Stratton v. Oceanic Steamship Co.

• Citation: 140 F. 829
• Decision Date: 02 October 1905
• Docket Number: 1,181.
• Parties: STRATTON, Collector of Customs, v. OCEANIC STEAMSHIP CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

140 F. 829

STRATTON, Collector of Customs, v. OCEANIC STEAMSHIP CO.

No. 1,181.

United States Court of Appeals, Ninth Circuit.

October 2, 1905

The question involved in this case is one of law. The facts were stipulated and agreed upon substantially as follows: The defendant in error brought from foreign ports 210 alien passengers, who were then and there in transit through the United States and bound for foreign ports. Before permitting said passengers to land, the plaintiff in error demanded that the steamship company deposit two dollars for each and every passenger so transported, to be refunded upon proof satisfactory to the immigration officer in charge at the port of San Francisco that said aliens had passed by direct and continuous journey through and out of the United States, and refused to permit said passengers to land except on deposit being made. Thereupon the defendant in error duly protested against said action as being illegal, and because of the said refusal to permit the landing of said aliens from said vessels, and because of the injury to said defendant in error consequent thereon, the latter deposited with the collector the tax of two dollars for each of said aliens, and then and there notified the collector that it would sue to recover the same back. The collector then and there agreed that such deposit should in no wise or in any manner vitiate, prevent or prejudice any action at law, or any right of a judicial character, which the said defendant in error might see proper to commence. Said collector received said money subject to said protest, understanding, and agreement. The defendant in error did not give proof satisfactory to the immigration officers in charge at the port of San Francisco that said aliens, or any of them, had passed by direct and continuous journey through and out of the United States, as required by the provisions of rule 15 of the regulations respecting immigration. Demand was made for repayment, but refused, and no part has been repaid. This action was brought to recover the amount of money paid under protest.

Section 1 of the act of March 3, 1903, 'to regulate the immigration of aliens into the United States,' provides 'That there shall be levied, collected and paid a duty of two dollars for each and every passenger not a citizen of the United States, or of the Dominion of Canada, the Republic of Cuba, or of the Republic of Mexico, who shall come by steam sail, or other vessel from any foreign port to any port within the United States, or by railway or any other mode of transportation, from foreign contiguous territory to the United States. The said duty shall be paid to the collector of customs of the port or customs district to which said alien passenger shall come. * * * The duty imposed by this section shall be a lien upon the vessel which shall bring such aliens to ports of the United States, and shall be a debt in favor of the United States against the owner or owners of such vessels, and the payment of such duty may be enforced by any legal or equitable remedy. The head tax herein provided for shall not be levied upon aliens in transit through the United States,' etc. Section 22 of said act provides: 'That the commissioner general of immigration, in addition to such other duties as may by law be assigned to him, shall, under the direction of the Secretary of the Treasury, have charge of the administration of all laws relating to the immigration of aliens into the United States. * * * He shall establish such rules and regulations, prescribe such forms of bonds, reports, entries, and other papers, and shall issue from time to time such instructions, not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this act and for protecting the United States and aliens migrating thereto from fraud and loss,' etc. Act March 3, 1903, c. 1012, Secs. 1, 22, 32 Stat. 1213, 1219 (U.S. Comp. St. Supp. 1905, pp. 274, 285.)

Under the provisions of the statute the commissioner on August 26, 1903, adopted the following regulation: 'Rule 15. No alien desiring admission at a port of the United States for the professed purpose of proceeding directly therefrom to foreign territory shall be permitted to land thereat except after deposit with the collector of customs at said port by the master or owner of the vessel on which such alien is brought of the amount of the head tax ($2) prescribed by section 1 of the act approved March 3, 1903, said amount to be refunded upon proof satisfactory to the immigration officer in charge at the port of arrival that said alien has passed by direct and continuous journey through and out of the United States.'

The court rendered judgment in favor of the steamship company for the amount of money it had paid to the collector under protest.

Robt. T. Devlin, U.S. Atty., and Benjamin L. McKinley, Asst. U.S. Atty. (Edward E. Cushman, Sp. Asst. Atty. Gen., of counsel), for plaintiff in error.

Nathan H. Frank and Walter D. Mansfield, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after making the foregoing statement).

Is rule 15, quoted in the statement of facts, valid? This is the only question involved herein. If valid and reasonable, the judgment should be reversed. If valid and reasonable, the judgment should be reversed. If it is inconsistent with the law of March 3, 1903, and was adopted without authority of law, the judgment should be affirmed.

The law is well settled that the legislative power of the United States is vested in Congress, and that Congress has no authority to delegate that power to any administrative officer; but Congress has the power to authorize any of its administrative officers to make such rules and regulations as may be deemed necessary to enforce the provisions of the law. The true distinction in all such cases is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the second, no valid objection can be made. Dastervignes v. United States, 122 F. 30, 33, 58 C.C.A. 346, et seq., and authorities there cited. From this general rule it is apparent that the commissioner general of immigration could not, by any regulation which he might adopt, alter or amend the law. All that he could do would be to regulate the mode of proceeding to carry into effect the act of Congress, and adopt such rules, not inconsistent with the law, as were deemed necessary to carry out the provisions of the statute in such a manner 'as he shall deem best calculated for carrying out the provisions of this act and for protecting the United States and aliens migrating thereto from fraud or loss. ' This authority given by Congress to the commissioner necessarily invested him with a broad and wide discretion, unlimited in fact, save that it must not be 'inconsistent' with the law, and should not be unreasonable in its terms and conditions.

The border line of his power and authority is clearly defined; but the question, under the state of facts here presented, as to whether or not he kept within the bounds of his power, or exceeded it, is by no means as easy of solution. Does the rule alter or amend the law under which the commissioner acted? If so, in what respect? It is true that the law expressly provides that:

'The head tax herein provided for shall not be levied upon aliens in transit through the United States.'

But the rule does not say that it shall be levied before the immigrant is allowed to land. It does, however, require that a deposit must be made with the collector of the port of the amount of the head tax, and that this amount shall be refunded upon proof being made satisfactory to the immigration officer in charge that said alien has passed by direct and continuous journey through and out of the United States. The deposit of the money, as required by the rule, is simply one of the means adopted by the commissioner to prevent an evasion of the law. The possession of a ticket through the United States by a passenger on board of a vessel landing from any foreign port would be, at best, but prima facie evidence that the passenger in good faith intended to go through the United States, and not to remain in this country. If any alien passenger on board the vessel of the defendant in error concluded to dispose of his through ticket, or for any other reason chose to remain in the United States, the government would be liable to lose the head tax. It would, or at least might be, a loss to the government. Such conduct upon the part of an alien passenger would certainly be a fraud upon the government.

Can it therefore, be legally said that a regulation intended to prevent such fraud and imposition upon the part of the passenger in any manner altered or changed the law? How can a steamship company, which is responsible under the law for the payment of the head tax from every alien immigrant coming into the United States, complain of this rule? It has the power and means to protect itself from loss. It likewise has the power and means to furnish satisfactory proof to the immigration officer that the passenger aliens on its vessels have passed by direct and continuous journey through and out of the United States. The law holds the steamship company responsible for the payment of the head tax upon immigrants. Who can say that this regulation is not 'best calculated for carrying out the provisions of this act'? What other rule could be adopted...