after making the foregoing statement, delivered the opinion of the court.
Section 19 of the Immigration Act of 1907 (February 20, *517 1907, 34 Stat. 898, 904, с. 1134), is not aimed at thé aliens of the excluded class, but at the owners of vessels unlawfully bringing thеm into this country. The Government might in large measure protect itself by inspection, rеjection and order of deportation, but it is purposed, also, as far as рossible, to protect the alien. He might be ignorant of our laws and ought to be dеterred from incurring the expense of making a passage which could only end in his bеing returned to the country from whence he came. This policy could best be subserved by securing the cooperation of the transportation companies, and to this end the statute required that they should not only maintain the aliens unlawfully brought by thеm into this country, but should take them back free of charge. In the absence of this last provision the company might well afford to accept as passengers those known or suspected to belong to the excluded class. It would recеive from them their passage money from Europe to America. If they passed the inspection the transaction was ended. If they were deported the company would be at the trifling expense of maintaining them while here. But if it could charge and secure payment for the return passage, it would collect two fares instead of one. This would have made the transportation of an excluded alien more profitable than the carrying of one who could lawfully enter. This was so obvious that the statute not only required the cost of their passage to bе borne by the transportation company, but prohibited the making of a chargе, or the taking of security for the return passage, which might be collected or еnforced at the end of the journey.
It is said, however, that no such charge was made in New York; that the indictment shows only the case of an ordinary sale of a rоund-trip steerage ticket from Bremen to New York, and that what was lawfully done in Germаny cannot be punished as a crime in New York.
The statute, of course, has no extra-territorial opera
*518
tion, and the defendant cannot bе indicted here for what he did in a foreign country.
American Banana Co.
v.
United Fruit Co.,
If, as argued, the cоmpany did nothing in New York except to retain money which had been lawfully paid in Germany, the result is not different, because, under the circumstances, non-action was equivalent to .action. The indictment charges that on December 16, 1910, it was found thаt the aliens had been unlawfully brought into this country. The company at once was undеr the duty of taking them back at its own cost. Instead of returning to them the money previously received for such transportation, the defendant retained it up to the date of the indictment, April 3, 1911, with intent to make charge and secure payment for their passage to Bremen. This retention of the money, with such intent, was an affirmative viоlation of the statute. The company could not take the aliens back frеe of charge, as required by law, and at the same time retain the fare cоvering the same trip.
The demurrer admits that,, with knowledge that it was bound to carry the excluded aliens back at its own cost, the defendant in New York made a charge, аnd retained the 150 rubles with intent to apply'that money in satisfaction thereof. If that bе true the defendant violated *519 the statute within the Southern District of New York, and can there be indicted and tried. The judgment must therefore be
Reversed.