United States v. Edgar

45 F. 44 | U.S. Circuit Court for the District of Eastern Missouri | 1891

Thayer, J.,

(after stating the facts as above.) Two questions have been argued at the bar: First, whether Boyce or Do.rosalski, as shown by the correspondence, were under any such “contract or agreement, parol or special, express or implied, to perform labor or service in the United States,” as renders the defendant liable to a penalty for prepaying their transportation; and, second, whether the fact that Boyce and Borosalski did not actually land, but were sent back to England, absolves’ the defendant from liability._

I find it unnecessary to decide the last question. It has been held, according to the plain import of the language employed, that the wrongful act described in the first section of the statute under consideration consists in prepaying the transportation, or otherwise assisting or encouraging the importation, or migration, of an alien, when such alien is known to be under a contract or agreement to perform labor or service in the United States. U. S. v. Craig, 28 Fed. Rep. 795; U. S. v. Borneman, 41 Fed. Rep. 751. It follows that it is not unlawful “to prepay the transportation” of an alien, unless at the time of such prepayment the alien is then “under contract or agreement to perform labor or service in the United States.” Whether Boyce and Dorosalski were under contract or agreement to perform labor in the United States when their transportation was prepaid, must be determined with reference to what had been done towards entering into a contract up to that time, and at the time their passage was prepaid there had simply been an interchange of letters of the tenor above stated. A contract that is not enforceable for the reason that it lacks some of the elements of a valid agreement, such as “mutual assent,” or a consideration,, is not a contract. Hence the words “contract or agreement,” as used in the statute, must be held to mean a complete contract; that is to say, an agreement entered into for a sufficient consideration to perform some kind of labor or service, to the terms of which the parties have mutually assented. If an “implied contract” is counted upon, a state of facts must be alleged from which a court or jury might lawfully draw the inference, as a matter of fact, that the alien had agreed to perform labor or service' of some kind, and that some other person had agreed to accept such services.

In my judgment the letters do not constitute an “express contract,” and, taken in connection with what had been done up to the time the transportation was paid, are insufficient to establish an “implied contract.” The distinct proposition conveyed by the first letter is merely a proposition to “come out,” which maybe interpreted “come to the United States, if the party addressed [Mr. Gray] would send passes.” No promise was made, however, to do work of any kind, or for any person, in consideration of receiving such passes. If the aliens had in fact landed in the United States, 'and had declined to work for the defendant, the latter could not, in my judgment, have maintained an action against them as for breach of a contract to perform labor or service for him. The second letter is subject to the same criticism. The defendant did not say: “If you will come to the United States, we will give you steady work.” The language is: “We can give you steady work,” etc. It is reasonable to infer, both from the language employed and from the situation of the parties, that the defendant was unwilling, and did not intend, to enter into a positive engagement to employ Boyce or Dorosalski until they had arrived in this country, and were found to be suitable persons to employ.

I conclude, therefore, that the petition does not show such a contract or agreement to perform labor or service existing when the aliens’ transportation was prepaid as brings the case within the statute. I am led to this conclusion the more readily as the law is highly penal, and must' be strictly construed.