the cause to this court, duly verified, and the plaintiff in turn here filed his motion to remand. The grounds of the removal, as alleged in the removal petition, are that the defendant Stone is fraudulently joined as a party to the cause for the purpose of defeating the other defendant in its right of removal, and that a separable controversy exists between the plaintiff and the railroad defendant.

The substance of the motion to remand is that it appears upon the face of the record that this court has no jurisdiction for the reason that the plaintiff and the defendant Stone are both residents of the state of Wyoming, that the suit was properly brought in the state court, and that it appears from the face of the record that the suit is not one which may be properly removed from the state court to the United States court.

[1] Fraudulent joinder in this class of cases as a cause for removal does not appear to be a statutory ground, but has grown up to the stature of a full-fledged doctrine through court decision. In Rose on Federal Jurisdiction and Procedure (2d Ed.) at section 285, page 334, is found the following language:

"A much more common way, however, of preventing the removal of a case from the state to the federal courts, is for the plaintiff to join in one action the nonresident defendant with others who are residents. This has

become not unusual in negligence cases. Where, for example, some one has suffered an injury upon a railroad operated by a nonresident corporation, the plaintiff may bring suit against the railroad, uniting as defendants some of its employees who happen to be citizens of the state."

In speaking of this subject the Supreme Court, through Mr. Justice Day, in the case of Alabama Southern Ry. v. Thompson, 200 U. S. 206, at page 218, 26 S. Ct. 161, 165, 50 L. Ed. 441, 4 Ann. Cas. 1147, says:

"It is to be remembered that we are not now dealing with joinders, which are shown by the petition for removal, or otherwise, to be attempts to sue in the state courts with a view to defeat federal jurisdiction. In such cases entirely different questions arise, and the federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the federal courts of the protection of their rights in those tribunals."

[2] Where questions of fact arise in connection with the removal of a cause, those questions are determinable by the federal

courts.

Burlington, Cedar Rapids and Northern Railway Company v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159. Manifestly the question of fraudulent joinder is a question of fact, which in no way appears from the original declaration in the cause, or otherwise upon the record, except in the allegation of the petition for removal. This verified petition, alleging the fraudulent joinder in the case at bar, therefore tenders an issue to the plaintiff; but the issue appears to be in no way met by the plaintiff, in its motion to remand or otherwise, as in the motion to remand the plaintiff relies solely upon his legal rights, which may appear upon the face of the declaration or the record in the cause. In regard to a similar situation, the Circuit Court of Appeals of the Sixth Circuit, in the case of Dishon v. Cincinnati, N. O. & T. P. Ry. Co., 133 F. 471, at page 475, 66 C. C. A. 345, 349, says:

"No answer was filed; no issue in any other way was taken. The plaintiff contented himself with making a motion to remand, and which only raised a legal question, namely, whether, upon the facts stated in the petition for removal, taken in connection with the record, a case for removal was made out."

[3] That court then enters upon a discussion of the holding of various courts in the cases there cited, to the effect that, if no issue is joined upon the question of fraudu

« ÀÌÀü°è¼Ó »