Grant Bros. Construction Co. v. United States

delivered the opinion of the court.

In an action of debt, tried to the court and a jury, in one of the district courts of the Territory of Arizona, the United States recovered a judgment -against the. Grant Brothers Construction Company, a California corporation, for the prescribed penalty of $1,000 for each of forty-five alleged violations of § 4 of the Alien Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898 ; and upon an appeal to the Supreme Court of the Territory, the judgment was affirmed. 13 Arizona, 388. • The . construction company and the surety upon its supersedeás bond then sued out this writ of error, claiming that divers errors had been committed by the trial court which should have been, but were not, corrected by the appellate court.

“Sec. 2. That the following classes of aliens shall be excluded from admission into the United States: . . . persons' hereinafter called contract laborers, who have been induced or solicited to migrate to this country by offers or' promises of employment or in consequence of agreements, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled; . . . And provided, further, That skilled labor may be imported if labor , of like kind unemployed cannot be found in this country: And. provided further, That the provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists, lecturers, singers, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants.

“ Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay, the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos contained in section two of .this Act.

“Sec. 5. That for every violation of any of the provisions of section four of this Act the persons, partnership; company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his

own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States.”

The petition contained forty-five counts, each charging, with considerable detail, that the defendant, by offers and promises of employment and by providing transportation and paying expenses, assisted, encouraged and solicited the migration and importation into the United States from Mexico of a designated alien laborer who was not within the terms of either of the last two provisos in § 2 of the statute. A different alien laborer was named in each count, and the date of the offending act was given in all as October 29, 1909.

In a preliminary way, the evidence tended to show these facts: The construction company was building a line of railroad in southern Arizona, near Naco, a town on the international boundary. Laborers in large numbers were required for the work, and in Auguét, 1909, the company employed one Carney to procure laborers for it and to take them to the vicinity of the work. For this he was to be paid one dollar in gold for each laborer secured and twenty cents for each meal provided while they were en route. It was contemplated that he would arrange with others to aid him, and he secured the assistance of Holler, Rupelius and Randall, who, like himself, were located at Nogales, another boundary town. Under this employment Carney procured, and the company accepted, prior to the transaction in question, about 450 laborers, 95 per cen,t. of whom were Mexicans. Many of these came across the line on their own initiative and were then engaged by Holler, but a substantial number were engaged in Mexico

As respects the 45 laborers named in the petition there was evidence tending to show the following: These men were citizens of Mexico and were unskilled laborers who were not within the exemptions specified in the last two provisos in § 2 of the statute. They were secured at Hermosillo, Mexico, by Rupelius, October 28, 1909, were brought into the United States, at Naco, by Randall the next day, were there taken into custody by an immigration inspector, and were examined before a board of special inquiry. The board found that they were alien contract laborers, ordered that they be excluded, and notified them of the order and of their right to an appeal. After consulting with the Mexican Consul at Naco they waived that right, and most of them were returned to Mexico, a few being detained as witnesses. Rupelius had induced them to- leave Hermosillo and come into the United States by offers and promises of employment by the construction company. They were brought to Naco upon a railroad pass procured by Carney and purporting to have been issued on account of the construction company, and their only meal en route was provided by Holler at Carney’s suggestion. During the latter part of their journey they were in charge of Randall, who had been directed by Carney to deliver them to McDonald, an agent of the construction company, who was expected to be at Naco to receive them. McDonald was there, having come in from one of the company’s camps that day. He endeavored to hasten the proceedings before the board of inquiry in order that he might get the men out to the camp that afternoon, and also provided a meal for them while the proceedings

There were some direct contradictions in the evidence, different portions gave rise to opposing inferences, and parts of it were more or less improbable; but as it was the province of the jury to pass on such matters, which it did by the verdict, they require no other notice than they will receive presently.

As several of the alleged errors, not involving anything fundamental or jurisdictional, were not presented, to the appellate court for consideration, they must be regarded as waived and will be passed without further notice. Montana Railway Co. v. Warren, 137 U. S. 348 , 351; Gila Valley Railway Co. v. Hall, ante, pp. 94, 98.

It is complained that the trial court permitted the Government to read in evidence the depositions of absent witnesses, instructed the jury to return a verdict for the Government if the evidence reasonably preponderated in its favor, and in other ways treated the case as civil in substance as well as in form. But the trial court was right. An action such as this is civil and is attended with.the usual incidents of a civil action. United States v. Regan, ante, p. 37.

The petition did not allege that the acts charged against the construction company were knowingly done, and it is said that this operated to render the recovery erroneous. No doubt the petition was defective; A right to the penalty arises only where § 4 is violated “by knowingly assisting, encouraging or soliciting the migration or impor

Complaint is made of the denial of a motion to suppress certain depositions, subsequently read in evidence, which the Government had taken under a commission issued by

Over the defendant’s objection, the decision of the board of special inquiry was admitted in evidence as tending to prove that the 45 men were aliens, and it is said that this was error because the defendant was not a party to. the proceeding. One of the questions committed by law to the board for decision, subject to an appeal to the Secretary of Commerce, was 'whether the men were aliens. The document admitted in evidence disclosed that, after a hearing, the board determined that question in the affirmative, and that the men acquiesced by waiving their right to an appeal. In that way their status as aliens was conclusively established as between th.emselves and the United States. It is true that the defendant was not a

Considerable evidence was admitted, over thé defendant’s objection, of the acts and declarations of Carney and his assistants while they were procuring laborers in Mexico and bringing them into the United States, and it is contended that this was violative of the rule that the acts and declarations of a professed agent are not admissible to prove the existence or extent of his agency. See United States v. Boyd, 5 How. 29 , 50. But the contention rests upon a misconception of what the record discloses. This evidence was not admitted to establish the agency or its extent, but to show that the laborers came into the United States in circumstances which rendered their migration or importation unlawful. Whether the defendant was responsible for what was done was another question. The trial court recognized this and expressly ruled that the agency must be otherwise shown, and we agree with the territorial courts in thinking there was other evidence tending to prove the agency and that it embraced what was done.

The evidence disclosed that when the arrangement was made with Carney, and on one or two occasions thereafter, he was in terms instructed not to engage any laborer

Although conceding that there was evidence that ten of the men were citizens of Mexico, the company claims that there was no evidence of the alienage of the other thirty-five. It must be held otherwise. Not only did the decision of the board of inquiry constitute such evidence, but it was distinctly testified by. some of the men, who became witnesses, at the trial, that “they were all Mexicans,” meaning thereby, as the context shows, that they were all citizens of Mexico.

Still another contention is that as all the men named, in the petition were brought into the United States at one time there was but a single violation of the statute and only one penalty could be recovered. The statute declares that “separate suits may be brought for each alien thus promised labor or service,” and this plainly means that a separate penalty shall be assessed in respect of each alien whose migration or importation is knowingly assisted, encouraged or solicited in contravention of the statute. See Missouri, Kansas & Texas Ry. Co. v. United States, 231 U. S. 112 .

- As we find no prejudicial error in the record, the judgment is -

Affirmed.