290 F. 769 | 9th Cir. | 1923
(after stating the facts as above). The appellant contends that it was error to hold that under section 10 of, the act of February 5, 1917, it was the absolute duty of those engaged in bringing aliens to a seaport of the United States to prevent under all circumstances the landing of aliens at any time or place other than that designated by the immigration officers, and that the penalty of the section will apply if the alien effects his escape from the vessel without their knowledge or consent, and notwithstanding that they may have exercised due diligence and taken every reasonable and proper precaution to prevent such landing. A previous statute on the
“Any such officer or agent, * * * who shall either knowingly or negligently land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers, shall be deemed guilty of a misdemeanor.”
The Immigration Act of February 20, 1907, by section 18 (34 Stat. 904), had made it the duty of owners, officers, or agents of any vessel to prevent the landing of an alien in violation of the act and had declared that “the negligent failure” to comply with that provision should be deemed a misdemeanor. In Hackfeld & Co. v. United States, 197 U. S. 442, 25 Sup. Ct. 456, 49 L. Ed. 826, the court construed the act of March 3, 1891, and held that it did not make the shipowner or master an insurer against the escape of an alien from the vessel, but required him only to take precaution to prevent such escape, and to exercise the care and diligence required by the circumstances. Congress thereafter amended the statute by the act of February 5, 1917, and made it “the duty” of the owners, officers, and agents of vessels to prevent the landing of the alien, and provided:
“The failure of any such person, owner, officer, or agent to comply with the foregoing requirements shall be deemed a misdemeanor and on conviction thereof shall be punished by a fine,” etc.
It seems reasonably clear that the intention of the statute was to make imperative the duty of preventing such unlawful landings of aliens. This is further indicated by the report of the House'committee on immigration in explanation of the bill while it was on its passage. Nor are we convinced that it was error to. sustain the exceptions to the. answer. The defense pleaded was in substance that the appellant took every reasonable and proper precaution to prevent the aliens from leaving the vessel, that none did escape except over the regular gangway, that the gangway was well guarded, and that all who left over the gangway exhibited passes issued by the inspector of immigration at Honolulu, and that the escapes must have been effected by the fraudulent use of passes which had been issued to Chinese residents of Honolulu, who had lawful business on the vessel and who must have transferred them to the aliens who escaped. We find these allegations insufficient to excuse the appellant from-the liability imposed by the statute. Escape by the means suggested in the answer might, we think, have been prevented by the exercise of the diligence which is made necessary by the statute. To hold thus, it is not necessary to go so far as to assume that the statute makes the owner of a vessel an absolute insurer against the landing of aliens in the United States at any time or place other than as designated by the immigration officers.
We are not impressed with the contention that the statute, if so construed, is unconstitutional. Congress has the power to prohibit absolutely the importation of immigrants into the United States, and it may impose any condition it deems proper to such importation of
The point is made that no proof was made of the allegation of the libel that in the opinion of the'Secretary of Tabor it was impractical or inconvenient to prosecute the person, owner, master, officers, or agent of the vessel. It may be doubted whether any such proof is necessary in any case, in which it is sought to impose the penalty on a vessel. It is clear that it was not necessary in the present case, for the reason that the said allegation of the libel was not placed in issue. Exceptions were sustained to the whole answer, and when the appellant elected in open court not to amend the answer, or plead further, but to stand on its answer as filed, the libel was, as to that allegation, taken pro confesso.
It is contended that penalties of $4,000 were illegally imposed, in that the essential condition precedent to the filing of a suit in rem was not shown, and it is argued that it is not the intention of the statute to vest in the Secretary of Tabor the power by a mere mental conception of < his own to cut off all milder degrees of punishment which are permitted as against persons, and impose the maximum fine against the vessel, and thus to disregard the degree of the offense, which, in justice, might in certain instances, call for the imposition of the lowest permissible fine, and it is urged that in any event there should have been imposed but one penalty of $1,000, and that a penalty of $1,000 for each alien who escaped is excessive punishment. It is true that the statute does not in terms say that the court shall impose a penalty against the ship. It provides only that “a penalty of $1,000 shall be a lien upon the vessel.” While the true construction'of the statute may be open to doubt, we are inclined to the view that it should be accepted with the meaning which was ¿ven to it by the court below, and that it requires that for each such unlawful landing of an alien the Secretary of Tabor, if in his opinion it is impractical or inconvenient to prosecute the person who has permitted such unlawful landing, may cause to be imposed upon the vessel a lien of $1,000, and that a court is not given the discretion to fix the penalty in. any amount less than the sum so named in the statute.
We cannot assent to the proposition that there was but a single violation of the statute. The appellant cites cases such as B. & O. Southwestern R. R. v. United States, 220 U. S. 94, 31 Sup. Ct. 368, 55 L. Ed. 384, Standard Oil Co. v. United States, 164 Fed. 376, 90 C. C. A. 364, and United States v. Oregon Short Line R. Co. (D. C.) 218 Fed. 868, where but one penalty was imposed for violation of law as to'numerous shipments of cattle. But in those cases there was but one act of transportation of .various shipments contrary to law, or but one violation of the time limit upon the confinement of live stock in a single transportation. Nor is the case similar to United States v. New York Cent. & H. R. Co. (D. C.) 232 Fed. 179, and
The present case is similar to Grant Bros. v. United States, 232 U. S. 647, 34 Sup. Ct. 452, 58 L. Ed. 776, where penalties were imposed upon conviction of providing for transportation for, and assisting, encouraging, and soliciting the transportation into the United States of, alien laborers in violation of the Alien Immigration Act of February 20, 1907. The court there gave effect to the words of the statute which provided that separate suits might “be brought for each alien thus promised labor or service.” So in the present case the statute provides for a fine “in each case.”
The decree is affirmed.
