International Mercantile Marine Co. v. Stranahan

• Decision Date: 24 August 1907
• Citation: 155 F. 428
• Parties: INTERNATIONAL MERCANTILE MARINE CO. v. STRANAHAN. OCEANIC STEAM NAVIGATION CO. v. SAME.
• Court: U.S. District Court — Southern District of New York

155 F. 428

INTERNATIONAL MERCANTILE MARINE CO. v. STRANAHAN.

OCEANIC STEAM NAVIGATION CO. v. SAME.

United States Circuit Court, S.D. New York.

August 24, 1907

The plaintiffs in these suits are steamship owners in the North Atlantic trade; the International Mercantile Marine Company operating the American and Red Star lines, and the Oceanic Steam Navigation Company the White Star line. Defendant is the collector of customs at this port. The actions are brought to recover, as illegally exacted, various sums of $100 each, paid defendant as a condition of procuring clearance for certain of plaintiffs' ships. Defendant's justification for such exaction is section 9 of the immigration act of March 3, 1903 (32 Stat. 1215, c 1012 (U.S. Comp. St. Supp. 1905, p. 279)), declaring it 'unlawful for any person including any transportation company * * * to bring into the United States any alien afflicted with a loathsome or with a dangerous contagious disease,' and further prescribing that 'if it shall appear to the satisfaction of the Secretary of Commerce and Labor that any alien so brought * * * was afflicted with such disease at the time of foreign embarkation, and that the existence of such disease might have been detected by means of a competent medical examination at such time, such * * * transportation company * * * shall pay to the collector of customs * * * $100 for each and every violation of the provisions of this section; and no vessel shall be granted clearance papers while any such fine imposed upon it remains unpaid. ' Plaintiff transportation companies did bring to this country aliens afflicted with the proscribed diseases. It did appear to the satisfaction of the Secretary that the aliens were so afflicted when plaintiffs embarked them, and that their condition might have been detected by competent medical examination. Neither here, nor before any departmental officer, have plaintiffs disputed these facts it being the essence of their demand that the existence of disease and the absence of proper inspection therefor are alike immaterial, inasmuch as either the statute under which defendant acted, or the procedure under it, or both, are unconstitutional and therefore ineffectual to prevent recovery of moneys exacted by defendant under the obvious compulsion of stopping the voyage of a ship worth millions until a paltry hundred was forthcoming.

The practice under section 9 has not at all times been the same. Before January 25, 1905, the procedure (in New York at all events) was to examine the immigrants and decide whether any were obnoxious to the section, after which a notice was sent the shipowner, informing him, in substance, that he would pay a fine of $100 per diseased immigrant before his ship could clear, and this writing was the first communication of any sort given by the Department to the carrier on the subject. After the date mentioned, written notice was first given the shipowner that diseased aliens had been discovered on a given ship, and that the Secretary was satisfied that their condition could and should have been ascertained at the time and by the examination mentioned in section 9, wherefore 14 days were given wherein the persons notified might show cause why their ship should not be fined, and in the meantime clearance was granted only on deposit of $100 as security for the payment of each fine that might be ultimately imposed. This change in practice was wrought by circular 58, and some of the money now sued for was exacted before the circular and some after.

So far as the evidence herein discloses, circular 58 made no difference at all to these plaintiffs. Before the circular date, they unofficially knew, as soon as inspection of immigrants completed, how many fines they would be required to pay for any given ship, getting such information from their own representatives whose business took them regularly to Ellis Island, and after the circular they had the same means of knowledge, plus a notice which told them nothing new, if their Ellis Island men were alert. But whether information of trouble came in one way or another, plaintiffs' course was the same-- i.e., to do nothing-- so far as denying the Department's allegations was concerned. These are, I believe, the facts shown by the evidence, all objections to which have been overruled, in order that everything on which counsel have based argument may be before the appellate court, and not because I deem all the evidence material or relevant. On the contrary, I do not think that the information gleaned by plaintiffs through their own men, whether before or after circular 58, bound them at all. For legal purposes the first knowledge they had of official purpose or decision, at any time, was the official notice. Further, I consider 14 days an unreasonably short time within which to show cause, if the shipowners were unprepared with any information regarding the physical condition of their passengers on embarkation, which was the state of the case, and which plaintiffs' counsel assume as a reasonable and lawful position on their clients' part. The fact is that the carriers brought in the aliens on the chance that they would not be deported, and they now assert in effect that the 'rules of the game' have not been observed in punishing them for taking the chance.

The cases have been tried without a jury. Formal findings will be signed in accordance with this statement and the following opinion.

William G. Choate and Lucius H. Beers, for plaintiffs.

Henry L. Stimson, U.S. Atty., W. T. Denison, and F. Frankfurter, for defendant.

HOUGH District Judge (after stating the facts as above).

To declare unconstitutional, especially in a court of first instance, an act of Congress, is an exercise of judicial power warranted (in cases where no great and immediate financial loss is threatening) only when the unconstitutionality exists beyond a rational doubt. The practice of which the statute under consideration is an instance-- i.e., using a refusal of clearance as a means of extorting settlement of governmental claims-- is nearly as old as the Union (Rev. St. Sec. 4206 (U.S. Comp. St. 1901, p. 2843)), and has for 20 years past been a part of our immigration system (Act Feb. 23, 1887, c. 220, Sec. 8, 24 Stat. 415 (U.S. Comp. St. 1901, p. 1293); Act March 3, 1891, c. 551, Sec. 10, 26 Stat. 1086 (U.S. Comp. St. 1901, p. 1299)). I am not advised of any previous attack upon the practice. It is not asserted that the exact form of words contained in section 9 of the act of March 3, 1903 (32 Stat. 1215, c. 1012 (U.S. Comp. St. Supp. 1905, p. 279)), is any older than that statute, but I believe that most of the battery of argument directed against it might with equal force have been used against other acts of Congress for many years back; and that fact alone would strongly incline me to leave the constitutional question for the higher courts, pursuing the course illustrated by Spreckels Co. v. McClain, 113 F. 244, 51 C.C.A. 201.

I do not, however, incline to think the act unconstitutional. For some years I have regarded it as harshly opposed to the spirit of the Constitution, and perhaps capable of use in derogation of earlier treaty rights of citizens of friendly nations, yet entirely within the congressional power of regulating foreign...