which extends only to the Great Lakes, there is no inhibition against the privilege to submit an issue of fact to a jury, which privilege was silently and studiously invoked by both parties.

It is said there is distinction between removable and original jurisdiction. This may be confessed, but both are present in this case-common-law, removable; admiralty, original. If the defendants, after filing the record in this court, had required the plaintiff to elect the procedure, it would be within the rule announced in Lambert, etc., v. B. & O. R. R. Co., 258 U. S. 377, 42 S. Ct. 349, 66 L. Ed. 671, and Gen. Ind. Co. v. L. S. Ry. Co., 260 U. S. 261, 43 S. Ct. 106, 67 L. Ed. 244. In those cases either the jurisdiction or the state court process by which the parties were brought into court was directly challenged. The court's jurisdiction was challenged in Lorang v. Alaska S. S. Co. (D. C.) 298 F. 547. If the defendant, after service of the complaint and before filing in the state court (section 224, C. S. of Wash.), had filed the complaint, together with the claim of admiralty jurisdiction as set forth in its petition for removal and its answer, in this court, served the same on plaintiff, and the plaintiff had replied thereto, as disclosed in the record, and both parties without objection proceeded to trial, this court's admiralty jurisdiction would have been complete.

The fact that the complaint comes to this court through the office of the clerk of the state court, on the defendant's petition invoking the admiralty jurisdiction, of itself does not change the status. Had the defendant required the plaintiff to elect, and if the admiralty jurisdiction had been elected, and then moved to dismiss because not removable, but original, jurisdiction, it would be in a position to challenge this court's jurisdiction now. When the issue of which this court had original jurisdiction was submitted by the parties, both parties appearing and contesting the issue, the original jurisdiction of this court was asserted. Lorang v. Alaska S. S. Co. (1924) A. M. C. 1240, is not in point. That order was entered for the purpose of expediting a decision of the appellate court to review (298 F. 547, supra), and the jurisdiction of this court was challenged at the threshold of that case.

Process is said to be the means of compelling a defendant to appear in court, or means used to acquire jurisdiction of a defendant (Wilson v. Railroad Co., 108 Mo. 588, 18 S. W. 286, 32 Am. St. Rep. 624); a writ issued by a court or officer exercising

Pro

judicial power (Tweed v. Metcalf, 4 Mich. 579; Taylor v. U. S. [C. C.] 45 F. 531). No state court process was challenged, nor was the procedure here questioned. cedure simply means legal rule for bringing parties into court, and disposition after brought in. Kring v. Mo., 107 U. S. 221, 2 S. Ct. 443, 27 L. Ed. 506.

Law, process, and rules of procedure are simply crystallized common sense. The modern tendency is to administer justice, waving aside technical distinctions where justice dictates. Eddy & Bissell Live Stock Co. v. Blackburn, 70 F. 949, 17 C. C. A. 532. See, also, new rules of the Supreme Court. Justice is the purpose and aim of government. It is the substance, and not the shadow. No right guaranteed by the organic law, or any rule of right, has been denied to the defendant. Before trial, the defendant could have required plaintiff to elect. After trial, if the verdict can be sustained upon the record in either jurisdiction, the court will so adjudge. See Toledo, St. L. & W. R. Co. v. Perenchio, 205 F. 472, 123 C. C. A. 540.

There was no lack of evidence. The plaintiff testified fairly, freely, frankly, and fully. There were corroborating circumstances of her testimony. She was contradicted by the former employees of the defendant charged with the assault, who had been indicted, tried, and convicted in this court upon the same evidence, and who are now serving life sentences in the penitentiary. The findings of two juries who passed upon the evidence one finding beyond every reasonable doubt in the criminal case, and the other, in this case, by a fair preponderance of the evidence-may well be considered sufficient.

[4] It is said the court erred in not directing a verdict for the defendant, because notice of the claim had not been given and made to the company within 10 days, as per stipulation printed on reverse side of the ticket. The defendant was fully advised. Upon arrival at the dock the plaintiff was taken to the office of the defendant by the ship's master, where she was interrogated by attorneys representing the defendant, and her statement taken by a stenographer and afterwards extended; all of the details were related by the plaintiff, who was not represented by counsel or next friend, and under the circumstances it would be most unjust to hold that this minor Indian child, after having disclosed to the defendant every element of fact with relation to the assault, could be barred by the ten-day limitation printed in small type on the back of the

ticket, and to which her attention had not been challenged. This court, in Blackwell v. Alaska S. S. Company, 1 F. (2d) 334, held such provision to be unreasonable, and there is no reason to modify the conclusion then reached.

Each motion is denied.

SUTTON v. PACIFIC S. S. Co.

(District Court, W. D. Washington, N. D. November 26, 1924.)

No. 8521.

1. Witnesses 29-Entitled under rule of court to mileage for distance traveled within district.

Under section 7 (b) of the Rules of the District Court for the Northern District of Washington, a witness attending from a point without the district is entitled to mileage for the distance actually and necessarily traveled within the limits of the district.

2. Witnesses 29-Witness voluntarily appearing entitled to mileage.

Mileage may be taxed in favor of a witness voluntarily appearing within the reach of a subpoena.

At Law. Action by Margaret Sutton, by Harwood Hall, her guardian ad litem, against the Pacific Steamship Company. On motion to retax costs. Denied.

See, also, 3 F. (2d) 72.

Defendant moves to retax the costs taxed by the clerk upon the cost bill filed by plaintiff for mileage for witnesses who voluntarily appeared in this case, upon the grounds that the clerk erred in taxing mileage to witness Rowland to Salem, Or., and witness Rawzell to Chemawa, Or.; that said witnesses are only entitled to mileage for 100 miles to and from the place of trial.

Chas. P. Moriarty and De Wolfe Emory, both of Seattle, Wash., for plaintiff.

Grosscup & Morrow, of Seattle, Wash., C. A. Wallace, of Tacoma, Wash., and John Ambler, of Seattle, Wash., for defendant.

NETERER, District Judge (after stat ing the facts as above). [1] Section 7 (b), Court Rules, provides: "Where a witness has attended from a point without the district, his mileage shall be taxed according to the distance actually and necessarily traveled by him within the limits of the district." The mileage taxed for each of the witnesses, 354 miles, is the distance from Seattle, the place of trial, to the Oregon state line, and is within the district. This is tax

able under the rule. In the Gov. Ames, 187 F. 50, 109 C. C. A. 94, the costs were taxed to a point where a subpoena would reach a witness, and also in Burrow v. Kansas City, etc., R. R. Co. (C. C.) 54 F. 278.

[2] It has been the uniform rule in this court that mileage can be taxed against a witness voluntarily appearing within the reach of subpoena, and, since the mileage taxed is within the district, the clerk was right in assessing the costs.

In re J. W. RENSHAW'S SONS. MAYO et al. v. MURRAY et al. (District Court, E. D. Illinois. Jan. 12, 1925.)

No. 2962.

1. Bankruptcy 224, 228-Referee is without authority to review his own orders, and filing of exceptions does not extend time to petition for review.

A referee is without authority to review or change his orders in bankruptcy on exceptions filed thereto, and filing thereof does not extend time for filing petition to review, under General Order XXVII, and any extension of time is in discretion of District Judge, under rule 15.

2. Bankruptcy 228-Requisites of petition for leave to file petition to review referee's order after expiration of 10-day limitation stated.

Petition under rule 15 for leave to file petition to review referee's order, after 10-day limitation provided by General Order XXVII, should set forth such error of referee as would warrant District Court in reversing, changing, or modifying order, and such excuse for delay as would warrant intervention of equity.

In Bankruptcy. In the matter of J. W. Renshaw's Sons, bankrupt. On motion by Josephine A. Boul to dismiss petition of one Mayo and others to review decision of referee in bankruptcy in favor of one Murray, trustee and others, as not timely filed. Motion granted.

M. V. Joyce, of East St. Louis, Ill., for Bouel.

P. C. Otwell, of Belleville, Ill., for trustee.

R. H. Wiechert, of East St. Louis, Ill., for Mayo.

ENGLISH, District Judge. On the 31st day of July, 1924, the referee in bankruptcy rendered and filed his memorandum and opinion, with order, as the law requires, to which exceptions were made and filed on August 8, 1924, and petition for review of the matters alleged or set forth in such exceptions was filed with the referee by Wal

ter J. Ruediger November 26, 1924. Said petition for review and the exceptions, with the memorandum of the findings and order of the referee, were filed in the office of the clerk of this court December 27, 1924, and a motion by Josephine Boul to dismiss petition for review was filed December 29, 1924. This cause has not been called to the attention of the court at this time for consideration upon the merits of the questions raised in the petition for review, but only the motion to dismiss the petition. The order sought to be reviewed by the petition was filed July 31, 1924, and the petition for review of said order was not filed until November 26, 1924. General Order No. XXVII provides that a petition for review must be filed with the referee, and rule 15 of this court provides that the petition for review must be filed with the referee within 10 days, or upon an extension of time not more than 30 days after the order sought to be reviewed has been entered by the referee.

It is contended by the petitioner that the filing of the petition for review within 10 days after the final order by the referee would apply to a date on which, in this case, the referee had orally stated to the parties that he would not change his opinion by virtue of the exceptions filed to his order of July 31st, and that the filing of this petition within 10 days following that oral announcement would be a compliance with the rule requiring the petition for review to be filed within 10 days from the order sought to be reviewed. In other words, it is contended by the petitioner that the exceptions made to the referee's order filed on July 31st must be passed upon, and were not passed upon, by the referee until a date within 10 days prior to the filing of the petition for review, and that such oral announcement by the referee was a final order, and that therefore the petition for review was within the rule.

[1] The referee is without any authority or power to review or change his own order upon exceptions filed thereto.

In re

Marks (D. C.) 171 F. 281. Decision of referee may only be reviewed by petition presented within ten days, the period specified by the rule, or afterwards only by allowance of the judge of the District Court, and an

order once entered is not subject to review or alteration by the referee himself. In re T. M. Lesher & Son (D. C.) 176 F. 650. Leave to file petition after expiration of the customary 10 days allowed for filing is left to the discretion of the District Court. In re Nippon Trading Co. (D. C.) 182 F. 959. The purpose or intent of the law is that, in order to protect the best interests of the creditors of a bankrupt, the estate of the bankrupt shall be administered as speedily as it is reasonably possible, and the right to file a petition cannot be exercised to unreasonably and unnecessarily delay the distribution of the assets of the bankrupt. In re Grant (D. C.) 143 F. 661,

In view of the fact that the referee is without authority to review or change, himself, one of his own orders, after it has once been made, leads me to the opinion conclusively that exceptions being filed to the referee's order does not prevent the 10day limitation from running, and that a petition for review of such order, including exceptions thereto, set forth in such petition, must, in order to comply with the rule, be filed in 10 days after such order has been made; therefore the final order in this case sought to be reviewed was made, and the 10 days began to run on July 31, 1924, and in order that the review of such order may be had by the court at this time, it would be necessary that leave to file petition would first have to be granted by the court, before this court could take jurisdiction and legally review the subject-matter set forth in the petition for review of the order of July 31, 1924.

[2] For the benefit of counsel, it is my present judgment and opinion that a petition for leave to file the petition for review must be filed, but must set forth such error on the part of the referee as would warrant the court in reversing or otherwise changing or modifying the order of the referee, and, further, that the cause for not having filed the petition for review within 10 days was such as would warrant the intervention of equity, and would be of no material injury to parties other than the petitioner.

My judgment is, at this time, that the motion to dismiss the petition for review should be allowed.

In re NAGY.

home brewers and distillers, if not popular

cember 11, 1924.)

HUTCHESON, District Judge. This is an application for citizenship made by Joe Nagy in the usual form. His witnesses having been examined and having proved competent, the examiner presented to the attention of the court the fact that in the year 1923, within the five-year probation period fixed by law for applicants to citizenship, he had been convicted in this court of unlawful manufacture and possession of intoxicating liquor under the Volstead Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.).

The examiner asserts that upon this showing it cannot be said that, during the five years immediately preceding the date of his application, the applicant has "behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same," which the law requires must appear to the satisfaction of the court, in order to sustain a favorable finding upon the application. On the part of the petitioner, it is with much reason asserted that the offense for whieh he has been convicted was a misdemeanor which would not carry with it, in the case of a citizen, a loss of citizenship, and that therefore it ought not to have the effect to bar the applicant. He further asserts, with some show of reason and abundant fact upon his side, that thousands of citizens of the United States are making liquor for their own use, which he claims was all that he was doing, and that in what is vulgarly denominated the "best society," meaning thereby persons of wealth and influence,

are at least not thought any the worse of for their practices.

To minds sensitive to the reproach of Pharisaism and honest enough to see ourselves as others see us, there is no doubt that this complacent attitude of many of our good citizens toward the violation of the Eighteenth Amendment makes the United States, in its prosecutions of the poor and ignorant, appear to be engaged to some extent in a piece of colossal humbuggery, nor can I avoid the feeling that it may appear to some to savor of judicial Pecksniffianism to refuse an application for citizenship for doing that which common repute declares is approved in the "best society." The fact remains, however, that the question presented for decision here is wholly different from that which would be presented, were it proposed to deprive a citizen of his citizenship because he made liquor for his own use. Nor can the fact that citizens violate the law be in any manner controlling upon or influential in the determination of this case.

The controlling considerations here are, first, that the law requires that it shall be made to appear, to the satisfaction of the court, that during five years, at least, he has resided continuously within the United States, "and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same." One of these principles is now embodied in the Eighteenth Amendment, and whether, as some good citizens think, incorrectly embodied there, or whether, as others think, the capstone and most precious jewel in it, it is a part of it, and it cannot be said, with any fidelity to truth or reason, that one who during his five-year probation deliberately conducts a distilling operation, and manufactures intoxicating liquor contrary to its provisions, has shown himself attached to its principles.

If, without doing violence to the thought, this application for citizenship might be analogized to the preparation of the squires of old for their knightly accolade, which was conferred upon them, not as a matter of right, but as a matter of grace, and in recognition of their bright fealty to the highest obligations of knighthood, it would be more clearly apprehended that these applicants are and must be on their good behavior, and that a deliberate turning away from one of the prime principles of the order into which they are seeking entrance, no matter

how many who are now members of that order violate it, is sufficient ground for their rejection. This applicant, then, having deliberately infringed that Constitution which, if admitted, his oath binds him to support and defend, it cannot be gainsaid that his petition should be denied.

Let an order be entered denying the petition, without prejudice, however, to the right of the petitioner to file again, when such time shall have elapsed as that he can show a probation period of five years, during which he has not deviated from, nor shown his disregard of, the principles of our Constitution.

In re RAIO.

as those against the traffic laws, etc., so as to constitute no impediment to his entrance. The petitioner asserts that this court has admitted applicants, although it has appeared that during their five years' probation they have been arrested for violation of the traffic laws, for engaging in fistic encounters, etc., and that there can be no soundness in the distinction between a liquor misdemeanor and a traffic misdemeanor. It may be true that a casuist, or a metaphysician, viewing crimes broadly, or a Mikado, whose "object all sublime, he would achieve in time, to make the punishment fit the crime, the punishment fit the crime," could not point to any reasonable difference between these offenses, as to the penalty to be imposed, or the consequences to follow, there is certainly no difference in morals, since

cember 11, 1924.) No. 2642.

Aliens 62-Alien, convicted, of illegal possession of liquor during period of probation, not eligible to citizenship.

Prohibition being now a "principle of the Constitution," conviction of violation of the statute for its enforcement by an alien within five years before his application for naturalization, though only for possession of illicit liquor for personal use, stands on a different ground from other statutory misdemeanors, and bars his admission to citizenship.

Petition by Carlo Raio for naturalization. Denied.

Walter Wheatley, Naturalization Examiner, of Houston, Tex., for the United

States.

HUTCHESON, District Judge. This application for citizenship is opposed by the examiner on the ground of violation of the Volstead Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.). In the Nagy Case, 3 F. (2d) 77, this day decided, I have discussed the question in its general aspects. This petitioner, however, asserts that, since he was not charged with manufacture or sale, but was only charged with having some illicit liquor in his possession for the purpose of personal consumption, as he claims, it is "tithing mint, anise, and cummin," and "sticking in the bark," to refuse him citizenship, when, as he avers, not thousands, but thousands upon thousands, of "the best people" in the United States are notoriously indulging themselves in the unlawful possession of liquor, and he asserts, further, that this offense of his, which is a misdemeanor punishable only by fine, ought to be analogized to other minor offenses, such

mala in se, and neither carries with it any moral odium, except that which abstractly attends the breaking of any positive law.

If I were inclined to draw a distinction between the measure of guilty reprobation involved in breaking traffic laws and that involved in breaking the noncommercial features of the Volstead Act, by a comparison of the ease and apparent facility with which our good citizens accomplish both, I would be hard put to it to determine which law is less regarded, for, although there were in this city something like 50,000 traffic arrests during the year, and less than 1,000 Volstead arrests, it is common experience that the number of violations of offenses of a personal or social nature, which do not hunt public places for their commission, as traffic offenses must, cannot by any means be measured by the arrests for them. As between fistic encounters and Volstead violations, I might place the distinction upon the grounds that "millions for defense" applies in this country in a just cause to personal as well as national controversies, and that the ability to defend by sound, round blows is an Anglo-Saxon right, which ought not lightly to be taken away.

It is not necessary, however, to resort for the determination of this case against the applicant to any of these considerations. The law governing naturalization points the plain way for me to follow. Neither traffic laws, nor laws concerning breaches of the peace through fistic encounters, rest upon or are embodied in the Constitution of the United States. The Prohibition Amendment is an integral of that Constitution, and if I follow the law, both literally and upon its reason, I cannot hold that one who, during his probationary period, has deliberate