Moller v. United States

• Decision Date: 20 June 1893
• Docket Number: 115.
• Parties: MOLLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F. 490

MOLLER v. UNITED STATES.

No. 115.

United States Court of Appeals, Fifth Circuit.

June 20, 1893

Statement by PARDEE, Circuit Judge:

This suit was instituted in the court below by filing petition as follows:

'Your petitioner, the United States of America, hereinafter styled plaintiff, by and through Robert E. Hannay, United States attorney for the eastern district of Texas, duly qualified as such, complaining of J. Moller and B. Adoue both of whom reside in Galveston county, Tex., under the jurisdiction of this court, and hereinafter styled defendants, respectfully represents and shows to the court:

'That the defendants were stockholders in Galveston Bagging &amp Cordage Factory, situated in Galveston county, Tex., in July, A. D. 1890, which is now and has been in operation for some months, making bagging and twine with machinery and a number of laborers, etc. At the same time the said J. Moller was an agent for certain ships, known as the 'Black Star Line of Steamers.' That during the month of July, A. D. 1890, the defendant, J. Moller, was in the city of Dundee, in Scotland, and, after receiving a letter from B. Adoue, president of the Galveston Bagging & Cordage Company Factory, as aforesaid, stating that they needed labor for said factory, and to get same, saw one James A. Russel, who resided in the city of Dundee, in Scotland, and was then and there employed in a jute and flax factory, the said James A. Russel being then and there a subject of Great Britain. That the said defendant Moller then and there encouraged, solicited, persuaded, and induced the said James A. Russel to consent and agree to come to Galveston county, Tex., to work in said bagging and cordage factory, and that on the 23d day of July, 1890, for a certain consideration specified in a verbal contract and agreement made by and between the defendant Moller and the said James A. Russel, he, the said Russel, did leave the city of Dundee, in Scotland, and went, at the special instance and request of said defendant Moller, to Liverpool, in England, where he remained until the 31st day of July, 1890, at which time he sailed on the steamship Empress, one of the Black Star Line steamers, for Galveston, Tex., where he arrived on the 22d day of August, 1890. That the defendant Moller, through his agent, provided the said Russel with money, and paid or caused his passage paid from Liverpool to Galveston, Tex. That before the said Russel left Scotland and said Moller promised him, and agreed that he should receive, fifty-two shillings for each week's work performed in the said bagging and cordage factory in Galveston, Tex. That when the said Russel arrived in Galveston, Tex., he reported for duty at the Galveston Bagging & Cordage Factory, and was assigned work, where he has continued in the employment of said Bagging & Cordage Factory Company ever since.

'The said James A. Russel was on the 10th day of July, A. D. 1890, and is now, a foreigner and alien, being then and there a citizen of Scotland, and subject of Great Britain, he never having taken the oath of allegiance to the United States, all of which was well known to the defendants at the time he was induced and employed by said defendants to come to Galveston county, Tex. That the defendants did, by acts and words, on the 10th day of July, A. D. 1890, and on divers days thereafter, solicit, encourage, persuade, and knowingly assist to migrate and import said James A. Russel, a foreigner and alien as aforesaid, into the United States of America, to wit, Galveston county, Tex., previous to said Russel becoming a resident and citizen of the United States, to perform labor as aforesaid in said bagging and cordage factory.

'That the encouraging, assisting, and bringing of said Russel to the United States, and to Galveston, Tex., was at the special instance and request of the said B. Adoue, who was president of said bagging and cordage factory, and that the same was done with full knowledge on the part of these defendants that the laws of the United States prohibited the importation of foreign laborers to work as aforesaid. Their acts were done willfully and knowingly, to evade, and in violation of, said law. The said contract and agreement made and entered into by and between the said James A. Russel and defendant Moller in Scotland, as aforesaid, was agreed to by said Russel, whereupon he consented and came to the United States, as aforesaid, in pursuance of said contract and agreement. Said agreement was ratified by said J. Moller on the 31st day of July, A. D. 1890, by his acts, through his agent, and subsequently again after said J. Moller returned to the United States, to wit, Galveston county, Tex. That for the violation of the United States laws, by knowingly assisting, encouraging, soliciting, migrating, and importing said alien, James A. Russel, as aforesaid, by the defendants into the United States of America to perform labor and service under said contract and agreement with said Russel, this suit is brought for the recovery of the forfeit and penalty of one thousand dollars, in behalf of the United States of America.

'Premises considered, plaintiff prays that the defendants be cited, as provided by law, to answer this petition, and that, upon final hearing of this cause, plaintiff have judgment for the sum of one thousand dollars and all the costs of this suit, and for general relief, and, as in duty bound, will ever pray.'

The defendants in the court below appeared and filed an original answer, wherein they first demurred generally to the aforesaid petition, and then specially excepted to said petition, because:

'(1) It does not charge any violation of the provisions of an act of congress entitled 'An act to prohibit the importation and immigration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia,' approved February 26, 1885, and the acts amendatory thereof.

'(2) It does not allege that the defendants, or either of them, prepaid the transportation of the aliens named in the petition into the United States. And

'(3) It does not state how, or by what means, defendants assisted, solicited, or encouraged the alleged importation of said aliens into the United States. And

'(4) It does not declare or set forth any contract or agreement to perform labor in the United States, made previous to the importation of said aliens.

'(5) The charges of persuasion, encouragement, etc., are conclusions of the pleader, rather than averments of fact.

'(6) The promise or agreement attempted to be declared on lacks mutuality, an essential element of a contract.

'(7) The averments of the petition are vague, uncertain, and indefinite, and not such as the law requires.

'(8) It does not allege that the said aliens were not skilled workmen brought to the United States, engaged under contract in a foreign country to perform labor in the United States in and upon a new industry, not at present established in the United States, nor that such labor could not be otherwise obtained.

'(9) It does not show any contract or agreement, wherefore defendants pray judgment that said petition be dismissed,' etc.

And further answering, the defendants denied, all and singular, the averments of the petition. The cause being called for trial, both parties, in writing, waived a jury, and submitted the questions of law and of fact to the court. The court overruled the general demurrer and special exceptions to the plaintiff's petition, and thereupon, after hearing evidence, found 'that the defendant B. Adoue is not liable as charged in the petition, but that the defendant Jens Moller is liable as charged, and is subject to a penalty in the statutory sum of one thousand dollars, and that judgment should be entered...