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10 F.(20) 33 tion of the record appears from both briefs this seizure was made by the Coast Guard filed, which assume that the court is aware under the authority of title 2, § 26, of the of the nature of the litigation. It is of no National Prohibition Act (Comp. Stat. Ann. moment that libelant may be prepared to Supp. 1923, § 1013812mm), by which the prove the falsity of the answer in regard to Coast Guard official (inter alios), having disthe place of capture, the illegality of cargo, covered a "person in the act of transporting or the purposes of the voyage. Answer as in violation of the law intoxicating liquors amended reveals the position assumed by in any


craft, the United States, the reasons for seizure,

it shall be his duty to seize any and and the existing governmental intent with all intoxicating liquors found therein being regard to that which was seized.

transported contrary to law, (and he] shall Thus the question arises whether these take possession of

water craft." two possessory suits (now consolidated) are The question under consideration would maintainable. The jurisdiction of the be answered by Rev. St. § 934 (Comp. St. American admiralty in possessory suits may $ 1560), if the arrest of vessel and cargo be said to rest upon the reasoning of Story, had been “under authority of any revenue J., in The Tilton, 5 Mason, 465, Fed. Cas. law,” for by the statute what is so seized No. 14,054; for the authoritative assertion "shall be irrepleviable, and shall be deemed to of such jurisdiction in Ward v. Peck, 18 be in the custody of the law," and that chatHow. 267, 15 L. Ed. 383, is no more than an tels in such custody are always irrepleviable assent to Justice Story's doctrine.

was settled in Covell v. Heyman, 111 U. S. [4] The Supreme Court has never defined 176, 4 S. Ct. 355, 28 L. Ed. 390. But it canthe jurisdiction of admiralty in possessory not be said that the Prohibition Act is one of suits respecting chattels other than vessels; revenue, or that, in the absence of statute but the reasoning of Lowell, J., in Five Hun- extending the definition to seizure not under dred and Twenty-Eight Pieces of Mahogany, judicial process, the general rule applies. 2 Low. 323, Fed. Cas. No. 4,845, has received Cf. Words and Phrases, First and Second professional acquiescence (cf. Benedict [5th Series, sub nom. "Custody of the Law." Ed.] p. 102), and the result thereof is that, [6] The question then becomes this: In the “where the possession of movable property absence of a statutory prohibition upon suits has been changed against the right of the for possession or actions in replevin, can this true owner by a maritime tort or by the ship and cargo be rescued by legal proceedbreach of a maritime contract, the owner ings, such as these were intended to be, from may vindicate his title in a court of admiral- a governmental seizure made as alleged by ty by a proceeding in rem."

answer 9 That a possessory suit would lie [5] In the present suit regarding the cargo of for a vessel detained by the collector, not whisky, there was no allegation by libelant for condemnation or penalty, but to enforce of any maritime tort or any breach of a the payment of a tax, was held in Re Fassett, maritime contract; wherefore such libel on 142 U. S. 479, 12 S. Ct. 295, 35 L. Ed. 1087, its face was fatally defective, because it is and the reason for such holding was that the a prerequisite to the exercise of jurisdiction shipowner sought to be taxed had no remedy that the court should be advised of the facts under the law other than a possessory suit. by which the libelant thinks himself within This is not true of seizures for condemnathe very limited powers of admiralty over tion, for in order to enforce the governmenthe subject matter. Whether, if proper al- tal claim it is necessary for the proper oflegations had been made, a capture by the ficials to bring libels of condemnation, to alCoast Guard within the territorial waters of lege and prove that the seizure was lawful, the United States should be regarded as a and owners are entitled to appear, claim, and maritime tort is a matter concerning which contest the governmental accusations. we express no opinion; for we shall consider Let it be admitted that, until process is the larger question whether the collector's issued and the marshal seizes the res proceedadmitted possession or custody did not, un- ed against (in this case ship and/or liquor), der the circumstances, prevent the use of a the chattels are not in custodia legis, but are possessory suit to recover both ship and car- held for the purpose solely of instituting go.

such legal proceedings—a thing impossible It has been universally agreed that in our in the Fassett Case, supra. The legal analadmiralty a suit for possession is the ogy here is that which the government unsubstantial equivalent of proceedings in re- successfully used in Re Fassett, viz. the plevin. Benedict, ubi supra. We know that Embargo Act of 1808, 2 Stat. 499. By that statute seizure of both vessels and goods in- seas, without any suggested method of taking tended for foreign parts in violation of the him off. But, if the gloss contained in the act was directed by the statute; condemna- opinion be observed, the permission was intion of both ship and cargo was to follow, tended to be a passport or safe-conduct to usually in the case of the ship and under cer- both vessel and cargo until she reached a tain specified circumstances in that of the point confessedly beyond the jurisdiction of cargo.

the United States. We are not aware of any Under that act it was held in Slocum v. justification for such a direction. Nothing is Mayberry, 2 Wheat. 1, at page 9 (4 L. Ed. pointed out to us excusing the order. 169): "The party supposing himself ag- [8] From the briefs and argument (not from grieved by a seizure cannot, because he con- the apostles) we learn that the Coast Guard siders it tortious, replevy the property out officials were thought to have made a mistake of the custody of the seizing officer, or of in taking what they had captured into a the court having cognizance of the cause. Connecticut port, instead of New York har

. If the seizing officer should refuse bor. They got into the wrong district, and to institute proceedings to ascertain the for- the intent of the order was to prevent any feiture, the District Court may, upon the new seizure or capture. If there had been application of the aggrieved party, compel a pleading showing the existence of this althe officer to proceed to adjudication or to leged error, that would have been no reason abandon the seizure.”

for granting a safe-conduct; in the absence [7] In the century and more that has elapsed of any such information contained in the since the embargo, seizures such as those pleadings, there was even less excuse. under that statute have been rare until the We conclude that on the pleadings the passage of the National Prohibition Act. libel was open to peremptory exception, and But the rule is the same. The remedy of the if the pleadings are reformed, possessory party who feels himself aggrieved by seiz- suit does not lie for a res governmentally ure is to contest the validity thereof in the held for forfeiture by judicial process. suit for condemnation; he cannot "short

The decree is reversed, and the cause recircuit" the orderly course of law by insti- manded, with directions to dismiss the libel tuting suit of his own, though he may force or libels, without costs in any court. the hand of the government officers and compel them promptly to proceed in the way

271 was thoroughly recognized, not so much in Blatchford, J.'s, opinion in Re Fassett, su

UNITED STATES ex rel. DUNER et al. v, pra, as in the brief of Mr. Elihu Root of

CURRAN, Commissioner of Immigration. * counsel; for the whole basis of his successful argument was that the collector's seizure

(Circuit Court of Appeals, Second Circuit.

December 7, 1925.) for an alleged tax was not and never had been pretended to be a seizure “under any

No. 49. law providing for a penalty or forfeiture.” This is such a seizure, and whether it is '. Aliens f 51/2, New, vol. 16A Key-No.

Series-Wife and children of minister entering wrongful or not can only be determined in

country before 1924 Immigration Act became a proper suit for condemnation.

effective exempt from quota provisions. Thus it was the duty of the court below, Wife and children of minister or professor, notwithstanding the extraordinary form of who entered country to carry on his vocation pleading, to investigate its own jurisdiction. before Immigration Act May 26, 1924 (Comp. If that had been done, it would have appear- effective,

St. Supp. 1925, $$ 428934-428934 nn) became

under section 4(d) thereof ed that no jurisdiction existed. We note the (Comp. St. Supp. 1925, § 428934b), exempt direction in what is in effect the final de- from quota provisions. cree below (though called an "order of release") that the collector shall be entitled to

2. Aliens 46-Physically defective son of

minister, entering country to carry on his vomaintain a person on board the vessel until

cation, held not entitled to enter. it arrives at the now notorious 12-mile limit.

Fifteen year old son of minister entering If one looks at the language of the order country to carry on his vocation, found to be or decree, and nothing else, the direction is suffering from valvular disease of heart and inexplicable; it is impossible to see why the from entry by Basic Act Feb. 5, 1917, $ 3

certified as physically defective, held excluded collector should be entitled to put a guest on (Comp. St. 1918, Comp. St. Ann. Supp. 1919, $ che Blairmore I until she reaches the high 428944b).

*Certiorari denied 46 S. Ct. 475, 70 L. Ed. --.

70 L Ed. 1139,46 Sup A 475.

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10 F.(20) 38 3. Aliens em 54(16)-Court cannot inquire into Channa and Michel were excluded, al

finding and certificate that alien is physically so, for the defects above mentioned under defective.

the Basic Act of 1917 (Comp. St. 1918, 88 Court cannot inquire into finding and certificate that alien, desiring to enter country, is 428944a-4289144u), and the mother, Beila, as physically defective.

an alien accompanying the child, Channa, 4. Aliens Cw54(9) - Finding that aliens are

and necessary to her safe return. All the likely to become public charges must be sup- children were likewise excluded as persons ported by evidence.

likely to become a public charge. Finding that aliens, seeking to enter coun: After an unsuccessful appeal to the Sectry, are likely to become public charges, must retary of Labor from these decisions of the be supported by evidence.

Board of Special Inquiry, the husband took 5. Aliens 54(9)-Finding that children seek out the writ, upon which the District Court ing entry were likely to become public charges discharged all the aliens except Channa, and held unsupported by evidence.

Finding that all children of minister, who allowed the mother, Beila, to furnish a suitentered country solely to carry on his vocation, able attendant in place of herself. if allowed to enter, were likely to become public

Emory R. Buckner, U. S. Atty. (James charges, held unsupported by evidence; their tender years and possibility of death of their C. Thomas, Asst. U. S. Atty., of New York parents being insufficient to justify such con. City, of counsel), for appellant. clusion.

Morris Jablow, of New York City (Louis Manton, Circuit Judge, dissenting.

Marshall, of New York City, of counsel), for

appellees. Appeal from the District Court of the

Before United States for the Southern District of



HAND, Circuit Judges. Habeas corpus proceedings by the United

HAND, Circuit Judge (after stating the States, on the relation of Beila Duner and facts as above). [1] The chief question is others, against Henry H. Curran, as Com- whether section 4 (d) of the Act of 1924 missioner of Immigration. From an order (Comp. St. Supp. 1925, § 428934b) applies releasing relators from an order of exclu- to the wife and children of a minister or prosion by the Secretary of Labor, the Commis- fessor who entered the country before July sioner appeals. Order affirmed in part, and 1, 1924, the date when it went into effect. The reversed in part.

section is in two parts: First, it exempts Appeal from an order on habeas corpus from the quota a minister "who continuously releasing the relators from an order of ex- for at least two years • has been, and clusion by the Secretary of Labor under the who seeks to enter the United States solely Immigration Acts.

for the purpose of, carrying on the vocaThe aliens are the wife and four children tion,” etc. Second, it exempts "his wife, under 18 years of age of one Jacob S. Dun

if accompanying or following to er, an alien resident of the city of New York join him.” Grammatically the logic is inesand the rabbi of a Jewish congregation in capable; "his" and "him” refer to the that city. Duner lived in Poland, where he minister or professor, who is exempted by had been a rabbi for about 18 years. He the first part of the section. It is as though arrived in New York on November 3, 1923, the section read: “We exempt the minister, under a call to a Jewish congregation, and and the wife of the minister whom we so for the sole purpose of pursuing his profes- exempt." sion. His wife and four children followed But the distinction is meaningless as mathim, arriving in New York on November 11, ter of policy. We can see no possible dif1924. Of these, the youngest, Channa, 4 ference in the desirability of the family, years old, upon examination was found to be whether its head entered before or after Jumentally defective, and was so certified by ly 1, 1924, so long as he answers the prethe surgeon in charge. His son Michel, 15 scribed description. We, of course, agree years old, on a similar examination was that whenever he enters he must already have found to be suffering from a valvular disease practiced his profession for two years and of the heart, which might affect his ability must have entered solely to carry it on, but to earn a living, and was so certified by the beyond that we are not disposed to press surgeon. All five of the aliens were beyond grammar at the expense of the plain purthe quota admissible under the act of 1924 pose. Therefore, while not all ministers (Comp. St. Supp. 1925, $8428934- who had lawfully entered under the broader 428934nn) and were excluded for this rea- statutes might bring in their families, those


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might who would have had the same right up- Immigration laws have repeatedly been on a later entry. This does not give a re- so treated. Chew Heong v. U. S., 112 U. S. troactive scope to the statute, since it allows 536, 5 S. Ct. 255, 28 L. Ed. 770; Holy Trini. no family to enter which arrived before July ty Church v. U. S., 143 U. S. 457, 12 S. Ct. 1, 1924. We think that the pronouns "his” 511, 36 L. Ed. 226; Lau Ow Bew v. U. S., and "him” may, without too great violence, 144 U. S. 47, 12 S. Ct. 517, 36 L. Ed. 340; be taken as incorporating the description of Tsoi Sim v. U. S., 116 F. 920, 54 C. C. A. the familial head only in terms of his quali- 154 (C. C. A. 9). It is quite true that in fications to enter, and not of his right to do Commissioner v. Gottlieb, supra, the Su

preme Court found the language of the act The occasion of the section strongly cor- too explicit to allow the same result. But roborates what we have inferred from its text. one case can scarcely be a precedent for anThe statute was passed on May 26, 1924, at other on a question of interpretation, where a time when the status of such a family was the result depends upon the utterance as a before the Supreme Court, which indeed de- whole, its occasion, and its precise exprescided Commissioner v. Gottlieb, 265 U. S. sion. Naturally we are especially solicitous 310, 44 S. Ct. 528, 68 L. Ed. 1031, on that to follow whatever may be the implications of very day. It was certainly intended to lay that decision, but with the best possible will any doubts which were known to exist, and we cannot see that it gives us any guidance which that decision proved to be well found- here, even though its subject-matter was so ed. After the decision, by resolution Con- closely akin. We conclude, therefore, that gress allowed all aliens to remain who had section 4 (d) exempted the family of a minentered on the faith of the decisions so re- ister who had himself entered before it went versed or overruled. Therefore the situa- into effect, and the conclusion of the District tion was that all who had entered could stay, Court is affirmed on that point. and all might in the future enter if the head As to the exclusion of the mother, Beila, of the family should himself enter after July, that she might act as an attendant upon the 1, 1924. But if the appellant be right, none child, Channa, the question is apparently may enter whose head was already here, moot. At least we are told that the little though he were within the more restricted girl has gone back with a satisfactory subclass than those allowed to remain by the stitute. We decline, therefore, to decide resolution. He must leave and come back whether the District Court has the power again. It seems to us not unreasonable to to interfere with the discretion of the Secredescribe such a result as fantastic, and such tary or Commissioner under section 18 of the a purpose is incredible to impute to Con- Basic Act (Comp. St. 1918, Comp. St. Ann. gress.

Supp. 1919, § 428974j). Since Beila is adWe acknowledge that our construction in missible per se, any ground for her exclufact involves substituting other words in sion has now disappeared. place of those used, and we shall seek no [2,3] Michel Duner must be excluded; he locutions to disguise the liberty taken or the falls within the language of section 3 of the risk assumed. We can appeal, however, to Act of 1917 (section 428914b) as a person the universal and ancient practice of courts “found to be and

certified by the in dealing with any kind of words. Their examining surgeon as being

• physpurpose may appear so clearly as to escape ically defective." Into that finding and cerdefeat, in spite of its imperfect expres- tificate we cannot inquire. U. S. ex rel. sion, and though other words must be im- Feuerstein v. Tod, 296 F. 127 (C. C. A. 2); puted to the author. In saying that we are Tambara v. Weedin, 299 F. 299 (C. C. A. thus ascertaining the author's intent we 9). Assuming for argument that we may speak somewhat elliptically. That intent as consider whether the defect was such as a fact in his mental life is irrelevant; his might affect his ability to earn a living, we words are taken to mean what they mean in have no evidence to contradict the finding of public use. But if the contrary expression the surgeon. The question was indeed inbe not too explicit, the disclosed purpose volved in U. S. ex rel. Engel v. Tod, 294 F. may prevail to cover an unforeseen event, 820 (C. C. A. 2), but was not discussed, and' which the author would certainly have com- that case is not to be understood as involving prised by proper words, had it been present- a holding to the contrary, as appears from ed to him. We can see no useful purpose in the later case of U. S. ex rel. Feuerstein v. denying that this is what takes place in such Tod, supra. cases, and is what we are doing here. [4, 5] Finally, we have the question whether

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10 F.(20) 41 the finding should stand that all the children We are not permitted to read into the are likely to become a public charge. The act an exemption which is not there. Comrecord is destitute of the slightest evidence missioner of Immigration v. Gottlieb, 265 U. justifying such a conclusion. Plainly it can- S. 310, 44 S. Ct. 528, 68 L. Ed. 1031; Chung not be because they are of tender years. It Fook v. White, 264 U. S. 443, 44 S. Ct. 361, is true that by the death of their parents they 68 L. Ed. 781. might become such, but so would any chil- I dissent. dren of like age. It is impossible that the statute meant to exclude all such children. Whatever may have been the decisions be

UNITED STATES V. LIAN et al. fore Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114, that case settled the rule

SAME V. HAMRAH. that there must be some evidence to support

(Circuit Court of Appeals. Second Circuit. that finding as well as any other. The,

December 7, 1925.) transposition of the phrase in section 3 has

Nos. 66, 67. nothing to do with that question. Whatever it now means, it must be still supported 1. Customs duties ww82--“Protest,” within by evidence. Drastic as are the powers of

statute making liquidation of duties conclu.

sive after one year, defined. the board, they cannot entirely escape all

Under Act June 22, 1874, § 21 (Comp. St. judicial review by the use of that phrase.

85714), providing that liquidation and payOrder affirmed as to Beila, Golde, Hudes, ment of duties and delivery of goods to importand Moshe Duner; order reversed as to er is conclusive on parties after one year from Michel Duner.

entry, in absence of fraud or protest by importer, “protest" means written document filed by

importer with collector against his decision as MANTON, Circuit Judge (dissenting). to rate and amount of duty for classification, Unfortunately, I think the immigrants here and does not include notice of dissatisfaction

with appraisement, leading to appeal therefrom, seeking admission must be excluded, because in view of Act Aug. 27, 1894, § 25 (Comp. St. of section 4 (d) of the Immigration Act of $ 6536), Act Feb. 27. 1877, amending Rev. St. 1924. It provides for admission, as nonquo- § 3011, Act Oct. 3, 1913, § 3, N (Comp. St. $ ta immigrants, of a minister (and family) 5595), Act June 30, 1864, § 14, Rev. St. § 2931, “who seeks to enter the United States solely Aug. 5, 1909.

Act June 10, 1890, Act July 24, 1897, and Act for the purpose of carrying on the vocation of minister of any religious denomination, 2. Customs duties E82–Importer may chal

lenge legality of appraisement by filing proand his wife, and his unmarried

test with collector at time of assessment. children under eighteen years of age, if ac- Under Tariff Act Oct. 3, 1913, importer may companying or following to join him." challenge legality of appraisement, or assert

Rabbi Duner was admitted to the United that it proceeded on wrong principle, contrary States prior to July 1, 1924, which is the ef

to law, by filing protest with collector at time

he assesses amount of duties on such illegal fective date of the immigration statute un

appraisement. der which his family seeks admission. He made no application to enter after July 1, 3. Customs duties mw 96-Liquidation and pay1924, and therefore was not in the class of

ment of duties and delivery of goods to im.

porters bars actions for additional duties after "one who seeks to enter the United States

year from entry. under section 4, subd. (d).” The wife and Where duties, under Tariff Act Oct. 3, 1913, children of a minister seeking to take advan- and Tariff Act 1894, § 25 (Comp. St. $ 6536), tage of this statute, I think, must of neces

were liquidated and paid, and goods delivered to sity be the family of a minister who entered importers, settlement was final and conclusive

on all after one year from entry, in absence of after July 1, 1924. There is no ambiguity in protest by importers, under Act June 22, 1874, the phrase of the statute. Therefore the $ 21 (Comp. St. § 5714), and government's intent of Congress is not important, and actions for additional duties were barred. there is no reason for the construction of the statute. Luria v. United States, 231 U. S. United States for the Southern District of

In Error to the District Court of the 9, 34 S. Ct. 10, 58 L. Ed. 101; Dewey v.

New York. United States, 178 U. S. 510, 20 S. Ct. 981, 44 L. Ed. 1170; Caminetti v. United States, Actions by the United States against 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, Abraham Lian and another, doing business L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; under the firm name and style of Lian & MaUnited States v. Four Hundred and Twenty barak, and against Alexander J. Hamrah, Dollars (D. C.) 162 F. 803.

doing business as Hamrah Bros. Judgments

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