Brief of the Petitioner — Osaka Shosen Line v. United States

Supreme Court brief1937

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INDEX

Opinions below - - - ----------- Dicosetekeen ss

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Question presented__-__________-

Statute involved____-_--_-- ae

ee eas Gaon eae 2

Summary of argument__________-_____-----

Argument

I. Section 10 of the Immigration Act of 1917, as amended,

imposes upon officers of vessels a duty to prevent

the landing in the United States of an alien passenger

who embarked at a foreign port for through passage

via American ports to another foreign port__. ____- s

A. The literal meaning of the phrase “bringing an

alien * * * to the United States” imposes _

a duty in the case at bar_____.___. aiehwhanenn 9

B. If the literal meaning of the section were doubtful,

it should be construed to inrpose a duty in a case

of this sort, in order to avoid a grave risk of

entries by undesirable aliens, and in order to pre-

vent a breach in an otherwise complete system

of immigration regulation. ..--..._-_.-- 2 Le. 19

II. Section 10 of the Immigration Act of 1917, : as amended, *

tpso facto imposes a duty to detain, and no notice

from the immigration authorities is required as a

condition precedent to the existenee of the a

NN iin see nasi inline is nod 29

III. If a notice to detain is a condition precedent to the

existence of a duty to detain, the notice in this case

was in proper form and properly served__..___.._- 33

Conclusion________________- Kikoame ssboveneba 37

_ CITATIONS

Cases:

Church of the Holy Trinity v. United States, 143 U. 8S. 457_- 17

Cire vw. Waeeard, 206 U. B. 20h cc ccccccccccccceccses 36

Compagnie Generale Transatlantique v. Elting,298U.S.217. 26,

29, 33, 35, 36

Cunard S. S. Co. v. Mellon, 262 U. 8. 100_........... ~~ 18

Dollar S.‘S. Line v. Elting,-51 F. (2d) 10385..........-.- 9, 18, 25

frapene, The, GS F. (Bd) G1B...cccccccccscocceccoevice 9, 11,18

106831—36——1 iis

Cases—Continued. Page

Lloyd Sabaudo Societa v. Elting, 45 (2d) 405 s. ¢. 55 F.

Se: MR chcndgnctecadccudnsabewssbdessteennnenns 27

Lloyd Sabaudo Sociela v. Elting, 287 U. S. 329.__.-.------ 26

Manuel Arnus, The, 75 F. (2d) 943, cert. den. 295 U. S. 756- 26

Morehead v. People ex rel. Tipaldo, Oct. Term, 1935, No. 838,

DO Bg Tic dieccnciccncccccnnsdnssscnnsasnenseses «36

ankles, Tk, Bee PO. Gk cnn weccncecancncescscsease 28

Taylor v. United States, 207 U. S. 120__---- 6, 9, 13, 14-16, 17, 27

United States v. Steamship Coamo, 267 U. 8. 220_-------- 26, 35

Wilson, The, v. United States, Fed. Case No. 17,846, 30 Fed.

EE. Re ee. Repeat 17

Statutes:

Act of May 22, 1918, c. 81, 40 Stat. 559_____--------------- 4

Act of March 2, 1921, c. 113, 41 Stat. 1205___-.----------- 21

Act of March 4, 1929, c. 690, 45 Stat. 1551, see. 2-------. 20,31

- Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213,

GE Bi tek ceekda nn acete nn nice eatin 13. 30

Immigration Act of Feb. 5, 1917, c. 29, 39 Stat. 874:

ES SO ae ee EN ee RN Fee Caeser in 20

TE [Ai oop ka acids pada sednienecesipsreemactatdncneien nag aioabeag aiaieeenanaies 13

I a aN IR I NN ee 13

Oe a cn eee ea a ee 12

IIE: Tr sa oacc pichindilieasasenanemahagh tn nolan iainaabaidaniadapitadaasaneialebaseaiaimnimaias 12

RN a ok eo adenine meee 12,

REALS Re ear ae en eee) EERE We Rare a MEE 12, 25

, groccocccccccccnsceesce 2,4, 6, 8, 30

| 30

ee a a aR 12, 22

ene eee a eee 13

I i iccescheesnceheciasntlihccmsea aici ele sca thai detieendiein seca deena 32, 35

I icine hens sesecceaitchingeatinnsnilaaasek tlihipakatiastllainceiia arabian eit .- 8%

—_ aici dteiiinceiebeninisalitanapa tniaiiniaiagdiens 22

I, se nastaincecsnsahcdes antic tcc ihn ean had tenatatiaaaaia nai iinian 13

ee ee a 31

ee eee re ee Or a 26

Immigration Act of May 26, 1924, c. 190, 43 Stat. 153:

Ee | | ne 20

SI Tis ssehieceiinicieidndiceeninsbilcpeatinehanenenienetaiaseatindeiabanstsisedabinindeiuahipinit 20

Bee. BB. nccnccasnccnccnececccesccusesccescnssecoses= 26

8) a ee 29

es ic edahcetatin asc toe daisies capt sn ei ccinnacbtenebiesansenthcnieadiaeiteonieaeat 35

he hci ch cetera cect eels iin insite aetna toa 12, 25

I Fitintetienntincinninninininmnnismhiiniinitimdinints 2, 4, 6, 8, 31

BO: Be Ge cde Renncnnnnnnandcdteenminnnetinninn 20

Ill

Miscellaneous: Page

Century Dictionary and Cyclopedia, Vol. 1, p. 685________- ee

Executive Order No. 6166, June 10, 1933_______________ 31

Executive Order No. 5426, Aug. 20, 1930.______________ 21, 35

Immigration Laws and Rules of Jan. 1, 1930, Rule 3, Sub-

division H, par. WOR e Sr iio 21, 35

Murray, New English Dictionary, Vol. 1, p. 1107________. 11

Report of the Senate Committee on Immigration, Senate

Report No. 355 (Calendar No. 297) 63d Cong., 2d Sess.,

tect. Pe ener. RO eee 10

Standard, Dictionary oer. See i 11

Webster, New International wictionaty (2d ed., unabridged,

Ns ME cnnateckasccenstoseucoeki hasan. 11

Arend Ra 2S ee ‘ ee ROR OS

oor

TERM

BR BST TY

Guthe Supreme Gourt of the atnited putes

OcTOBER TERM, 1936

No. 224

OsaKA SHOSEN KatsHa LINE, CLAIMANT OF THE

STEAMSHIP ‘‘SanTOS MARU’’, PETITIONER

THE UNITED StaTes OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The findings of fact and conclusions of law of.

the District Court appear at R. 7-8, and are re-

ported in 1935 American Maritime Cases, 1176.

The opinion of the Cireuit Court of Appeals, R.

14-18, is reported in 84 B..(2d) 482.

JURISDICTION

The judgment sought to be reviewed was entered

June 10, 1936. (R.18.) A petition for a writ of

certiorari was filed July 24, 1936, and granted Oc-

(1)

CO EE EE, _ ~

Sea RR tere ON et rr, ©

tober 12, 1936. Jurisdiction of this Court is in-

voked under Section 240 (a) of the Judicial Code,

as amended by the Act of February 13, 1925.

QUESTION PRESENTED

Whether Section 10 of the Immigration Act of

1917, as amended by Section 27 of the Immigration

Act of 1924, imposes a penalty on an officer of a _

vessel who, having been. notified by the immigration

_ authorities to detain on board an alien who had

embarked at a foreign port for through passage

via American ports to another foreign port, failed

to prevent the landing in the United States of that

alien.

STATUTE INVOLVED

Section 10 of the Immigration Act of February

5, 1917, ce. 29, 39 Stat. 874, 881, as amended by See-

tion 27 of the Immigration Act of May 26, 1924,

e. 190, 43 Stat. 153, 167 (U.S. C., Title 8, See. 146),

’

provides: |

Sec. ‘10. (a). That it shall be the duty of

every person, including owners, masters, of-

ficers, and agents of vessels of transporta-

tion lines, or international bridges or toll

roads, other than railway lines which may

enter into a contract as provided in section

23, bringing an alien to, or providing a

means for an alien to come to; the United ©

' States, to prevent the landing of such alien

in the United States at any time or place

other than as designated by the Immigration

officers., Any such person, owner, master,

eet 1S © ES ty Teel

officer, or agent who fails to comply with the

foregoing requirements shall be guilty of a

misdemeanor and on conviction thereof

shall be punished by a fine in each case of not

less than $200 yor more than $1,000, or by

Imprisonment for a term not exceeding one

year, or by both such fine and imprison-

ment; or, if in the opinion of the Secretary

' of Labor, it is impracticable or inconvenient

to prosecute the person, owner, master, offi-

cer, or agent of any such vessel, such person,

owner, master, officer, or agent shall be liable

to a penalty of $1,000, which shall be a lien

upon the vessel whose owner, master, officer,

or agent violates the provisions of this sec-

tion, and such vessel shall be libeled therefor.

in the appropriate United States court. .

(b) Proof-that the alien failed to present

‘himself at the time and place designated by

the immigration officers shall be prima facie

evidence that such alien has landed‘in the

United States at a time or place other than

as designated by the immigration officers.

STATEMENT

The evidence is not reported, but the District

Court made findings of fact under Admiralty Rule

46% (R. 7-8) which the parties have stipulated

“shall be taken as true’? (R. 13), and which may

be summarized as follows:

The Steamship ‘‘Santos Maru’’, belonging to the

petitioner, Osaka Shosen Kaisha Line, arrived’ at

the port of New Orleans on June 11, 1932, with

Salvatore Sprovieri, an alien passenger, on board.

PERS Fig PRET ED CERT es ae Rte rota per

‘.

Sprovieri was not bound for the United States

and not entitled to enter the United States, but was

en route from Brazil to Japan. ‘‘Upon the arrival

of such Steamship at New Orleans, the Immigra-

tion Officers there issued an Order in writing to

‘the Steamship to hold the alien on board at all ports

of the United States at which such Steamship

might toueh. This Order was duly served upon

the Officers of the Steamship.’’ (R.7, fdg. b.)

On June 19, 1932, the Steamship arrived atthe

port of Galveston, Texas, ‘‘and the said alien pas- we

senger was, by the negligence of such Steamship ~—/’ |

and its Officers and Crew, allowed to escape and

land in the United States without the permission

of the Immigration Authorities and in violation of

the Law.’’ (R. 7-8, fdg. ¢). ‘‘Such Steamship

Officers notified the United States Immigration

Authorities of the escape of the said alien passen-

ger, but such Steamship sailed before his arrest.”’

(R. 8, fdg. d.) Later the alien was arrested in

Galveston and deported on another vessel of the pe-

titioner. ‘‘Thereafter notice was given such

Steamship Line of the intention of the Govern- —

ment to proceed against it and the ‘Santos Maru’

for violation of’’ Section 10 of the Immigration

Act of February 5, 1917, c. 29, 39 Stat. 874, 881,

as amended by Section 27 of the Immigration Act

of May 26, 1924, ce. 190,43 Stat. 158, 167. (U.S. C.,

Title 8, Sec. 146). (R.8, fdg.e.) - ~

‘*TIt being in the opinion of the Secretary of La-

bor impractical and inconvenient to prosecute the

Mow LGN eee Octet aad! Bet Seite ces he

matter criminally”’ (R. 8, fdg. f), the Government

filed a libel in rem against the vessel ‘‘Santos

Maru”’ in the United States District Court for the

Southern District of Texas. This libel, after set-

ting forth the facts in much the same manner as we

have just done, stated (R. 3-4, pars. IV, V):

IV .

That by reason of all the foregoing allega-

tions, the Owners, masters, officers and

agents of the 8S. S. “Sanros Maru”’ are

liable to the United States for a penalty of

One Thousand Dollars ($1,000.00) ; that said

penalty is now owing and unpaid.

That by reason of all the foregoing allega-

tious, such peralty of One Thousand Dol-

lars, now due and owing to the United

States, is a lien upon the S. S. “Sanros

Maru,”’ whose “owners, masters, officers

and agents had violated the provisions of

Section 146, Title 8, United States Code an-

notated in the manner and form aforesaid.

To enforce this lien, the libel prayed that the

United States have a decree for its debt and pen-

alty of $1,000 and that the vessel be forfeited to

the. United States or sold to satisfy its lien. (R. 4,

par. VI.) . ?

The District Court held that the Governnient was

not entitled to recover (R. 8) and therefore en-

tered a decreé dismissing the libel (R. 9). That.

106831—36——2

“ee re sk RETR os +, ; Rare it

court based its decision upon the ground that Sec-

_tion 10 of the Immigration Act of 1917, as amended

by Section 27 of the Act of 1924, did not apply to

an alien ‘‘through passenger.’’ Upon an appeal

by the Government .(R. 10), the Cireuit Court of

Appeals for the Fifth Ciréuit reversed the decree

of the District Court and remanded the case with

instructions to enter a decree in favor of the United

States (R.18). A petition for certiorari was filed

in this Court July 24, 1936 (R. 21) and granted

October 12, 1936 (R: 21).

SUMMARY OF ARGUMENT

Section 10 of the Immigration Act of 1917, as

amended, imposes upon vessels, their owners, and

their officers ‘‘bringing an alien to * * * the

United States’”’ a duty ‘‘to prevent the landing of

such alien.”’

The first question is whether the phrase ‘‘bring-

ing an alien”’ is sufficiently broad to cover the case

of a vessel that carries to a port of the United

States an alien ‘‘through passenger’’, that is, one

who had embarked at a foreign port for through

passage via American ports to another foreign

port. We contend for an affirmative answer.

This answer is justified by the ordinary meaning

of the verb ‘‘bring’’, and by: the use of the verb in

other parts of the immigration statutes. The re-

sult reached by this Court in Taylor v. United

States, 207 U. S. 120, is not opposed. Indeed, a

‘negative answer to this first question will create

fs ats

KiseEE eaten. ay

mR Laat rina Ls ARERR CART NaC chia Siw Dieses menial ciel “ieee

a breach in an otherwise complete system of im-

migration regulation under’ which carriers are

penalized if they fail to cooperate in preventing

entry into the United States by undesirable aliens.

If our construction is rejected and the petitioner’s

construction is accepted, a carrier that brings to

this country an alien through passenger who is dis-

eased or is a crimuial or an anarchist will go un-

punished even though the alien is landed without

inspection and allowed to roam the. streets of our

sea-coast cities.

The second question is whether, before they are

given by the immigration inspectors any notice to

detain, a vessel and its officers are under.a duty to

detain alien passengers. We contend that the duty -

is automatic and arises before notice. This con-

tention is supported by the words of the statute,

and by its underlying policy of pr eventing a race

for diligence between aliens and immigration

authorities. | ,

- The third question is whether, if a notice to de-

tain is required, the notice in this ease was in

proper form. The petitioner argues that the

~notice was invalid because it did not indicate a

time and place where the alien might be landed,

but instead required detention on board the vessel.

To this argument we answer that neither the words

nor the policy of the immigration law furnish any

basis for the contention that every alien, no matter

how undesirable, is entitled to be landed and to have

his day in the United States.

TaN Be BALTES Rh OL 2

stn AIS RG he NER sk RR i est ti

ARGUMENT.

SECTION 10 OF THE IMMIGRATION ACT OF 1917, AS

AMENDED, IMPOSES UPON OFF ICERS OF VESSELS A DUTY

TO PREVENT THE LANDING IN THE UNITED STATE is OF

AN ALIEN PASSENGER WHO EMBARKED AT A FOREIGN

PORT FOR THROUGH PASSAGE VIA AMERICAN PORTS TO

ANOTHER FOREIGN PORT

The first sentence of Section 10 of ‘the Immigra-

tion Act of February 5 , 1917, é. "99, 39 Stat. 874,

881, as amended by bextien 27 of the Immigration

Act of May 26, 1924, c. 190, 43 Stat. 153, 167

(U.S. C., Title 8, See. 146) provides:

That it shall be the duty of every person, in-

cluding owners, masters, officers, and agents

of vessels of transportation lines, or inteyna-

tional bridges or toll roads, other than rail-

way lines which may enter into a contract

as provided in section 23, bringing an alien

to, or providing a means for an alien to come

to, the United States, to prevent the landing

of such. alien in the United States at any

time or place other than as designated by

the immigration -officers. [Italics added. ]

In the case at bar this section has been applied by

the lower court to a ship’s officer who négligently

failed to prevent the landing in the United States

of an alien passenger who had embarked at Brazil —

‘for through passage via New Orleans, Louisiana,

and Galveston, Texas, to Japan. - The petitioner

contends that the lower court erred in holding that

this section i imposes any duty to prevent the land-

ing in the’ United States of such a so-called

“through passenger.” (Br. pp. 10-13. ) It is its

position that in tr ansporting such a passenger the

vessel was not, in the words of the statute, ‘*bring-

ing analiento * * * the United States.” In

this connection he relies chiefly upon Taylor v.

United States, 207 U.S. 120, and two decisions of

the Circuit Court of Appeals for the Second Cir-

cuit, The Habana, 63 I’. (2d) 812 (C. C. A. 2d), .

and Dollar 'S. S. Line v. Elting, 51 F. (2d) 1035

(C.C. A. . 2d).

We contend that the construction given-to See-

tion 10 by the court below is required by a literal

inter ‘pretation of the statute. We further contend

that any other construction will create a serious

breach in an otherwise complete system whereby

steamship companies are penalized if they allow

any alien to land prior to inspection or if they con-

vey to the United States any alien with a loathsome

disease.

A. The literal meaning of the phrase “bringing an

alien. * * * to the United States” ’ imposes a

duty in the case at bar.

The petitioner (Br. 4) and ourselves are in

accord in believing that the words in Section 10

with which we are particularly concerned are

these:

it shall be the duty of every person, includ-

ing * *.* officers * * * of vessels

hr er Free

ROR, MLR CEN Sor i UR ys Be Ranta i>

. : ‘

AE ere

. it ,

* * * bringing an alien to * * * the

United States, to | aioe the landing of

such alien * *

In view of the legislative history of this section,’

we do not feel justified in arguing that the phrase

‘for providing a means for an alien to come to”

(which appears in the statute between the-phrase

‘“‘bringing an alien to’’ and the eats Uolaad

States’’) is directly * in issue. We believe that the

court below in the case at bar gave too much weight

to this phrase. (R.16.) In our opinion, as in the

opinion of the -Cireuit Court of Appeals. for the

Second Circuit, the whole section must be read

‘The report of the Senate Committee on Immigration,

Senate Report No.°355 (Calendar No. 297), 63d Cong., 2d

Sess., March 19, 1914, to accompany H. R. 6060, which later,

as H. R. 10834, 64th Cong., became the Immigration Act of

1917, explains at page 9 the reason for inserting in Section

10 the phrase “or providing a means for an alien to come to.”

The report states that : “On page 20, line 10, after the words

‘bringing an alien to, insert ‘or providing a means for an -

alien to come to’; this in order to make the provisions of the

section apply to those who conduct toll roads and bridges,

as well as to those operating erdinary vehicles of con-

veyanice,

2 We do, however, contend that the phrase: “providing a

means for an alien to come to” has an indirect bearing. See ,

page 28, infra. By adopting this phrase, Congress im-

posed a penalty even on an international bridge company

which does not prevent an alien who has not been passed

by the immigration authorities from walking for five min-

utes into the United States. Thus it shows that Congress

_intended to penalize transportation companies which did not

detain, until otherwise directed, every alien, no matter how »

short his stay in American territory.

distributively, and, so read, the phrase “providing -

a means for an alien to come to’’ applies only to

international bridges and toll roads. The Habana,

63 F. (2d) 812, 813 (C. C. A, 2d).

Conceding that the phrase of chief importance

is ‘bringing an alien to * * * the United

States,’’ we contend that, read literally, it embraces

a case like that at bar where a carrier conveys to a

port of the United States an alien whom he intends,

and has every reason to expect, to take out again

when the ship moves on. |

It is clear that the dictionary definition’ of

‘“‘bring”’ signifies broadly conveyance to or toward

a place. It does not imply a limitation sugh as that

upon arrival the object conveyed will be brought.

in or will come to rest. And it would be peculiarly

inappropriate to.read any such limitation into the

definition where, as here, the verb ‘“‘bring’’ is used

* In the leading dictionaries the first meaning of the verb

“bring” is given as follows:

(1) “implies motion towards the place where the speaker

or auditor is.” Murray, Vew English Dictionary, Vol. 1,

p. 1107. sit

(2) “to convey, carry or conduct to the place where the

speaker is.” Standard Dictionary (1894) Vol. 1, p. 239° —

(3) “to bear, convey or take along in coming.” 7'he Cen-

tury Dictionary and Cyclopedia, Vol. 1, p. 685.

(4) “to cause to come with oneself, as by. conveying, lead-"

ing, or carrying, from one piace to another, the direction of

motion being always toward the place regarded as nearer

to the person from whose point of. view the action is con-.

templated.” Webster’s New Jnternational Dictionary (2d

ed., unabridged, 1936) p. 337.

penn eae ge

— with the preposition *“*to’’, not ‘‘in’”’ or

‘into.’

_ As helpful as the dictionaries are the immigra-

. tion statutes themselves in revealing the meaning

of the phrase ‘‘bringing an alien to, * * * the

United States.”’ This phrase, which occurs fre-

quently in the Immigration Acts of 1917 and 1924,

in most ‘instances, is not used narrowly... When

Congress intended to draw a fine line, and to legis-

late only with respect to such transportation as

contemplated the United States as a place of final

destination, it used such expressions as ‘‘come into

the United States,’’ ‘‘bringing an alien ‘nto the

United States”’ or ‘timports.’’ This is plain from

the very sections of the law to which the petitioner

(Br. 12) points as an aid to construction.’ And

4 t

sea ae nat iinet Tab adres aay 6

‘See, for example, Section 9 et the Sisalainttin Act of

Feb. 5, 1917, ¢. 29, 39 Stat. 880-881, as amended by Section

26 of the Immigration Act of May 26, 1924, ¢. 190, 43 Stat.

166-167, U. S. C., Title 8, Sec. 145; and Section 11 of the

Immigration Act of Feb. 5, 1917, 39 Stat. 882. U. S. C.,

Title 8, See. 11 Te

* The petitjoner (Br. 12) refers.to U. S. Code, Title 8, Sec.

142, which is Section 6 of the Immigration Act of Feb. 5,

1917, 39 Stat..879. There it is made unlawful to “solicit

ee any alien to come into the United States by prom-

ise of employment. * Petitioner next refers to U. S. Code,

Title 8, Sec. 143, which is Section 7 of the 1917 Act; 39

Stat. 879. Again it is made unlawful for a carrier to

“encourage * * * any alien to come into the United

_ States,” and it is provided that a carrier who brings to a

port of the United States “any alien so solicited” shall be

fined. Petitioner also points to U. S. Code, Title 8, Sec. 144,

which is Section 8 of the 1917 Act, 39 Stat. 880. This sec-

tion punishes carriers who “shall bring into or land in the

United States” any alien not entitled te enter.

Ss wa 7

from a similar nice use of language elsewhere in

the immigration law we may conelude that the

) phrases ‘‘come into the United States,’’ ‘‘bringing

& an alien into the United States’’* and ‘‘imports’’’

have become the appropriate words of art to indi-

cate a conveyance to a place of final destination.

To assimilate to those words of art the phrase

“bringing * * * to * * * the United States,”’

and to justify an abnormally narrow construction

of this phrase, the petitioner relies on a remark of | - j

Mr. Justice Holmes in Taylor v. United States, 207 4

U. S: 120, 124-125, which, if it is not an obiter ~~

i‘ dictum, is-an alternative and, in our opinion, in-

supportable reason for a result with which ° ‘we

entirely agree. .

In Taylor v.. United States, there was involved

Section 18 of the Immigration Act of March 3, ,

1903, ¢. 1012, 32 Stat. 1213, 1217,° the precursor of 3

® See Immigration Act of Feb. 5, 1917, c. 29; 39 Stat. 874:

Sec. 3, 8th proviso, 39 Stat. 878; Sec. 8, 39 Stat. 880; See 14,

39 Stat. 884; Sec. 16, 39 Stat. 886,

«See the Immigration Act of Feb. 5, 1917, c. 0. 29, 39 Stat.

874: Sec. 4, 39 Stat. 878; Sec. 19, 39 Stat. 889.

*“Sec, 18. That it shall be the duty of. the owners, officers

and agents of any vessel bringing an alien to the United

States to adopt due precautions to prevent the landing of

any such alien from such vessel at any time or place other ~~.

than that designated by the immigration officers, and any

such owner, officer, agent, or person in charge of such vessel

who shall land ‘or permit to land any alien at any time or

place other than that designated by the immigration officers,

shall be deeme@# guilty of a misdemeanor, and shall on con-

viction be punished by a fine for each alien so permitted to

land of not less than one hundred nor more than one

106831—36-———3

ng. Bins Bese a yey as EERO EAT YE A?

SES us Reese

PCAN PE Sa ee oe et f sites ei AA ees, re S RR Gch ea x oe siete b ON

the section with which we are now concerned. In

that case the issue was whether the section applied

to a master of a vessel who allowed to land in New

York an alien sailor who had shipped at Hungary

for the round trip, not to be paid off until he re-

turned. In delivering the opinion of this Court

“that the section does not apply to the ordinary

ease of a sailor deserting while on shore leave’

(207 U.S. at 124), Mr. Justice Holmes said (207

U.S. 124-125):

The reasoning is not long. The phrase

which qualifies the whole section is, ‘‘bring-

ing an alien to the United States.’’ It is

only ‘ ‘such’? officers of ‘‘such’’ vessels that

are .punished. ‘‘Bringing to the United

States’’, taken literally and nicely, means,

as a similar phrase in § 8 plainly means,

& ‘transporting with intent’ to leave in the

United States and for the sake of trans-

port—not transporting with intent to carry

back, and merely as incident to employment

on the instrument of transport. So again,

literally, the later words ‘‘to land’’ mean to

go ashore. To avoid certain inconveniences

the Government and the courts below say

that sailors do not land unless they perma-

nently leave the ship. But the single ‘word

is used for all cases and must mean the same

. ~

thousand dollars, or by imprisonment for a term not ex-

ceeding one year, or by both such fine and imprisonment,

and every such alien so landed shall be deemed to be unlaw-

fully in the United States and shall be deported, as provided

by law.”

» >

>a Reece i ee

. ao

thing for all, for sailors and other aliens.

It hardly can be supposed that a master

would be held justified under this section

for allowing a leper to wander through the

streets of New York on the ground that, as

he expected the passenger to return and his

expectations had been fulfilled, he could not

_ be said to have allowed the leper to land.

The words must be taker in their literal

sense. ‘‘Landing from such vessel’’ takes

place and is complete -the moment the vessel

is left and the shore reached. But it is nec-

essary to commerce, as all admit, that sailors

should go ashore, and no one believes that

the statute intended altogether to prohibit:

their doing so. The contrary always has

. been understood of the earlier acts, in judi-

cial decisions and executive practice. If we

meget the ambiguous interpretation of ‘‘to _

land’’, as we have, the necessary result can

be reached only by saying that the section

does not apply to sailors carried to an

American port with a bona fide intent to

take them out again whey the ship goes on,

when not only there was no ground for sup-

posing that they were making the voyage a

pretext to get here, desert and get in,*but

there is no evidence that they were doing so

in fact. Whether this result is reached by

the interpretation of the words “‘bringing

‘an alien to the United States’’, that has been

suggested, or on the ground that the statute

cannot have intended its precautions to ap-

ply to the ordinary and necessary landing of

. Seamen, ‘even if the- words of the section

embrace it, as in Church of the Holy Trinity

v. United States, 143 U. S. 457, does not

matter for this case. ,

The three principal reasons given in the above

quotation for not applying the section to sailors

are: (1) “‘bringing to the United States’? means

transporting with intent to feave in the United

States and for, the sake of transport—not trans-

porting with intent to carry back, and merely as

- ineident to employment on the instrument of trans-

port; (2) the administrative authorities conceded

that the section had no application to seamen who

land and later return to the ship, vet, without any -

verbal justification for the distinction, they were

attempting to apply the section to seamen who

‘land and do not later return to the ship; and (3)

it is necessary to commerce, as all admit, that .

sailors should go ashore, and no one believes that

~ the statute intended altogether to prohibit their

doing so.

We entirely concur in the second.and third of

these reasons., The first reason requires closer

scrutiny. In the exact form in which it was

phrased in Taylor v. United States, it does not seem

to us, and indeed apparently did not seem to Mr.

Justice Holmes,’ an entirely satisfactory ground

*Note that at page 125, as quoted above, Mr. Justice

Holmes said: “Whether this result is reached by the inter-

pretation of the words ‘bringing an alien to the United

States’, that has been suggested, or on the ground that the

17 r

upon which to rest the judgment. As phrased in

Taylor v. United States, this first reason really

has two subdivisions. First, it is pointed out that

“bringing to the United States’? means trans-.

porting ‘‘for the sake of transport’’—not trens-

porting ‘‘merely as incident to employment on

the instrument, of transport.” (207 U. S. at

125.) Second,-it is said that “bringing to the

United States’’ meanis transporting ‘‘with intent to

leave in the United States’’—not transporting

“*with intent to carry back.” (207 U. S. at 125.)

The first subdivision seems to us sound, and is in

thorough accord with a decision at cireuit by Chief

_ Justice Marshall where he construed an analogous

statute. The Wilson v. United States, Fed. Case

No. 17,846, 30 Fed. Cas. 239, 244 (C. C. D. Va.).”

statute cannot have intended its precautions to apply to the

ordinary and necessary landing of seamen, even if the words

of the section embrace it, as in Church of the Holy Trinity v.

United States, 143 U. S. 457, does not matter for this case.”

*° I nthat case Marshall, C: J., held that the Act of Feb. 28,

1803, c. 10,2 Stat. 205, forbidding any master of a vessel to

import or bring, into any port of the United States, any

negro,*where the importation of such person is prohibited

by the laws of such State, did not apply to colored seamen

employed in navigating such vessel. In so deciding, Mar-

shall, C. J., said (p. 244): :

- The agent, or those who are concerned in the agency

or importation, are not, in common language, said to

be imported or brought in. It is true that a vessel

— into port, is the vehicle which brings in her

crew, but we do not in common language sa , that the

mariners are “imported”, or brought in by a par-

ticular vessel; we rather say that they bring in the

wan. * * *

ee Se tos wae Te ee

18. .

The second subdivision, upon which exclusive reli-

ance has been placed by the petitioner in the case

at bar, and by the Circuit Court-of Appeals for

the Second Circuit in The Habana, 63 F. (2d) 812,

813 (C. C. A. 2d) and Dollar S. S. Line v. Elting,

51 F. (2d) 1035, 1037 (C. C.A. 2d), seems to us

unsound. It is contrary to the dictionary mean-

ing of ‘‘bring’’, see page 11, supra," and to the

reasoning of this Court in Cunard S. S. Co. v. Mel-

_ lon, 262 U. S. 100, 122:* Furthermore, it is‘con-

trary to the following example given by Mr. Jus-

tice Holmes himself on the very page of the opin-

~ion in the Taylor ease to which fhe petitioner

points (p. 125):

It hardly can be supposed that a master

would be held justified under this section for

allowing a leper to wander through the

streets of New York on the ground that, as

11 Note that in Dollar S. S. Line v. Elting, 51 F. (2d) 1035

(C. C. A. 2d), Judge A. N. Hand pointed out (p. 1036) that

“Tf taken literally, section 9 might be regarded as justifying

the action of ‘the Department” in‘ construing the phrase

“bringing * * * to the United States” as including

transporting to an American port an alien passenger, whose

original plan was to. proceed with the vessel to Cuba.

12 The National Prohibition Act, considered in that case,

prohibited the “transportation of intoxicating liquors within,

' the importation thereof into, or the exportation thereof from

the United States.” In holding that this forbade a foreign

vessel carrying to a port of the United States intoxicating ~

liquors for beverage purposes as part of a ship’s sea stores,

this Court pointed out (p. 122): “transportation compre-

hends any real carrying about or from one place to another.”

‘i |

. 19

s he expected the passenger to return and his

expectations had been fulfilled, he could not

be said to have allowed the leper to land.

This quotation shows that Mr. Justice Holmes

thought the statute would impose on the. master a

duty with respect to a passenger conveyed to the

port of New York even though the passenger had

no intent to stay-in the United States but expected

to continue with the vessel on its way to some other

port. Thus, on the exact facts of this ease, Taylor

v. United States is perhaps as much an authority

in our favor as against us.

B. If the literal meaning of the section were doubt-

ful, it should be. construed to impose a duty in a

case of this sort, in order to avoid a grave risk of

entries by undesirable aliens, and in order to pre-

vent a breach in an otherwise complete system

of immigration regulation.

If the literal meaning of Section 10, as amended,

were doubtful, there are pressing reasons: for

adopting the construction we urge. The petition-

er’s brief (pp. 8-9, 16), undoubtedly in good faith,

gives the impression that Section 10 is, if not su-

perfluous, at least cumulative, and that other pro-

visions of the immigration law will ensure the co-

operation of carriers in guarding against the risk

of entry by an undesirable alien who is making a

“through” trip. This is not the case. It is true

that the individual ‘‘through passenger’’ who en-

ters without inspection will be deported and pun-

ished, if the authorities apprehend him. Section

14 of the Immigration Act of May 26, 1924, 43 Stat.

162, U.S. C., Title 8, See. 214; Act of March 4, 1929,

e. 690, 45 Stat. 1551, U.S.C., Title 8, Sec. 180a. But

such apprehension, as the authors of the immigra-

tion law well knew, is a doubtful event and an

ineffective method of enforcement. The true safe-

guard lies in securing the cooperation of the car- .

riér in preventing the entry. And Section 10 is

the only part of the immigration statutes which

enforces carrier cooperation in the ease of a -

“through” passenger. As we propose to show in

detail, unless that section applies, a ‘‘through”’’

passenger who had never been examined by any

doctor, or consul, or immigration officer, could.

easily set foot in any one of our sea-eoast towns,

and could, if he were diseasesd, or a criminal, or an

anarchist, do incaleulable damage before he was

apprehended.

Where an alien, such as Salvatore Sprovieri in

the instant case, starts from a foreign port on a -

vessel that is to carry him via an American port to

another foreign port, he need not have any immi-

gration or passport documents, even though he

plans to, and does in fact, spend a short time in the

United States while his vessel is in port. Though

an alien,” he is not an immigrant,” and so requires

8 Section 1 of the Immigration Act of Feb. 5, 1917, c. 29,

39 Stat. 874; Sec. 28 (b) of the Immigration Act of May 26,

1924, c. 190, 43 Stat. 153, 168.

4* Section 3 (2) of the Immigration Act of May 26, 1924,

c. 190, 43 Stat. 153, 154. :

no immigration visa or reentry permit. More-

- over, since he is a “through passenger,’’ he requires

no passport or passport visa, but may land without

documents of any kind, if the immigration officials

consent.” Thus he comes to our ports without ‘any

*® Visas on alien passports are provided for in the Act of

May 22, 1918, c. 81, 40 Stat. 559, as extended by the Act of

March 2, 1921, c. 113, 41 Stat. 1205, 1217. Pursuant to the

authority conferred on him in those statutes, the President

has, by successive executive orders, required that aliens com-

ing to this country under certain circumstances must present

passports duly visaed by consular officers-of the United

States. But these executive orders, including the one which

was in effect when Sprovieri arrived at American ports (Ex-’

ecuthve Order No. 5426, August 20, 1930) have always speci-

fically exempted :

II * * * (2) Aliens who are through passengers

on vessels touching at ports of the United States. In

‘this connection the term “United States” is to be con-

strued as in section 1 of the Immigration Act of 1917.

They may land temporarily, under regulations pre-

scribed by the Secretary of Labor * * *

The only pertinent regulation prescribed by the Secretary

of Labor and in force at the time Sprovieri arrived in the

United States was Rule 3, Subdivision H, paragraph 6, of

the “Immigration Laws and Rules of January 1, 1930,” dis-

cussed at page 35, infra, which provides (p. 125): _

Par. 6. Aliens who are through passengers on ves-

sels touching at ports of thé United States may land

temporarily without visaed passports, for the limited

period of time during which the vessel lies over in

port, in cases where the amining officer is satisfied

that they will depart on Fie vessel at the time it pro-

ceeds on the same voyage. In every case the alien

shall be informed that - is landed upon that con-

dition. Where the examining officer is not so satis-

fied he shall notify the master in writing that landing

privilege is denied the alien and call the master’s at-

tention to the requirements and fine provisions of

section 27 of the immigration act of 1924. Aliens

eee DR scitssrieisent Ras ee

pilectet sc

a eee Tee ae ee

preliminary examination of any sort, and any

. dangerous disease or revolutionary traits that he

may have are unknown to our authorities.

..To protect us against the danger that such an

alien presents, the petitioner seems to suggest (Br.

8-9) that we have the safeguard of Sections 11 and

18 of the Immigration Act of February 5, 1917,

@, 29, 39 Stat. 874, 881, 887, U.S. C., Title 8, Sees.

147° and 154. But we submit that sete: of these

is an adequate protection.

Section 11 *° (referred to by the petitioner as Sec-

tion 147) provides _ for the purpose of deter-

"landing with. the intention of remaining beyond the

“period for which the vessel is to be at port must

present visaed passports and’ e examined in the

same manner and to the same extent as any other

alien applying for temporary admission.

[General Order No. 201, dated March 3, 1933, w hich is

referred to by the Circuit Court of Appeals (R. 17) was not

. adopted until after the time that Sprovieri arrived in the

United States. ]

_ aliens arriving at ports of the United States belong to any

of the classes excluded by this Act, either by reason of being

afflicted with any of the diseases or mental or physical de-

fects or disabilities mentioned in section three hereof, or

otherwise, or whenever the Secretary of Labor has received

Sislicereanitians showing ,that any aliens are.coming from .a

country or have embarke®” at a place where any of said

diseases are prevalent or epidemic, the Commissioner Gen-

eral of Immigration, with the approval of the Secretary of

Labor, may dire@ that such aliens shall be detained on board

the sone bringing them, or in a United States immigration

station at the expense of such vessel, as circumstances may

require or justify, a sufficient time to enable the immigration

officers and medical officers stationed at such ports to sub-

<a Doped mathew e Daley cai sin. OGM nk RRA 5 tallies NaN tae ‘op

mining whether . aliens arriving at ports of the

United States are excludable, ‘‘the Commissioner

General of Immigration, with the approval of the

Secretary of Labor, may direct that such aliens

shall. be detained on board the vessel bringing

them.’’ The first point to notice about this sec-

tion. is that it imposes no penalty whatsoever.

Hence it is an almost useless provision. A second

point is that it requires detention of aliens ‘‘on

board the vessel ‘bringing them; or in a United

States immigration station.”’ If a ‘‘through pas-

senger’’ is not. “brought’’ within the meaning of

Section 10, then it would sea¥ that he is not

‘‘brought’’ within the meaning of Section 11. (Cf.

Petitioner’s Brief, pp. 12-13.) rate

_ Section 18" (xeferred to by the petitioner as

Section 144) has two provisions which might be |

. Ject such aliens to an observation and examination sufficient _

to determine whether or not they belong to the said excluded 4

classes by reason of being afflicted in the manner indicated : ;

Provided, That, with a vfew to avoid undue delay in land-

ing passengers or interference with commerce, the Commis-

sioner General of Immigration may, with the approval of

the Secretary of Labor, issue ‘such regulations, not incon-

sistent with law, as may be deemed necessary to effect the

purposes of this section: Provided further, That it shall be

the duty of immigrant inspectors to report to the Commis-

sioner General of Immigration the condition of all vessels

bringing aliens to United States ports.”

- . 17 “Sec, 18. That all aliens brought to this country in vio-

lation of law shall be immediately sent back, in accommoda-

tions of the same class in which they arrived, to the country

whence they respectively came, on the vessels bringing them,

unless in the opinion of the Secretary of Labor immediate

Sex eda ds bic ha re —

- ea ee a eunniedintanahindinaeebmmmiiniienasameaatieiameidatie ananassae aan

thought relevant. The first stipulates that it shall

be unlawful for a carrier to refuse to receive back

on board, and detain when returned, aliens brought

to this country in violation-of law. This provision

does’ not, prevent the damage of-an undesirable

entry; it merely charges the carrier with the re-

deportation is not practicable or proper. The cost of their

maintenance while on land, as well as the expense of the re-

turn of such aliens, shall be borne by the owner or owners

of the vessels on which they respectively came. That it

shall be unlawfyl for any master, purser, person in charge,

agent, owner, or consignee of any such vessel to refuse to—

receive back on board thereof, or on board of any other ves-

sel owned or operated by the same interests, such aliens; or

to fail to detain them thereon; or to refuse or fail fo return

them in the manner aforesaid to the foreign port from which

they came; or to fail to pay the cost of their maintenance

while on land; or to make any charge for the return of any

such alien, or to take any security for the payment of such

charge; * * * and if it shall appear to the satisfaction

of the Secretary of Labor that such master, purser, person

in charge, agent, owner, or consignee has violated any of the

foregoing “provisions, or any of the provisions of section

fifteen hereof, such master, purser, person in charge, agent,

owiier, or consignee shall pay to the collector of customs of

the district in which the port of arrival is located, or in

which any vessel of the line may be found, the sum of $300

for each and every violation of any provision of said sec-

tions; * * *. No alien certified, as provided in section

sixteen of this Act, to be suffering from tuberculosis in any

form, or from a loathsome or dangerous contagious disease

other than one of quarantinable nature, shall be permitted

to land for medical treatment thereof in any hospital in the

United States, unless the Secretary of Labor is satisfied that

to refuse treatment would be inhumane or cause unusual

hardship or’ suffering, in which case the alien shall be

treated in the hospital under the supervision of the immi-

gration officials at the expense of the vessel transporting

ae =

aE + Steno Seti aend - poetical

‘

sponsibility of taking back and detaining a pas-

senger who has already disembarked. Moreover,

‘like Sections 10 and 11, it refers to aliens ‘‘brought

to this country,” and if the. phrase has the narrow’

limitations for which the petitioner contends, then

the petitioner, to be consistent, must admit that the

provision does not embrace ‘‘through passengers.”

The other pertinent provision in Section 18 pro-

hibits the landing of an alien who has already been

examined and certified as diseased. There are

three reasons why this provision is not very help-

ful: (1) no penalty is attached; (2) the only de-

fect guarded against is disease, so that, for ex-

ample, an anarchist is not covered; and (3) the

provision goes into effect only after examination

and certificate; and does not prohibit landing an

alien prior to those events. |

From this analysis of other parts of the immigra-

tion law, we conclude that the only provision that

‘an be effectively applied to require the detention

of diseased or revolutionary ‘‘through passengers ”’

and prevent them walking the streets of our sea- °

coast cities is Section 10 of the Immigration Act

as amended.”

18 The petitioner may point to Section 9 of the Immigra- :

tion Act of 1917 as amended by Section 26 of the Immigra-

tion Act of 1924, U. S. C., Title 8, Sec. 145; but that section,

like. the one with which we are. now concerned, speaks of 4

carriers who “bring to the United States” an alien. The 4

sections are in pari materia, and undpubtedy the phrase

would receive the same construction in each case. Cf. Dollar

S. S. Line v. Elting, 51 F. (2d) 1035, 1036 (C. C. A. 2d).

ORG CoRR NE SGN Herd Sd aie

ROA EE

Pei SAE I ain HME DER a a Do ci ERR IIE 4 AB Se RO si de AE BI ED de I ie MAAS AREAON TE 2 0 ae Sa ai EAR

The petitioner’s construction of Section 10 not

only leaves us without this essential safeguard, it

creates for the “through passenger’’ a unique ex-

ception to an otherwise complete system whereby

carriers are penalized if they allow aliens to enter

prior to inspection or consent by the immigration

authorities. Of course, carriers may be required

to detain immigrants and those coming to this

country temporarily for business or pleasure.

Compare United States v. Steamship Coamo, 267

U. S. 220. They are also responsible for the un-

authorized landing of stowaways, The Manuel

Arnus, 75 F, (2d) 943 (C. C. A. 2d), certiorari

denied, 295 U. 8. 756, and (under statutes passed

since Taylor v. United States) of seamen whose

detention ‘s requested. Section 20 of the Immi-

gration Act of May 26, 1924, ¢. 190, 43 Stat. 153,

164, replacing Section 32 of the Immigration Act

of February 5, 1917, ¢. 29, 39 Stat. 874, 895. Com-

“pare Compagnie Generale Transatlantique v. Elt-

ing, 298 U.S. 217. And the reasoning of this Court

in Lloyd Sabaudo Societa v. Elting, 287 U.S. 329,

340,” indicates that carriers would be responsible

1° Tn that case there was involved Section 9 of the Immi-

gration Act of 1917 as amended by Section 26 of the

Immigration Act of 1924 (43 Stat. 166; U. S. C., Title 8,

Sec. 145), which penalizes carriers who “bring to the United

States” diseased aliens. A vessel of the Lloyd Sabaudo

Line carried to New York one Capaldo, who intended to

pass in transit through the United States to Canada.

Capaldo was in fact diseased, and for carrying him the line

was required to pay a fine exacted by the Secretary of Labor.

PTR aT eC ee i , 4 mth.

: oo

. ‘

€

for failure to detain, pending examination, a pas-*

senger who was not coming tothe United States to

stay here, but who was in transit through Ameri-

ean territory to a foreign destination. |

We submit that there is no reason to apply a

different rule to ‘‘through passengers.’’ The de-

mands of such through passengers are neither im-

perative nor unforeseeable. Unlike sailors, through

passengers are not habitually granted shore leave

and would not feel restrained if prevented from

landing. Moreover, in those eases in which through

passengers may ask to get off in port and view the

city while the vessel is in the harbor, their request

is foreseeable by the carrier. The carrier knows

that the possibility of landing exists and may be

realized even though the passenger has no immi-

gration Visa or passport. See pages 20-22, supra.

To penalize the carrier who does not detain the

‘through passenger”? until landing permission is

given is, therefore, not unreasonable. And such a

The carrier brought suit to recover the fine, urging that

Capaldo was not “brought” to the United States since both

, he and the line intended that he should go to Canada. In

making this argument the carrier laid particular stress both

in the lower courts and in this Court on Zaylor v. United

States. See Lloyd Sabaudo Societa v. Elting, 45 F. (2d) 405,

409 (S. D.N. Y.);s.¢. 55 F. (2d) 1048, 1051 (C. C. A. 2d).

See briefs in this Court, Oct. Term, 1932, No. 48, Pet.’s Br.,

i p. 49; Resp.’s Br., p. 37. However, this Court sustained the

fine, 287 U. S. 329. The reasoning of this Court applies

pari passu to Section 10 of the Immigration Act of 1917, as

amended, which is obviously in pari materia with Section 9.

See preceding footnote.

— * — P a ae eee 3 ae

penalty is at least as necessary as one placed upon

an international bridge company which has not

prevented an alien from walking across the bridge

into the United States for five minutes. See foot-

note 2, page 10, supra. ,

The reading of the phrase ‘‘bring to the United

States’’ for which the petitioner contends estab-

lishes without reason, and in defiance of that ad- ‘*

ministrative simplicity which is essential to expedi-

tious handling of aliens, a preferred classification

_ for through passengers. Moreover, it creates a

- serious breach in Section 10, and, by parallel rea-

soning, in Section 9 and other parts of the immi-

gration law. To avoid such consequences, the

phrase, even if its literal definition were narrow,

should be broadly construed to cover through pas-

sengers. We submit that in taking the normal,

broad construction, the Cireuit Court of Appeals

for the Fifth Cireuit in this case, and the Circuit

Court of Appeals for the Ninth Circuit in The

Nanking, 290 Fed. 769, 772 (C. C. A. 9th), have

reached the only result consistent with the policy of

the immigration laws, and that the narrower view

taken by the Circuit Court of Appeals for the Sec-

ond Circuit opens the door whereby a host of aliens

- may enter without any prior inspection.

ak om See ee ee

29 .

SECTION #0 OF THE IMMIGRATION “ACT OF. 1917, AS

AMENDED, IPSO FACTO IMPOSES A DUTY TO DETAIN, AND

NO NOTICE FROM THE IMMIGRATION AUTHORITIES IS

REQUIRED AS A CONDITION PRECEDENT PO THE EXIST-

ENCE OF THE OBLIGATION. .

In some parts of the immigration law, a carrier

or officer is under_no duty to detain an alien until

he receives from the immigration authorities notice

todoso. This, for example, is true of that part of.

Section 20 (a) of the Immigration Act of 1924

which was considered by this Court at the last term.

Compagnie Generale Transatlantique v. Elting,

298 U.S. 217. See footnote 22 on page 33, infra.

But in Section 10 of the Immigration Act of

1917, as amended, the duty is absolute and auto-

matic. The immigration authorities do not need to

take any action as a condition precedent to creating

an obligation to detain. They do, however, have the

power to terminate the obligation since they may

permit Janding. Thus it may be said that they

have the power to loose, but not to bind.

That this is the correct interpretation of Section

10 is shown by its wording, and by its a

‘policy.

The statute, without ambiguity, states ‘‘That it

shall be the duty of * * * officers * * * of

vessels * * * bringing analiento * * * the

United States, to prevent the landing of such alien

in the United States at any time or place other than

as designated by the immigration officers. Any

such person * -* * who fails to comply with the

feregoing requirements shall * * * be pun-

ished.*? The only requirement is the absolute obli-

gation to prevent the landing, not to obey an or rder

of some administrative official.

Petitioner suggests (Br. 6-7) that the unambigu-

ous words of subsection ¢a) which we have just

quoted mean something different from what they

appear to mean on first impression. Petitioner

suggests that the duty they prescribe-is not a duty

to prevent landing, but aduty to present aliens at a

- particular time and place, and then only if such

time and place are designated by immigration offi-

cers. To justify sO distortéd - a construction of the

plain words of subsection (a), petitioner invokes

the aid of subsection (b), which provides that:

(b) Proof that the alien failed to present

himself at the time and place designated by

the immigration officers shall be prima facie

evidence that such alien has landed in the

United States at‘a time or place other than

‘as designated by the immigration officers.

In the first place, this subsection is of doubtful aid

~ in the construction of subsection (a) because it was

not adopted. contemporaneously with it. Subsec-

tion (a) has along history, and appears in much

its present form in Section 18 of the Act of March

3, 1903, e. 1012, 32 Stat. 1213, 1217, Section 10 of

the Immigration Act of February 5, 1917, ¢. 29,

39 Stat. 874, 881, and Section 27 of the Immigra-

tion Act of May 26, 1924, c. 190, 43 Stat. 153, 167.

On the other hand, subsection (b) did not appear

until the 1924 Act. (43 Stat. 168.) In the second

place, subsection ‘(b) does not purport to be co-

extensive with subsection (a). It is designed

merely to furnish a ready method of proof in one

of a number of situations that may arise under

the operation of subsection (a), and not to cover

all of them. An obvious example will show that .

subsection (b) is not co-extensive with and does

not set limits to subsection (a). If an immigra-

tion inspector saw a ship’s master helping an im-

‘migrant to disembark before inspection, clearly the

inspector’s testimony would be enough to sustain

a-conviction of the master under Section 10,

although the inspector had never stopped to issue

~ an order requiring the master to present that alien

at some particular time and place.

present aliens at a particular place when so requested, rather

than a duty to detain aliens until otherwise instructed, peti-

tioner also (Br. 7-8) relies on’Section 23 of the Act of Feb.

5, 1917, c. 29, 39 Stat. 892, U. S. C.. Title 8, See. 102, and

Section 2 of the Act of March 4,.1929, c. 690, 45 Stat. 1551,

' U.S. C., Title 8, Sec. 180 (a). The former section js clearly

irrelevant. It merely gives to the Commissioner General of

Immigration (whose title since Section 14 of Executive

Order No. 6166, June 10, 1933, see United States Code

Annotated, Title 5, Sec. 132, has been changed to the Com-

missioner of Immigration and Naturalization) the power to

make appropriate contracts with railroad carriers so that

trains will not be held up at the border but may, while the

The construction for which we contend, i. e., one

that imposes an automatic duty to detain until

otherwise notified, is required by the policy as well

as the language of the statute. If the carrier were

under no duty to detain until he. received notice,

then the carrier could with immunity allow the

landing of any alien who moved more quickly than

the immigration officials. To allow such a race

against authority would cripple the strength of

Section 10. We submit that the plain policy of

immigration inspectors pass through the cars, proceed into

the United States. This is an unusual privilege which, as

Section 10 itself recognizes, is an exception to the normal

duty of a carrier to detain aliens until otherwise directed,

and which, as Section 23 states, is given “so as not unneces-

sarily to delay, impede, or annoy persons in ordinary travel.”

Section 2 of the Act of March 4, 1929, is likewise of no value

in supporting petitioner’s position. This statutery provi-

sion, which is obviously not part of the 1917 or 1924 immi-

gration Acts, and is therefore of doubtful aid-in construing

them, penalizes not carriers but aliens. Moreover, it penal-

-izes.an alien not only if he “enters the United States at any

time or place other than as designated by immigration

officials”, but also if he “eludes examination or inspection by

immigration officials.” In other words, the alien is required

to stay out of the United States until he is inspected and

until he is told he may enter. Such a requirement parallels

the requirement which we say is imposed upon the carrier

and is difficult to reconcile with the requirement which peti-

tioner says is imposed upon the carrier.

21 Furthermore, it would prevent the full application of

Section 15 of the Immigration Act of 1917, U. S. C., Title 8,

Sec. 151, which declares+that “upon the arrival at a port of

the United States of any vessel bringing aliens it shall be

‘the statute is to require the carrier to detain unless

and until the authorities have given permission for

landing.”

Ill

IF A NOTICE TO DETAIN IS A CONDITION PRECEDENT TO

THE EXISTENCE OF A DUTY TO DETAIN, THE NOTICE IN

THIS, CASE WAS IN PROPER FORM AND PROPERLY

SERVED.

In this case the District Court found that notice

was ‘‘duly served.upon the Officers of the Steam-—

ship’? Santos Maru ‘‘to hold the alien [Spro-

the duty of the proper immigration officials to go or to send.

competent assistants to the vessel and there inspect all such

aliens * * *,” . 2

22 We submit that the petitioner is mistaken in contending

(Br. 8-9) that our construction of Section 10 of the Immi-

gration Act of 1917 is inconsistent with Section 20 (a) of

the Immigration Act of 1924. U. S..C., Title 8, Sec. 167.

That section deais with detention of seamen in two different

situations. Prior to examination of the seamen by immi-

gration authorities, the carrier has an absolute duty to de-

tain, as this Court seems to have recognized in Compagnie

Generale Transatlantique v. Elting, 298 U. S. 217, 223, line

8. After examination, “A duty so to detain does not arise

‘unless and until such detention is required by the immigra-

tion officer.” “298 U. S. 223, lines 12-14. The reason for

this distinction in Section 20 (a) is obvious and consonant

with our argument. Prior to examination, the immigration

officials cannot know whether or not they want the alien

detained, so an absolute duty rests€on the carrier. After

the examination, the carrier cannot know its result, but the °

immigration officials do know. Hence, if they want the alien

detained, they, having the information revealed by the ex-

amination, must give the carrier notice.

RA! DANES alas MON M0 Hatt ace seed

vieri] on board at all ports of the United

States at which such Steamship might’ touch.’’

(R. 7, fdg. b.) The order of detention was v10-

lated and ‘‘said alien passenger was, by the negli-

gence of such Steamship and its Officers and Crew,

allowed to escape and land in the United States

without the permission of the Immigration

Authorities and in violation of the Law.’’ (R: 8,

fdg.¢.) In the libel it was charged that the ‘‘own-

ers, masters, officers and agents [of the SanrTos

~ #® Marv] had violated the provisions of Section

146, Title 8, United States Code,” i. e., Section 10

of the hnmiegration Act of 1917, as amended. (R.

4, par. V, lines +6.) And for this violation it’was

prayed that the United States have a decree for

its penalty. of $1,000 and that the ‘‘Santos Maru”’

be forfeited or sold to satisfy the Government’s

lien for that penalty. (R.4, par. VI.)

The petitioner contends (Br, 8-10) that the

notice to detain was improper because it required

the ship’s officers to keep the alien on board and

did not name any time or place at which the alien

could be landed.

“ It is our position that the statute does not pur-

port to require that every alien shall have his day

in the United States. It-is unthinkable that be-

cause a leper or anarchist is brought to our shores,

we must accommodate him. There is nothing in

the language of this particular section that goes so

far. Indeed, other provisions of the immigration

. Pep SECT CMEC SO hae se ak Sn ech Neal nee haa DRiate Bai Rid ai Aa AB ADin TAD Oi bie aided A LAY EE NME

35 Be

laws show that there exists no unqualified right to

land even for inspection.” |

That the right to land even temporarily.is a mat-

ter within the discretion of the immigration off-

cials is shown not only by the statute but also by

Executive Order No. 5426, which we have already

quoted at page 21, supra, and by Immigration Rule

0, Subdivision H, paragraph 6, quoted at pages 21-

22, supra, and adopted pwrsuant to authority con-

ferred by Section 23 of the Immigration -Act of

February 5, 1917, ¢. 29, 39 Stat. 892, and Section

24 of the Immigration Act of May 26, 1924, c. 190,

43 Stat. 166.

Of course, the fact that naaaiithiias as in United

States v. Steamship Coamo, 267 U. 8. 220, relied

upon by the petitioner (Br. 9, 13), the immigration

authorities do, as a matter of grace, indicate a time

and place for landing, does not establish for car-

riers, as by some sort of prescription, a right

always to land all passengers.

Another point, which has not been stressed -by

the petitioner, seems to us, in view of Compagnie

Generale Transatlantique v. Elting, 298 U. S..217,

°8 Thus in Section 15 of the Immigration Act of February

5, 1917, c. 29, 39 Stat. 874, 885, it is provided that immigra-

tion officers shall have discretion to examine aliens, either

on board the vessel or at land stations to which they are

removed. See also Sections 11 and 18, quoted in part and

discussed at pages 22-25, supra.

IORI LMR INEN WE REMAN TEV a Re Ae

ST ac Ses

SE LO LINNEY ANTRAL MAD Pt

eS SH et eke ee

CT AAALE Siar RS Atak Pd

ad aes

eAthena th de Gap ins aa nly LW NG tt st P88 PS he LB Witty Be AEE Stig Be 0055 0 tS

to deserve some mention: that is, assuming argu-

endo that a notice of detention is required, the

question arises whether it was served upon the

party now sought to be charged. :

We do not believe that this point is open to the

petitioner since in his petition for certiorari he

did not set forth any ‘specification of error based

upon it, and since his brief does not touch it.

Morehead v. Peo ple ex ret. Tipaldo, Oct. Term, 1935,

No. 838, June 1, 1936; Clark v. Williard, 294 U.S.

211, 216. However, if the point were open, we sub-

mit it would be without merit. The notice to detain

was ‘‘duly served upon the Officers of the Steam-

ship.”’ (R. 7, fdg. b.) And this libel proceeding

was based on the fact that the ‘‘owners, masters,

officers and agents had violated the provisions of”’

Section 10 cf the Immigration Met of 1917 as

amended. (R.4,par.V.) Thus the officers of the

vessel, who are the ones against whom the penalty

is invoked (ef. R. 15, line 2) were given due notice.

The situation is unlike that before this Court in

the Compagnie Generale Transatlantique case,

supra, where the notice was given to the master, °

but the duty and the penalty were sought to be im-

- posed upon the owner.

CONCLUSION

Wherefore it is respectfully submitted that the

decree of the court below should be affirmed. -

— ¥ STANLEY REED, .

- Solicitor General.

. Brien McManon,

Assistant Attorney General.

. CHARLES E. WyZANSKI, IJr.,

Special Assistant to the Attorney General.

. Witttam W. Barron, _

JOHN M. SULLIVAN,

Attorneys.

Brien 8S. OdEM,

Assistant United States Attorney.

v ALBERT E. REITZEL,

Assistant Solicitor of the

Department of Labor.

VEpwarp J. GARRAHAN,

Attorney.

NOVEMBER 1936.

U.S GOVERNMENT PRINTING OFFICE: 1936

‘

i aide eT AA RAE SG WE TIRBE A Lo BI gf 1S CEs Oh LACE ed

‘

bitin cs a cat : ek Ya Ssh Bip SUA Et tli a 9s Sia A SATS i ig is Yt St ti oi ilar ihe RULE GALA LIBR a]

Oe ee ee CEOS ere ae 2

. i

. .

SUPREME COURT OF THE UNITED STATES.

No. 224.—OcToBer TERM, 1936.

DF Evatt tnd eR we ARAN Ra

sa a a

Osaka Shosen Kaisha Line, Claimant of)

the Steamship ‘‘Santos Maru’’,

Petitioner,

On Writ of Certiorari to

the United States Circuit é

f ‘Court of Apppeals for f

the Fifth Circuit. ‘

VS.

The United States of America. °

[February 1, 1937.]

Mr. Justice SUTHERLAND delivered the opinion of the Court.

Section 10 (a) of the Immigration Act of February 5, 1917, as

amended, Title 8 U. S. C. § 146, makes it the duty of.every person

-ineluding ofners, masters, officers, and agents of vessels @) trans- (YY

portation ines, ‘‘bringing-an alien to, or providing a means for

an alien to come to, the United States, to prevent the landing of

such alien in the United States at any time or place other than as

designated by the immigration officers.’’ Failure to comply with

the provision constitutes a misdemeanor punishable by fine or

imprisonment or both. If the Secretary of Labor is of opinion that

a prosecution is impracticable or inconvenient, a penalty of $1,000

is imposed and a lien upon the vessel is created for which such

vessel shall be libeled in the appropriate United States court.

By subdivision (b) of § 10, proof that the alien failed to present

himself at the time and place designated by the immigration officers

constitutes prima facie evidence that the alien has landed at a time

or place other than that designated. - - :

On June 11, 1932, the Santos Maru came into the port of New

Orleans with Salvatore Sprovieri, an alien passenger, on board.

The passenger was en route from Brazil to Japan upon a through

ticket ; and was not entitled to enter the United States. On arrival

of the steamship, the immigration officers at New Orleans issued a 5

written order to the steamship to hold the alien on board at all.

ports of the United States at which the ship might touch—the order

being duly served upon the officers of the ship. A few days later,

FEN RON, SS ESR GF rita ere x:

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2 Osaka"Shosen Kaisha Line vs. The United States.

the ship arrived at the port of Galveston, Texas; and there, by the

negligence of the ship, its officers and crew, the alien passenger was

allowed to escape and land in the United States without permis-

sion of the immigration officers and in violation of their order.

Officers of the ship notified the immigration authorities of the

escape of the passenger; but the ship sailed before his arrest. Sub-

sequently, the passenger was arrested and deported on another

vessel of the same line.

The Secretary of Labor was of opinion that it was impracticable

and inconvenient to prosecute the matter criminally; and a libel

was filed.on behalf of the United States in the appropriate federal

district court, praying a decree for the $1,000 penalty and to enforce -

the lien therefor against the ship.

The district court took the view that, the alien passenger not

being bound for the United States but en route from Brazil to

‘Japan, the ship was not liable, and dismissed the libel with pre-

judice. The circuit court of appeals held otherwise, reversed the

decree and remanded the-eause with instructions to enter a decree

for the United States. 84 F. (2d) 482.

The basie contention of petitioner, in its assault upon the latter

decree, is that one who transports an alien passenger from one

foreign country to another, does not bring him to the United

States, within the meaning of § 10, by entering, with the alien on

board, an American port of call on the way. If it were not for a

sentence contained in the opinion of this court in Taylor v. United

States, infra, of which we shall speak later, we might dispose of

‘this contention by simply saying that it is contrary to the unam-

biguous terms of the section. Nothing can be plainer than that a

ship which enters one of our ports has come to the United States;

and a passenger on board obviously has come with the ship, and

consequently has been brought by the ship to the United States.

And this remains none the less the fact, although the ship con-

tinue on her way to a foreign port, and although it was intended

that the passenger should go with her, and not be left in the United

States. To say that the passenger has not been brought to the

United States unless the intent was to leave him here, is not to

construe the statute but to add an additional and qualifying term

to its provisions. This we are not at liberty to do.under the guise

a Pe te eC ee isin ee ar me ke

Osaka Shosen Kaisha Line vs. The United States. 3

of construction, because, as this court has so often held, where the

words are plain there is no room for construction. United States

v. Wiltberger, 5 Wheat. 76, 95-96; Hamilton v. Rathbone, 175 U. 8.

414, 419, 421; United States v. Hartwell, 6 Wall. 385, 396; Crooks

yv. Harrelson, 282 U. 8. 55, 59-60.

It is urged that the statute is highly penal in character and should

therefore be construed strictly. But the object of all construction,

whether of penal or other statutes, is to ascertain the legislative

intent; and in penal statutes, as in those of a different character,

‘if the language be clear, it is conclusive.’’ United States v.

Hartwell, supra, pp. 395-396; United States v. Corbett, 215 U. S.

233, 242; Sacramento Nav. Co. v. Salz, 273 U. 8. 326, 329-330.

The duty of the ship-is to prevent the landing of through alien

passengers except by permission. The United States is under no

obligation to permit the temporary landing of such passengers at

its ports at all. A detention order is not necessary, although one

was issued in this instance; for the case is not one where landing

is permitted if not forbidden by the immigration officials, but where _

it is forbidden unless permitted. Section 10 is not like, for example,

§ 20 of the Immigration Act of 1924, which imposes a fine upon

the owner, charterer, agent, consignee, or master of a vessel arriv-

ing in the United States who fails, after inspection, to detain an

alien seaman employed on the vessel ‘‘if required’’ by the immigra-

tion officer in charge of the port to do so. Under that provision, ‘‘A

duty so to detain does not arise unless and until such detention is

required by the immigration officer.’’ Compagnie Generale v. Elt-

ing, 298 U. 8. 217, 223. Under § 10, however, the duty is imposed

by the statute and not by requirement of the immigration officials.

The matter is taken care of by a regulation of the Secretary

Labor (Rule 3, subdivision H, 76, ‘‘ Immigration Laws and .Rufés

of January 1, 1930’’, p. 125), which provides that through alien

passengers ‘‘may land temporarily without visaed passports, for

the limited period of time during which the vessel lies over in port,

in cases where the examining officer is satisfied that they will depart

on the vesselNat the time it proceeds on the same voyage . . .”’

_ The main reliance of petitioner is on Taylor v. United States,

207 U. S. 120, 124, 125. That case arose under § 18 of the Immi-

gration Act of March 3, 1903, which imposes the duty upon a ship

‘ iat, |

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4 Osaka Shosen Kaisha Line vs. The Umited States.

bringing an alien to the United States to adopt due precautions

to prevent the landing of such alien at any time or place other than

that designated ‘by the immigration officers. This court held that

the provision did not apply ‘‘to the ordinary case of a sailor desert-

ing while on shore leave.’’ In the course of the opinion it was said

that ‘the phrase ‘‘bringing an alien to the United States’’ meant

‘‘transporting with intent to leave in the United States and for

the sake of transport—not transporting with intent to carry back,

and merely as incident to employment on the instrument of trans-

port.’’ ‘‘Intent to leave’’ is right enough as applied to a seaman on

the ship, but it may not be extended to include an alien through

passenger.

The court there was dealing with and thinking of a sailor, and

not of an alien through passenger; and-its language must be read -

accordingly, for—‘‘It is a maxim, not to be disregarded, that gep-

eral expressions, in every opinion, are to be taken in connection

with the case in which those expressions are used. If they go be-

yond the case, they may be respected, but ought not to control the

judgment i in a subsequent suit, when the very point is presented for

\_ decision.’’ ~Cohens v. Virginia, 6 Wheat. 264, 399; Humphrey’s

Ezecutor v. United States, 295 U. S. 602, 626-627. The point to

be observed in the Taylor case is that the transportation of the

sailor was merely as an ‘‘incident to entployment on the instru-

ment of transport.’’ That i i to say, the sailor was one of the agen-

cies which brought the ship in, rather than an alien brought in by

the ship. ‘‘It is true’’, Chief Justice Marshall said in The Wilson v.

United States, 1 Brock. 423, 30 F. Cas. 239, 244, ‘‘that a vessel

coming into port, is the vehicle which brings in her crew, but we do

not in common language say, that the mariners are ‘imported,’ c

brought in by a particular vessel; we rather say they bring in the

vessel.’” The generality of the affirmative. phrase, ‘‘transporting

with intent to leave in the United States,’’ is obviously qualified by

the negative form of expression immediately following, ‘‘not trans-

porting with intent to carry back and merely as incident to em-

ployment on the instrument of transport.’’ (Italics supplied.)

When we consider the relation of the sailor to the ship—that he

is, for all practical purposes, a part of it and not, like a passenger,

apart from it—it is quite apparent that the word ‘‘alien’’ as used

‘ai = — — 66) Bn ohm a rae

a he a PN le i GoD

Osaka Shosen Kaisha Line vs. The United States. 5

in § 10 does not, and was not intended to, include an alien sailor.

Some of those engaged in the operation of a vessel must go

ashore. They may be required to load and unload the cargo, to

communicate with the local representatives of the line, and neces-

sarily to perform a variety of duties which require their presence

ashore. A denial of the privilege would be so likely to adversely

affect commerce as to require much plainer language than we find

in § 10 to justify the conclusion that Congress had denied it. ‘To

adopt that conclusion ‘would be to declare that the act was vio-

lated whenever a member of the crew was sent ashore to performan fF

act imperatively necessary in the service of the ship.

Petitioner cites, also in support of its contention, The Alfonso |

XIII, 53 F. (2d) 124, 126; Dollar 8.8. Line v. Elting, 51 F. (2d) !

1035; and The Habana, 63 F. (2d) 812; but those decisions were

expressly based upon what was regarded as the controlling effect

of the phrase which we have quoted from the Taylor case; and from

a reading of the opinions it seems quite evident that but for that .

the decisions would have been otherwise. For example, Judge )

Woolsey, in The Alfonso XIII, said that if he were dealing with |

the matter de novo, uninstructed by judicial authority above him, -

he would have found it difficult to give the words “bringing an

alien to the United States’’ a meaning different from what they

literally mean. .

We reject the notion that in the case with which we are now

concerned it is necessary to constitute the act of bringing an alien

to the United States that there should be an intent to leave him

here.’

We see nothing in the suggestion that subdivision (b) of §10 fF

sustains petitioner’s view of the ease. That subdivision simply

provides a rule of evidence affecting the: burden of proof, and

we think does not in any way restrict the plain meaning of § 10 (a)

as we have found it.

Decree affirmed.

A trad im:

Test :

Clerk, Supreme Court, U. 8.

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