210 F. 85 | D. Mass. | 1913
This is a suit to recover penalties under sections 4 and 5 of the Immigration Act of 1907, c. 1134, 34 Stat. 900’ (U. S. Comp. St. Supp. 1911, p. 503).
The writ is dated January 22, 1912; the suit was entered in this court at its March term (March 20) 1912; the defendant filed a demurrer to the declaration April 15, 1912; a motion to amend it was filed by the plaintiff August 8, 1912; and this was allowed by consent December 4, 1912. The demurrer filed April 15th applying to the declaration as amended, there was a hearing on the demurrer February 1, 1913, but, before a decision upon the questions raised, the present mo
As originally filed, the declaration had 97 counts, each charging the violation of section 4 in the case of a named contract laborer. The amendment allowed December 4, 1912, made corrections in the alleged names in some of the counts, and also added 25 more counts charging violations of section 4 in the cases of 25 other alleged contract laborers. In all respects save the name of the particular contract laborer, or the date of his migration or importation, all the counts are alike in form.
The objections raised in the pending demurrer are to each of the present 122 counts. For the present, the general nature of these objections may be said to be that no one of the counts states a cause of action under the statute. The validity of the objections depends upon a careful construction of the language of the statute in reference to the language in which the counts of the declaration are expressed.
In argument upon this motion the plaintiff asserts that the difference between the original declaration and the proposed amendment is almost wholly a difference of form, and that the effect of the amendment is:
“To clarify and make more definite the allegations concerning the illegal acts of the defendant, especially with reference to the otter of employment alleged to have been made by the defendant to the several contract laborers counted on, the time when and the place where the said offer was made, and the time when the several laborers migrated to the United States in consequence of such offer.”
The amendment purports to obviate some of the objections raised by the pending demurrer. It may be said, however, that it does not so far change the original declaration as to set forth any new causes of action; though some of the changes are rather substantial than merely formal.
In two suits brought against the same defendant by one Uppercu in this court, on May 31 and August 26, 1910, penalties for 100 violations of the same statute were claimed, and the contract laborers mentioned in those suits appear, by comparison of names and dates alleged, to have been wholly or in great part the same as those mentioned in this case. Demurrers to the declarations in each of those cases were sustained March 9, 1911. Subsequent applications for leave to amend were denied June 1, 1911. No appeal was attempted, nor were any other suits brought by that plaintiff.
The violations of the statute asserted in .this case are alleged to have been committed on various dates between July 20 and October 26, 1907. Under Rev. St. § 1047 (U. S. Comp. St. 1901, p. 727), no suit for penalties incurred by them can be maintained unless commenced within five years from the time when the penalties accrued. When this suit was commenced, therefore, from six to nine months only remained of the time after which the right to sue for such penalties would have expired, by limitation, and the demurrer was filed at least three months before the expiration of that time. If leave to amend is refused, and if the pending demurrer be sustained, it is now too late to bring another suit. When the suits brought by Uppercu were disposed
In dealing with the motions to amend in the Uppercu Cases above referred to, the delay of more than 2% years in bringing them, after the alleged commission of the violations of the statute charged, was regarded as a serious objection to any exercise of discretion in the plaintiff’s favor. It was thought that, when a private plaintiff claims statutory penalties for his own benefit, he should be required, after so long a time had elapsed, to put on record at the outset, at his peril, a sufficient statement of the violations charged to show on its face that they were in fact violations of the statute sued on. The suits were regarded as so plainly unconscionable in their nature as to prevent the court from relaxing in any degree the strict rules often applied to actions of that character. •