Compagnie General Transatlantique v. United States

• Decision Date: 07 July 1927
• Citation: 21 F.2d 465
• Parties: COMPAGNIE GENERAL TRANSATLANTIQUE v. UNITED STATES (two cases).
• Court: U.S. District Court — Southern District of New York

21 F.2d 465 (1927)

COMPAGNIE GENERAL TRANSATLANTIQUE v. UNITED STATES (two cases).

District Court, S. D. New York.

July 7, 1927.

Joseph P. Nolan, of New York City, and Roger O'Donnell, of Washington, D. C., for plaintiff in action No. 1.

Joseph P. Nolan and John M. Lyons, both of New York City, for plaintiff in action No. 2.

Emory R. Buckner, U. S. Atty., of New York City (Frank Chambers, Asst. U. S. Atty., of New York City, of counsel), for the United States.

AUGUSTUS N. HAND, District Judge.

The first of the above two actions was brought to recover $200, which was paid to the collector of customs for the port of New York, to be held as a special deposit pending determination by the Secretary of Labor as to the assessment of a fine amounting to $200 on account of bringing an illiterate alien to the United States. This alien was at first excluded as illiterate by the inspection officers of the United States immigration service, but thereafter granted permanent admission.

The plaintiff paid the said sum over to the collector as an alternative to threatened refusal of clearance of its vessel unless and until such payment was made. Thereafter the collector, acting pursuant to an order issued at the direction of the United States Secretary of Labor, and at the special instance and direction of the Commissioner of Immigration for the port of New York, paid the said sum of $200 into the Treasury of the United States as an alleged immigration fine. The payment into the Treasury was made because the defendant was unmindful of the permanent admission of the alien.

Section 9 of the Immigration Laws (39 Stat. 880 Comp. St. § 4289¼e) provides that, if it shall appear to the satisfaction of the Secretary of Labor that the illiteracy of an immigrant might have been detected by the exercise of reasonable precaution prior to the departure of such alien from a foreign port, such person shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $200 for each violation. The section also says that:

"* * * No vessel shall be granted clearance papers pending the determination of the question of the liability to the payment of such fines, or while the fines remain unpaid, nor shall such fines be remitted or refunded: Provided, that clearance may be granted prior to the determination of such questions upon the deposit of a sum sufficient to cover such fines."

The second case contains three causes of action. The first alleges that the plaintiff brought to the United States an alien named Taboada, who was ordered excluded and deported by the Secretary of Labor on the ground that he was a quota immigrant and not a nonquota immigrant as specified in his visa. The plaintiff was advised by the Commissioner of Immigration that upon the disclosed facts a fine of $1,000 had been incurred, and gave plaintiff 30 days within which to submit evidence to show why such fine should not be collected; that plaintiff submitted such evidence showing that he came under section 4(b) of the Immigration Law (43 Stat. 155 8 USCA § 204), and was "an immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad"; that thereafter, notwithstanding the alien was returning from a temporary visit abroad, the plaintiff was notified by the defendant that the Secretary of Labor had directed that a fine be imposed, which fine of $1,000 was paid to the collector of customs under protest, solely to avoid damage due to delay or refusal of clearance of the plaintiff's vessel.

It is further alleged that no statute of the United States was violated, and that the act of the Secretary of Labor in imposing a fine was without lawful authority and arbitrary, and that the defendant received said money to the use of the plaintiff.

The second and third causes of action are similar in principle, though having somewhat different facts. The law under which the fines were imposed in the second case was section 16 (a) and (b) of the Immigration Act of 1924 (8 USCA § 216), which reads as follows:

"Sec. 16 (a). It shall be unlawful for * * * any transportation company, * * * to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) * * * any quota immigrant having an immigration visa the visa in which specifies him as a nonquota immigrant.

"(b) If it appears to the satisfaction of the Secretary of Labor that any immigrant has been so brought, such * * * transportation company * * * shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each immigrant so brought. * * * No vessel shall be granted clearance pending the determination of the liability * * * except that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such sums. * * *"

The actions are brought under the Tucker Act to recover money had and received to the use of the plaintiff. The Tucker Act (28 USCA § 41 20; Comp. St. § 99120), provides:

The United States District Courts shall have original jurisdiction as follows: * * *

"Twentieth — Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, * * * or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable."

The basis of the within causes of action is a "law of Congress," so that the discussion in the briefs as to whether there can be a...