3. Aliens 53-Alien, entering under unexpired passport of another, held subject to deportation (8 USCA § 155; 22 USCA §§ 223-226; 22 USCA § 227).

Alien, entering United States under unexpired passport of another, held subject to deportation, under Act Feb. 5, 1917, § 19 (8 USCA § 155), since such entry was unlawful under Act May 22, 1918 (22 USCA §§ 223-226), President's proclamation issued pursuant thereto, and Act March 2, 1921 (22 USCA § 227).

Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.

Habeas corpus proceeding by Robert Felich, opposed by J. F. Meier, Immigrant Inspector. From an order discharging the writ, Felich appeals. Affirmed.

Robert H. Wallis and Leslie Frazer, both of Salt Lake City, Utah, for appellant.

signed the name "Josip Vukovic" across the face of the photograph and in another place on the passport. He then took the visaed passport to the steamship office at Zagreb and purchased railroad and steamship tickets to this country, took passage and landed at Ellis Island, presented the passport to the immigration authorities and was permitted to enter on the 27th or 28th of February, 1924. He had a wife and one child who remained in Jugo-Slavia. During all of his residence in the United States he had employment and supported his wife and daughter in the old country. He was a smelter worker.

Edward M. Morrissey, Asst. U. S. Atty., of Salt Lake City, Utah (Charles M. Morris, U. S. Atty., and Jesse K. Smith, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for appellee.

LEWIS, Circuit Judge. Appellant sued out the writ of habeas corpus. After hearing the court discharged the writ and remanded him to the custody of the Immigrant Inspector for deportation to Jugo-Slavia, pursuant to the command of the warrant of the Secretary of Labor, under which he was being held. From that order appellant perfected this appeal.

The undisputed facts testified to by appellant at the hearing before the Inspector are these: he was born in Croatia, and is a subject or citizen of Jugo-Slavia. Early in February, 1924, while he was in that country, he had a conversation with one Josip Vukovic, who was his friend and neighbor, in the course of which he learned that Vukovic had in his possession an unexpired passport, which Vukovic agreed to give to appellant to be used by him in returning to the United States. He had previously been in the United States and remained there until March, 1920, at which time he returned to JugoSlavia. Vukovic gave appellant the passport and he took it to the American Consul at Zagreb, where he applied for and received a visa for which appellant paid the sum of $10. The passport had been issued in the name of Vukovic and his photograph was attached to it when appellant received it and at all times thereafter. When he presented the passport to the American Consul he

tion, and knew he would be excluded if he did not conceal the facts. We must regard his status as of the time he entered unlawfully. Since then he has been here without right. The question is whether the Secretary was authorized to issue and have executed his warrant of deportation. To be sure, Congress has full power to exclude aliens, to prescribe conditions on which they may enter, to establish regulations covering the subject, and to provide for deportation of those who have entered in opposition to its expressed will. Lees v. United States, 150 U. S. 476, 14 S. Ct. 163, 37 L. Ed. 1150; United States ex rel. v. Williams, 194 U. S. 279, 24 S. Ct. 719, 48 L. Ed. 979.

[2,3] The Act of May 22, 1918, was passed as a war measure. Its first section, now found as section 223, U. S. C., title 22, reads, in so far as here applicable, thus:

"When the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this section, and the three following, be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful

"(a) For any alien to depart from or enter, or attempt to depart from or enter the United States, except under such reasonable rules, regulations, and orders, and subject to "(c) For any person knowingly to make any false statement in an application for permission to depart from or enter the United States with intent to induce or secure the granting of such permission either for himself or for another;

"(d) For any person knowingly to furnish or attempt to furnish or assist in furnishing to another a permit or evidence of permission to depart or enter not issued and designed for such other person's use;

"(e) For any person knowingly to use or attempt to use any permit or evidence of permission to depart or enter not issued and designed for his use;

"...

C., title 8, under which the Secretary's warrant was issued, provides: any alien who shall have entered or who shall be found in the United States in violation of this subchapter, or in violation of any other law of the United States shall, upon the warrant of the Secretary of Labor, be taken into custody and deported." The authority of the Secretary thus seems clear. We have no doubt appellant was subject to deportation for the reasons stated in the warrant. The Ninth Circuit so held in a case which cannot be distinguished in principle from this. Takeyo Koyama v. Burnett, Immigration Inspector, 8 F. (2d) 940. The order appealed from is Affirmed.

sion to depart from or enter the United

States;

Circuit Court of Appeals, Eighth Circuit. November 23, 1927.

No. 7552.

ed, or altered permit, or evidence of permission, or any permit or evidence of permission which, though originally valid, has become or been made void or invalid."

We had occasion to consider this statute and its subsequent history in Flora v. Rustad, 8 F.(2d) 335, to which we refer. The proclamations were made and were unrevoked at the time appellant entered. We also noted in the Flora Case that the Act of March 2, 1921 (41 Stat. 1205, 1217), making appropriations for the diplomatic and consular service, contained this proviso: "That the provisions of the Act approved May 22, 1918, shall, in so far as they relate to requiring passports and visés from aliens seeking to come to the United States, continue in force and effect until otherwise provided by law." 22 USCA § 227. We find no subsequent act repealing or nullifying this proviso, unless it be the General Immigration Act of May 26, 1924 (43 Stat. 153 [8 USCA §§ 201226]), which was, of course, not enacted until after appellant's entry. And so we think the Act of May 22, 1918, the President's proclamation issued pursuant thereto, and the Act of March 2, 1921, constituted the law prescribing the conditions on which an alien might enter at the time appellant landed at Ellis Island, and that it was unlawful for him to enter without having complied with those conditions. His testimony shows that he did not comply with them. Section 19 of the Act

in habeas corpus by alien held under deportation warrant, will consider proof before inspector and additional evidence received under stipulation.

Where, on habeas corpus proceeding by alien held under warrant of deportation, it was stipulated that case should be heard by court on its merits and testimony was received, appellate court will consider the case on statement of proof in record before inspector, as well as on additional evidence in court taken under stipulation.

2. Aliens 54 (17) Evidence held to sustain finding on habeas corpus that alien neither shared in prostitutes' earnings nor was connected with house of prostitution (Comp. St. §42891/4a et seq.).

In habeas corpus proceeding to secure release of alien held under deportation warrant,

evidence held to sustain finding that charges of sharing earnings of prostitutes and being connected with management of house of prostitution, in violation of Act Feb. 5, 1917 (Comp. St. § 42894a et seq.), were not sustained by

proof.

Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.

Application for habeas corpus by Mary Lebaris against J. F. Meier, United States Immigration Inspector. Order discharging petitioner, and respondent appeals. Affirmed.

Edward M. Morrissey, Asst. U. S. Atty., of Salt Lake City, Utah (Charles M. Morris, U. S. Atty., and Jesse K. Smith, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for appellant.

Alonzo W. Watson and J. J. Whitaker, both of Salt Lake City, Utah, for appellee.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

LEWIS, Circuit Judge. While appellee, an alien, was being held under a warrant issued by the Secretary of Labor commanding that she be deported to Syria, the court below issued its writ of habeas corpus. The Immigration Inspector in his return set up the Secretary's warrant as his justification for the detention. The warrant recited that the Secretary had become satisfied on the proof submitted to him that the alien, who landed at the port of El Paso, Texas, about July 1, 1908, had been found in the United States in violation of the Act of February 5, 1917 (Comp. St. §§ 42891/4a et seq.), to wit: "That she has been found receiving, sharing in, or deriving benefit from the earnings of a prostitute; and that she has been found connected with the management of a house of prostitution; and that she has been found employed by, in or in connection with a house of prostitution or music or dance hall, or other place of amusement, or resort habitually frequented by prostitutes, or where prostitutes gather."

It appears that a summary statement of the evidence taken before the inspector, on which the Secretary made his findings and issued the warrant, was submitted to the court when a hearing on the return to the writ came on; but it further appears that at that time it was stipulated between the district attorney and counsel for the alien that the case should be heard by the court upon its merits, and appellant called two witnesses, police officers, who were examined and cross-examined at length. The court then found that none of the charges were sustained by the proof and ordered the alien discharged and set free, from which this appeal was taken.

[1, 2] We think we should consider the case on the statement of proof in the record taken before the inspector, as well as on the additional evidence in court taken under the stipulation; that appears to have been the course taken by the District Judge. Five witnesses testified against the alien before the Immigration Inspector, of whom three were police of ficers employed as members of the so-called Anti-Vice Squad in the City of Salt Lake. One was a deputy United States Marshal and the other a United States Immigration Inspector. It appears that the alien, for several years prior to that hearing, had maintained

a rooming-house in Salt Lake City known as the Ogden Rooms, consisting of about twenty rooms on the first and second floors of the building. These witnesses testified to the arrests of three women in the rooming-house during about three years, one of them, who was a servant at the place, being arrested twice. They were arrested as prostitutes. The police officers said the house was a resort for prostitutes. The deputy marshal testified that he was at the Ogden Rooms on one occasion and he saw two or three girls who, in his opinion, judging them from their general appearance and demeanor, were prostitutes. The Immigration Inspector had no knowledge of the place, but testified to having examined the city police record and the statements he found therein of some arrests made at the street number of the rooming-house. Two police officers were the only witnesses who testified before the court under the stipulation. Eight witnesses, including the alien, testified in her favor before the Immigration Inspector. The alien denied that the rooming-house was frequented by prostitutes. She testified that she never received any money from a prostitute, that one of the girls arrested was employed by her as a chamber maid and she did not know that the girl practiced prostitution or was a bad woman, that the other two girls lived in the house with their husbands, and the mother of one of them, for about eighteen months, that she did not know that either of them was a prostitute but that they could have brought men there for a short period of time and she know nothing about it, that she never saw anything of that kind. One of her witnesses was a traveling man, and for a period covering about four years he had stopped at the Ogden Rooms about twenty times, that he considered the place at respectable one and would not have stayed there if he had had any impression that prostitutes were permitted there, that he never saw any women there except the alien and the chamber maid. Another witness had lived there for about three years. He knew the chamber maid and knew that she was arrested several times, but he had no knowledge of any prostitution there. A practicing physician of the city testified he had known the alien for eight or nine years, that while she kept the rooming-house he had been there twenty to thirty times professionally and never saw any disorderly conduct at the place, and never heard or saw anything that would cause him to believe that girls were there practicing prostitution. A lady officer in the Salvation Army testified that she lived there for about two weeks in 1923, knew the alien and during that time did not see any disorderly conduct or any girls there who appeared to be prostitutes. Counsel for the alien testified that he had been a Judge for eight years, that he had known the alien for seven or eight years, that he had acted as her attorney for several years, that he believed she was a moral woman leading a decent life, and that in his opinion the officers and members of the Anti-Vice Squad were prejudiced against her. A Mr. and Mrs. William Whitaker testified that they had known the alien for eight years, that they considered her to be a good woman, that they had been around the Ogden Rooms a number of times and had not seen any conduct there that would lead them to think it was a house of prostitution or that prostitutes were living there. There was no evidence tending in the slightest way to support the charge that the alien shared in the earnings of prostitutes. She is an illiterate woman, can neither speak nor write English. It does not appear how much help she had, if any, in addition to the one girl who cared for cleaning the rooms, or how active the alien herself may have been in supervising and looking after the place. It does appear that the police officer who went there to see her about her chamber maid found the alien in her kitchen. The circumstances, as far as they go, leave the impression that if there was prostitution the alien was ignorant of the fact at the time.

The contention that the evidence before the inspector was sufficient to support some of the findings in the warrant, and that was enough to sustain the order of deportation, may be acceded to; but that is not the case brought here. It was stipulated on return to the writ that the court should hear it on its merits. The facts presented were thus submitted to the estimate and judgment of the court. The District Judge was in a better situation to make a correct estimate than an Appellate Court can make. The order appealed from is

Affirmed.

2. Injunction118(3)-Bill to enjoin repeated seizures of slot machines by police held to state cause of action in equity.

Bill to enjoin repeated seizures by police of slot machines owned by complainant, and prosecutions against him and others for operating the same, held to state a cause of action in equity. even if complainant's device is susceptible of being used for gambling, in violation of Act La. 107 of 1908, §§ 1, 2.

Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge.

Suit in equity by James B. Ashcraft against Thomas Healey, Superintendent of Police. From a decree denying a preliminary injunction and dismissing bill, complainant appeals. Denial of injunction affirmed, and

dismissal of bill reversed.

C. S. Hebert, of New Orleans, La., for

FOSTER, Circuit Judge. This is an appeal from a judgment dismissing a bill seeking an injunction to prevent the superintendent of police of New Orleans from repeatedly arresting plaintiff in error, plaintiff below, for alleged violations of a state statute which prohibits the use of slot machines as gambling devices. The parties will be referred to as they appeared in the District Court.

The bill substantially alleges as follows: Plaintiff owns a number of automatic mintvending machines, which are placed in various commercial establishments on a profitsharing basis. Assuming that the said machine was a gambling device, in contravention of a Louisiana law (Act 107 of 1908), the defendant seized about 184 of the machines in the hands of plaintiff and others, and 18 criminal prosecutions were inaugurated against plaintiff and the other parties operating the machines. The case against

Police.

Circuit Court of Appeals, Fifth Circuit. December 19, 1927.

in an acquittal. Thereupon the district attorney dismissed the other prosecutions and the machines were returned. Thereafter de

No. 5066. 1. Injunction105(1)-Equity court may enjoin criminal pro prosecution, where necessary to protect property rights.

Court of equity has jurisdiction to enjoin prosecution for crime, when necessary to protect property rights.

tains, without a warrant, arrested one Jules Galatas, in whose place of business one of plaintiff's machines was being operated, and seized the said machine.

The bill specifically alleges that plaintiff's machine is not a gambling device, and that defendant acted arbitrarily and without authority in seizing it. The bill shows sufficient jurisdictional amount and diversity of citizenship, as well as setting up a violation of plaintiff's rights under the Constitution of the United States.

A rule nisi issued to defendant, and he filed a motion to dismiss the bill, upon the ground that it disclosed no right or cause of action. On the hearing affidavits were • submitted by both sides, those of plaintiff tending to show that the machine was devoid of any gambling feature, and delivered a package of mints of standard quality of full value for each five cents deposited, while those on behalf of defendant tended to show that the machine could be used as a gambling device, but there was nothing to show that it had been so used at any time. A preliminary injunction was denied, and the bill was dismissed, without a hearing on the merits.

erty without legal proceedings. The judgment dismissing the bill without a trial on the merits deprived plaintiff of his day in court and was wrong. That judgment will be reversed. The granting of an interlocutory injunction was within the sound discretion of the District Court, and with that we see no reason to interfere. The case will be remanded for further proceedings not inconsistent with this opinion. Costs of appeal to be divided equally. Affirmed in part. Reversed in part.

On Application for Rehearing.

PER CURIAM. The judgment on appeal will be amended, to reserve to appellant the right to again apply to the District Court for a restraining order and an interlocutory injunction pendente lite. Rehearing denied.

chanical devices, and section 2 of the said act also makes it an offense for the owner.or proprietor of any premises or building where business of any nature is conducted to have on the premises a slot machine used in violation of section 1, but does not penalize the mere possession of one that may be so used. In Tonahill v. Molony, 156 La. 753, 101 So. 130, in construing this law, the Supreme Court of Louisiana held that it does not apply to slot machines used solely for the vending of merchandise. In that case, however, the court found that, in addition to mint, the machine sometimes delivered checks redeemable in merchandise, and held this made it a device used for gambling.

[2] The affidavits submitted on the hearing were conflicting as to the possibility of the machine being used for gambling, but their probative value was necessarily confined to the application for an interlocutory injunction. Furthermore, they do not show a violation of the act. It may be that the device is susceptible of being used for gambling; but that is not enough to make it illegal. A trial on the merits may demonstrate that it was so used. As to this we express no opinion.

There is no doubt that the allegations of the bill show a cause of action cognizable in equity to prevent the repeated prosecutions of plaintiff and the seizure of his prop

GRAY v. MISSOURI PAC. RY. CO. Circuit Court of Appeals, Sixth Circuit. January 3, 1928.

No. 4887.

within state law abolishing defense of contributory negligence, until trainmen ought to apprehend his failure to stop; "apparent peril" (Crawford & Moses' Dig. Ark. § 8568).

An automobile driver, approaching a railroad crossing, is not in the apparent peril contemplated by Crawford & Moses' Dig. Ark. $

8568, abolishing defense of contributory negligence in such cases, until trainmen ought reasonably to apprehend that driver is not going to stop while he is still in a safe position. 2. Railroads 320-Trainmen may ordinarily presume traveler will stop in safe position.

Trainmen may ordinarily presume that an automobile driver, approaching railroad crossing, will stop while he is still in a safe position.

3. Negligence 136(31)-Whether there is evidence to support finding that traveler's negligence is of less degree than railroad's negligence is question of law (Crawford & Moses' Dig. Ark. § 8575).

In a proper case under comparative negligence statute (Crawford & Moses' Dig. Ark. § 8575), it is a question of law whether there

is any evidence to support a finding that negligence of automobile driver approaching railroad crossing is of less degree than that of railroad, and hence it may be necessary that a ver

dict for defendant railroad be instructed.

4. Costs 2461/2-Costs of prosecution of writ of error in forma pauperis will not be awarded in Circuit Court of Appeals.

Where prosecution of writ of error was in

forma pauperis, no costs of Circuit Court of Appeals will be awarded.