Miocene Ditch Co. v. Campion Mining & Trading Co............150 Fed. 483

t

CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.

TAYLOR v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. January 16, 1907.)

No. 191.

1. ALIENS-IMMIGRATION LAWS-PERMITTING ALIENS TO LAND FROM VESSEL. The provisions of Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], requiring officers of any vessel bringing an alien to the United States to "adopt due precautions" to prevent the landing of any such alien at any time or place other than that designated by the immigration officers, and making any person in charge of a vessel liable to prosecution if he shall "land or permit to land" any alien except at such designated time and place, are to be construed together, and the mas ter of a ship cannot be held liable for the unlawful landing of an alien from his vessel, if he adopted due precautions to prevent it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Aliens, § 114.]

2. SAME CONSTRUCTION OF STATUTE.

In Immigration Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], which requires officers of vessels to take due precautions to prevent aliens from landing therefrom, except at the time and place designated by the immigration officers, the word "aliens" is used in its broad and full meaning, and is not restricted to alien immigrants, but includes as well aliens who are members of the ship's crew. While the master of a vessel is not required to prevent officers or members of his crew who are aliens from going on shore in a port of the United States in every case, such section requires him to take reasonable precautions suited to the nature of the case to prevent them from deserting and remaining in this country.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Aliens, §§ 113, 114.] 3. SAME PROSECUTION FOR VIOLATION-EVIDENCE.

The master of a vessel on trial for permitting an alien member of his crew to leave his vessel in New York, in violation of Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], was properly allowed to be asked on his cross-examination as a witness whether a number of other alien members of his crew did not also desert in that port, as material to the question whether or not he took due precautions to prevent aliens from leaving the vessel, as required by the statute.

4. WITNESSES-CLAIM OF PRIVILEGE-REVIEW BY APPELLATE COURT.

The question whether a witness was privileged to refuse to answer a question on the ground that the answer might incriminate him is not be152 F.-1

fore an appellate court for review, where the witness did not stand on his privilege, but answered the question.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1053-1057.]

Wallace, Circuit Judge, dissenting, holds that Immigration Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], properly construed, has no application to alien seamen who are bona fide members of a ship's crew.

In Error to the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, entered May 21, 1906, on a verdiet of "guilty" found by a jury after trial upon an indictment for a misdemeanor, under section 18 of the Immigration Act of 1903 which provides (Act March 3, 1903, c. 1012, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283]:

"That it shall be the duty of the owners, officers, and agents of any vessel bringing an alien to the United States to adopt due precautions to prevent the landing of any such alien from such vessel at any time or place other than that designated by the immigration officers, and any such owner, officer, agent, or person in charge of such vessel who shall land or permit to land any alien at any time or place other than that designated by the immigration officers shall be deemed guilty of a misdemeanor, and shall on conviction be punished by a fine for each alien so permitted to land of not less than one hundred or more than one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment."

William G. Choate, for plaintiff in error.

Henry L. Stimson and Michael Byrne, for defendant in error. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts). Taylor was the captain of the Cunard steamship Slavonia, which arrived at her pier in New York City early in the morning of October 10, 1905, at the end of a voyage from Fiume, Hungary. At the time of her ar

rival the place of landing designated under the statute by the immigration officers for aliens landing from a vessel was Ellis Island. When the Slavonia was at Fiume, one Elias Ramadonawich, an alien, shipped on her as third cook in the steerage kitchen. He had previously served on an Austrian ship, and showed his previous shipping papers when he signed the articles of the Slavonia. He shipped for the round trip; the terms of the articles being that he should not be paid off until he returned to Fiume. The amount of wages earned by him on his arrival in New York was less than $6.

At a quarter of 6 o'clock in the evening of October 10th, after finishing his day's work he reported to the head of his department that his work was finished, but asked no permission of him, or of any one else, to go ashore. He then went to his room and washed and dressed. After this, with two other members of the crew, he walked down the gang plank out on the pier and into West street. No one stopped him either on the gang plank or on the pier, or interfered in any way with his departure. So far as appears his record during the short time of his service was good. It was the rule of the ship that members of the crew whose records were good could go ashore after the day's work