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Then what happened? The plaintiff was confronted by the certainty of a substantial loss; that is, a loss substantially in excess of the amount for which it was protected by the surety bond. Kondor had withheld the plaintiff's money and deposited it in his own bank, which was about to be closed by state authorities. It was Saturday night and the state authorities were going to act on Monday morning. That something should be done and done quickly was evident. Conferences of the plaintiff's officers, local bankers and state officials were hastily called, the bank's assets and liabilities canvassed, informal and incomplete estimates of the probable loss to depositors made and, eventually, a plan was proposed whereby another bank should take over and hold as its own the deposits of Kondor's bank and pay all except the plaintiff's very large deposit, which should be retained by the rescuing bank for four years without interest. Manifestly, the plaintiff was in a grave situation. It had, however, two ways out-one, acceptance of the proposed plan; the other, resort to the defendant's bond-two opposite courses. Neither promised complete escape. It did not then occur to any one that the plaintiff could get out of the dilemma by traveling both paths at once. Legally and practically, that was impossible. Some one late that night phoned an agent of the defendant surety company and informed him of the problem. Neither the agent nor any one else connected with that company said or did anything before Monday morning, by which time the transaction was closed. Of this the plaintiff complains and the court makes a point. Yet neither the agent nor the surety company was bound to say or do anything, for that company's rights and its duties and its liability had been fixed by previous events. Notice of the situation transmitted by phone, even if it had reached a responsible official, imposed no duty on the surety company to speak or act. A. B. Leach & Co. v. Peirson, 275 U. S. 120, 48 S. Ct. 57, 72 L. Ed. decided November 21, 1927. Responsibility for action was with the plaintiff alone. Responding to the sound advice of its counsel, the plaintiff on Sunday decided upon the course which then promised the greater money return and elected to forego (at least for a time) the protection of the defendant's surety bond in the hope, eventually realized, of getting more money out of the plan of turning over its deposit to another bank for four years without interest. That entrance into this plan was a change of situation from that which would have existed if the plaintiff had stood on the bond is another

fact shown by the pleadings, for then both plaintiff and defendant could have resorted to the assets of Kondor's bank and there would now be no occasion for the plaintiff to sue the defendant for the items of its present claim. It is in truth now suing for the particular loss which arose directly from the situation into which it had voluntarily entered. That this change, whereby the plaintiff's deposit was tied up for four years without interest and all assets of Kondor's bank were handed over to the other bank, precluded the surety company from resorting to those assets to cover or lessen the loss it might have sustained on its bond had it been called upon to perform is a fact clearly shown by the pleadings. The surety company's undertaking was not a contract of insurance, marine or fire, drawing in its train the law of salvage; it was a contract of assurance. It contained no covenant even implying an obligation to make good a shortage in the bankers plan occurring four years later, but contained a covenant which expressly made it liable to pay for Kondor's default at the time it occurred, and when it had done that the surety company had the right to be subrogated pro tanto to the plaintiff's right to recover from Kondor's bank. Whether the amount which in such case it might have recovered would have been more or less than what the plaintiff now demands in this suit is beside the point. The fact remains the plaintiff by its conduct deprived the defendant of that right. I think the surety company should not be relegated to trial and forced to prove that the extension of time given by the plaintiff within which to pay the debt assured by the bond was a variation from the contract of suretyship when the plaintiff itself has shown it. Nor should the surety company be required to prove that the variation was prejudicial in view of the plaintiff's admission that this suit is brought to recover loss arising from that same variation, amounting to $41,600 for four years' interest on the withheld deposit and for other amounts likewise directly and exclusively incident to the variation, such as interest for moneys which the plaintiff had to borrow because of its withheld deposit, and expenses in the form of railroad fares, cost of meals and per diem fees of the plaintiff's trustees while attending conferences, and fees of attorneys, amounting to $8,470 more.

Whether, on an issue of prejudice, it would appear that the defendant would actually have lost more if resort had first been made to its bond than is now demanded of it, and just how much more, is a matter that

25 F.(2d) 35

appeals.

will, from the very nature of the case, al- an order remanding him to such custody he ways remain in the realm of conjecture. It is difficult to prove the consequences of a thing that never happened.

I am strongly of opinion that, on the facts pleaded and admitted and viewed in the light of settled law, the judgment for the defendant should be affirmed.

On January 10, 1920, the petitioner was arrested by officials of the Department of Justice and questioned by a special agent in charge thereof. On February 12, following, he was arrested under an order by the Acting Secretary of Labor on the charge of violation of the Act of October 16, 1918 (40 Stat. 1012 [8 USCA § 137]), in that he was a member of or affiliated with an organiza

JURGANS v. SEAMAN, Inspector in Charge tion that entertained a belief in the overof Immigration.

Circuit Court of Appeals, Eighth Circuit. March 16, 1928.

No. 7854.

1. Aliens 54(9)-Evidence in deportation proceeding held to support finding that alien was member of or affiliated with organization advocating overthrow of government (8 USCA 137).

In deportation proceeding, evidence held to support finding of Secretary of Labor that alien tion advocating and teaching the overthrow by force or violence of the government of the United States and all forms of law, in violation of Act Oct. 16, 1918 (40 Stat. 1012 [8 USCA § 137]). 2. Allens

was a member of or affiliated with an organiza

54(10)-Denial of fair hearing in deportation proceeding held not established (8 USCA § 137).

In deportation proceeding, under Act Oct. 16, 1918 (40 Stat. 1012 [8 USCA § 137]), claim that hearing was unfair, that assistance of counsel was denied, and that notice of charge was not given held not established.

In Error to the District Court of the United States for the District of Minnesota; John B. Sanborn, Judge.

Habeas corpus proceeding by William Martin Jurgans against Chas. W. Seaman, Inspector in Charge of Immigration, to secure relief from an order of deportation. Writ dismissed (17 F.(2d) 507), and petitioner brings error. Affirmed.

Arthur Le Sueur, of Minneapolis, Minn. (C. P. Diepenbrock, of Minneapolis, Minn., on the brief), for plaintiff in error.

John K. Fesler, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge. Appellant brought habeas corpus for discharge from the custody of immigration officers holding him under an order of deportation. From

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throw by force or violence of the government of the United States and of all forms of law and which advocated and taught the overthrow by force and violence of the government of the United States and all organized government. On February 25, 1920, he was brought before an examining inspector and there examined in respect to the charges contained in the order of arrest. At that hearing he was represented by competent counsel who had given notice on January 16th that he was such counsel. Testimony was taken before the examining inspector who reported the hearing to the Department at Washington recommending deportation. An order of deportation was made May 20, 1920. This order required the return of the alien to Russia, his native country, but such order could not be immediately executed because of the absence of diplomatic relations with Russia. Therefore, such execution was deferred. During all of the preceding transactions and thereafter until the 3d day of November, 1926, the petitioner was at large upon bail. Upon that date he surrendered to the inspector of immigration and demanded the surrender of his bail. Thereupon, he was incarcerated and this petition for the writ of habeas corpus promptly filed.

two relate to the insufficiency of the eviFive matters are argued here. The first dence; the other three to the fairness of the hearing.

[1] Counsel for petitioner concedes that the Communist Party is within the definition of the statute as an organization which "entertains a belief in, teaches, or advocates the overthrow by force or violence of the government of the United States or of all forms of law." His contention is that the evidence is insufficient to show that petitioner was a member of the Communist Party. The evidence in this record consists of the statements of the petitioner made under oath be-. fore the examining inspector. A summary of this evidence is that petitioner is a member of the Lettish race and a citizen of Russia who speaks and understands English only

imperfectly; that he came to this country in 1913, leaving his wife and several children in Russia. At some date, not shown, he joined a local Lettish organization, in Minnesota, of the Socialist Party. At some time, apparently in 1919, this local organization voted to go over to the Communist Party and he was sent as a delegate of the local, under instructions, to a state meeting or convention of the Socialist Party held at Minneapolis, October 5, 1919. At that meet ing, motions were made "that we recognize the principles and tactics of the Communist Party of America" and to change the name from the Socialist Party of Minnesota to the Communist Party of Minnesota. He voted in favor of affiliating with the Communist Party because he had instructions from his local organization so to vote. Also, he approved of that action. He made no objection to attending this convention and, although some delegates who had voted against the motions withdrew from the convention thereafter, he made no effort to do so. He has not received any membership card nor signed any application for membership in the Communist Party nor paid any dues thereto nor has he attended any meetings thereof since the convention. Whether such lack of attendance is through a desire or because he works at night is not entirely clear.

He says he has no clear idea of the principles of the Communist Party; that he does not know whether it was aiming to overthrow the government of the United States, but that he does not believe in the forcible overthrow of the government, but in its control by the ballot; that he does not believe in violence at all, but in organized government, and is not opposed to any organized government; that he does not know whether he agrees with the principles of the Communist Party or not, "maybe I do"; that if the members of the Communist Party had not been arrested he thinks he would still be a member of the party and has made no effort to withdraw or resign; that he understands the Communist Party to favor changes in the government through the ballot without the use of force and that until he knows and believes in something different it is his purpose to remain a member of it.

The effect of this evidence is that the petitioner has been and is yet a member of the Communist Party and has taken part in a convention in connection with it. According to his statement, he misunderstands or does not clearly understand the principles of that party.

As we read the statute involved here, the

crime consists in being affiliated with an organization which has as one of its tenets the overthrow of the government of the United States or all organized government by force. The Communist Party is admitted to be such an organization. The petitioner admits that he was before and at the time of the deportation proceeding and yet is a member of that party. He has made no declaration or expression of intention to withdraw from that membership. We find nothing in the statute which excuses that position and it seems to fit the very evil aimed at by the statute.

The second point is that there was no evidence that the Communist Party in Minnesota had ever been accepted or become a member of the Communist Party at large. There is no evidence of such formality, but he testified:

"I think there was a motion made and seconded 'that we recognize the principles and tactics of the Communist Party of America,' etc., but I do not remember. I think there was a motion made to change the name from the Socialist Party of Minnesota to the Communist Party of Minnesota. I think there was. I voted on that motion. I voted to affiliate with the Communist Party because I had instructions from the local how to vote."

There is no challenge that the Communist Party in Minnesota, with which petitioner was affiliated, does not entertain the same beliefs as the Communist Party at large. [2] The third point is that there was no fair hearing before the examiner because petitioner was not faced with the evidence against him. What that evidence was is not revealed by the record. The entire evidence shown in this record to have been before the examiner is that given by the petitioner himself. It is true that several exhibits were shown him and he was examined in connection with them, but they are made no part of this record and the case must rest upon the testimony of petitioner. If they had been helpful to his cause, it is presumed that his counsel, who seemed thoroughly competent, would have had them incorporated.

The fourth contention is that he was denied counsel. For more than a month before the examination upon which this deportation order was made, he had competent counsel. This contention is based upon the fact that upon his first arrest he had no counsel and during that detention had given a statement to the Department of Justice officials. Such statement is no part of this record. A statement made by the Department of Justice

25 F.(2d) 37

agent who made such examination was identified, introduced and "made a part of the record" in the later examination upon which the order of deportation was entered, but that statement is not included in this transcript and counsel agreed, upon the argument here, that it would have added nothing to the evidence given by the petitioner at the later examination. It is difficult to see how this statement affected the proceedings or the result and, under the above omission and admission, it can form no basis for the claim that prejudice resulted because of lack of counsel at the time of the first examination. The last point is that petitioner had no proper notice of the charges he was to meet because the order of arrest of February 12th

was not delivered to him until the time of the hearing. No objection was made to this procceding, no prejudice is shown therefrom and it is evident that the petitioner and his counsel were fully aware, without the warrant, of the charges which petitioner would have to meet. Also, the warrant sufficiently apprised him of the charge he was to meet. Mahler v. Eby, 264 U. S. 32, 41, 44 S. Ct. 283, 68 L. Ed. 549.

We think the order of deportation was properly made; and the judgment denying discharge under the writ was correct. Therefore, that judgment should be and is affirmed.

ENGLER v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. March 16, 1928.

No. 7881.

1. Intoxicating liquors 271-In suit against lessees to abate liquor nuisance, owner of premises need not be made party (National Prohibition Act [27 USCA]).

In suit against lessees to abate nuisance conducted in violation of National Prohibition Act (27 USCA), it is not necessary that owner of premises be made party, and it is not important whether owner had knowledge that premises were used illegally, since abatement of nuisance under such act is civil proceeding in rem.

2. Intoxicating liquors 262-Change of tenants will not deprive government of right to abate liquor nuisance where soft drink business was conducted as before (National Prohibition Act, tit. 2, § 22 [27 USCA § 34]).

Where suit was brought under National Prohibition Act, tit. 2, § 22 (27 USCA § 34), to abate nuisance conducted by lessees, formal change of tenants will not deprive government of right to abate nuisance, where soft drink bar business was conducted as before, with same equipment, notwithstanding that new tenant was

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never charged with violation of law, since suit is aimed at unlawful use, irrespective of ownership.

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3. Intoxicating liquors 275-Burden show that liquor nuisance had been abated held to be on owner and not government.

Where liquor nuisance was once shown to exist, burden to establish that it had been abated held to be on owner of premises, and not on government.

4. Evidence 67(1)-Liquor nuisance, once shown to exist, will be presumed to continue (National Prohibition Act [27 USCA]).

Prohibition Act (27 USCA), if once shown to exist, will be presumed to continue, especially in absence of change of environment.

Nuisance conducted contrary to National

5. Criminal law 163-Acquittal under Prohibition Act held not bar to proceedings to abate liquor nuisance (National Prohibition Act, tit. 2, §§ 21, 22 [27 USCA §§ 33, 34]).

Acquittal in prosecution under National Prohibition Act, tit. 2, § 21 (27 USCA § 33) is not bar to proceedings, under § 22 (27 USCA § 34), to abate nuisance.

6. Intoxicating liquors 265-Interests of innocent persons in property may be divested in proceedings to abate liquor nuisance (National Prohibition Act, tit. 2, § 22 [27 USCA §34]).

Object of proceedings to abate liquor nuisance under National Prohibition Act, tit. 2, § 22 (27 USCA § 34) is preventive in nature, and to effect this interests of innocent persons in property may be divested.

7. Intoxicating liquors 276-Suit to abate liquor nuisance must be seasonably brought, but fact that hearing is remote from commission of offense will not prevent decree (National Prohibition Act, tit. 2, § 22 [27 USCA § 34]).

Suit for abatement of liquor nuisance under National Prohibition Act, tit. 2, § 22 (27 USCA § 34), must be seasonably brought; but, if this is done, fact that hearing is remote from commission of offense will not, at least in absence of affirmative proof of abatement, prevent de

cree.

8. Intoxicating liquors 276-Where officers' affidavits were made April 23 and 24, delay till June 15 in filing suit to abate liquor nuisance held not unreasonable (National Prohibition Act, tit. 2, § 22 [27 USCA § 34]).

Where affidavits relative to liquor nuisance were made by government officers on April 23 and 24, shortly after commission of offenses charged, delay of district attorney until June 15 in filing bill to abate nuisance under National Prohibition Act, tit. 2, § 22 (27 USCA § 34), held not unreasonable.

Appeal from the District Court of the United States for the District of Minnesota; John B. Sanborn, Judge.

Suit by the United States against Peter A. Engler to abate a nuisance conducted in violation of the National Prohibition Act.

From the decree, defendant appeals. Af- said act, and appellant was required to take firmed.

George G. Chapin, of St. Paul, Minn. (George E. Ogilvie, of St. Paul, Minn., on the brief), for appellant.

J. H. S. Gifford, Asst. U. S. Atty., of Minneapolis, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

due notice of the law and to govern himself accordingly. Proof of the mailing of this notice was also made. The case was tried upon the following stipulation of facts:

"It is hereby agreed and stipulated, by and between the complainant herein and the above-named defendant Peter A. Engler, through their respective attorneys, that the above-entitled cause may be and the same BURGH, Circuit Judges, and PHILLIPS, pleadings and the following stipulated facts: hereby is submitted to the court upon the District Judge.

Before STONE and VAN VALKEN

VAN VALKENBURGH, Circuit Judge. This is an appeal from a decree of the District Court for the District of Minnesota adjudging that the real estate and premises in the city of St. Paul, county of Ramsey, and state and district of Minnesota, known

and described as the first and second floors

of a building, the first floor of which was used as a soft drink bar, located at 905 West Seventh street, in said city, with other space immediately adjacent thereto, had been used

in the conduct of a nuisance in violation of sections 21 and 22 of the National Prohibi

tion Act (27 USCA §§ 33, 34), and were, on the 15th day of April, 1925, a common and public nuisance, and further adjudging that said premises should not be occupied or used for one year subsequent to and immediately after the entry of that decree, to wit, April 11, 1927. The bill of complaint was filed on the 15th day of June, 1925. Affidavits in support thereof were made on the 23d and 24th days of April, 1925. By these affidavits it was charged that sales of intoxicating liquor had been made in said premises on the 6th day of April, 1925, and that on the 15th day of April, 1925, intoxicating liquor had been found in said premises; that the same were then and there equipped with a bar, back-bar, mirror, glassware, etc., being identical with the equipment ordinarily installed in a regular saloon; that at the time of said search and seizure the premises were in charge of one Gladstone Davidson as a bartender, and constructively in charge of one Leonard Ayd as proprietor; the name of the latter then and there appearing on the soft drink licenses in said place. Attached to the bill of complaint, as an exhibit, was a written notice from the prohibition administrator at St. Paul, Minn., to appellant, as the owner of said premises, dated February 19, 1925, that these premises were being occupied and used for the illegal sale and possession of liquor contrary to the provisions of the National Prohibition Act. Attention was called to section 21 of

The bill of complaint herein is predicated on section 22 of title 2 of the National Prohibition Act and this action was commenced by service of subpoena on defendant Peter A. Engler, June 25th, 1925. Defendant Engler has appeared and answered. Defendants Ayd and Davidson have never been served with process and have made no appearance.

"Defendant Peter A. Engler owns the premises No. 905 West Seventh street, St. Paul, Minn. The violations of law alleged in paragraph V of the complaint are admitted. It is also admitted that on February 19, 1925, the Prohibition Department fordefendant Peter A. Engler a notice that a warded through the United States mails to violation of law had occurred on the premises referred to. It is also admitted that at the time the aforesaid violations occurred Leonard Ayd was the lessee and proprietor of the soft drink bar business operated on the premises described and that Gladstone Davidson was an employee of defendant Ayd. Defendant Peter A. Engler in no way participated in the violations of law aforesaid, or had any knowledge that the law was being violated, other than the notice above referred to, unless such notice may be inferred as a matter of law from the facts stipulated herein.

"It is admitted by the complainant that tenant Leonard Ayd was ejected by defendant Peter A. Engler from the said premises in April, 1925, subsequent to the date of the last violation of law. That one John Ryshavy has since May 1, 1925, been the lessee of said premises under lease from defendant Peter A. Engler; that since said time and up to the present, the said John Ryshavy has operated on said premises, a so-called soft drink and foodstuff business under a license issued by the city of St. Paul, Ramsey county, Minn; and that the said John Ryshavy has never been charged with a violation of law."

As has been stated, the bill of complaint was filed June 15, 1925. For some reason, not clearly appearing in the record, the case

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