Where a District Court took jurisdiction in habeas corpus proceedings to review an order of deportation on the merits, its judgment discharging petitioner is appealable by respondent to the Circuit Court of Appeals, and reviewable by that court, both on the question of jurisdiction and on the merits.

at Portland, in whose custody he was held under a deportation warrant issued by the Secretary of Labor. The District Court took jurisdiction, determined the case on its merits, and ordered Tozer's discharge. The case having been heard on its merits, the respondent properly appealed the entire case to this court, where it may be reviewed on the question of jurisdiction, as well as on the merits. Tang Tun v. Edsell, 223 U. S. 673, 682, 32 S. Ct. 359, 56 L. Ed. 606.

alien of commission of crime will warrant deportation.

Under the provisions of Immigration Act 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj), authorizing deportation of "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude." in the absence of a conviction, the only other evidence that warrants deportation is an unqualified admission by the alien, and the immigration authorities are without jurisdiction to try the question of his guilt or innocence, or to infer his admission, against his denial, from testimony given by him in another case.

3. Aliens ~54-Where immigration authorities have exceeded jurisdiction, court may determine case on its merits.

Where the immigration authorities, by applying an erroneous rule of law in the construction of the statute in deportation proceedings, have exceeded their jurisdiction, a District Court has jurisdiction to enter upon a judicial inquiry and determine the case on its merits.

Appeal from the District Court of the United States for the District of Maine; James M. Morton, Jr., Judge.

Petition by Frederick W. Tozer against Samuel H. Howes, Immigration Inspector in Charge, Portland, Me., for writ of habeas corpus. From a judgment granting the writ, respondent appeals. Affirmed.

For opinion below, see 2 F. (2d) 268. John F. A. Merrill, Sp. Asst. U. S. Atty., of Portland, Me., for appellant.

Joseph E. F. Connolly, of Portland, Me. (Roger O'Donnell, of Washington, D. C., on the brief), for appellee.

expiration of a day or two returned to the United States. At that time, and at the time of his original entrance in 1912, he complied with all the requirements of law for admission to the country.

In July, 1923, the Secretary of Labor issued a warrant for his arrest in deportation proceedings, upon the grounds (1) that “he

was

a person likely to become a public charge at the time of his entry; and (2) that he has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry, to wit, bribery, conspiracy to defraud, or extortion."

Several hearings were held under this warrant before the inspector, at which the petitioner was represented by counsel. It appeared that in 1922 indictments were returned in the federal District Court of Maine against certain persons by the name of Ruth and Fry, who were United States narcotic inspectors, for conspiracy to defraud the government and to extort money from physicians and others, by threats of prosecution for violation of the Narcotic Drug Act (Comp. St. §§ 6287g-6287q). In one of the indictments against Ruth and Fry, the petitioner was named as one of the conspirators, but not as one of the defendants. When this indictment was tried in December, 1922, the petitioner testified

as

BINGHAM, Circuit Judge. [1] This is an appeal from a decree of the federal District Court for the District of Maine, entered August 6, 1924, in a habeas corpus proceeding brought by the appellee, Tozer, against the immigration inspector in charge

3 F. (2d)-54

as evidence against him at the hearing on the warrant of arrest on the deportation proceedings. At the conclusion of the hearing in the deportation proceedings, the inspector found, while Tozer did not in somany words admit the commission of a felony or other crime or misdemeanor involving moral turpitude, "that prior to his de

parture from the United States he admitted that he was guilty of extortion as evidenced by his testimony given as a witness" in the case against Ruth and Fry, and that as there were outstanding indictments against Tozer, on which he might be convicted, he was therefore a person likely to become a public charge.

The matter was then taken up by the Board of Review, which found that the alien was not likely to become a public charge, that there was no evidence that he had ever been convicted of any crime, and `that although the record of the inspector did not disclose that the alien in so many words admitted the commission of any of the offenses charged, the transcript of Tozer's testimony in the case against Ruth and Fry, and that given before the immigration inspector, sustained the charge that he had admitted the commission of an offense involving moral turpitude as charged in the warrant of arrest, and recommended that he be deported.

On appeal to the Secretary of Labor, the finding of the Board of Review that Tozer "has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States, to wit, bribery, conspiracy to defraud, or extortion," was approved, and a warrant of deportation was issued on February 18, 1924. [2] The provisions of law under which the proceeding was had and the deportation ordered are found in section 19 of the Act of February 5, 1917 (39 Stat. 889 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894jj]), the portions of which here material read as follows:

*

"Sec. 19. That at any time within five years after entry, 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 turpitude, committed at any time after entry, any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: Provided further, that the provision of this section

respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act.

In every case where any person is ordered deported from the United States under the provisions of this act, or of any law or treaty, the decision of the Secretary of Labor shall be final."

un

The District Judge, in construing this act, held that the word "admits" in the clause, "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude," means "an equivocal acknowledgment of guilt, an acknowledgment which shall leave no fair ground for doubt or debate," that it did not mean "admitting facts from which an inference of guilt may be drawn," and that "if the statement relied upon as an admission may be made outside of the deportation proceedings, a point which it is unnecessary to decide, it must in any event be acknowledged by the alien in those proceedings, and it must amount to a confession of guilt, or must state facts of such conclusive character as to be tantamount to an out and out confession"; that as the Board of Review found that Tozer did not in so many words admit the commission of any of the offenses charged in the warrant of arrest, but ruled that the admissions of fact that he did make were sufficient to establish, as a matter of fact and law, his guilt, a fundamental error of law was committed which invalidated the proceedings; that it was not the "function of the immigration tribunals under this clause of the statute to balance facts and to decide when the facts established guilt"; and that a "conclusion so reached is not an admission of guilt by the alien."

Having made this decision on the question of jurisdiction, he then reviewed the case on its merits, and found that the testimony given by Tozer in the Fry Case did not warrant the finding "that he there admitted the commission of a crime, as charged in the deportation warrant"; that throughout that testimony "the witness maintained that he was the unwitting tool of Fry, and was not

aware that the sums that Fry was collecting from the victims were not properly turned over to the government"; that "the Harrison Act provides that the department itself may assess penalties for certain violations without proceedings in court or any publicity-a provision easily capable of misuse in unscrupulous hands."

If the District Court had jurisdiction to consider the case on its merits, it is not denied that its finding-that Tozer never was convicted, and never admitted the commission, of the crimes of bribery, conspiracy to defraud the government, or of extortion -was warranted, and we fully agree in that conclusion. The principal contention of the appellant is that the District Court was without jurisdiction to consider the case on its merits, that the Executive Department had jurisdiction to decide all questions of fact that were involved, that its decision of them was final, and that in deciding them it did not apply an erroneous rule of law and exceed its jurisdiction. More specifically, the contention is that, as the Board of Review found that Tozer stated facts in his testimony in the Fry Case and before it sufficient to justify an inference that he was guilty of the crimes charged, and the Board had drawn the inference, that they were admissions of guilt within the meaning of section 19 of the act of 1917, and that the ruling of the District Court that they were not such admissions was erroneous.

The provision of the act of 1917 here in question was in terms taken from section 2 of the Act of February 20, 1907 (34 Stat. c. 1134).

In United States ex rel. Castro v. Williams (D. C.) 203 F. 155, Circuit Judge Ward construed and applied this provision of the act of 1907. In that case the Board of Special Inquiry and the Secretary of Labor found that the relator, Gen. Castro, admitted the commission of a crime involving moral turpitude, viz. the murder of Paredes, and therefore fell within the excluded class of "persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude." The immigration officials based their finding of his admission of guilt principally upon the ground that Gen. Castro, on being informed that he was charged with responsibility for the unlawful killing of Paredes, repeatedly refused to give any explanation, and refused to affirm or deny his guilt, although warned that unfavorable inferences would be drawn from such refusal. In considering the

meaning of the act, and whether the immigration authorities had misconstrued and applied it, the court said:

"It is to be noted that Congress has required in respect to this particular class of aliens proof of a specified kind and no other, viz. either a conviction in the country where the crime was committed or an admission by the alien. There is no pretense of any conviction, and I think ordinary proof is not sufficient. Testimony of unimpeached eye witnesses that they had seen Gen. Castro kill Gen. Paredes with his own hand in cold blood would not only be insufficient, but would be wholly incompetent. Therefore telegrams passing between the State Department and its representative at Caracas, upon which the board relied are not evidence whatever to connect Gen. Castro with the death of Gen. Paredes. When examined before the special board, he had the right to insist that the proof on this point be restricted to that required by the act, viz. his own admission. This provision must have been intended as a limitation upon the power of the immigration authorities. It deprives them of the right to try the question of guilt at all. So it is a privilege to aliens, because it insures them against any such trial. This privilege is entirely taken away, if an admission may be rested upon presumptions arising from the alien's refusing to answer questions on the subject when under examination. I think the act contemplates an explicit and voluntary admission."

And it was held: "The immigration authorities have erred as a matter of law in their construction of the statute, and so have exceeded their jurisdiction"—citing United States ex rel. Rosen v. Williams, 200 F. 538, 118 C. C. A. 632, decided by the Circuit Court of Appeals for the Second Circuit November 11, 1912.

In the latter case, the relator was held on a warrant of deportation containing a finding by the Acting Secretary of Labor that he was a member of the excluded class, in that he had admitted having committed bigamy prior to his entry into the United States. From an order dismissing his petition for habeas corpus, he appealed. The alien appears to have admitted his guilt at the hearing before the immigration officer, and his contention was that the fact that he had admitted guilt after his entry into the country or after the issuance of the order of arrest was no proof whatever; that the statute speaks of an admission as of the time of the entry of the person into the

country, and not as of the time of the hearing. The court, however, held to the contrary, saying: There is "no reason why such evidence should be furnished by admissions made prior to rather than after the entry of the alien into this country, and [we] are not convinced that the language of the act requires us to so limit it." The court further said: "The purpose of the act is to exclude aliens who have committed serious crimes in their own countries. Congress has not deemed it expedient to give immigration officers general power to determine questions of guilt or innocence, and has limited them to excluding such criminals as have been convicted or admit their guilt. The admission is treated as evidence of guilt tantamount to conviction."

The order of the District Court, dismissing the petition, was affirmed, as the alien's admission of guilt was competent and sufficient to warrant the finding of the immigration officers, which was final.

Other cases have arisen in which this provision of the Acts of 1907 and 1917 has been applied, but they lend little aid to its construction. See United States v. Uhl, 210 F. 860, 127 C. C. A. 119; Sibray v. United States, 185 F. 401, 107 C. C. A. 483; Prentis v. Cosmas, 196 F. 372, 116 C. C. A. 419; Rousseau v. Weedin (C. C. A.) 284 F. 565; United States v. Brooks (D. C.) 284 F. 908. We are of the opinion that Congress, by the enactment of this provision, has required the alien's own admission of guilt as proof of the commission of this class of crimes, and has deprived the immigration. authorities of the right to try the question of guilt; that the statute contemplates a voluntary admission; and that evidence of facts stated by the alien from which an inference of his guilt might be inferred is not competent. We do not, however, think that evidence showing an admission of guilt is confined to an admission made by the alien at the hearing on the deportation warrant, but that an admission made by him at a prior time would be competent.

[3] In this case, Tozer, at the hearing before the inspector, repeatedly denied that he had admitted the commission of the crimes charged in the warrant; his testimony in the Fry Case was not an out and out admission of guilt; it was merely a statement of facts from which guilt might or might not be inferred; and the Department of Labor, by taking it into consideration, and basing its order of deportation thereon, applied an erroneous rule of law and exceeded its jurisdiction, and because

of this the District Court had jurisdiction to enter upon a judicial inquiry and determine the case on its merits.

The decree of the District Court is af firmed.

STANDARD OIL CO. OF NEW JERSEY V. DE VRIES.

(Circuit Court of Appeals, Third Circuit. February 20, 1925. Rehearing Denied March 28, 1925.)

No. 3155.

1. Master and servant 286(21)—Negligence In not providing safe gangplank or passageway from lighter to tanker held for jury.

In action for death of employee, slipping on wet paint while stepping from rail of lighter to rail of tanker in transferring merchandise from one to the other, question whether failure to provide safe passageway by ladder, gangplank, or other means was negligence held for jury, though there was no evidence that such devices were customary or demanded by good practice. 2. Negligence -"Negligence" defined.

"Negligence" is failure to do what a reasonably prudent person would do, or the doing of what he would not do, under similar circumstances.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Negligence.]

3. Negligence 136(14) —Question for jury.

What a reasonably prudent person would or would not do under similar circumstances is question for jury.

4. Master and servant 101, 102(8)-Reasonable care required in providing appliances and place of work.

It is master's duty to exercise reasonable care for safety of employees engaged in duties more or less dangerous, and not to expose them to danger of being hurt or injured by use of unsafe appliances or unsafe place to work. 5. Master and servant 286 (3)-Negligence in not providing safe appliances and place of work question for jury.

Whether master has exercised reasonable care, so as not to expose servants to injury because of unsafe appliances or unsafe place of work, is question for jury, and not for court, except where facts are such that all reasonable men must draw same conclusion.

6. Master and servant 103(1)—Master's duty nondelegable.

Master's duty to exercise reasonable care to prevent servants from being injured because of unsafe appliances and unsafe place of work is nondelegable.

DAVIS, Circuit Judge. This case is here on writ of error of the Standard Oil Company hereinafter called defendant, to review a judgment secured against it by plaintiff. Johan De Vries was engaged on July 11, 1923, in transferring merchandise or "stores" from the defendant's lighter, Standlight, to its tanker, Pioneer, while lying in tidewaters adjacent to Pier 5 of the defendant at Bayonne, N. J. While passing from the Pioneer to the Standlight, in the performance of his duties, his foot slipped, and he fell on his abdomen against the rail of the Standlight, and was so badly injured that he died the following day. His widow was appointed administratrix ad prosequendum, and brought this suit on the ground, among others, that the defendant was negligent under the circumstances, in that it failed to provide a safe passageway by ladder, gangplank, or other means by which the deceased could pass from one boat to the other. The case was tried to the court and jury, which rendered a verdict for the plaintiff. The case is here on defendant's writ of error, which is based on three assignments.

The first is the refusal of the court to direct a verdict for the defendant, on the ground that no negligence on its part had been shown. The next assignment is based upon the charge by the court of the following request:

"If you shall determine from the evidence that a reasonably prudent shipowner would have furnished a passageway of some kind other than as disclosed, to be used by its employees, such as the decedent here was, in passing from the lighter to the ship, when situated with respect to each other as these boats were, then the entire absence of such a passageway of some kind would constitute negligence on the part of the defendant in this case."

These two assignments amount to this: Was it a question for the court or the jury to say, under the circumstances, whether or not the defendant was negligent in not furnishing a passageway of some kind to be used by its employees in transferring the goods from one boat to the other?

[1,2] These assignments of error are based on the contention that "there was no evidence in the case that such devices (gangplanks and passageways) were customary, or demanded by good practice in handling vessels in the circumstances disclosed by the proofs." In other words, defendant says that, before a jury should have been allowed to determine whether or not a reasonably prudent shipowner would have provided a passageway under the circumstances of this case, it was necessary to show that it was customary to do so or was "demanded" by good practice. If this contention is a general rule of law, applicable in all cases, it means that, however dangerous and unsafe a condition under which men work becomes, negligence cannot be established against the party responsible for such dangerous and unsafe condition until a practice has grown up, or a custom has become established, of some recognized means of avoiding the danger. Under this theory, evidence, showing an absolutely unsafe and dangerous condition, does not furnish a jury question until sufficient time has elapsed and enough people have adopted some particular means to avoid the danger to constitute a "practice" or "custom"; that then, but not until then, is a jury permitted to say that the condition is dangerous, and the person who maintained it negligent, because he did not adopt the customary means of avoiding the danger.

On this theory, custom establishes the duty, and where there is no custom there can be no duty, and consequently no negligence. This position is unsound in prine ple. Negligence is the failure to do wha reasonably prudent person would do, or doing of what he would not do, under sin ilar circumstances, and what a reasonably prudent person would or would not do is a question for the jury. Negligence in the