(dissenting).
The appellee was not entitled to be released from deportation, because he was accorded a fair hearing by the Department of Labor upon the charge preferred against him; that charge was supported by substantial evidence, and there was no erroneous application of the law in the proceeding. Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938; Whitfield v. Hanges (C. C. A.) 222 F. 745.
The appellee’s petition for the writ of habeas corpus and the answer of the District Director put those matters in issue. When the petition was filed on June 8, 1928, the •District Court issued an alternative writ for the production of the petitioner and for a hearing. On July 5,1928, after the hearing, at which the parties appeared and introduced their evidence, the court made an order that the petitioner had failed to show he did not have a fair trial, and that the charge preferred against him was not supported by any substantial evidence and was null and void, and awarded a trial of the ease de novo upon the merits, meantime admitting the petitioner to bail. In a memorandum opinion, the court expressed doubt whether an unfair hearing was shown. Later, the petitioner was finally discharged from custody on a holding that it appeared from the evidence the, warrant of deportation was null and void and no lawful cause was shown for the restraint.
The majority opinion holds the record shows that prior to the hearing the Immigration Director who conducted it informed the appellee an order of deportation would be the same as in a former case, and that therefore the Director had prejudged this case and could not grant the appellee a fair hearing. The former proceeding arose on a kindred charge, resulting in a discharge from custody. It is true appellee testified that the Director made the statement in his attorney’s office and his attorney corroborated the testimony; but the Director denied making the. statement. The only finding of the trial court on the subject was that already referred to as being made upon the hearing pursuant to the alternative writ, when the court had the testimony mentioned before it. The majority' therefore apparently accepted the testimony of appellee and his attorney.
I do not agree that where one is charged with an offense rendering him liable to deportation, takes no exception to the qualifications of the examiner and submits to a hearing before him, he may, after the examiner has made his report and the Labor Department has ordered the deportation, question the fairness of the hearing in the manner here attempted, and thereby render *599the entire proceeding ineffectual. I prefer to hold the objection comes too. late to- be worthy of notice. But the denial of the statement imputed to the Director, charged with serious duty and sworn to administer it, ought to be accepted as decisive upon the character of the hearing in this ease, especially as the hearing itself was fair, and due opportunity was accorded to appellee to present Ms evidence, and both he and his attorney participated in the hearing. In my opinion, this court should hold that the appellee had a fair hearing, as it is defined in such eases. Whitfield v. Hanges (C. C. A.) 222 F. 745.
The majority opinion correctly finds the evidence established the fact that appellee resided with his wife in a house where she practiced prostitution. But it was ruled the evidence was insufficient in failing to show ho also took part in the immoral practice carried on therein or participated in the profit derived from it. The statute does not make those elements necessary to conduct justifying deportation. It describes the acts which render an alien subject thereto, and one of them occurs when he is found an inmate of a house of prostitution. That was the charge in this case. The majority holds the unlawful conduct must consist of an additional element. Doubtless, the use in a statute of the disjunctive may he read as a conjunctive, when that meaning is obvious or essential; but as the statute is plain, no such rule of correcting a legislative error is warranted in tMs ease. 25 B. C. L., p. 977; 36 Cye. p. 1123. The word “inmate” is defined by Webster as “One who lives in the same apartment or house as another; a fellow lodger,” etc., and by the Century Dictionary as “One who is a mate or associate in the occupancy of a place,” etc. I regard the interpretation of the statute by the majority as inadmissible.
The District Court also commented on the hardship of deporting the appellee after being absent for many years from his native country. But the right of an alien to remain in tMs country was conditioned by Congress on Ms living up to certain requirements. Newcomers and old residents are subject to the same condition, and the courts have no power to intervene and say it $haJl not he applied alike to. all offending aliens.
The order discharging the appellee should therefore be reversed to the end that the warrant of deportation may be executed.