186 F. 391 | U.S. Circuit Court for the District of Southern New York | 1911
The allegations of the indictment may be paraphrased as follows: (a) That the defendant is a foreign corporation transporting passengers to and fro, between this country and Germany, (b) That on a day mentioned it brought two aliens from, Bremen into the port of New York, (c) That theretofore and at Bremen the defendant col
This first question has two aspects: First, whether the defendant at any place “charged” the aliens within the terms of the act; and, second, whether such a charge took place in New York. Tt is certainly true that the defendant at Bremen charged the aliens for a return passage, and that the next return passage of the aliens will be under order of deportation. Unless, therefore, the statute requires that the forbidden “charge” must be made with intent to apply .to a return under deportation, the indictment alleges a crime committed at Bremen. I think, however, that the statute does require such an intent, and that merely to take prepayment of return passage money from an alien subsequently excluded is clearly not within the statute, unless the return contemplated was a return under deportation. A contrary construction would involve the construction that the charge is “for” the return under deportation, though no one so supposes at the time. The word “charge” normally involves the idea that the charging party has in mind apportioning the sum charged against a specific item, and, unless the item be a return under deportation, he can hardly be said to have charged “for” such a return. In this respect, therefore, the indictment is deficient from any point of view. Nor it is enough, even though from the allegations it might be inferred evidentially that the defendant entertained such an intention, for no indictment may lay only the evidence, from which the necessary allegations shall be inferred. The eventual facts must themselves be stated, and this indictment lacks any statement that the charge made at Bremen was for a return under deportation.
I have assumed throughout, as I said at the outset, that the added words, "making a charge thereof,” are not' to be construed as alleging that the defendant has done any act in New York but fail to give up the rubles after knowing that the deportation was ordered, and that, so far as its acts are concerned, it has not yet committed itself towards the aliens in regard to a charge for the return passage. That was the way in which the case was argued, and, moreover, if the indictment means to rely upon such an allegation, it should specify what are the acts in New York which constitute a charge.
The real strength, and the only strength, of the position is that there is here disclosed a very easy way of avoiding an equitable provision' of the immigration act. Whether it is used or not, it is an obvious way of avoiding a perfectly proper provision which puts on the steamship companies the risk of importing aliens within the excluded classes. Certainly that was the purpose of Congress, and this is an ingenious way of circumventing that purpose, which it is unfortunate that the law does not meet. However, if the expressed intent of Congress has not anticipated the possible inventions to defeat its purpose, while the purpose may help us to read the words, the words in the end can be the only vehicle of the intent. The court even in a good cause may not impose on words a meaning that they will not bear.
Demurrer sustained, and indictment quashed.