Summary
In Spanish Royal Mail Line Agency v. U.S., 45 F.2d 404 (D.C.S.D.N.Y.), Judge Thacher excused the bringing in of an illiterate for this reason, and though, as applied to illiterates, this may have been wrong, as applied to unlawful entry in general it may well be right. At any rate such a permit puts the carrier in a much stronger position than here; and the alien's power to procure one, coupled in the case at bar with his substitution of an irregular paper, his own affidavit, ought to have aroused suspicion at once.
Summary of this case from United States v. Cosulich LineOpinion
April 10, 1928.
Brown Dunbar, of New York City (Clement E. Dunbar, of Augusta, Ga., of counsel), for plaintiff.
Charles H. Tuttle, U.S. Atty., of New York City (Frank Chambers, Asst. U.S. Atty., of counsel), for the United States.
At Law. Action by the Spanish Royal Mail Line Agency, Inc., against the United States.
Plaintiff's motion for judgment on pleadings granted.
Suit brought under Judicial Code, § 24, par. 20, 28 USCA § 41(20), commonly known as "the Tucker Act," to recover payment of penalties imposed by the Secretary of the Treasury for alleged violation by the plaintiff of 8 USCA § 145. The statute, in so far as applicable, provides:
"It shall also be unlawful for any such person to bring to any port of the United States any alien who is excluded by the provisions of said section 136 because unable to read, or who is excluded by its terms as a native of that portion of the Continent of Asia and the islands adjacent thereto described in said section, and if it shall appear to the satisfaction of the Secretary of Labor that these disabilities might have been detected by the exercise of reasonable precaution prior to the departure of such aliens from a foreign port, such person shall pay to the collector of customs district in which the port of arrival is located the sum of $1,000, and in addition a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, for each and every violation of this provision, such latter sum to be delivered by the collector of customs to the alien on whose account assessed. * * *
"No vessel shall be granted clearance papers pending the determination of the question of the liability to the payment of such fines, or while the fines remain unpaid, nor shall such fines be remitted or refunded; but clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fines, or of a bond with sufficient surety to secure the payment thereof, approved by the collector of customs. Nothing contained in this section shall be construed to subject transportation companies to a fine for bringing to ports of the United States aliens who are by any of the provisions or exceptions to section 136 of this title exempted from the excluding provisions of said section."
Both parties move for judgment on the pleadings.
The plaintiff steamship company, on October 5, 1925, brought to the port of New York one Antonio Angeles, an alien, who upon arrival at Ellis Island was examined before a Board of Special Inquiry, excluded, and ordered deported upon the ground that he was unable to read. Thereafter a penalty of $1,000, with the addition thereto of $138 passage money, was imposed upon the plaintiff pursuant to the statute above quoted. These amounts were paid under protest, and obviously under duress, in view of the statutory provision requiring the withholding of clearance.
As to the right to sue, the decision of Judge A.N. Hand in Compagnie General Transatlantique v. United States of America (D.C. July 7, 1927) 21 F.2d 465, is authoritative and controlling. The right to recover therefore turns upon whether the statute authorized the penalty imposed.
The petition alleges that transportation was furnished to the alien from a foreign port to the port of New York only after he had exhibited a permit to re-enter the United States, lawfully and regularly issued to him by the United States Commissioner General of Immigration on December 19, 1924, together with a Spanish consular passport, issued in New York November 29, 1924. These allegations are admitted by answer. The plaintiff was entitled to assume that paragraph (b) of section 10 of the Act of May 26, 1924, c. 190, 43 Stat. 158 (8 USCA § 210(b), authorizing the issuance of such permits, had been complied with, and that before issuing the permit the Commissioner General had duly found that the alien had previously been legally admitted to the United States, a finding which necessarily imports that at the time of his original entry the alien was able to read. It turned out that the alien's original entry was in fact illegal, because he was then illiterate, but the exercise of reasonable precaution did not require the steamship company to question the legal import of documents lawfully and regularly issued by the Commissioner General of Immigration. The mistake that was made was in issuing the re-entry permit at all, when as a matter of fact the alien had not been legally admitted; but the plaintiff was entirely justified in relying upon regularity in the performance of official duty, and was entitled to assume from the fact that the alien had been granted a permit that he was able to read when he originally entered. Had the plaintiff examined the alien, the fact of his original admission to the United States after examination by the immigration authorities regarding his ability to read would have been disclosed. The test of the statute is what "the exercise of reasonable precaution" would have disclosed. In view of the legal import of the re-entry permit, and the fact that the man had once passed as literate, reasonable precaution did not require further inquiry. The imposition of a penalty was therefore unauthorized, and the plaintiff is entitled to judgment.
Defendant's motion denied. Plaintiff's motion granted.