The opinion
DIMOCK, District Judge
(concurring).
I concur in the majority’s holding in so far as it disapproves an injunction and in its omission to disturb the district court’s denial of the Secretary’s application to set aside the election.
My concurrence in the elimination of the provision for the injunction is based upon the Secretary’s concession of lack of power in the district court.
Though I concur also in the majority’s omission to disturb the judgment in so far as it fails to set aside the election, I reach the result on different grounds.
The district court held that the qualifications upon candidacy were not reasonable within the terms of section 401(e) but that it could not make the necessary statutory finding that the violation of section 401 may have affected the outcome of the election. The district court, therefore, failed to set aside the election. My brethren hold that the district court erred in finding the qualification unreasonable and thus agree to affirm the judgment denying the setting aside of the election without reaching the question whether the qualifications upon candidacy may have affected its outcome.
I agree with the district court that the qualifications were unreasonáble and thus will reach the question whether the district court was right in refusing to find that the violation of section 401 may have affected the outcome of the election, the statutory basis for setting the election side.
Irrespective of the provisions of Rule 52(a) F.R.Civ.P. that findings of fact shall not be set aside unless clearly erroneous, I agree with the district court’s findings (a) that the only way to attain office in the union was through membership in the Assembly, that the only candidates that won such election were those who ran on Row A, the administration ticket, and that the only way they could run on Row A was to be selected by the administration, and (b) that “dissidents could not have become eligible to be opposing candidates for office and effective opposition was thus sharply curtailed.” When it comes to the question of the findings’ inviolability as not “clearly erroneous,” I can see no escape from the effect of the rule. We are not here faced with findings of fact to be drawn from a set of cold documents. This is a case where the question before the district court was the practical effect of the rules of a union. It seems to me be made for the “not clearly erroneous rule.” The effect of the restrictions does not depend entirely on their letter. When Judge Wyatt found that dissidents could not have become opposing candidates for office he was expressing the distillation of oral testimony about what happened in a particular hotel or a particular caucus of waiters or kitchen helpers or chamber maids. It discourages thorough work by a judge of first instance for an appellate court lightly to reject a finding based on the feeling for a case that the trial judge can get by patient listening to evidence of what is behind the written documents.
I pass to the issue not reached by the majority: the correctness of Judge Wyatt’s opinion and judgment in so far as it holds that it cannot be found that the violation of Section 401 with respect to qualifications of candidates affected the outcome of the election. I accept Judge Wyatt’s excellent opinion and con *508 tent myself with simply saying so since the subject does not seem to me to have sufficient precedential value to warrant repetition of what he has said. Though the majority hold the election good because the qualification was reasonable and I maintain that it was good because the qualification, though unreasonable, did not affect it, we reach the same result and I concur in that result.
While I thus agree with the majority that the district court was right in omitting to grant the Secretary’s prayer to set aside the election and that the district court was wrong in awarding an injunction, I disagree with the majority as to the form of our mandate.
The statement preceding the majority opinion recites that the appeals are from a judgment (a) which was entered upon a decision * * * (2) holding that, though a certain by-law of the defendant union limiting candidacy for union office violated section 401(e) of the Act, 29 U.S.C. § 481 (e), an election in which the by-law was applied could not be declared void under the provisions of § 402(c) because plaintiff failed to show that the violation of section 401(e) “may have affected the outcome” of the election and (b) which enjoined (3) the application of the questioned by-law to future election. The statement ends with the expression “Affirmed as to (1); reversed as to (2) and (3).”
The statement thus properly draws a distinction between the decision and the judgment. As said by Judge Leibell in Winkelman v. General Motors Corporation, D.C.S.D.N.Y., 48 F.Supp. 490 (1942), at 494, “The Federal Rules of Civil Procedure make a clear distinction between the decision (the Findings of Fact and Conclusions of Law) and the judgment.” As appears from Rule 52(a) F.R.Civ.P., “[T]he court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment * -x- The statement preceding the opinion in the instant case, purports, however, to affirm and reverse parts of the “decision” of the court below. Though the word appears again, this time in the opinion itself, appeal does not lie from a finding or conclusion as such. Breeding Motor Freight Lines v. Reconstruction Finance Corporation, 172 F.2d 416, 425 , 10 Cir. (1949). * That the word “decision” is not used here as a conversational equivalent of “judgment” appears from the fact that its use affects the result. If the appeal had been from the judgment, the judgment would have been reversed in only one respect instead of being reversed in the two respects in which the statement purports to reverse the decision. This arises from the fact that the majority of this court agree with the judgment of the court below that the Secretary’s prayer for a setting aside of the election should be denied but disagree with the court below as to the decision giving the reason for denying the prayer. The district court said that the prayer should be denied because, though the candidacy restriction violated the law, it could not be said that it might have affected the election, while the majority says that the prayer should be denied because the candidacy restriction did not violate the law and, therefore, does not reach the question of effect on the election. The statement preceding the opinion, which would have the effect of affirming the lower court’s judgment refusing to grant the prayer, purports, however, to reverse the lower court’s decision as to its reason.
The result of the majority holdings and of my foregoing concurring opinion should be expressed in the same direction:
The judgment is modified so as to provide simply for dismissal of the complaint and, as so modified, affirmed.
The word “decision,” as used in Sections 1291 and 1292 of Title 28 of the United States Code defining jurisdiction of the Court of Appeals, refers to the judgment or other final sentence of the court below. Ex parte Tiffany, 252 U.S. 32 , 40 S.Ct. 239 , 64 L.Ed. 443 (1919); In re Forstner Chain Corporation, 177 F.2d 572 , 1 Cir. (1949).