MOLLER v. UNITED STATES, 57 F. 490

PARDEE, Circuit Judge, (after stating tbe facts.) Tbis action "was brought by tbe Dnited States to recover from tbe defendants., a penalty of $1,000, as prescribed by the act of congress entitled “An act to prohibit tbe importation and-immigration of foreigners and aliens under contract or agreement to perform labor in tbe Dnited States, its territories, and tbe District of Columbia.” A careful reading of tbe said act will show that every violation must be based upon tbe existence of a contract or agreement, parol or special, express or implied, made previous to tbe importation or migration, to perform labor or service in tbe Dnited States,' its territories, or the District of Columbia.

Without such contract, there can be no violation of tbe act by prepaying transportation, or by assisting or encouraging in any wise tbe importation of aliens. U. S. v. Edgar, 48 Fed. Rep. 91, 1 C. C. A. 49; U. S. v. Borneman, 41 Fed. Rep. 751; D. S. v. Craig, 28 Fed. Rep. 795. See, also, Church of Holy Trinity v. U. S., 143 U. S. 457, 12 Sup. Ct. Rep. 511.

Tbe petition in this case, which has been fully set put in tbe statement of facts, fails to sufficiently set forth that tbe defendants assisted and encouraged the importation of any alien, who, previous, to bis migration or importation into tbe Dnited States, (or thereafter, for that matter,) was under any contract or agreement, parol. or special, express or implied, to perform labor or service of any kind in the United States. The petition seems to have been drawn with a view not to assert snch a contract, but rather to suggest the same by vague allegations and inferences.

The general demurrer and the special exceptions are well taken. The record shows that the alleged deposition of the witness James Russel was taken pursuant to notice before a commissioner of the circuit court, under the following circumstances: The counsel for the United States, the defendants, and their counsel, and the witness James Russel, all appeared before the commissioner, whereupon the witness was duly sworn, examined, cross-examined, reexamined, recross-examined, and re-examined, by questions and answers taken down by a stenographer in stenogra 'lie writing.

The deposition was not read over to the witness, hut an adjournment was had for four days for the purpose of enabling the stenographer to write out the testimony so taken down by him, when the same was to be read over to the witness, and corrected, and signed by him; hut thereafter the said witness did not appear, nor was the deposition ever read to him, or examined by him. It appears that, so far as the deposition was not signed by the witness, the objection was waived.

We do not think the objection that, the proceeding being penal in its nature, the defendants have the right to be confronted in open court, on the trial of the cause, with the witness against them, and that it is not competent, against their objection, to hear and determine this cause upon evidence contained in, or taken by, depositions, is well taken. The suit, while for a penalty, is a civil suit, and it was so treated by the parties, as may be noticed by the waiver of trial by jury.

We are, however, of the opinion that a deposition, which is taken down in questions and answers by a stenographer, and is not reduced to writing in the presence of the witness, nor read over to or by him, is not a deposition properly taken, under the statute, and is not admissible in evidence against the objections of either party. Rev. St. §§ 863, 864; Cook v. Burnley, 11 Wall. 659.

The bill of exceptions, which purports to be a finding of facts, is nothing more than a recapitulation of conflicting evidence, where, as recited therein, some witnesses testified one way, and others testified directly to the contrary. It is neither a statement of facts by the parties, nor a finding of facts by the court. Raimond v. Terrebonne Parish, 132 U. S. 192, 10 Sup. Ct. Rep. 57; Glenn v. Fant, 134 U. S. 398, 10 Sup. Ct. Rep. 583; Davenport v. Paris, 136 U. S. 580, 10 Sup. Ct. Rep. 1064; British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 Sup. Ct. Rep. 523.

We suggest to.the members of the bar in this circuit that an examination of these last-cited cases will he advantageous, if, hereafter, in common-law cases, they shall desire to bring facts to this court for review. The views herein expressed require that the judgment of the circuit court be reversed, and the case remanded, with instructions to enter an order granting a new trial, and judgment sustaining the general demurrer and special exceptions to the original petition, and thereafter to proceed in the cause in accordance with the views herein expressed, and as justice may require; and it is so ordered.