defective.

Court cannot inquire into finding and certificate that alien, desiring to enter country, is physically defective.

4. Aliens 54(9) — Finding that aliens are likely to become public charges must be supported by evidence.

Finding that aliens, seeking to enter country, are likely to become public charges, must be supported by evidence.

5. Aliens 54 (9)-Finding that children seek ing entry were likely to become public charges held unsupported by evidence.

Finding that all children of minister, who entered country solely to carry on his vocation, if allowed to enter, were likely to become public charges, held unsupported by evidence; their tender years and possibility of death of their parents being insufficient to justify such conclusion.

Manton, Circuit Judge, dissenting.

Appeal from the District Court of the United States for the Southern District of New York.

Habeas corpus proceedings by the United States, on the relation of Beila Duner and others, against Henry H. Curran, as Commissioner of Immigration. From an order releasing relators from an order of exclusion by the Secretary of Labor, the Commissioner appeals. Order affirmed in part, and reversed in part.

Appeal from an order on habeas corpus releasing the relators from an order of exclusion by the Secretary of Labor under the Immigration Acts.

The aliens are the wife and four children under 18 years of age of one Jacob S. Duner, an alien resident of the city of New York and the rabbi of a Jewish congregation in that city. Duner lived in Poland, where he had been a rabbi for about 18 years. He arrived in New York on November 3, 1923, under a call to a Jewish congregation, and for the sole purpose of pursuing his profession.

His wife and four children followed him, arriving in New York on November 11, 1924. Of these, the youngest, Channa, 4 years old, upon examination was found to be mentally defective, and was so certified by the surgeon in charge. His son Michel, 15 years old, on a similar examination was found to be suffering from a valvular disease of the heart, which might affect his ability to earn a living, and was so certified by the surgeon. All five of the aliens were beyond the quota admissible under the act of 1924 (Comp. St. Supp. 1925, §§ 428934428934nn) and were excluded for this rea

After an unsuccessful appeal to the Secretary of Labor from these decisions of the Board of Special Inquiry, the husband took out the writ, upon which the District Court discharged all the aliens except Channa, and allowed the mother, Beila, to furnish a suitable attendant in place of herself.

Emory R. Buckner, U. S. Atty. (James C. Thomas, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Morris Jablow, of New York City (Louis Marshall, of New York City, of counsel), for appellees.

HAND, Circuit Judge (after stating the facts as above). [1] The chief question is whether section 4 (d) of the Act of 1924 (Comp. St. Supp. 1925, § 428934b) applies to the wife and children of a minister or professor who entered the country before July 1, 1924, the date when it went into effect. The section is in two parts: First, it exempts from the quota a minister "who continuously for at least two years has been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation," etc. Second, it exempts "his wife,

if accompanying or following to join him." Grammatically the logic is inescapable; "his" and "him" refer to the minister or professor, who is exempted by the first part of the section. It is as though the section read: "We exempt the minister, and the wife of the minister whom we so exempt."

But the distinction is meaningless as matter of policy. We can see no possible difference in the desirability of the family, whether its head entered before or after July 1, 1924, so long as he answers the prescribed description. We, of course, agree that whenever he enters he must already have practiced his profession for two years and must have entered solely to carry it on, but beyond that we are not disposed to press grammar at the expense of the plain purpose. Therefore, while not all ministers who had lawfully entered under the broader statutes might bring in their families, those

might who would have had the same right upon a later entry. This does not give a retroactive scope to the statute, since it allows no family to enter which arrived before July 1, 1924. We think that the pronouns "his" and "him" may, without too great violence, be taken as incorporating the description of the familial head only in terms of his qualifications to enter, and not of his right to do

So.

The occasion of the section strongly corroborates what we have inferred from its text. The statute was passed on May 26, 1924, at a time when the status of such a family was before the Supreme Court, which indeed decided Commissioner v. Gottlieb, 265 U. S. 310, 44 S. Ct. 528, 68 L. Ed. 1031, on that very day. It was certainly intended to lay any doubts which were known to exist, and which that decision proved to be well found ed. After the decision, by resolution Congress allowed all aliens to remain who had entered on the faith of the decisions so reversed or overruled. Therefore the situation was that all who had entered could stay, and all might in the future enter if the head of the family should himself enter after July, 1, 1924. But if the appellant be right, none may enter whose head was already here, though he were within the more restricted class than those allowed to remain by the resolution. He must leave and come back again. It seems to us not unreasonable to describe such a result as fantastic, and such a purpose is incredible to impute to Con

gress.

We acknowledge that our construction in fact involves substituting other words in place of those used, and we shall seek no locutions to disguise the liberty taken or the risk assumed. We can appeal, however, to the universal and ancient practice of courts in dealing with any kind of words. Their purpose may appear so clearly as to escape defeat, in spite of its imperfect expression, and though other words must be imputed to the author. In saying that we are thus ascertaining the author's intent we speak somewhat elliptically. That intent as a fact in his mental life is irrelevant; his words are taken to mean what they mean in public use. But if the contrary expression be not too explicit, the disclosed purpose may prevail to cover an unforeseen event, which the author would certainly have comprised by proper words, had it been presented to him. We can see no useful purpose in denying that this is what takes place in such cases, and is what we are doing here.

Immigration laws have repeatedly been so treated. Chew Heong v. U. S., 112 U. S. 536, 5 S. Ct. 255, 28 L. Ed. 770; Holy Trinity Church v. U. S., 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Lau Ow Bew v. U. S., 144 U. S. 47, 12 S. Ct. 517, 36 L. Ed. 340; Tsoi Sim v. U. S., 116 F. 920, 54 C. C. A. 154 (C. C. A. 9). It is quite true that in Commissioner v. Gottlieb, supra, the Supreme Court found the language of the act too explicit to allow the same result. But one case can scarcely be a precedent for another on a question of interpretation, where the result depends upon the utterance as a whole, its occasion, and its precise expression. Naturally we are especially solicitous to follow whatever may be the implications of that decision, but with the best possible will we cannot see that it gives us any guidance here, even though its subject-matter was so closely akin. We conclude, therefore, that section 4 (d) exempted the family of a minister who had himself entered before it went into effect, and the conclusion of the District Court is affirmed on that point.

As to the exclusion of the mother, Beila, that she might act as an attendant upon the child, Channa, the question is apparently moot. At least we are told that the little girl has gone back with a satisfactory substitute. We decline, therefore, to decide whether the District Court has the power to interfere with the discretion of the Secretary or Commissioner under section 18 of the Basic Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894j). Since Beila is admissible per se, any ground for her exclusion has now disappeared.

[2, 3] Michel Duner must be excluded; he falls within the language of section 3 of the Act of 1917 (section 42894b) as a person "found to be and certified by the

examining surgeon as being physically defective." Into that finding and certificate we cannot inquire. U. S. ex rel. Feuerstein v. Tod, 296 F. 127 (C. C. A. 2); Tambara v. Weedin, 299 F. 299 (C. C. A. 9). Assuming for argument that we may consider whether the defect was such as might affect his ability to earn a living, we have no evidence to contradict the finding of the surgeon. The question was indeed involved in U. S. ex rel. Engel v. Tod, 294 F. 820 (C. C. A. 2), but was not discussed, and that case is not to be understood as involving a holding to the contrary, as appears from the later case of U. S. ex rel. Feuerstein v. Tod, supra.

[4, 5] Finally, we have the question whether

MANTON, Circuit Judge (dissenting). Unfortunately, I think the immigrants here seeking admission must be excluded, because of section 4 (d) of the Immigration Act of 1924. It provides for admission, as nonquota immigrants, of a minister (and family) "who seeks to enter the United States solely for the purpose of carrying on the vocation of minister of any religious denomination,

and his wife, and his unmarried children under eighteen years of age, if accompanying or following to join him."

Rabbi Duner was admitted to the United States prior to July 1, 1924, which is the effective date of the immigration statute under which his family seeks admission, He made no application to enter after July 1, 1924, and therefore was not in the class of "one who seeks to enter the United States under section 4, subd. (d)." The wife and children of a minister seeking to take advantage of this statute, I think, must of necessity be the family of a minister who entered after July 1, 1924. There is no ambiguity in the phrase of the statute. Therefore the intent of Congress is not important, and there is no reason for the construction of the statute. Luria v. United States, 231 U. S. 9, 34 S. Ct. 10, 58 L. Ed. 101; Dewey v. United States, 178 U. S. 510, 20 S. Ct. 981, 44 L. Ed. 1170; Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Four Hundred and Twenty Dollars (D. C.) 162 F. 803.

We are not permitted to read into the act an exemption which is not there. Commissioner of Immigration v. Gottlieb, 265 U. S. 310, 44 S. Ct. 528, 68 L. Ed. 1031; Chung Fook v. White, 264 U. S. 443, 44 S. Ct. 361, 68 L. Ed. 781. I dissent.

UNITED STATES v. LIAN et al.
SAME v. HAMRAH.

(Circuit Court of Appeals. Second Circuit. December 7, 1925.)

Nos. 66, 67.

1. Customs duties 82-"Protest," within statute making liquidation of duties conclusive after one year, defined.

Under Act June 22, 1874, § 21 (Comp. St. 85714), providing that liquidation and payment of duties and delivery of goods to importer is conclusive on parties after one year from entry, in absence of fraud or protest by importer, "protest" means written document filed by importer with collector against his decision as to rate and amount of duty for classification, and does not include notice of dissatisfaction with appraisement, leading to appeal therefrom, in view of Act Aug. 27, 1894, § 25 (Comp. St. § 6536), Act Feb. 27. 1877, amending Rev. St. § 3011, Act Oct. 3, 1913, § 3, N (Comp. St. § 5595), Act June 30, 1864, § 14, Rev. St. § 2931, Aug. 5, 1909. Act June 10, 1890, Act July 24, 1897, and Act

2. Customs duties 82-Importer may challenge legality of appraisement by filing protest with collector at time of assessment.

Under Tariff Act Oct. 3, 1913, importer may challenge legality of appraisement, or assert that it proceeded on wrong principle, contrary to law, by filing protest with collector at time he assesses amount of duties on such illegal appraisement.

3. Customs duties 96-Liquidation and payment of duties and delivery of goods to importers bars actions for additional duties after year from entry.

Where duties, under Tariff Act Oct. 3, 1913, and Tariff Act 1894, § 25 (Comp. St. § 6536), were liquidated and paid, and goods delivered to

importers, settlement was final and conclusive on all after one year from entry, in absence of protest by importers, under Act June 22, 1874, § 21 (Comp. St. § 5714), and government's actions for additional duties were barred.

In Error to the District Court of the United States for the Southern District of New York.

Actions by the United States against Abraham Lian and another, doing business under the firm name and style of Lian & Mabarak, and against Alexander J. Hamrah, doing business as Hamrah Bros. Judgments

agent or consignee, such entry and passage free of duty and such settlement of duties the time of entry, in the absence of fraud and shall, after the expiration of one year from in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties." Comp. St. § 5714. The defendants in error argue that "pro

MANTON, Circuit Judge. These actions were tried together, argued here as one, and will be considered in one opinion. In each case, the government seeks to recover for additional duties on merchandise imported by each defendant under the Tariff Act of October 3, 1913, 38 Stat. 114, and under section 25 of the Tariff Act of 1894, 28 Stat. 552 (Comp. St. § 6536), which were effective when the importations were made. The cases were tried upon a stipulation as to the facts.

The merchandise was entered, estimated duties were paid, and it was delivered to the defendants in error in November and December, 1919, and January, 1920. The balance of duties were liquidated and paid in May, July, and August, 1920, and MarchApril, 1921. There is no claim of fraud in the importations and entry of the merchandise. Appeals to reappraisement were filed and decided March 23, 1921. A reliquidation was had September 28, 1921, and additional duties were assessed by the collector under instructions from the Secretary of the Treasury under the provisions of section 25 of the Act of August 27, 1894 (28 Stat. 552). No protests were filed in accordance with section 3, subd. N, of the Tariff Act of 1913 (Comp. St. § 5595). [1] In answer to this suit for collection of the items found due under the reliquidations, the defendants in error say the reliquidations were illegal and void, in so much as they respectively took place more than one year after the respective dates of entry of the merchandise. The argument proceeds upon the basis that the Act of June 22, 1874, 18 Stat. 186, was effective at the time of the importations and is a limitation of the right to reliquidate. The act provides (section 21):

"That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall

ument filed with the collector after his liquidation as to the rate and amount of duties, and sets forth the importer's objections to such decision. Because no such protest was made, the contention is that the limitation of one year applied to the reliquidations made and that therefore they were outlawed. The government argues that the term "protest," as used in the Act of June 22, 1874, should reasonably be construed in a more general sense, and should include a notice of dissatisfaction with an appraisement leading to an appeal therefrom. The argument proceeds that the appeal to reappraisement, which was filed on March 23, 1921, is a protest within the meaning of this statute.

Ever since the enactment and to the present time, an importer, in connection with his importations, could ask for reappraisement of his merchandise, if dissatisfied with the valuations and assessments thereon. He could appeal from the appraisement. If dissatisfied with the decision of the collector as to the rate and amount, he could file a protest to that decision. The two are quite distinct. In other words, the decision of the appraisers as to the value of merchandise is the subject of an appeal to reappraisement, and the decision of the collector as to the rate and the amount of duties chargeable is the subject of protest. Learned counsel for the government argues, referring to earlier decisions, that the word "protest," used in the act in question, includes a notice of dissatisfaction of the appraisement and an appeal to reappraisement, and from this it is said that the time within which liquidation. could take place was extended in the case at bar by the pendency of the appeals to reappraisement. If this be true, the reliquidations were not affected by the one-year limitation in question.

In Davies v. Miller, 130 U. S. 284, 9 S. Ct. 560, 32 L. Ed. 932, the Supreme Court, in 1889, considering the Tariff Act of 1864 (13 Stat. 214) reviewed the importers' various rights of appeals up to 1864. There it is said that an importer who paid unauthorized duties might recover them from the col

lector by an action in assumpsit. It was held that this action could be based on an alleged incorrect appraisal, as well as on an alleged incorrect decision of the collector as to the rate and amount. Of course, the force of this decision is limited to the particular statutes considered. The terms "payment under protest" and "notice of dissatisfaction for appeals to reappraisement" may have been used indiscriminately in cases decided under other acts; but whether dissatisfaction is with the appraisement, or whether it is with the collector's decision as to the rate and amount, the method of voicing this dissatisfaction and obtaining relief is here fixed. The collector has the power to decide as to the rate of duty or classification of the merchandise, and computes the amount of duty predicated upon the amount or value found and returned to him by the officers in whom the law places the power to determine these factors and amount.

It is not the duty of the collector to fix or change the two factors of value or quantity. He could not predicate his original decision or liquidation on his own findings as to these factors, and it follows that he could not liquidate or reliquidate upon his own findings of the value of the currency where the statute (section 25 of the Act of August 28, 1894) provides that the "value so proclaimed shall be followed in estimating the value of all foreign merchandise exported to the United States during the quarter for which the value is proclaimed. Section 21 of the Act of June 22, 1874 (Comp. St. § 5714), is in effect a statute of limitations. The word "protest," there used, indicates a written document which is filed by an importer with the collector against his decision as to the rate and amount of duty for the classification of the merchandise. In the revision of the statute (Rev. Stat. § 3011) Congress used the noun "protest" (act of 1874) and again the term "protest" was used in the revision of February 27, 1877 (19 Stat. 247), which amended Rev. Stat. § 3011.

In Saltonstall v. Birtwell, 164 U. S. 54, 17 S. Ct. 19, 41 L. Ed. 348, the court considered the Act of March 3, 1883, 22 Stat. 488, in an action by an importer to recover duties paid under protest filed within 10 days after the ascertainment and liquidation of duties, and there referred to the testimony of the protest clerk and her duties, which it was said were "to receive and care for protests filed by importers against the rate of duty exacted by the collector of said

port upon their importations of merchandise." Reappraisement statutes require a notice in writing to be filed with the collector as an appeal to the reappraisement, whereas protests under the protest statutes require, not only that the protest be in writing, but in addition "setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto." See paragraph N, § 3, Act of 1913 (Comp. St. § 5595); section 14, Act June 30, 1864 (13 Stat. 214); Rev. Stat. § 2931; Customs Administration Act of June 10, 1890, 26 Stat. 136; Tariff Acts of July 24, 1897, 30 Stat. 151, and August 5, 1909, 36 Stat. 11. Wherever Congress used the word "protest" in connection with the customs statutes, it seems to have considered the decision of the collector. [2, 3] The cases to which our attention is called by the government considered protests challenging the legality of appraisements after the appraisements had been concluded, for the reason that the appraisers had erroneously included export taxes as an item of value, or erroneously determined the time and place to find value, or erroneously made a second appraisement, or that the collector erroneously assessed penalties because of an advance in values on appraisement. Bartlett v. Kane, 57 U. S. (16 How.) 263, 14 L. Ed. 931; Belcher v. Linn, 65 U. S. (24 How.) 508, 16 L. Ed. 754; Fielden v. Lawrence, Fed. Cas. No. 4,774, 3 Blatch. 120; Goddard v. Maxwell, Fed. Cas. No. 5,492, 3 Blatch. 131. These cases do not hold, as contended for, that the term "protest" was used in connection with an appeal to reappraisement. Under the Tariff Act of 1913, the importer may challenge the legality of an appraisal, or that the appraisal proceeded upon a wrong principle, contrary to law, by filing a protest with the collector at the time the collector assessed the amount of the duties placed upon such illegal appraisement. See Oberteuffer v. Robertson, 116 U. S. 499, 6 S. Ct. 462, 29 L. Ed. 706; Robertson v. Frank Bros. Co., 132 U. S. 17, 10 S. Ct. 5, 33 L. Ed. 236; Hermann et al. v. United States (C. C.) 84 F. 151. There was no protest filed within the meaning of this statute.

The duties upon the imported goods were liquidated and paid, and the goods delivered to the importer, all more than one year before these actions. This settlement of duties was final after the expiration of one year, and in the absence of protest by the importer is final and conclusive upon all. Judgment affirmed.