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its value was doubtful, and the burden of protecting it against taxes and tax titles and the labor of developing it were heavy and the benefits to be derived problematical, the complainant refused to share either. For more than eight long years when times were hard, and the burden of caring for and protecting this property exceeded the benefit, Steinbeck bore it alone. Now, after he has prospected and operated the property, after he has bought the tax titles upon it and paid subsequent taxes, after grantees and lessees whom he secured have developed the rich ore and the benefit exceeds the burden, the complainant, which has refused to bear or to share the burden or the risk, prays a court of equity to confer upon it the reward which the money, the toil and the energy of Steinbeck have earned. There is no equity in such a suit. The complainant speculated upon its option. If the expense, toil, and effort of Steinbeck had come to naught, it would never have reimbursed him or have brought this suit. Its neglect, inaction, and silence during the six years after it knew he had a tax title to its property and the marvelous change in its value meanwhile estop it from maintaining this suit and compel a dismissal of its bill.
As Steinbeck's title under the tax deeds is impregnable to attack in this suit, it is not material whether or not his title under the sheriff's deeds and his decree quieting the title in himself were wrongfully obtained. They did not in any event impair his tax title, and they cannot affect the result of this suit. They will not therefore be further considered.
The decree below is reversed, and the case is remanded to the Circuit Court with instructions to dismiss the bill.
RODGERS, U. S. Immigration Com'r et al., V. UNITED STATES
ex rel. BUCHSBAUM.
(Circuit Court of Appeals, Third Circuit. February 13, 1907.)
1 ALIENS—IMMIGRATION LAWS-FINALITY OF DECISION OF BOARD OF SPECIAL
Under the Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213 (U. S. Comp. St. Supp. 1905, p. 274), and rule 7 of the regulations established thereunder by the Secretary of Commerce and Labor, an immigrant who on examination by a board of special inquiry has been denied the right to enter the United States has the right to be informed that he has a right of appeal therefrom, and the fact that he has been so informed must be entered of record in the minutes of the board's proceedings, and the withholding of that right precludes finality in the decision of the board which may in such case be reviewed by the courts on a writ
of habeas corpus. 2 SAME-ALIENS DOMICILED IN THE UNITED STATES-RIGHT TO RE-ENTER.
An alien, who has acquired a domicile in the United States, cannot thereafter, and while still retaining such domicile, legally be treated as an Immigrant on his return to this country after a temporary absence for a specific purpose not involving change of domicile.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Aliens, $ 105.)
3. SAME-CONSTRUCTION OF STATUTE.
The provision of section 2, Act March 3, 1903, c. 1012, 32 Stat. 1214 [U. S. Comp. St. Supp. 1905, p. 276), which excludes from admission into the United States "aliens" who are atflicted with a loathsome, or with a dangerous contagious, disease, cannot be construed to apply to aliens who are domiciled in this country, especially in view of the title of the act, which is “An act to regulate the immigration of aliens into the United States," and of its other provisions and prior statutes in pari materia.
Appeal from the District Court of the Unit, i States for the Eastern
J. C. Swartley and J. Whitaker Thompson, for appellants.
Before DALLAS and GRAY, Circuit Judges, and BRADFORD,
BRADFORD, District Judge. This is an appeal from an order of the district court of the United States for the eastern district of Pennsylvania discharging Isidore Buchsbaum on a writ of habeas corpus from alleged illegal restraint by John J. S. Rodgers, United States commissioner of immigration, and others. In his petition for the writ Buchsbaum alleges in substance that he is a native of Austria and emigrated to the United States, arriving in the city of New York with his wife and family March 10, 1901, that thereupon "he took up a permanent residence with his wife and family in said city and established himself in the window cleaning business, in which he still retains his interests"; that from the time of his arrival in New York until April, 1905, he continuously resided in that city with his family, *pursuing his aforesaid business and acquiring extensive contractual property and rights"; that he declared his intention March 8, 1905, before the circuit court of the United States for the southern district of New York to become a citizen of the United States; that in April, 1905, he "took passage on the Steamer Finland for Antwerp, and thither went to Galicia, Austria, for the purpose of settling an estate"; that in leaving this country for that purpose he “never intended to give up his rights which he had acquired in the United States, but went with the intention of returning as soon as his business was transacted”; that his family "consisting of wife and two children remained in New York and are still residing there"; that he returned to the United States arriving in Boston as a passenger on the steamer Marquette November 7, 1905; that the United States commissioner of immigration at Boston “refused him a landing and on November 9, 1905, ordered his deportation on the ground that he was afflicted with trachoma”; that the petitioner "was not given a lawful opportunity to appeal” by the commissioner and was conveyed on the Marquette to Philadelphia where he arrived November 19, 1905, and “is now illegally restrained of his liberty and illegally held in custody” in a house of detention in that city ; that he is a resident of New York and never gave up his residence there; and that he "was not afflicted with any disease when he left New York City, nor when he left Europe on his return trip to the United States, and if he has any disease such as alleged, he must have contracted the same on board the Steamer Marquette on his return to
the United States.” In the return of the International Mercantile Marine Company, Young and Johnston, to the writ it is alleged in substance that the master of the Marquette was notified November 17, 1905, by the commissioner of immigration at Boston that Buchsbaum "had been found to be of the class of aliens prohibited by law from entering the United States and had therefore been excluded," and was required by the commissioner "to receive the said alien on board his vessel and return him according to law"; and, further, that the master received Buchsbaum and took him on the Marquette' to Philadelphia whence she was about to sail for Antwerp when the writ was served. It appears from the transcript of record that on the arrival of Buchsbaum at Boston in November, 1905, he was subjected to a physical ex. amination by medical officers of the United States marine-hospital service who certified to the commissioner of immigration that Buchsbaum "has trachoma and the existence of such disease might have been detected by means of a competent medical examination at the port of foreign embarkation." A board of special inquiry, provided for in the act of Congress of March 3, 1903, entitled "An act to regulate the immigration of aliens into the United States” (Act March 3, 1903, c. 1012, 32 Stat. pt. 1, 1213 (U. S. Comp. St. Supp. 1905, p. 274]), having heard the case, decided that Buchsbaum was, under the provisions of the act, debarred from admission into the country by reason of trachoma and having reheard the case adhered to its former decision. Section 25 of the act provides relative to boards of special inquiry:
"Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or be deported.”
"The decision of any two members of a board shall prevail and be final, but either the alien or any dissenting member of said board may appeal, through the commissioner of immigration at the port of arrival and the CommissionerGeneral of Immigration, to the Secretary of the Treasury, whose decision shall then be final; and the taking of such appeal shall operate to stay any action in regard to the final disposal of the alien whose case is so appealed until the receipt by the commissioner of immigration at the port of arrival of such decision."
Section 22 provides:
shall establish such rules and regulations * * * 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,
all under the direction or with the approval of the Secretary of the Treasury."
By virtue of the act of February 14, 1903, entitled “An act to establish the Department of Commerce and Labor" (Act Feb. 14, 1903, c. 552, 32 Stat. pt. 1, 825 (U. S. Comp. St. Supp. 1905, p. 63]), the Secretary of Commerce and Labor has succeeded to the powers, duties and functions of the Secretary of the Treasury, relating to the "immigration service at large." Pursuant to the foregoing authority the Commissioner-General of Immigration with the approval of the Secretary of
Commerce and Labor established "Immigration Regulations," August 26, 1903. Rule 7 of these regulations is as follows:
"Every alien arriving at a port of the United States shall be promptly examined, as by law provided, either on shipboard or at some other place des. ignated for that purpose. If, found admissible, be shall be at once landed, but if upon special inquiry he is denied admission, he shall be informed that he has a right of appeal therefrom, and the fact that he has been so informed shall be entered of record in the minutes of the board's proceedings, but no appeal will be considered after any such alien bas, in consequence of an adverse decision of a board of special inquiry, been transferred from an immi.. grant station to be deported.”
The transcript of record sets forth what purports to be a copy of the minutes of the proceedings and of the testimony before the board of special inquiry at Boston. This copy by agreement of counsel was treated as evidence in the court below. It nowhere discloses expressly or by implication that Buchsbaum was informed that he had a right of appeal from the decision of the board. If he had been so informed it would have been the duty of the board to cause the fact to be entered of record in the minutes of the board's proceedings. There is no denial by the appellants or any of them of the truth of the averment made by Buchsbaum in his petition for the writ of habeas corpus that "he was not given a lawful opportunity to appeal” from the decision against him in Boston. Under these circumstances it fairly may be presumed that Buchsbaum was not informed of his right of appeal. He was not allowed to land in the port of Boston, but, with intent that he should be deported, was conveyed from that port on the Marquette to Philadelphia, whence she was about to sail for Antwerp, when the writ of habeas corpus was served. The action of the authorities in thus sending Buchsbaum from the port of Boston without informing him of his right of appeal was irregular and unlawful. Practically, and in legal contemplation, it impaired or deprived him of that right. For rule y of the regulations, as we have seen, provides that:
"No appeal will be considered after any such alien has, in consequence of an adverse decision of a board of special inquiry, been transferred from an immigration station to be deported."
And such a limitation is in harmony with and required by the statutory provision that:
"The taking of such appeal shall operate to stay any action in regard to the final disposal of the alien whose case is so appealed until the receipt by the commissioner of immigration at the port of arrival of such decision."
The law has coupled the finality of a decision against an alien by a board of special inquiry with a right to appeal and to be informed of that right. The withholding of such right from the alien of itself precludes finality in the decision. And as the decision thereby lacks finality it is, and in the nature of things must be, competent to courts otherwise possessing jurisdiction to inquire by the writ of habeas corpus into the legality of the detention of the alien.
The question is thus presented whether Buchsbauin was, under the act of March 3, 1903, liable to deportation; and this was the only point considered by the court below. Section 2 provides that “persons afflicted with a loathsome or with a dangerous contagious disease" and who
are aliens "shall be excluded from admission into the United States," and section 19 provides for the deportation of "aliens brought into this country in violation of law.” The evidence shows beyond dispute that on his arrival in the United States in March, 1901, with his family and children, he made his home in New York; that he had his domicil and conducted his business in that city for years; that lie has never since establishing himself and his family in New York changed or intended to change his domicil; that in March, 1905, he declared liis intention to become a citizen of the United States; that in going abroad in April, 1905, he went for a specific purpose involving only a temporary absence; and that he left in New York his business and his family with full intention to return to them as soon as he should have accomplished the object of his trip. The return of Buchsbaum from Austria to this country in November, 1905, did not clothe him with the character of an immigrant. He did not at that time seek to acquire a fixed residence or domicil in the United States. That had theretofore been accomplished. We are clearly of opinion that an alien who has acquired a domicil in the United States cannot thereafter and while still retaining such domicil legally be treated as an immigrant on his return to this country after a temporary absence for a specific purpose not involving change of domicil. The term "immigrant” as applied to him is a palpable misnomer. If the act of March 3, 1903, had expressly been restricted to alien immigrants no substantial question could have arisen on this branch of the case. But there is no such express limitation. Section 2 provides that "the following classes of aliens shall be excluded from admission into the United States"; and mentions, in the enumeration of those classes, "persons afflicted with a loathsome or with a dangerous contagious disease.” The language of the section when taken literally is applicable to persons so diseased whether they are at the time of reaching the port of arrival alien immigrants or aliens whose domicil is in the United States. We think, however, that, notwithstanding the generality of the terms employed in the section, Congress did not intend that exclusion under the act on account of loathsome or dangerous contagious disease should extend to aliens domiciled in this country. In reaching this result the body of the act has been considered in its entirety in connection with its title, and in the light of other statutes in pari materia. The title is “An act to regulate the immigration of aliens into the United States." Certainly, if taken alone, it would indicate the inapplicability of the act to the case of Buchsbaum. It is well settled that, where the language of a statute is ambiguous or otherwise doubtful or, being plain, a literal construction would lead to such absurdity, hardship or injustice, as to render it irrational to impute to the law making power a purpose to produce or permit such result the title may be resorted to as tending to throw light upon the legislative intent as to its scope and operation. United States v. Fisher, 2 Cranch. 358, 386, 2 L. Ed. 304; Holy Trinity Church v. United States, 143 U. S. 457, 462, 12 Sup. Ct. 511, 36 L. Ed. 226; Coosaw Mining Co. v. South Carolina, 144 Ú. S. 550, 563, 12 Sup. Ct. 689, 36 L. Ed. 537. Further, the body of the act contains provisions of such a character as, in connection with the title, to lead us to conclude that the statute was not intended to apply to aliens having their homes in the United States. Section 12 provides: