Rederiaktiebolaget Nordstjernen v. United States

• Decision Date: 21 November 1932
• Docket Number: No. 6708.,6708.
• Citation: 61 F.2d 808
• Parties: REDERIAKTIEBOLAGET NORDSTJERNEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F.2d 808 (1932)

REDERIAKTIEBOLAGET NORDSTJERNEN v. UNITED STATES.^*

No. 6708.

Circuit Court of Appeals, Ninth Circuit.

November 21, 1932.

Zach Lamar Cobb and Earl A. Littlejohns, both of Los Angeles, Cal., and A. Warner Parker, of Washington, D. C., for appellant.

Samuel W. McNabb, U. S. Atty., and Clyde Thomas, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

WILBUR, Circuit Judge.

This is an appeal from a judgment for defendant in a suit brought under the Tucker Act, 28 USCA § 41 (20), to recover the amount of a fine of $1,000 paid under protest and alleged to have been unlawfully assessed and collected by the collector of customs for Customs Division No. 27, State of California.

To appellant's second amended complaint demurrer was sustained and judgment of dismissal with costs entered.

The complaint as amended in substance alleges that plaintiff is a corporation organized and existing under the laws of the Kingdom of Sweden, and is the owner and operator of various vessels plying between ports of the United States and various ports of Europe; that one of said vessels, the Axel Johnson, was engaged in a trip from the port of Antwerp, Belgium, to the port of San Pedro, Cal.; that prior to the sailing of said vessel plaintiff's agents booked for passage Josephine Baardsen, and that "prior thereto, made due inquiry in good faith as to the right of said passenger to come to and remain within the United States," and at the time of bringing said passenger — September, 1929 — to the port of San Pedro "acted in good faith and in the belief that she had the lawful right to come to and remain in the United States." Then follow allegations reading:

"That after arriving at said port of San Pedro, California, plaintiff discovered for the first time that said Josephine Baardsen was an alien, but the fact was that said Josephine Baardsen was an alien theretofore lawfully domiciled in the United States, and was returning from a temporary visit abroad, who, on arriving at the port of San Pedro, did not have in her possession either a re-entry permit or a non-quota visa, and that said Josephine Baardsen had lived in the United States for a great many years prior thereto and spoke English with practically no accent, and that thereupon said Josephine Baardsen was admitted for permanent residence into the United States of America by the immigration authorities under Section 13(b) of the Immigration Act of May 26, 1924, 8 USCA § 213(b), notwithstanding her lack of a reentry permit or a non-quota visa at the time of her entry at said port of San Pedro, as aforesaid.

"That shortly after the arrival of said `Alex Johnson' at said port of San Pedro, California, the said defendant, by and through Lewis H. Schwaebe, as Collector of Customs for District No. 27 of the United States, and for said port of San Pedro, by and through his deputies then in charge of said port of San Pedro, unlawfully assessed a fine against plaintiff herein in the sum of one thousand ($1,000.00) dollars, by reason of bringing said Josephine Baardsen on said vessel from said port of Antwerp, to said port of San Pedro in the United States, which fine was purported to be assessed under the provisions of section 16 of the Immigration Act of May 26th, 1924 (8 USCA § 216), and that thereafter, in order that said vessel might be granted clearance, plaintiff paid, under protest, to said Lewis H. Schwaebe, as said Collector of Customs for the United States, said sum of one thousand ($1,000.00) dollars, and that although demand has been made upon the defendant herein for the refund of said sum of one thousand ($1,000.00) dollars, no part thereof has been paid to plaintiff, and the whole is now due, owing and unpaid by defendant to plaintiff."

The question of law presented is the construction to be placed on sections 2, 10, 13, and 16 of the Immigration Act of 1924, 43 Stat. 153 (8 USCA §§ 202, 210, 213, 216). In so far as material for present consideration, said sections as they appear in the code annotated read:

"§ 202. * * * (d) Notation on passport of number of visa. If an immigrant is required by any law, or regulations or orders made pursuant to law, to secure the visa of his passport by a consular officer before being permitted to enter the United States, such immigrant shall not be required to secure any other visa of his passport than the immigration visa issued under this subchapter, but a record of the number and date of his immigration visa shall be noted on his passport without charge therefor. This subdivision shall not apply to an immigrant who is relieved, under subdivision (b) of section 213 of this title, from obtaining an immigration visa." (Italics ours.)

"§ 210. (a) Reentry permits; persons entitled to; application for; form and contents; verification; photograph accompanying. Any alien about to depart temporarily from the United States may make application to the Commissioner General for a permit to reenter the United States. * * *

"(e) Surrender of permit on return to United States. Upon the return of the alien to the United States the permit shall be surrendered to the immigration officer at the port of inspection.

"(f) Effect of permit on rights of alien. A permit issued under this section shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning."

"§ 213. (a) Persons not to be admitted. No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa or was born subsequent to the issuance of the immigration visa of the accompanying parent, * * * and (4) is otherwise admissible under the immigration laws.

"(b) Readmission of legally admitted aliens who have temporarily departed without visas. In such classes of cases and under such conditions as may be by regulations prescribed immigrants who have been legally admitted to the United States and who depart therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa. * * *

"(f) Fines not to be remitted or refunded. Nothing in this section shall authorize the remission or refunding of a fine, liability to which has accrued under section 216 of this title."

"§ 216. Unlawful bringing of alien into United States by water; penalty; amount; clearance to vessels; remission or refundment. (a) It shall be unlawful for any * * * transportation company, or the owner, * * * of any vessel, to bring to the United States by water from any place outside thereof * * * (1) any immigrant who does not have an unexpired immigration visa. * * *

"(b) If it appears to the satisfaction of the Secretary of Labor that any immigrant has been so brought, such person or transportation company, or * * * owner, * * * of any such vessel, shall pay to the collector of customs * * * the sum of $1,000 for each immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter sum to be delivered by the collector of customs to the immigrant on whose account assessed. * * *

"(c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Secretary of Labor that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa. * * *"

The rules adopted by the immigration authorities expressly provide for the admission of a nonquota immigrant who had been previously lawfully admitted to the United States and is returning from a temporary visit abroad. This regulation which is quoted in Johnson v. Keating (C. C. A.) 17 F. (2d) 51, col. 2 (rule 3, par. 2, sub. 1), authorizes the admission of such alien, if he shall establish the fact to the satisfaction of the examining official. It is provided that the return permit is prima facie evidence of the fact that the alien is returning from a temporary visit abroad, but is not a sine qua non of his admission. We therefore have a regulation adopted by the immigration authorities which authorized the admission of the immigrant in this case upon proof of a right to be admitted. In this connection it should be stated that rule 3, par. 2, sub. 1, supra, has since been amended to require an unexpired re-entry permit, except in the case of persons coming in from Canada, etc. It is evident from the above quoted provisions of the Immigration Act and from the regulation referred to, that for the purposes of entry an unexpired re-entry permit is the equivalent of an immigration visa. This was decided by the Supreme Court, or, at least assumed by it, in United States ex rel. Polymeris et al. v. Trudell, 284 U. S. 279, 52 S. Ct. 143, 144, 76 L. Ed. 291. The court...