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tively, and the coupons are few in number—in one case, six-yet in each case it is contemplated that they will not all be redeemed in this period, and provision is made for their payment from the reserve fund. In the case of that company issuing six coupons to each certificate, redemptions are made monthly for one hundred and twenty months, yet the mode of selection for redemption makes the selection so very precarious and undeterminable that no one, not even the company, can tell whether all of these six coupons will be redeemed in one hundred and twenty months, or which ones will be, or the time when.
And herein, and in the uncertainty in the other cases, lies the chief incentive to, and interest in the game, and is relied upon as such incentive. Each hopes to be the lucky man, just as in other games of chance. And this case where six coupons are not redeemed in one hundred and twenty monthly redemptions, is another case where “many are called, but few chosen” though each hopes to be, and this is the incentive for his investment.
The prize in these cases is obvious. It is the large return that goes with the early payment, and, when this time of payment depends upon chance, it is simply of course that the prize does also.
It makes no difference as to the lottery nature of these concerns, that a purchaser may think that, from an examination of the books, the past and present business of the company, with its past and present increasing membership, the lapses, etc., he can approximate the time when his own coupons will be paid-just as many a man thinks he can tell by calculation or otherwise what number in a lottery will draw a prize-so long as that time in fact depends upon contingencies, the results of which can not be controlled or foreknown.
These cases differ materially from those guessing contests which have been considered by this Department, where the prizes are not given for an accurate guess, but to the nearest ones. In those cases my predecessors and I held that they were not within the purview of the statutes under consideration, because inquiry, knowledge, statutes, experience, judg
ment, and skill were such factors in, and aids to the estimates as to remove those cases from the domain of mere guess or chance.
These cases are different. For example, the purchaser of contract No. 1000, in order to know when its six coupons will be redeemed, must know what will be the amount of each monthly redemption fund for ten years to come; and he must know, not only what will be the monthly lapses for that period, but also the numerical order of such lapses.
It is possible that a man may think that, from his examination of the books of the company, its past and present business, the constantly increasing number of its investors, and the number and order of lapses, he can say that all these conditions will continue for the next ten years, and that he can tell, therefore, when his coupons will be paid. Just as many a man thinks he can figure out what number in a lottery will draw a prize or how to beat some other gambling game; but the fact still is that the whole matter is entirely beyond human forecast, and its determination is not aided by all the knowledge he can acquire or any skill or judgment he can exercise.
Indeed, the actuary of the company could no more forecast this than could the purchaser without inquiry.
There are other lottery features in these plans, but if these are such we need not notice others.
ARE TIIESE SCHEMES FRAUDULENT?
To call these cases fraudulent, without qualification, might be unjust, as their promoters may intend no fraud, and may believe that all the promises of these companies will be performed, and therefore I use the term only in its legal signification, as embracing cases in which promises, however honestly made, can not or will not be performed, and their non-performance will work a fraud upon some one.
Neither in this nor the previous branch of the inquiry am I unmindful that penal statutes should be construed strictly, and should not be applied to the business of a citizen unless such business is certainly within their purview, and that where doubts in this respect exist they should be resolved, if possible, in favor of the liberty and business of the citizen, and I have examined these questions with this in mind.
But with reference to each of these three companies I am constrained to say:
First. That it makes promises to each investor which, if each complies with the contract, on his part, can not be performed.
Second. It takes the money of one investor to pay another, and with no provision for the ultimate repayment of those whose money is thus taken.
Third. It promises to pay from the business large profits, which are not earned nor expected to be earned in the business, and with no capital or property for such payment.
Fourth. It makes absolute promises of periodical parments, when it is known that their performance and the liability to perform them depend upon contingencies which the promisor can neither control nor foretell.
Fifth. It depends upon the broken promises of some investors for the means with which to pay others, and the extent of this is a contingency known to be beyond the control or forecast of the promisor.
Sixth. As it will require much more than the money of one investor to make the specitied periodical payments to each previous investor, it will require an accession of newcomers, constantly increasing at high progressive rates in order to make such payments; and it is obvious that this can not continue indefinitely, but that the end must come sooner or later; and when it does come, then the more successful the business up to that time the greater and more widespread will be the loss.
And I am constrained to say, also, that in these respects the plans and business of these companies are fraudulent within the meaning of these statutes.
Specifically, therefore, I answer your question by advising you that as to the element of chance and that of fraud, these companies are each within the purview of the statutes referred to. Respectfully,
P. C. KYOX. The POSTMASTER-GENERAL.
Bona fide seamen have always been excepted from the operation of our
immigration laws, although not excepted therefrom by express language; their inclusion in the class of alien immigrants can fairly be
regarded as beyond the intention oi Congress. An "alien seaman" is one who, in pursuit of and as a necessary incident
of his calling, temporarily enters this country and is awaiting his departure; while an “alien immigrant” is one who enters the country
with the intention of remaining in it. Only such seamen are excepted from the class of passengers upon whom
the head-money tax is imposed by the act of August 3, 1882 (22 Stat., 214), and from the class of alien immigrants, as are seamen in good faith and have no intention, by reason of their passage, to leave the
ship and make entry into this country. Aliens who become seamen for the purpose of securing an entrance into
this country free from the barriers of the immigration statutes are none the less alien immigrants, and may be deported if within the
prohibited classes. This power to exclude carries with it the right to detain and examine all
seamen of a given vessel, if, in the judgment of the Secretary of the
Treasury, the execution of the immigration statutes requires it. It is within the power of the Secretary of the Treasury to make such
examination and take such precaution as may be reasonably necessary to prevent any alien immigrant, whether he be a sailor or not, from
entering this country in the sense that all immigrants enter it. It is not the duty of the Attorney-General, and he can not, from the
meager facts submitted, determine the question of good faith or intention on the part of the deserting sailors from the British steamship Columbia, as to whether they came to this country pursuant to their calling, intending to ship again, or as immigrants. That duty rests with the Treasury Department.
DEPARTMENT OF JUSTICE,
September 10, 1901. Sır: I have the honor to acknowledge the receipt of your letter of March 28, 1901, inclosing a report to the commissioner of immigration at San Francisco, Cal., in relation to the escape or desertion of eight alleged seamen from the British steamship Columbia, and in which you ask me to
“whether alien seamen after discharge or desertion come within the provisions of the immigration laws; and, furthermore, whether in the present instance the seamen referred to were permitted to land in violation of section of the act approved March 3, 1891, and section 4 of the act approved March 3, 1893."
I have also to acknowledge the receipt of your letter of April 2, 1901, in which you inclose certain correspondence with the collector of customs at the port of San Francisco, Cal., and request me to advise you, “whether discharged or deserting seamen are passengers within the meaning of that term as used in the act approved August 3, 1882, entitled “An act to Regulate Immigration.
You ask me to consider this question in connection with that submitted to me in your letter of March 28, 1901, herein before referred to.
The status of seamen under the various immigration laws has been determined by the judicial department of the Government, upon which the responsibility for their interpretation finally rests. In the case
In the case of United States v. Burke (99 Fed. Rep., 895) this question was considered with great care by the circuit court sitting in the southern district of Alabama. In that case a Norwegian vessel entered the port of Mobile with a crew articled for a voyage to the United States and thence to Europe. One of the crew, being an alien seaman, endeavored to obtain his discharge at Mobile, but his application was refused. He deserted the vessel, but under a threat of arrest returned to it. Subsequently he again, without leave of the master and without a discharge, deserted the vessel. Clearance was refused the vessel on the ground that the master had violated the immigration statutes by not holding the seaman on his return after his first absence. Judge Toulmin held that such clearance could not be withheld, and that the seaman in question was not an alien immigrant within the purview of the immigration statutes.
** The legislation contained in the various statutes that have been passed relating to immigration is clearly directed against the immigration into this country of certain classes of persons who come in with the intent to enter into and become a part of the mass of its citizenship or population. Immigration is detined to be the entering into a country with the intention of residing in it. The earlier statutes merely prohibit contract laborers being brought in. The later ones