United States v. Atlantic Fruit Co.

• Decision Date: 18 June 1913
• Docket Number: 230.
• Parties: UNITED STATES v. ATLANTIC FRUIT CO.
• Court: U.S. Court of Appeals — Second Circuit

206 F. 440

UNITED STATES v. ATLANTIC FRUIT CO.

No. 230.

United States Court of Appeals, Second Circuit.

June 18, 1913

Writ of error to review a judgment of the District Court, Southern District of New York, dismissing the complaint in a civil action brought by the government to recover the amount of fines alleged to have been incurred by the defendant for failing to comply with the provisions of section 8 of the act of March 3, 1893 (27 Stat. 570 (U.S. Comp. St. 1901, p 1303)), which reads as follows:

'That all steamship or transportation companies, and other owners of vessels, regularly engaged in transporting alien immigrants to the United States, shall twice a year file a certificate with the (Secretary of Commerce and Labor) that they have furnished to be kept conspicuously exposed to view in the office of each of their agents in foreign countries authorized to sell immigrant tickets, a copy of the law of March third, eighteen hundred and ninety-one and of all subsequent laws of this country relative to immigration, printed in large letters, in the language of the country where the copy of the law is to be exposed to view, and that they have instructed their agents to call the attention thereto of persons contemplating immigration before selling tickets to them; and in case of the failure for sixty days of any such company or any such owners to file such a certificate, or in case they file a false certificate, they shall pay a fine of not exceeding five hundred dollars, to be recovered in the proper United States court, and said fine shall also be a lien upon any vessel of said company or owners found within the United States.'

The District Court dismissed the complaint upon the ground that a civil action does not lie for the recovery of the fines in question and the government has brought this writ of error.

Henry A. Wise, U.S. Atty., and A.S. Pratt, Asst. U.S. Atty., both of New York City.

R. J M. Bullowa, of New York City (James A. Fechtig, Jr., of New York City, of counsel), for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES Circuit Judge (after stating the facts as above).

The real question in this case is whether a civil action can be maintained for the recovery of the fines prescribed by this statute. It is not material whether a criminal prosecution could also be instituted. A civil remedy may exist without being exclusive.

There are two lines of authorities leading up to this question. One line holds that while the word 'fine' ordinarily implies a criminal proceeding it may when the amount is fixed and definite be treated as an equivalent of the word 'penalty' and afford the basis for a civil action. Another line supports the proposition that when a statute imposes a penalty indefinite in amount a civil suit may be brought for its recovery. But we are referred to no authority which goes quite to the question here and holds that a fine which is uncertain in amount may be sued for civilly.

But we think there is nothing in principle which prevents the step further. The word 'fine' is not treated as the equivalent of the word 'penalty' because the latter implies definiteness or certainty but because the courts find in particular cases that no distinction should be drawn between the words as describing a statutory pecuniary liability. So while there may be a doubt whether an action of debt will lie for the recovery of a penalty uncertain in amount there can be no question that a civil action of some...