Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The foregoing actions were brought by the respective steamship companies to recover sums of money paid by them as fines imposed by the Secretary of Labor under the provisions of section 9 of the Immigration Act of 1917 (39 Stat. 880). During the period from June 8, 1920, to December 22, 1921, inclusive, the plaintiffs brought to the United States eighty aliens, all except one of whom were found to be illiterate; the remaining one having been found to be an idiot. At the time of arrival all the aliens were applying for permanent admission to this country. They were all ordered excluded by the immigration authorities under section 3 of the Immigration Act of 1917 (8 USCA § 136), and the orders of exclusion were affirmed by the Secretary of Labor. Thereafter he saw fit to change his mind, and each of the illiterate aliens was admitted to the United States temporarily under bond.
Fines for bringing the illiterate aliens to the United States were imposed upon the plaintiffs under section 9 of the Immigration Act at the rate of $200 per alien and in addition a sum representing the return passage money for each alien. These fines were paid to the collector of customs by the plaintiffs under protest. The passage moneys were repaid to the plaintiffs by the collector because they were not needed by the aliens for their return passage after they had been temporarily admitted. The return of the balance was refused because it had been "covered into the Treasury of the United States." Thereafter the plaintiffs brought these actions under the Tucker Act (24 Stat. 505) to recover the various fines of $200 which had been imposed. Judge McCormick, who conducted the trial of the four actions, directed judgments in favor of the plaintiffs for the recovery of the fines imposed upon the steamship companies for bringing in the seventynine aliens found to be illiterate.
The United States has appealed. It seeks a reversal on the ground that fines could be lawfully imposed for bringing to this country illiterate aliens seeking permanent admission, even though they were admitted temporarily, so long as their disabilities might have been detected prior to their departure from foreign ports by the exercise of reasonable precautions. The United States further objects to repayment of the fines assessed against some of the aliens because they were imposed and the money was covered into the Treasury more than six years prior to the commencement of the actions, and recovery was thereby barred.
Section 3 of the Immigration Act of 1917 (8 USCA § 136) provides for the exclusion of various aliens from the country, including idiots and illiterates. But it contains various provisos, one of which is the following: "Provided * * * That the Commissioner General of Immigration with the approval of the Secretary of Labor shall issue rules and prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of otherwise inadmissible aliens applying for temporary admission." (8 USCA § 136(q).
Section 9 of the Immigration Act of 1917 (39 Stat. 880) made it unlawful for a transporation company to bring to any port of the United States any alien who is excluded by section 3 because unable to read, and provided that, "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 of the customs district in which the port of arrival is located the sum of $200, 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. * * *"
Section 9 also contained the proviso: "That 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 provisos or exceptions to section three hereof exempted from the excluding provisions of said section."
During the time when these aliens were being brought to the United States, the following rule had been issued by the Commissioner General of Immigration with the approval of the Secretary of Labor. It will be found in Rules of May 1, 1917, fourth edition, February, 1920, fifth edition, December, 1920, and sixth edition, September, 1921.
Rule 16, subdivision 2, provides: "Temporary admission of otherwise inadmissible aliens. -- The ninth proviso to Section 3 authorizes the Bureau and the Department to issue rules and prescribe conditions to control and regulate the admission and return of otherwise inadmissible aliens applying for temporary admission. In cases in which aliens who are mandatorily excluded from permanent entry apply for the privilege of entering the United States temporarily, they shall be required to show that their temporary entry is an urgent necessity or that unusual and grave hardship would result from a denial of their request. * * *"
The principal question before us is whether a carrier is relieved from the penalties imposed under section 9 where it brings aliens who are temporarily admitted under the proviso of section 3 which we have quoted. A strong reason for holding that a fine should not be imposed for bringing to the United States an alien who, though excludable under the statute, is temporarily admitted, is because the portions of the fine, namely, the $200 and the return passage money, are, as Judge Patterson said in Lloyd Sabaudo Societa v. Elting (D.C.) 45 F.2d at page 409, indivisible. The carrier is required to pay the return purchase money to the collector in order to insure the alien against having to pay it, and section 9 provides that it shall be "delivered by the collector of customs to the alien on whose account assessed" in aid of that object. It is impossible to suppose that a carrier is required to pay the return passage money for the benefit of an alien who is not excluded. Because the Department recognized the absurdity of such a supposition, it repaid the return purchase money deposited by the plaintiffs in this case.
Moreover, where fines are imposed under section 16 of the Immigration Act of 1924 (8 USCA § 216) for bringing to the United States aliens having a wrong type of visa, the Secretary of Labor may admit them under the discretion given him by section 13(d) of that act, 8 USCA § 213(d). But section 13(f), 8 USCA § 213(f) provides that nothing therein shall "authorize the remission or refunding of a fine, liability to which has accrued. * * *" It is plain that, where Congress has wished to preclude the remission of fines imposed for bringing excludable aliens, who have been admitted under the discretion lodged in the Secretary of Labor, the matter has not been left to inference, but remission has been expressly prohibited.
It is said that, when a steamship company transports an alien, it ought to be able to know at the outset whether the transportation is lawful or not. But a fair answer to this contention is that a carrier would probably prefer uncertainty to paying fines. It cannot be maintained that the aliens were sent on a needless trip.They sought temporary admission and got it after first trying for permanent admission and failing to obtain it. We may assume that, if they had started out with the purpose of gaining only temporary admission and had first applied for that ...