United States v. Gay

• Decision Date: 06 June 1899
• Docket Number: 513.,512
• Parties: UNITED STATES v. GAY (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

95 F. 226

UNITED STATES v. GAY (two cases).

Nos. 512, 513.

United States Court of Appeals, Seventh Circuit.

June 6, 1899

Jesse J. M. La Follette, for plaintiff in error.

Ferdinand Winter, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

These two cases are identical in their facts, and were heard and submitted together as one case. The actions are brought to recover the penalty of $1,000 under the act of congress of February 26, 1885 (23 Stat. 332, c. 164). The first section of the act reads as follows:

'That from and after the passage of this act it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia, under contract or agreement, parol or special express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners to perform labor or service of any kind in the United States, its territories, or the District of Columbia.'

The plaintiff, in its amended complaint in No. 512, alleges: That the defendant, on the 20th day of July, 1893, did assist encourage, and solicit the importation and migration of a certain alien and foreigner into the United States, to wit, one James H. Ferguson, then a native of Scotland, and a subject of the queen of Great Britain and Ireland, for the purpose of performing manual labor as a draper, window dresser, and dry-goods clerk in the United States, under agreement made by the defendant with him prior to his migration. That to induce said Ferguson to migrate to this country the defendant caused an advertisement to appear in the Glasgow Herald, in substance as follows, to wit: 'Drapers wanted for a large house abroad. Apply Mr.Gay, Central Station Hotel, after 7 o'clock Thursday evening. ' That, in answer to said advertisement, Ferguson appeared at said Central Station Hotel, and met defendant, who represented to him that he, said Gay, represented the Syndicate Trading Company, of the city of New York, and that said company desired drapers to work in the United States, to wit, in the city of New York, and that they would receive wages from $12 to $14 per week for work. That defendant agreed with Ferguson that if he would go to the United States and work for said company as a draper, window dresser, and dry-goods clerk he should receive the sum of $14 per week, and, in addition, is passage money and cost of transportation from Scotland to New York would be refunded to him when he began work. That Ferguson, relying upon said promise, migrated to the United States for the purpose of fulfilling said agreement. There is no allegation for the purpose of fulfilling said agreement. There is no allegation that he ever was employed by any one, or did any work in the United States, or that his passage money was ever refunded. A general demurrer to the complaint was sustained by the court below, and the action dismissed, and the case brought to this court by writ of error.

Several questions were discussed on the hearing, but there is only one that we think it necessary to consider. The opinion of the court below, printed in the record, shows that the principal ground on which the action was dismissed was that a draper, window dresser, and dry-goods clerk did not come within the prohibition of the statute. The court says, in its opinion:

'The statute in question is highly penal, and must be so construed as to bring within its condemnation only those who are shown by the direct and positive averments in the declaration to be embraced within the terms of the law . It will not be so construed as to include cases which, although within the letter, are not within the spirit of the law. It must be construed in the light of the evil which it was intended to remedy, which, as is well known, was the importation of manual laborers, under contract previously entered into, at rates of wages with which our own laboring classes could not compete without compelling them to submit to conditions of life to which they were accustomed. (Citing authorities.) It is well settled by these and other cases that the statute must be construed as limited to cases where the assisted immigrant was brought into this country under a contract to perform 'Manual labor or service.' ' U.S. v. Gay, 80 F. 254.

We are of the opinion that this ruling is correct, in view of the previous construction placed upon the statute by the supreme court in Church of the Holy Trinity v. U.S., 143 U.S. 457, 12 Sup.Ct. 511, and U.S. v. Laws, 163 U.S. 258, 16 Sup.Ct. 998. Mr. Justice Brown, as district judge in Michigan, had already in U.S. v. Craig, 28 F. 795, given the motive and history of this act, and the situation which called for it, as follows: 'The motives and history of the act are matters of common knowledge. It had become the practice for large capitalists of this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level of the assisted immigrant. The evil finally became so flagrant that an appeal was made to congress for the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage.'

This language is quoted by the supreme court in its opinion by Mr. Justice Brewer with approval in Church of the Holy Trinity v. U.S., supra, and a construction is given to the statute which accords with the evident purpose of the law, and the mischief it was intended to remedy. The history of its passage through congress is given, which shows clearly that congress never intended to include in the act skilled labor of any kind. The conclusion of the court is that the title of the act, the evil which was intended to be remedied, the circumstances surrounding the appeal to congress, the reports of the committee of the house and senate, all concur in affirming that the intent of congress was simply to stay the influx of cheap unskilled labor. The reports of the committee having the bill in charge in the house contains this significant language, showing the mischief it was intended to remedy:

'It seeks to restrain and prohibit the immigration or importation of laborers who would never have seen our shores but for the inducement and allurements of men whose only object is to obtain labor at the lowest possible rate, regardless of the social and material well-being of our own citizens, and regardless of the evil consequences which result to American laborers from such immigration. This class of immigrants care nothing about our institutions, and in many instances never even heard of them. They are men whose

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