December 10, 1934.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Navigazione Generale Italiana against Philip Elting, Collector of Customs of the Port of New York, to recover fines paid which were imposed by the Secretary of Labor for violation of the Immigration Act 1924, § 26 (8 USCA § 145). From an adverse judgment, defendant appeals.
Martin Conboy, U.S. Atty., of New York City (George B. Schoonmaker, Asst. U.S. Atty., of New York City, of counsel), for appellant.
Kirlin, Campbell, Hickox, Keating McGrann and Gaspare M. Cusumano, all of New York City (Delbert M. Tibbetts, of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
Appellee sued to recover fines imposed and paid for violations of the Immigration Act 1924, § 26 (8 USCA § 145), in the transportation of three aliens from Italy to the United States on its steamship; the aliens having been excluded because they were afflicted with loathsome and dangerous contagious diseases which were not easily curable. They were excluded and a fine of $1,000 imposed for the transportation of each alien. But pursuant to section 22 of the 1917 Act (8 U.S.C. § 159 [8 USCA § 159]) two were admitted by the Commissioner because they were children of citizens of the United States and the third was admitted under the seventh proviso of section 3 of the 1917 act (8 U.S.C. § 136 (p), 8 USCA § 136(p) as an alien returning to an unrelinquished domicile in the United States. The Secretary of Labor admitted them, having found them to be easily curable. The Secretary had authority to act under these circumstances. He did not act unlawfully in such admissions. Under the circumstances, the fine could not be imposed. See Lamport Holt v. Elting (C.C.A.) 74 F.2d 238, and Consulich Societa v. Elting (C.C.A.) 74 F.2d 240, both decided this day.