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Argument for Defendant in Error.

214 U.S.

549, 552; Ex parte Wilson, 114 U.S. 417, 425; Taylor v. United States, 3 How. 197, 210; Lawton v. Steele, 152 U. S. 133, 141; United States v. Ju Toy, 198 U. S. 253.

If the statute does not create a "crime," then a fortiori it does not create an "infamous crime" within the meaning of the Fifth Amendment. Wong Wing v. United States, 163 U. S. 228, distinguished, and see Li Sung v. United States, 180 U. S..486, 495; Re Ah Yuk, 53 Fed. Rep. 781; United States v. Wong Dep Ken, 57 Fed. Rep. 203, 211; United States v. Hung Chang, 134 Fed. Rep. 19, 24.

The words "infamous crime" have been defined as applying to those crimes which were punishable by imprisonment or other infamous punishment. Ex parte Wilson, 114 U. S. 417; 425, supra; Callan v. Wilson, 127 U. S. 540, supra; Mackin v: United States, 117 U. S. 348; United States v. Ebert, 25 Fed. Cas. 972.

The fact that the section uses the word "fine" instead of the word "penalty" does not necessarily indicate an intention to create a crime, for the words "fine" and "penalty" are interchangeable. Cunard Steamship Co. v. Stranahan, 134 Fed. Rep. 318; note to 1 Bishop, Crim. Law (7th ed., 17n), and note to Reg. v. Paget, 3 Foster and F., citing Reg. v. Charley, 12 E. and B. 515; Reg. v. Russell, 3 E. and B. 942.

There are many statutory precedents for penalties to be recovered civilly as debts. See § 4965, Rev. Stat., providing a money penalty for infringement of a copyright, and in Werckmeister v. American Tobacco Co., 207 U. S. 375, it was held that the United States, though entitled to one-half the penalty, need not be a party to the proceeding. See also Chaffee v. United States, 18 Wall. 516, 538; Stockwell v. United States, 13 Wall. 531, 542; Proctor v. People, 24 Ill. App. 599; Ferguson v. People, 73 Illinois, 559; United States v. Whitcomb Co., 45 Fed. Rep. 89, 90; United States v. Railway Co., 44 Fed. Rep. 769.

In committing the enforcement of the provisions of § 9 to an administrative or executive officer, Congress did not violate

214 U. S.

Argument for Defendant in Error.

the provision of the Constitution relating to the judicial power. Helwig v. United States, 188 U. S. 605, 611; Passavant v. United States, 148 U. S. 214, 221; Origet v. Hedden, 155 U. S. 228, 236; Doll v. Evans, 7 Fed. Cas. No. 3,969; Clay v. Swope, 38 Fed. Rep. 396; Commonwealth v. Byrne, 20 Gratt. (Va.) 165.

The only safe and efficient method by which Congress could provide for the determination of the questions of fact arising under this section was by administrative process. For many years it has been the policy of the United States to entrust the determination of practically the same issues of fact to administrative officers. United States v. Ju Toy, 198 U. S. 253; United States v. Sing Tuck, 194 U. S. 161, p. 170; Japanese Immigrant Case, 189 U. S. 98; Chinese Exclusion Case, 130 U. S. 581; Turner v. Williams, 194 U. S. 279, Nishimura Ekiu v. United States, 142 U. S. 651, Chin Bak Kan v. United States, 186 U.S. 193; Fok Yung Yo v. United States, 185 U. S. 296; Lem Moon Sing v. United States, 158 U. S. 538.

Section 9 does not violate the due process clause of the Fifth Amendment. Dreyer v. Illinois, 187 U. S. 71, 83, 84; Michigan Cent. R. R. Co. v. Powers, 201 U. S. 294; Consolidated Railway Co. v. Vermont, 207 U. S. 541; Twining v. State of New Jersey, 211 U. S. 78; Walker v. Sauvinet, 92 U. S. 90; Maxwell v. Dow, 176 U. S. 581; Hurtado v. California, 110 U. S. 516; Davis v. Burke, 179 U. S. 399; Reetz v. Michigan, 188 U. S. 505.

In the cases before circular No. 58, the determination of the Secretary of Commerce and Labor that the facts warranted the imposition of a penalty was arrived at with due process of law.

Although prior to the issuance of the circular no formal notice of any set hearing preliminary to the imposition of the penalty was given, the plaintiffs had ample opportunity for defense had they cared to make one. Their theory that they were entitled to a technical and formal proceeding, failing which they need make no effort to avail themselves of their other opportunities for defense, is untenable. Buttfield v. Stranahan, 192 U. S. 470, 497; Auffmordt v. Hedden, 137 U. S.

Argument for Defendant in Error.

214 U.S.

310, 323; Origet v. Hedden, 155 U. S. 228, 236; Murray's Lessee v. Hoboken Land Co,, 18 Hów. 272; McMillen v. Anderson, 95 U. S. 37; Springer v. United States, 102 U. S. 586; Turpin v. Lemon, 187 U. S. 51, 58.

The due process clause is not intended to require the Government to pursue proceedings of which the parties concerned never avail themselves and thereby reduce to empty formulas. The delay of fourteen days provided by circular No. 58 clearly constitutes an impairment of the public interests and is to be required only where that public disadvantage is balanced by some substantial advantage to the individual.

Nor need the notice be a formal, personal notice. It is sufficient if the party concerned is made aware of the proceedings, as by publication, Lent v. Tillson, 140 U. S. 316; Happy v. Mosher, 44 N. Y. 313, or by statute fixing the sessions. Glidden v. Harrington, 189 U. S. 255, 258.

In the cases after circular No. 58, the determination of the Secretary of Commerce and Labor that the facts warranted the imposition of a penalty was arrived at with due process of law; the regulations provided for fourteen days' notice. Johnson v. Hunter, 127 Fed. Rep. 219, 223; Hanover National Bank v. Moyses, 186 U. S. 181, 192; Huling v. Kaw Valley Ry., 130 U. S. 559; Bellingham Bay &c. Co. v. New Whatcom, 172 U. S. 314, 318.

It was within the authority of the Secretary to issue circular No. 58. The entire arrangement was for the benefit of the plaintiffs. The collector had a right to hold the vessel until the proceedings had been completed and the fine imposed; he allowed it to go on condition that security for the payment of the fine was retained; and this permission was not only well within the implied power of his department, but was expressly covered by the powers granted by § 22 of the immigration law. The final imposition of the fine completed the Government's right to the money, if ever incomplete, and ratified its collection. Union Bridge Co. v. United States, 204 U. S. 364; Origet v. Hedden, 155 U. S. 228; Auffmordt v. Hedden 137 U. S. 310,

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323; Ludloff v. United States, 108 U. S. 176; Thacher's Distilled Spirits, 103 U. S. 679; In re Kollock, 165 U. S. 526; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301; Dastervignes v. United States, 122 Fed. Rep. 30; Stratton v. Oceanic Steamship Co., 140 Fed. Rep. 829.

Congress had the power to make the payment of the penalty a condition of obtaining clearance. Gibbons v. Ogden, 9 Wheat. 1; United States v. Brigantine William (1808), Fed. Cas. No. 614; Hendricks v. Gonzalez, 67 Fed. Rep. 351; Cunard Co. v. Stranahan, 134 Fed. Rep. 318; 17 Op. Atty. Gen. 82.

An English precedent is contained in Statutes 6 and 7, William IV, c. 11, § 2.

MR. JUSTICE WHITE delivered the opinion of the court.

The steamship company sought the recovery of money paid to the collector of customs of the port of New York which was exacted by that official under an order of the Secretary of Commerce and Labor. The findings of the court, the case by stipulation having been tried without a jury, leave no doubt that the money was paid to the collector under protest, and involuntarily. We say this because the findings establish that the company was coerced by the certainty that if it did not pay the collector would refuse a clearance to its steamships plying between New York city and foreign ports at periodical and definite sailings, whose failure to depart on time would have caused not only grave public inconvenience from the nonfulfillment of mail contracts, but besides would have entailed upon the company the most serious pecuniary loss consequent on its failure to carry out many other contracts.

Both the Secretary and the collector were expressly authorized by law, the one to impose and the other to collect the exactions which were made.. The only question, therefore, is whether the power conferred upon the named officials was consistent with the Constitution. The provision under which the officials acted is & 9 of the act of March 3, 1903, entitled, "An Act

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to regulate the immigration of aliens into the United States." c. 1012, 32 Stat. 1213. Light to guide in an analysis of the contentions concerning the asserted repugnancy of the section to the Constitution will be afforded by giving at once the merest outline of some of the comprehensive provisions of the act of which it forms a part.

The act excludes from admission into the United States, among other classes, those afflicted "with loathsome or with dangerous contagious diseases." § 2. It prohibits the importation of persons for immoral purposes or of persons to perform "labor or service of any kind, skilled or unskilled, by previous solicitation or agreement." §§ 3 and 4. It imposes the duty on the master of any vessel having on board alien immigrants to deliver to the immigrant officer at the port of arrival lists made at the port of embarkation. § 12. These lists are required to be verified by the oath of the master of the vessel taken before the immigrant officer at the port of arrival, to the effect that the surgeon of the vessel who sails therewith has physically and orally examined each alien, and that from such examination by the surgeon and from his own investigation the officer of the ship believes that no one of the listed persons is disqualified by law from entering. This list is also required to be verified by the affidavit of the surgeon, and in case no surgeon sails with the ship it is required that the owner of the vessel employ at the port of embarkation a competent surgeon to make the examination. §§ 13 and 14. Upon the arrival of a vessel in the United States, for the purpose of verifying the lists, immigration officers are authorized to board the vessel, inspect the immigrants and to disembark them for further inspection and medical examination, the disembarkation for such purposes not to be considered as a landing within the United States. The medical examination, the statute provides, shall be made by medical officers of the United States Marine Hospital Service assigned to such duty, and upon them is imposed the obligation of certifying, "for the information of the immigration officers and the boards of spe

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