A-5390614
Decided by Board December 26, 1951
"Subversive," deportability — After entry, voluntary member of International Workers' Order — After entry, voluntarily affiliated with Communist Party of the United States of America — Act of 1918, as amended by Acts of 1920 and 1940 — Evidence.
(1) An alien, who last entered here in 1915, was found to be a voluntary member at least from 1935 to 1950 of an organization (i.e., of the International Workers' Order) which circulated, etc., printed matter advocating, etc., the overthrow by force and violence of the Government of the United States, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.
(2) The evidence established that the International Workers' Order was voluntarily affiliated from 1935 inception in 1930 to at least 1939 with the Communist Party of the United States of America.
(3) Based on the evidence of this alien's active membership in the International Workers' Order (which included holding office in and organizing branches of this order), it was found that he was voluntarily affiliated with the Communist Party of the United States of America from at least 1935 to at least 1939, and hence subject to deportation under the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.
CHARGES:
Warrant: Act of 1918 — After entry he was a member of the following class, set forth in section 1 of said act: An alien who is a member of an organization, association, society and group, to wit: International Workers' Order, that writes, circulates, distributes, prints, publishes and displays, and causes to be written, circulated, distributed, printed, published, and displayed, and has in its possession for the purpose of circulation, distribution, publication, issue, and display, any written and printed matter advising, advocating, and teaching the overthrow, by force and violence, of the Government of the United States.
Act of 1918 — After entry he was a member of the following class, set forth in section 1 of said act: An alien who is affiliated with an organization, association, society, and group, to wit: Communist Party of the United States, that believes in, advises, advocates, and teaches the overthrow, by force and violence, of the Government of the United States.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the decision dated June 18, 1951, of the Assistant Commissioner ordering the respondent deported on the charges stated in the warrant of arrest modified as follows:
The act approved October 16, 1918, as amended, in that he was, after entry, a member of the following class, set forth in section 1 of said act: An alien who was a member of an organization, to wit: The International Workers' Order, that circulated, distributed, and displayed and caused to be circulated, distributed, and displayed, and had in its possession for the purpose of circulation, distribution, issue, and display printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.
40 Stat. 1012, 8 U.S.C. 137.
Act of June 5, 1920, 41 Stat. 1008, 8 U.S.C. 137; act of June 28, 1940, 54 Stat. 673, 8 U.S.C. 137.
The act approved October 16, 1918, as amended, in that he was, after entry, a member of the following class, set forth in section 1 of said act: An alien who was affiliated with an organization, to wit: The Communist Party of the United States, that believed in, advised, advocated, and taught the overthrow by force and violence of the Government of the United States.
Upon advice of counsel, the respondent stood mute and failed to testify during these proceedings. Information concerning respondent's personal history had to be obtained by recourse to Government exhibits 3 and 4 consisting of a sworn statement of the respondent made to a Government investigator on March 16, 1950, and a copy of his alien registration form. According to this evidence, the respondent is a stateless alien, a native of the village of Yaholnycia, near Dolyna, Galicia, Western Ukraine, which was located in Austria at the time of his birth on December 21, 1891, who last entered the United States at the port of Detroit, Mich., in November 1915 by ferry from Windsor, Ontario, Canada. Upon the basis of Government evidence which is not seriously controverted, the respondent was employed by the International Workers' Order (hereinafter referred to as the IWO) from 1935 to 1950; was a full-time paid official, the vice president and organizer of the Ukrainian-American Fraternal Union of the International Workers' Order at New York City; was a national committee member of the Ukrainian section of the IWO; and as vice president of the Ukrainian Society had organized 100 other lodges in the Ukrainian Society. At oral argument counsel for the respondent conceded that the respondent was a member of the IWO from 1935 to at least 1947 and also conceded that he was an official holding position of vice president and organizer of the Ukrainian Society, a section of the IWO.
The hearing in this case was commenced on July 11, 1950, before a hearing examiner pursuant to the requirements of the Administrative Procedure Act of June 11, 1946 (5 U.S.C. 1001, et seq.), and regulations promulgated pursuant thereto (8 C.F.R. 151). Counsel for the respondent has attacked the qualifications of the hearing examiner, Mr. W----, on the ground that his previous service in various positions with the Immigration and Naturalization Service disqualified him, that he was prejudiced and biased; that his appointment as a hearing examiner was temporary and since he was paid by the Service he lacked that independence and tenure which alone could guarantee the impartiality of the administrative process; that the hearing examiner was not assigned to this case in rotation as required by the Administrative Procedure Act; and that because he is subject to the provisions of Executive Order No. 9835, 12 Federal Register 1935 (also known as the Loyalty Order), and since the charge involved a communist or subversive charge, the hearing examiner could not properly discharge his duties as an impartial arbitrator because he was bound to be under pressure. Several of these charges were renewed by counsel at oral argument. We feel that these charges have been adequately answered by the Assistant Commissioner in his order, and we do not intend to repeat the reasons presented therein. Indeed, if we were to follow counsel's argument to its conclusion, no former member of the Immigration and Naturalization Service who had done investigative work or had participated in the prosecution of any immigration case could hold the position of hearing examiner even though he had never participated in the subject matter of the controversy; and to extend the parallel a bit further, no prosecuting attorney could ever hope to become a judge. There is no allegation on the part of counsel that the hearing examiner in the instant case participated in the investigation or preparation of this case on the part of the Government, and it is difficult to understand how the respondent was prejudiced by his selection. There is no evidence other than mere allegation on the part of counsel that this examiner was selected out of rotation, and it may be presumed that his selection was made in accordance with official and regular procedure. We accordingly conclude that the respondent was accorded a proper hearing under the provisions of the Administrative Procedure Act which at the time of the hearings were applicable to deportation proceedings. ( Wong Yang Sung v. McGrath, 339 U.S. 33.)
The Assistant Commissioner has in a lengthy and exhaustive decision come to the same conclusion as the hearing examiner in finding the respondent subject to deportation on the first warrant charge (as modified) and also upon the second charge in the warrant of arrest. In his decision the Assistant Commissioner carefully examined the evidence submitted by the Government to sustain the charges, including the testimony of witnesses, publications and documents, and also considered the arguments of counsel as set forth in his brief. We feel that no purpose would be served in another lengthy and prolonged review and consideration of the evidence, inasmuch as we find ourselves in substantial agreement with the conclusion reached by the Assistant Commissioner. We shall content ourselves with a few pertinent observations and we shall also comment upon the further arguments advanced by counsel for respondent during the course of oral argument.
Counsel offered to stipulate that the respondent is a member of the Communist Party and was willing to have the proceedings proceed upon a basis of the charge of membership in the Communist Party. On the refusal of the Government to accept this stipulation, counsel charged that a justiciable controversy was not involved, but that this was a sham proceeding brought to test a moot question in order to attack the IWO. By these tactics counsel appears to undertake the curious position that the respondent shall be the one who shall dictate to the Government what charge it shall select upon which to try the question of the respondent's deportability. This is to say the least a novel contention. Its novelty appears to be its only virtue, since it is clearly within the sphere of the Government's discretion to opt what charges shall be used against the respondent in the light of the evidence available in the preparation of its case. There can be no doubt that a genuine controversy is present here since the charges in the warrant of arrest laid under section 1 of the act of October 16, 1918, as amended, are predicated upon membership in the IWO, and it is the nature of that organization which is at issue.
Admittedly, the IWO is obstensibly a mutual benefit insurance society, incorporated under the laws of the State of New York in April 1930. It offers life insurance, sickness and accident insurance at low rates, and functions through national group societies organized according to national origin or descent. In addition to providing insurance benefits, it also offers certain health, cultural, educational, and recreational interests. However, the purported legitimate objectives of the organization is no bar to an attempt by the Government to pierce the corporate veil of the organization in order to show its true nature as a Communist front or mass organization created by the Communists to do the party's work in the foreign language mass field. Respondent's membership and role in the IWO is acknowledged and conceded and the nature of the organization has been established by documents and the testimony of witnesses to sustain the charges stated in the warrant of arrest. In the face of voluminous evidence, much of it cumulative, that the IWO was the creature of the Communist Party and that it engaged in the activities proscribed by the act of October 16, 1918, as amended, the respondent remained mute, and counsel produced only one witness, an office manager named R----. The function of this witness appears to have been not to furnish any positive testimony in opposition to that adduced by various witnesses for the Government, but to attack the credibility of such witnesses by pointing up inconsistencies in some of their testimony. True, it was shown that the recollection of various witnesses was not perfect in all details and that inconsistencies were present. However, an overwhelming amount of unrefuted evidence fully established the contentions advanced by the Government, and in the face of such damaging testimony and evidence, inferences unfavorable to the respondent can be drawn from his silence and from the failure to produce controverting evidence.
Of interest is the fact that upon a petition of liquidation and dissolution of the Department of Insurance of the State of New York an order was entered on December 15, 1950, by the supreme court of the State of New York restraining the IWO founding, from transacting any new business, further present business and from disposition of assets except under the joint supervision, control, and signature of the superintendent of insurance.
Counsel has complained regarding the admission of certain testimony by witnesses and of certain documents, and the hearing examiner has ruled from consideration in arriving at his decision certain of the evidence adduced at the hearing; and, in addition, the Assistant Commissioner has likewise ignored other evidence which was admitted by the hearing examiner. Even if some evidence was incorrectly admitted, it does not render the hearing unfair or result in a denial of due process. As was stated by Chief Justice Stone in his dissent in which he was joined by Justices Roberts and Frankfurter in the case of Bridges v. Wixon, 326 U.S. 135, 176 (1945):
No principle of law has been better settled than that the technical rules for the exclusion of evidence applicable in trials and courts, particularly the hearsay rule, need not be followed in deportation proceedings more than in other administrative proceedings. ( U.S. ex rel. Bilokumsky v. Tod, 267 U.S. 157, 68 L. Ed. 225; U.S. ex rel. Tisi v. Tod, 264 U.S. 133, 68 L. Ed. 591; U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 71 L. Ed. 563; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 230, 83 L. Ed. 126, 140, 1941; Opp Cotton Mills v. Administrator, Wage Hour Division, 312 U.S. 126, 155, 85 L. Ed. 624, 641.)
The only objections that can be taken to the evidence in such proceedings are not its admissibility, but to its probative value. See Consolidated Co. v. National Labor Relations Board ( supra).
The hearing examiner before whom the deportation proceedings were conducted had the opportunity to observe the demeanor of the witnesses and to hear their testimony. He was in the best position to judge for himself the credibility and weight to be attached to their testimony. He has chosen to accept their testimony, and no attack or impeachment of the credibility of the witnesses has been produced by counsel to permit us to say that action of the hearing examiner was so erroneous or so arbitrary as to constitute a denial of due process.
Counsel for respondent has vigorously attacked the admissibility of evidence regarding the proscribed activities of the IWO and its domination by Communist Party officials prior to 1935 which marked the commencement of the respondent's membership in the IWO. He has also attacked the action of the hearing examiner in reversing himself as to the admissibility of certain evidence after a short recess to consult legal precedent. As to the second point, it is difficult to see how the action complained of could be called improper; in fact, in view of the doubt in the hearing examiner's mind as to the admissibility of evidence, his action in recessing the hearing and consulting legal precedence would appear to be the only proper course to pursue. As to the first point, we believe that evidence as to the nature of the organization prior to the period of the respondent's membership therein was admissible in order to lay a foundation upon the basis of historical background in order to reveal the true nature of the organization. A study of the case consulted by the hearing examiner, Kessler v. Strecker, 95 F. (2d) 976, rehearing denied 96 F. (2d) 1020, affirmed 307 U.S. 22, 83 L. Ed. 1082 (1939), shows that the decision in the Supreme Court was to the effect that present membership or affiliation, and not past membership and affiliation in a proscribed organization was necessary to be established to require deportation under the act of October 16, 1918, as amended by the act of June 5, 1920. The Court in the Strecker case further stated that in view of the Court's reading of the statute it was unnecessary to pass upon conflicting contentions of counsel concerning the adequacy of testimony before the Secretary of Labor as to the purposes and aims of the Communist Party or the propriety of the Court's taking judicial notice thereof. Nor is it relevant or pertinent to an argument regarding error in admitting evidence prior to the critical period of membership to cite language such as used in Schneiderman v. U.S., 320 U.S. 118 (1943), to the effect that since the immediate problem was the determination with certainty of petitioner's beliefs from 1922 to 1927, events and writings since that time had little relevance. The authority cited by counsel referred to evidence subsequent in time to the critical period of membership. In the instant case proffered evidence prior in time to the critical period of membership was submitted, the purpose of which was to lay a foundation as to the nature of the organization subject to being tied in by subsequent testimony during the admitted period of respondent's membership as to the nature of the organization. We believe that this evidence as to the historical background of the organization which has been tied in and related to the organization by subsequent evidence as to the nature of the organization, is admissible. As was indicated by the court in Kjar v. Doak, 61 F. (2d) 566 (C.C.A. 7, 1932), in the absence of evidence to the contrary, it would be presumed that the organizations referred to continue to advocate and teach the same principles as are set forth in the documents produced. In the instant case, however, evidence has been produced to establish the continuing proscribed nature of the organization during the period of respondent's membership.
The amendment of June 28, 1940, 54 Stat. 673, made past membership or affiliation also a ground of deportation.
In U.S. v. Dennis, 183 F. (2d) 201, 231 (C.A. 2, 1950), affirmed 341 U.S. 494, 95 L. Ed. 1137 (1951), the court of appeals stated: "The same doctrine applies to evidence occurring before the acts charged had become a crime at all; e.g., in the case at bar the visits of some of the defendants to Moscow before 1940. Just as in the case of events occurring before the dates laid in the indictment, so events occurring before the conspiracy had become a crime, may have logical relevance to the conclusion that the conspiracy continued until after 1940. It is toto caelo a different question whether we are treating them as media concludendi or as the factum itself.
Counsel has attacked the second charge stated in the warrant of arrest, contending that there is no statutory authority for deportation for membership in an organization which is proscribed because of affiliation with a second proscribed organization. In the charge it is stated that the respondent is subject to deportation under the act of October 16, 1918, as amended June 5, 1920, and June 28, 1940, in that he was after entry a member of a following class set forth in section 1 of said act: An alien who was affiliated with an organization, to wit: The Communist Party of the United States, that believed in, advised, advocated, and taught the overthrow by force and violence of the Government of the United States. For the purpose of this proceeding both sides have accepted the definition of affiliation (in addition to the limited definition set forth in section 1 (e) of the act of October 16, 1918, as amended), which has been promulgated by the Supreme Court in the decision in Bridges v. Wixon, 320 U.S. 135. Although in the Bridges case the issue involved the question of what conduct by an individual constituted affiliation with an organization, whereas the question here is what conduct or ties between organizations is equivalent to affiliation in the organizational or corporate sense, nevertheless resort to the court's decision is helpful.
In the case of Bridges v. Wixon ( supra), the Court stated:
whether intermittent or repeated, the act or acts tending to prove "affiliation" must be of that quality which indicated an adherence to or a furtherance of the purpose or objectives of the proscribed organization as distinguished from mere cooperation with it in lawful activities. The act or acts must evidence a working alliance to bring the program to fruition.
The Court quoted from the decision in U.S. ex rel. Kettunen v. Reimer, 79 F. (2d) 315, 317 (C.C.A. 2, 1935), to the effect that such affiliation was not proved "unless the alien is shown to have so conducted himself that he has brought about a status of mutual recognition, that he may be relied on to cooperate with the Communist Party on a fairly permanent basis. He must be more than merely in sympathy with its aims or even willing to aid it in a casual intermittent way. Affiliation includes an element of dependability upon which the organization can rely which, though not equivalent to membership duty, does rest upon a course of conduct that could not be abruptly ended without giving at least reasonable cause for a charge of the breach of good faith." The Supreme Court approved the language of Dean Landis in the first Bridges report to the effect: "In the corporate field its use embraces not the casual affinity of an occasional similarity of objective, but ties and connections that, though less than that complete control which parent possesses over subsidiary, are nevertheless sufficient to create a continuing relationship that embraces both tenets within the concept of a system. In the field of eleemosynary and political organization the same basic idea prevails." The Court stated that "affiliation" as used in the statute imports less than membership but more than sympathy. The Court in Bridges v. Wixon did not decide the question of whether one could be a member of an organization without becoming affiliated with the Communist Party within the meaning of the statute, since it found that Bridges was not a member of the organization.
Legal authority is not lacking to support the view that one who is a member of an organization which in turn is an affiliate of a proscribed organization is himself an affiliate of the proscribed organization. Thus in the case of Kjar v. Doak, 61 F. (2d) 566, 569 (C.C.A. 7, 1932), it was held:
Whether the Communist Party or the Trade Union Party League believes in and advocates the same things as the Communist International is not material. It is sufficient if they are affiliated, and that fact, under the evidence cannot be denied. Nor was it necessary to prove that appellant had knowledge of the contents of the programs of the several organizations, or any one of them. It is sufficient if the evidence showed that he was a member of, or affiliated with, such an organization as contemplated by the statute. The documents objected to by appellant were properly admitted into evidence. Murdoch v. Clark, 53 F. (2d) 155 (C.C.A.). That evidence clearly characterized the Communist International as an organization contemplated by the statute now under consideration. The Communist Party of America is an affiliate of that organization, and by reason of that affiliation appellant, who admits membership in the latter, must be considered an affiliate of the former organization. A perusal of the program of the Trade Union Unity League in connection with the other evidence in the cause convinces us that it is quite closely affiliated with both the Communist International and the Communist Party of America.
To the same effect, see In Re Saderquist, 11 F. Supp. 525 (D.C. Me., 1935) aff'd. 83 F. (2d) 890 (C.C.A. 1, 1936). We are satisfied that the evidence in the instant case establishes the affiliation of the International Workers' Organization with the Communist Party of America and by virtue of membership in the former organization respondent comes within the proscription of the Act of October 16, 1918, as amended.
Counsel contends that in order to constitute affiliation as defined in the Bridges case and in other cases there must be consciousness of purpose; i.e., that the subject must know what he is affiliating with, and the purpose of the organization with which he is affiliated; and in this connection, consciousness of purpose cannot embrace what took place prior to the time the person joined the organization. In support of this proposition counsel cites court cases and, particularly Schneiderman v. U.S., 320 U.S. 118, 87 L. Ed. 1796 (1943), and an administrative decision in Matter of L----, 1 IN Dec. 450 (BIA, 1943). The Schneiderman case is not particularly appropriate, since it is not a deportation proceeding but was a proceeding to cancel a naturalization certificate in which the court held that the burden was on the Government to establish the decisive fact by, clear, unequivocal, convincing evidence; and in which the court ruled that the Government had not carried the burden of such proof on the basis of mere membership in the Communist Party and in the absence of overt acts indicating a reprehensible interpretation of the organization's program. A like quantum of evidence is not required in deportation proceedings. Even in the Schneiderman case a vigorous dissent was entered by Chief Justice Stone in which he was joined by Justices Roberts and Frankfurter. This dissent concluded that the evidence below was sufficient to establish that the petitioner, by virtue of his membership in the Communist Party organizations which were opposed to the principles of the Constitution and which advised, advocated and taught the overthrow of the Government by force or violence believed in and supported the principles of those organizations and was not attached to the principles of the Constitution at the time of his naturalization; and held that it was not within the judicial competence of the court to set those findings aside. Counsel cited Matter of L---- ( supra), which in turn cited Matter of C---- Z----, file No. 56106/708, on the proposition that membership in the IWO is not membership in an organization, society or group that believes, advances, or teaches the overthrow by force or violence of the Government of the United States, since such an argument would require an alien to determine whether the innocent organization he joins is or is not dominated by the proscribed organization. However, this statement must be viewed in the light of the limitation imposed in the preceding paragraph where the following was stated:
In the case of U.S. v. Dennis, 183, F. (2d) 201, 210, a criminal prosecution under the Smith Act ( 18 U.S.C.A. 2385), Judge Learned Hand at p. 210 made the following comment on the Schneiderman case: "All that can be thought relevant to the case at bar is a passage in the opinion, which may have been meant to imply that only agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil * * * will show that one is not attached to the `principles of the Constitution'." Of the 8 justices who took part in the decision, 3 dissented and of the 5 who concurred, 2 wrote separate opinions. It is true that both these said that they joined in the opinion in chief; but we should hesitate to say that by this they meant to commit themselves to the proposition that a man may be attached to the principles of the Constitution, whose violent overthrow he will continue to advocate and teach, because he knows that the execution of his purpose must be deferred for a time. We should feel bound to await a more definite declaration before accepting a doctrine, which with deference, seems to us so open to doubt.
"On appeal to the Supreme Court, the conviction was sustained, and in a concurring opinion Justice Frankfurter observed ( 341 U.S. 530, 531): "In Schneiderman v. U.S. * * * and Bridges v. Wixon, * * * we did not consider the extent of the power of Congress. In each case, by a closely divided count, we interpreted a statute authorizing denaturalization or deportation to impose on the Government the strictest standards of proof."
We can concede that one might employ membership in the International Workers' Order as a means of achieving affiliation with the Communist Party. Therefore, each case wherein membership in the International Workers' Order is found as a fact should receive extra scrutiny from the Immigration and Naturalization Officers, in order to determine whether that membership exists in the individual case for the purpose of achieving affiliation with the Communist Party.
In the instant case, it has been established that the respondent whose membership dates back to 1935, was not a mere rank-and-file member, but was a vice president of a foreign language section of the IWO and was an active organizer, who was applauded in the official organ of the IWO for his efforts in having organized 100 branches of the order. To say that such a person was unaware of the proscribed activities of the IWO is to close one's eyes to what is plainly evident, and the respondent's silence is eloquent confirmation of such knowledge on his part. It is pertinent to refer to the rejoinder of the court in the case of U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137, 141 (C.A. 2, Feb. 6, 1951), to the argument that the alien's joining the Communist Party was permissible political activity because he was not found to have personally advocated overthrow of the Government by force:
A sufficient answer is that there is nothing in the Constitution which imposes upon deportation officials the difficult and uncertain task of distinguishing between those members of a subversive group who individually advocate the forbidden course and those who do not. The interest to be preserved of those who do not personally advocate the illegal means is at most the privilege of joining the group, and this is not of enough importance to outweigh the public interest in a workable rule which avoids the administrative difficulties of making a separation between those who do and those who do not favor the illegal objective of the group.
In this connection reference must be had to the limitation imposed upon the act of October 16, 1918, as amended by the act of March 28, 1951 (Public Law 14, 82d Cong; ch. 23, 1st sess., H.R. 2399), restricting the terms "members of" and "affiliated with" where used in the act of October 16, 1918, as amended, to include only membership or affiliation which is or was voluntary, and not to include membership or affiliation which is or was solely ( a) when under 16 years of age; ( b) by operation of law; ( c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes. Pursuant to this act, we necessarily exclude from the conclusions reached in this case the ordinary rank-and-file members of the IWO who joined merely for the cheap insurance benefits, and took no part in directing or formulating the policies of the organization.
Nor can we perceive that counsel can derive any comfort from the decision of the Supreme Court in the group of cases headed by the case of the Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S. Ct., 624, 95 L. Ed. 817 (April 30, 1951), and particularly International Workers' Organization, Inc. v. McGrath, 341 U.S. 134, 95 L. Ed. 83. That case involved a complaint asking only for declaratory and injunctive relief requesting the striking of the name of the designated organization from the Attorney General's list published under color of Presidential Executive Order No. 9835. The decision was entered upon the state of pleadings raised by the Attorney General's motion to dismiss the case, as result of which the court decided that a justiciable issue was presented, and the court reversed and remanded with instructions to deny the respondent's motion that the complaint be dismissed for failure to state a claim upon which relief could be granted, carefully noting, however, that whether the complaining organizations were in fact communistic or whether the Attorney General possessed information from which he could reasonably find them to be so must await determination by the district court upon remand.
Upon a full and careful review of the documentary evidence and oral testimony, the exceptions and brief filed, and representations made at oral argument and after careful analysis of the opinions of the hearing examiner and the decision of the Assistant Commissioner, we find that the grounds of deportability found by the Assistant Commissioner are sustained. We shall, therefore, dismiss the appeal.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be and the same is hereby dismissed.