229 F. 527 | 2d Cir. | 1916
This action involves the right of the government of the United States to recover the full amount of a bond, $1,000, given by the Illinois Surety Company as surety for the purpose of obtaining the admission into this country of four alien children under 16 years of age. The bond upon which the action is brought bound the defendant to pay to the United States the sum of $1,000 in the event that the conditions of the bond were not complied with. There were four of these conditions: (a) That each of the children should attend public school until 16 years of age; (b) that none of them during said period should perform any work that would interfere with their regular attendance at school; (c) that one Biagio Di Goia should send every three months to the commissioner of immigration at the port of New York a written report as to their school attendance and labor (if any) performed; and (d) that none of the children should become a public charge. This action was brought to recover the amount of the bond by reason of breaches of the conditions with regard to the school attendance of Grace and John Pace, two of the children, and the making of the quarterly reports.
A jury was waived orally by both parties at the opening of the trial, and after hearing the testimony the trial court denied motions made by the defendant to dismiss the complaint, and found a verdict in favor of the plaintiff for $1,000, the sum named in the bond. No findings of fact or conclusions of law were submitted to or signed by the trial court.
The complaint alleges that On October 9, 1912, Grazia, Giovanni, Francesco, and Angela Pace, subjects of Italy, arrived at the port of New York, and it states that their ages were respectively, 15, 12, 4, and 1 years. It then avers that on October 25, 1912, the Illinois Surety Company, the defendant herein, executed and delivered to the plaintiff a bond in the sum of $1,000, a condition of which bond was, among
“In the case of a bond, in a penal sum given to the state or a city not to secure it against actual ascertainable loss, but in order to secure performance by means of a forfeit, of a contract entered into for the public benefit, the recovery is for the full amount of the penalty; for the damages would usually be difficult or impossible of ascertainment and the intention of the parties is held to be that an absolute forfeiture is contemplated.”
In Sutherland on Damages (3d Ed.) vol. 1, § 279, the law is stated as follows:
“Without express statutory authority, officers who are authorized by law to make contracts for a state or municipality have power to fix a sum as liquidated damages for their violation. The sum designated in the contract or subsequently agreed upon becomes, in the happening of the event on which its payment depends, the precise sum to be recovered and the jury are confined to it. Nor will equity relieve from it.”
“The United States are entitled to recover the whole sum, for which the party is hound, if any one of the conditions is broken. Besides, how could the United States prove any particular amount of damages to have been sustained by them in a suit on this bond? What do they lose? It would be difficult, I think, by any course of proof, or any process of reasoning, to show that the United States had sustained any particular amount of damages in a case of this description, or to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement between the parties. The sum, for which the parties are to become bound, is manifestly a penalty or forfeiture, inflicted by the sovereign power for a breach of its laws. It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offense. And it is not the less a penalty and a punishment, because security is taken before the offense is committed, in order to secure the payment of the fine if the law should be violated.”
The leading case upon the subject is that of Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780 (1883). In that case a bond had been given to the state of Rhode Island in the sum of $100,000 to secure the construction by a given date of a railroad extension. The bond was declared forfeited in the full amount by reason of the obligor’s default, although no pecuniary damages were shown to have been sustained by the state. In the opinion Mr. Justice Matthews pointed out the distinction between private obligations and bonds given to the sovereign for the purpose of promoting a public interest or
“Any alien liable to be excluded because likely to become a public charge or because of physical disability other than tuberculosis or a loathsome or dangerous contagious disease may, if otherwise admissible, nevertheless be admitted in the discretion of the Secretary of [Commerce and] Labor upon the giving of a suitable. * * * bond or undertaking, approved by said Secretary in such amount and containing such conditions as he may prescribe, to the people of the United States, holding the United States or any state, territory, county, municipality, or District thereof harmless against such alien becoming a public charge. The admissiqn of such alien shall be a consideration for the giving of such bond or undertaking. Suit may be brought thereon in the name and by the proper law officers either of the United States government or of any state, territory, District, county, or municipality in which such alien becomes a public charge.”
Under the answer interposed counsel is not entitled to raise the question of the validity of the bond. It is not in issue under the pleadings. We are unable, however, to see that there is any reason for assuming that the bond was taken under that section of the act. That it was so taken is nowhere alleged in the complaint, and the bond malees no reference to it. It is quite evident to us that the bond was taken under section 2 of the act, which reads as follows:
“Sec. 2. That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons; •“ * * all children under sixteen years of age, unaccompanied by one or both of their parents, at the discretion of the Secretary of Labor or under such regulations as he may from time to time prescribe. * * * ”
The fact that the section contains no direct provision for a. bond for the admission of alien children under the age of 16 years is not of controlling importance. It provides for the admission of such children when unaccompanied by one or both of their parents “at the discretion of the Secretary of Babor.” And in the exercise of that discretion he clearly would have authority to condition their admission upon the giving of just such a bond as was required in this case. The conditions of Ike bond appear to us to have been reasonable and proper, and we can discover no justification for holdiñg them unlawful and void. No one of them violates either the statutory or tire common law.
In Moses v. United States, 166 U. S. 571, 17 Sup. Ct. 682, 41 L. Ed. 1119 (1897), the Secretary of War directed that a bond should be exacted from an officer of the army assigned to duty in the Signal Service at Washington. There was no statute specially providing for the execution of a bond by one occupying that position. But the court held that the Secretary of War had power to- malee the order, and Mr. Justice Peckham, speaking for the court, said;
*533 “The consideration or the condition of the bond must not be in violation of law; it must not run counter to any statute; it must not be either malum prohibitum or malum in se. Otherwise, and for all purposes of security, a bond may be valid, though no statute directs its delivery.”
There was no error committed in refusing to dismiss the complaint.
Judgment affirmed.