(271 F.)

The Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721; United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040. Review by the District Court, or on appeal by this court, is limited to habeas corpus (United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917); and such review extends only to the inquiry whether the discretionary powers of the executive (large as they are) have been exceeded. There is no judicial power to review or reverse a finding of fact based upon evidence. Low Wah v. Backus, 225 U. S. 460, 32 Sup. Ct. 734, 56 L. Ed. 1165; Gegiow v. Uhl, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed. 114. And this court has recently pointed out that, while we may inquire on habeas corpus as to whether the deportation proceedings have been fair, the rules of evidence do not in strictness apply (Diamond v. Uhl [C. C. A.] 266 Fed. 34), and the hearing, though it must be fair, may be summary, and the findings of fact made by the Executive Department are conclusive (Rakics v. Uhl [C. C. A.] 266 Fed. 646).

[3] This petitioner is obviously a man of education, and by his command of languages and acquaintance with affairs well able both to defend himself and to lead others. But mere personal abstention from violence, or even from violent language, does not secure immunity, if the result of the gentlest and most guarded speech is to advocate or teach that which the statute condemns. The "philosophic" anarchist is an anarchist nevertheless. Lopez v. Howe, 259 Fed. 401, 170 C. C. A. 377. Since in this or in any similar case we cannot be concerned with the weight of the evidence, but only with the existence thereof, it is not useful to state or comment upon what Georgian was proved to have done, what he admitted having done, or what he himself said of his own teachings, advocacy, or opinions.

We express no opinion as to the result upon our minds of the evidence adduced at the deportation hearing, beyond this, viz. there was evidence, indeed it was admitted, that though he did not and does not believe in the immediate overthrow of the government of the United States that position is not the result of any affection for the same or approval of this republic, nor of any objection to force and violence per se, but only results from an opinion that the time is not ripe. Ripeness is to be attained by teaching, and by the dissemination of the style of literature which it is his business to circulate; when the time is ripe, it is to be hoped that force and violence will not be necessary, but they will be appropriate as soon as they are likely to prevail.

However fantastic the above-outlined social program may seem, it is impossible to say that a professed and avowed effort to hasten its consummation is not evidence of that which the statute forbids. On these grounds the order below is affirmed.

WARD, Circuit Judge (dissenting). While I think the relator had a fair trial, I am sure there was no proof whatever of the charges upon which he is being deported, viz. that he advocated the overthrow of the United States government by force or violence, or that he advocated or taught the unlawful destruction of property. There was proof of conversations with various government witnesses before his

arrest as to his beliefs, but they admitted that they had never heard him advocate the things for which he is being deported.

In the deportation proceeding, after his arrest, he was minutely examined as to his beliefs, and admitted that in his opinion the soviet form of government would be the best form for this country, but advocated bringing it about by persuasion and absolutely repudiated the use of force or violence. His examination throughout displays, in my opinion, a perfectly frank and conscientious statement of his beliefs, which, whether the immigration authorities like them or not, cannot be used to sustain the charge for which he is being deported.

Knowledge of the contents of all the books he sells in his book store cannot be imputed to him, much less approval of all they contain. I think the order should be reversed.

CHICAGO BONDING & INS. CO. v. CITY OF PITTSBURG, KAN.* (Circuit Court of Appeals, Eighth Circuit. March 17, 1921.)

No. 5665.

1. Appeal and error 1054 (1)-Admission of immaterial evidence in trial to court harmless error.

Evidence held immaterial to the issues, and its admission harmless error, in an action tried to the court.

2. Trial 420-Motion for directed verdict waived by introduction of evidence.

A motion by defendant for a directed verdict, made at the close of plaintiff's evidence, is waived by the introduction of evidence by defendant.

In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.

Action at law by the City of Pittsburg, Kan., against the Williams Construction Company and the Chicago Bonding & Insurance Company. Judgment for plaintiff, and defendant Bonding Company brings error. Affirmed.

Paul R. Stinson, of Kansas City, Mo. (J. J. Campbell, of Pittsburg, Kan., and John T. Harding, Buckner F. Deatherage, and David A. Murphy, all of Kansas City, Mo., on the brief), for plaintiff in error.

C. O. Pingry, of Pittsburg, Kan. (Arthur Fuller, of Pittsburg, Kan., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND, Circuit Judge. This is an action brought by the city of Pittsburg, Kan., against the Williams Construction Company and the Chicago Bonding & Insurance Company to recover damages for the failure on the part of the Construction Company to perform a paving contract. A jury was duly waived and the case tried to the court, which after hearing the evidence rendered a judgment against the Construc

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*Rehearing denied June 21, 1921.

(271 F.)

tion Company and the Insurance Company for the sum of $10,625. The following is a copy of the specification of errors relied on by the Insurance Company:

Specification of Errors.

The following is the assignment of errors relied on and intended to be urged: (1) The judgment of the court herein, in favor of the plaintiff and against this plaintiff in error, is contrary to the law, is contrary to the evidence and against the weight of the evidence, and is unsupported by any evidence.

(2) The court erred in not setting aside its judgment for the reason that there was no evidence upon which to sustain its judgment.

(3) The court erred in overruling the motion of the defendant, Chicago Bonding & Insurance Company, to set aside the judgment and grant a new trial.

(4) The court erred in admitting evidence on behalf of the plaintiff and against the defendant (this plaintiff in error), over its objections and exceptions, tending to prove that the plans and specifications for National pavement in question were not the plaintiff city's, were a patented pavement, and that such plans and specifications came through the defendant Williams Construction Company, and that the Williams Construction Company and the patentee were promoting the pavement; such evidence being as follows:

"By Mr. Pingry: Q. Do you know where these plans and specifications and formula for this National pavement came from, or who prepared it?

"By Mr. Stinson: The defendant objects to that question for the reason that the pleadings, the admissions of plaintiff contained in the exhibits already offered, show conclusively that the plans and specifications were those of the city. That any evidence as to who might have prepared them, in conflict with the recitals in the contract, resolution and ordinance, is not binding on the defendant bonding company."

Objection overruled-exception allowed.

"A. The question cannot be answered by yes or no. The plans and specifications came to me through the agent of the patentee and the Williams Construction Company, who were promoting this pavement together at the time, and the specifications were the result of experimentation and development on the part of the patentee, and I think he was assisted by a consulting engineer."

[1] The evidence taken at the trial is contained in the record in what is called a bill of exceptions. This bill of exceptions does not show anywhere that any ruling was requested or made upon which to base specifications 1 and 2. No request was made of the trial court to find the facts or declare the law in favor of the defendants. So far as specification No. 3 is concerned, it raises no question reviewable in this court. The error complained of in specification No. 4 is without merit. The answer of the witness in a trial to the court could not have prejudiced the defendants. The question as to whether National pavement mentioned in the contract was a patented pavement, or whether the specifications under the contract were furnished by the city, the Williams Construction Company, or anyone else, was immaterial. The court could probably take judicial notice as to who furnishes the specifications in applications for patents.

[2] Counsel for the Insurance Company did make a motion for a directed verdict at the close of the evidence for the plaintiff, but this was waived by introducing evidence after the same was overruled, and the motion was not again renewed. There is in the bill of exceptions

what is called an agreed statement of facts. This was introduced as Exhibit No. 15. There were 14 exhibits which preceded it, and both parties to this statement reserved the right to offer such other and supplemental testimony on any of the issues of the case as they might see fit. Exercising this privilege the plaintiff introduced in evidence 14 exhibits and the testimony of Mr. Curfman, consisting of about 20 printed pages of the record. The defendant called and had sworn five witnesses, whose testimony covers about 32 printed pages of the record, so that the case is not here on an agreed statement of facts.

No error appearing in the record, the judgment below is affirmed.

STOFFREGEN v. MOORE, Collector of Internal Revenue.

(Circuit Court of Appeals, Eighth Circuit. April 6, 1921.)

No. 5710.

1. Appeal and error 854 (2)—Opinion of court below cannot be assigned

as error.

Assignments of error cannot be based on the opinion of the court below, since the opinion may be wrong and still the judgment be right.

2. Appeal and error -733-Assignments of error to judgment held too indefinite.

An assignment that the court erred in rendering judgment for defendant for the reason that under the law and the facts judgment ought to have been entered for plaintiff, is too indefinite to present anything for con sideration.

3. Appeal and error 237(6) —On writ of error after trial to court, only rulings on law can be reviewed. Under Rev. St. § 1011 (Comp. St. § 1672), forbidding reversal of a judgment for errors of fact, assignments of error to the assumption of facts by the trial court are not reviewable, in absence of ruling by court; the proper practice for preserving questions for review, under Rev. St. §§ 649, 700 (Comp. St. §§ 1587, 1668), being to make some request to the trial court to find the facts or declare the law.

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

Action by Charles Stoffregen against George H. Moore, as Collector of Internal Revenue. Judgment for defendant (264 Fed. 232), and plaintiff brings error. Affirmed.

Theodore Rassieur, of St. Louis, Mo. (Morton Jourdan and Thomas M. Pierce, both of St. Louis, Mo., on the brief), for plaintiff in error. John M. Sternhagen, of New York City (James E. Carroll, U. S. Atty., of St. Louis, Mo., and Carl A. Mapes and A. L. Boulware, both of Washington, D. C., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and LEWIS and COTTERAL, District Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(271 F.)

CARLAND, Circuit Judge. The parties to this litigation will be referred to as they were in the trial court. The plaintiff commenced this action at law against the defendant to recover certain income taxes paid under protest. After issue joined a jury was duly waived and the action tried to the court. The court, after hearing the evidence, found the issues generally for the defendant, and entered judgment accordingly. The plaintiff brought the case here on writ of error.

Counsel for plaintiff assigns three errors. The first two assignments of error are to the effect that the court erred in making certain assumptions of fact. The third assignment of error is to the effect that the court erred in rendering judgment for the defendant, for the reason that under the law and the facts judgment ought to have been entered for the plaintiff.

[1] The assumptions of fact complained of in assignments of error 1 and 2 are found, if anywhere, in a memorandum opinion of the trial court incorporated for some reason in what is called a bill of exceptions. These two assignments of error present nothing for review: First, because they are based upon the opinion of the court, which cannot be the basis of an assignment of error. The opinion may be wrong, and still the judgment be right. Second, we are by statute forbidden from reversing a judgment for error of fact on writ of error. Rev. St. § 1011; Comp. Stat. § 1672.

[2] None of the assignments present anything for this court to review, for the reason that they are not based upon any ruling of the trial court, and in addition assignment No. 3 is too indefinite to present anything for consideration here. U. S. v. A., T. & S. F. Ry. Co., 270 Fed. 1, decided January 12, 1921; Mercantile Trust Co. v. Wood et al., 60 Fed. 346, 8 C. C. A. 658; United States Fidelity & Guaranty Co. v. Board of Com'rs of Woodson County, Kan., 145 Fed. 144, 76 C. C. A. 114; Webb et al. v. Nat. Bank of Republic of Chicago, 146 Fed. 717, 718, 719, 77 C. C. A. 143; Morris et al. v. Canda, 80 Fed. 739, 26 C. C. A. 128. As to using the memorandum opinion of the court as a basis for assignments of error see Roger v. Goldfield, Colo., 249 Fed. 39, 161 C. C. A. 99; U. S. v. Porter Fuel Co., 247 Fed. 769, 159 C. C. A. 627.

[3] As to the proper practice to preserve questions for review in cases tried to the court without a jury see sections 649 and 700, Rev. Stat. (Comp. St. §§ 1587, 1668); also Mason v. U. S., 219 Fed. 547, 135 C. C. A. 315, and cases cited. The fundamental rule that on writ of error only questions of law may be reviewed will serve as a guide to counsel in the trial of actions at law without a jury. The court at its discretion may make findings of fact either general or special. If they are special, the question of law as to whether the special findings support the judgment may be reviewed; also objections to the omission or exclusion of evidence during the trial. If it is sought to test the sufficiency of the evidence to support the judgment, some request to the trial court to find the facts or declare the law must be made, and, if the requests are denied, then the denial presents a question of law; but no such procedure was had in this case. There is a bill of exceptions. which purports to contain the evidence taken at the trial; but such bill