Lloyd Sabaudo Societa Anonima per Azioni v. Elting

• Decision Date: 02 September 1930
• Citation: 45 F.2d 405
• Parties: LLOYD SABAUDO SOCIETA ANONIMA PER AZIONI v. ELTING, Collector of Customs.
• Court: U.S. District Court — Southern District of New York

45 F.2d 405 (1930)

LLOYD SABAUDO SOCIETA ANONIMA PER AZIONI v. ELTING, Collector of Customs.

District Court, S. D. New York.

September 2, 1930.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, of New York City, of counsel), for plaintiff.

Charles H. Tuttle, of New York City (Walter H. Schulman, of New York City, of counsel), for defendant.

PATTERSON, District Judge.

The complaint contains fifteen causes of action, to recover fifteen fines paid under protest by the plaintiff, a steamship company, to the defendant, collector of customs of the port of New York. The fines were imposed by the Secretary of Labor, at various times from 1923 to 1926, under the provisions of 8 USCA § 145. The first two sentences of this section read as follows:

"It shall be unlawful for any person, including any transportation company other than railway lines entering the United States from foreign contiguous territory, or the owner, master, agent, or consignee of any vessel, to bring to the United States either from a foreign country or any insular possession of the United States any alien afflicted with idiocy, insanity, imbecility, feeble-mindedness, epilepsy, constitutional psychopathic inferiority, chronic alcoholism, tuberculosis in any form, or a loathsome or dangerous contagious disease, and if it shall appear to the satisfaction of the Secretary of Labor that any alien so brought to the United States was afflicted with any of the said diseases or disabilities at the time of foreign embarkation, and that the existence of such disease or disability might have been detected by means of a competent medical examination at such time, such person or transportation company, or the master, agent, owner, or consignee of any such vessel, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000, and in addition a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, for each and every violation of the provisions of this section, such latter sum to be delivered by the collector of customs to the alien on whose account assessed. It shall also be unlawful for any such person to bring to any port of the United States any alien afflicted with any mental defect other than those above specifically named, or physical defect of a nature which may affect his ability to earn a living, as contemplated in section 136 of this title, and if it shall appear to the satisfaction of the Secretary of Labor that any alien so brought to the United States was so afflicted at the time of foreign embarkation, and that the existence of such mental or physical defect might have been detected by means of a competent medical examination at such time such person shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $250, and in addition a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, for each and every violation of this provision, such latter sum to be delivered by the collector of customs to the alien for whose account assessed."

It will be seen that the first sentence empowers the Secretary to exact a fine of $1,000 for transporting aliens suffering from enumerated mental and physical diseases, and that the second sentence authorizes him to impose a fine of $250 for transporting aliens afflicted with any other mental defect or physical defect sufficient to affect their ability to earn a living. The fines shall be assessed, however, only in cases where it appears to the Secretary's satisfaction that the ailment or disability might have been detected by a competent examination at the time of embarkation.

In all fifteen cases, the plaintiff had transported from Italy to the United States aliens who were found upon arrival here to be inadmissible because of disease or defects. In each instance, the physicians who examined the alien at Ellis Island rendered a written opinion that the existence of the disease or disability might have been detected by a competent medical examination at the time of embarkation in Italy. The plaintiff was notified by the Secretary of Labor that a fine was under consideration, and was given a period of sixty days within which to have a hearing in the matter. The plaintiff protested against the imposition of a fine, stating generally in letters, and in one or two cases submitting affidavits, that thorough medical examinations of all aliens seeking passage on its boats were conducted by competent doctors at the port of embarkation. Fines were nevertheless imposed, the Secretary of Labor declaring that, while he had given consideration to the matters presented to him by the plaintiff, such matters did not overcome the force of the opinion of the examining physicians at Ellis Island.

At the trial, the plaintiff introduced testimony tending to show in considerable detail that all prospective passengers were put through at least two medical examinations in Italy, and that the doctors who conducted the examinations were skilled in their profession and were diligent in carrying out the examinations. This testimony was objected to, but was admitted, subject to motion to strike out. The plaintiff also offered evidence tending to show that the decisions in these and similar fine cases had been generally unfavorable to the steamship companies. This evidence was also admitted, subject to being stricken out on the defendant's motion. By stipulation the case was tried before a jury of one.

In seeking recovery of the fines paid, the plaintiff has advanced three arguments that apply to all fifteen causes of action. One ground of attack is that section 145 is unconstitutional. Another ground is that the Secretary's power to impose a fine exists only in cases where in fact no competent medical examination was enforced by the steamship company. A third is that the Secretary's action in all fifteen cases was arbitrary and unfair. In addition to these points common to all fifteen fines, there are additional contentions against the validity of several of the fines.

1. Section 145 is from the 1917 act, the change made in 1924 having been an increase in the amount of the fines. An earlier act, imposing a fine of $100 in cases of aliens suffering from loathsome or dangerous contagious diseases, was construed and held constitutional in Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 29 S. Ct. 671, 53 L. Ed. 1013. The plaintiff assails the constitutionality of the present section, pointing out that the fine in cases of loathsome or dangerous contagious diseases is ten times as large as the fine sustained in the Stranahan Case, that a fine of $250 for physical or mental defectives has now been added, and that both fines include also the amount of the passage money, which was not a part of the fine under the earlier act. It is claimed that fines in these amounts are excessive, especially in view of the fact that they are leviable upon the decision of an officer of the executive branch without judicial action of any sort, and it is said that the plaintiff's property has thus been taken without due process of law. The power of Congress to place upon steamship companies the duty of subjecting prospective passengers to a competent medical examination and of rejecting those who fail to pass the test cannot be questioned. So, also, as to the imposition of a fine for failure to perform this duty, and as to delegating to the Secretary of Labor the right to decide in particular cases whether the duty has been performed or neglected. These propositions were settled by the Stranahan Case. The policy behind this statute is plain. In order to strengthen the barriers against the entrance of diseased and defective foreigners, many of whom were slipping past the examiners at our ports, Congress saw fit to require the steamship companies to conduct examinations on the other side. The desirability of preventing the spread of contagion during the voyage probably also played a part. The requirement of refund of the passage money must have been due to an appreciation of the hardship on the rejected alien who should never have been brought here, as well as to a sense of increasing the amount of the punitive fine. The only point not settled by the Stranahan Case is the reasonableness of the penalties under the present statute. It seems clear to me that the fairness of the scale of fines is a legislative rather than a judicial matter, and that protests on the score of excessiveness should be addressed to Congress and not to the courts. It certainly cannot be said that the fines now prescribed are outrageously high and manifestly out of line with the prohibited offense, and, until that point is reached, the statute is unassailable on the constitutional side. Cf. Navigazione Libera Triestina v. United States (C. C. A.) 36 F.(2d) 631, where a fine of $1,000 under another section of the 1924 act was upheld.

2. The plaintiff further contends that the jurisdiction of the Secretary of Labor to impose fines exists only where no competent examinations on the other side have been held, and that the evidence shown to the court establishes that competent examinations were held. In other words, the contention is that, if the actual fact is that competent examinations were conducted by the plaintiff, the Secretary lacked power to impose the fines, whether or not any proof as to the character of the examinations was laid before him. It seems to me that there is no merit in the argument. The statute reposes in the Secretary of Labor the power to determine whether a competent examination abroad might have revealed the presence of the disease or disability. The facts of a given case are to be determined by the Secretary upon the proof before...