Durning v. McDonnell
| Citation | 86 F.2d 91 |
| Decision Date | 02 November 1936 |
| Docket Number | No. 54.,54. |
| Parties | DURNING, Collector of Customs, v. McDONNELL et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, of New York City, of counsel), for appellants.
Lamar Hardy, U. S. Atty., of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This action is upon a bond executed in 1924 by McDonnell and Truda, as principals, and American Surety Company, as surety. The principals were acting as general agents for Transatlantica Italiana, a steamship company whose vessels plied between European ports and the port of New York, and the bond was given for the purpose of obtaining clearance of its vessels, which might otherwise be held at the port of New York to await the determination of liability for fines and penalties which might thereafter be asserted against said general agents or the vessels under certain sections of the Immigration Act of 1924. The bond was conditioned upon payment to the collector of customs of "all fines and penalties imposed against any vessel * * * by reason of the violation of any of the provisions of sections 16, 19, 20 and 26" of said Act (8 U.S.C.A. §§ 216, 166 and notes, 167, 145) "for the payment of which the said McDonnell & Truda, General Agents for the Transatlantic Italiana or any such vessel shall be determined to be liable." A breach of the condition was alleged in the complaint, and was found by the district court to have occurred, by reason of the failure of the defendants to pay fines imposed by the Secretary of Labor under said section 26 (8 U.S.C.A. § 145) against said general agents with respect to three inadmissible aliens who were brought to the port of New York during 1927 upon a vessel of the above-mentioned steamship company. The fines in question were imposed early in 1928, and this action was not brought until more than five years thereafter.
Because of this delay the defendants contend that the suit is barred by the statute of limitations, and this presents the main question raised by the appeal. The statute relied upon (28 U.S.C.A. § 791) forbids prosecution of a suit for any penalty or forfeiture unless the same is commenced within five years from the time when the penalty or forfeiture accrued, provided the person liable shall have been subject to process during that period. McDonnell and Truda were subject to process during all of the five year period. If this were an action upon the statutory liability of the general agents, the statute would be a bar. But it is not. It is an action upon the defendants' promise to pay penalties for which the agents "shall be determined to be liable." No statute of limitations has run against this promise. See Raymond v. United States, Fed.Cas.No. 11,596 (C.C.S. D.N.Y.); United States v. U.S. Fidelity & Guaranty Co., 221 F. 27 (C.C.A.4); United States v. Springer & Lotz, 69 F.(2d) 819, 820 (C.C.A.2); United States v. John Barth Co., 279 U.S. 370, 49 S.Ct. 366, 73 L.Ed. 743. The appellants take the position that the phrase above quoted refers to a determination of liability by a court and that such a determination cannot be made by any court after the expiration of five years after the Secretary's action. We cannot agree. When the Secretary of Labor imposed the fine, he determined liability of the agents within the meaning of the bond. National Surety Co. v. Holtzman, 43 F.(2d) 544, 546 (C.C.A.4). It is true that the correctness of his determination is subject to judicial review in an action upon the bond, for "the bond secured only valid fines, and if there were none, it was not forfeited." United States v. Columbus Marine Corporation, 62 F.(2d) 795, 796 (C.C.A.2). But determination whether the fine was validly imposed by the Secretary is not within the prohibition of section 791 unless the suit...
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United States v. Worldwide Indus. Enters., Inc., 16–CV–2255 (JFB) (SIL)
...of limitations question. Id. The court distinguished the remaining cases on more fact-specific grounds. Id. at 921 (distinguishing Durning, 86 F.2d 91, because, there, "more than five years had elapsed since the assessment of the administrative penalty," and C & R Trucking , 537 F.Supp. 108......
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U.S. v. Meyer
...Fifth Circuit in Core and/or by the appellee, supply no sturdier support for a narrow reading of 28 U.S.C. Sec. 2462. In Durning v. McDonnell, 86 F.2d 91 (2d Cir.1936), cert. denied, 300 U.S. 682, 57 S.Ct. 753, 81 L.Ed. 885 (1937), for example, more than five years had elapsed since the ass......
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U.S. v. Core Laboratories, Inc.
...Shipping Co. v. Durning, 98 F.2d 751, 753 (2d Cir.), cert. denied, 305 U.S. 635, 59 S.Ct. 102, 83 L.Ed. 408 (1938); Durning v. McDonnell, 86 F.2d 91, 92-93, cert. denied, 300 U.S. 682, 57 S.Ct. 753, 81 L.Ed. 885 (1937); The Ng Ka Py Cases, 24 F.2d 772, 774 (9th Cir.1928); United States v. A......
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United States v. Bornn
...§ 791, does not bar action to recover on the bonds. United States v. Mack, 295 U.S. 480, 55 S.Ct. 813, 79 L.Ed. 1559; Durning v. McDonnell, 2 Cir., 86 F.2d 91. The surety makes a final point of the fact that the formula for the denatured alcohol withdrawn by Bornn was changed at the directi......