Writ of error to review a judgment sustaining a demurrer to an indictment charging the defendant with taking security and making charge for the return passage of aliens unlawfully brought into the United States, and ordered to be returned in pursuance of the immigration act of February, 1907 [34 Stat. at L. 898, chap. 1134, U. S. Comp. Stat. Supp. 1909, p. 447].
The indictment charges that the Nord Deutscher Lloyd, a German corporation, operated a line of steamers between Bremen and New York, maintaining an office and place of business in both cities. On November 25, 1910, in Bremen, it sold tickets to two aliens, entitling them to passage to New York and return. Before their embarkation the defendant collected from them 150 rubles for the return passage money in steerage. On arrival in New [223 U.S. 512, 513] York the aliens were ordered to be deported to Germany, as likely to become public charges, because of senility and inability to make a living. On December 16, 1910, after the unlawful bringing into this country of said aliens, and while they were liable to deportation on the vessel by which they came, the said 150 rubles were still held and retained in possession of the defendant up to (April 3, 1911) the date of filing the indictment, 'the defendant so holding and retaining the same and making charge thereof for the return of such aliens, and being taken and continuously held by the said defendant, as security from the said aliens, for the payment of such charge for their return passage to Germany, aforesaid, in violation and evasion of 19 of the immigration laws of the United States, approved February 20, 1907. The defendant . . . by the means aforesaid, at and within the southern district of New York, on December 16, 1910, unlawfully and wilfully did make charge for the return of aliens, so as aforesaid brought into this country in violation of law, and take security from them and keep and hold the same for the payment of such charge, then and there well knowing that such aliens had been brought to this country in violation of law.'
The court sustained the demurrer on the ground that the money was paid and received in Germany, and that the facts did not amount to a violation of 19, which provides: 'That all aliens brought to this country in violation of law shall, if practicable, be immediately sent back to the country whence they respectively came, on the vessels bringing them. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessels on which they respectively came.' And if such owner shall refuse 'to pay the cost of their maintenance while on land, or shall make any charge for the return of any such alien, or shall take any security from him for the [223 U.S. 512, 514] payment of such charge,' such owner shall be guilty of a misdemeanor.
Assistant Attorney General Harr for plaintiff in error. [223 U.S. 512, 515] Mr. Joseph Larocque for defendant in error.
Statement by Mr. Justice Lamar: [223 U.S. 512, 516]
Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court:
Section 19 of the immigration act of 1907 (34 Stat. at L. 898, 904, chap. 1134, U. S. Comp. Stat. Supp. 1909, pp. 447, 458) [223 U.S. 512, 517] is not aimed at the aliens of the excluded class, but at the owners of vessels unlawfully bringing them into this country. The government might in large measure protect itself by inspection, rejection, and order of deportation, but it is purposed, also, as far as possible, to protect the alien. He might be ignorant of our laws, and ought to be deterred from incurring the expense of making a passage which could only end in his being returned to the country from whence he came. This policy could best be subserved by securing the co-operation of the transportation companies, and to this end the statute required that they should not only maintain the aliens unlawfully brought by them into this country, but should take them back free of charge. In the absence of this last provision the company might well afford to accept as passengers those known or suspected to belong to the excluded class. It would receive from them their passage money from Europe to America. If they passed the inspection, the transaction was ended. If they were deported, the company would be at the trifling expense of maintaining them while here. But if it could charge and secure payment for the return passage, it would collect two fares instead of one. This would have made the transportation of an excluded alien more profitable than the carrying of one who could lawfully enter. This was so obvious that the statute not only required the cost of their passage to be borne by the transportation company, but prohibited the making of a charge, or the taking of security, for the return passage, which might be collected or enforced at the end of the journey.
It is said, however, that no such charge was made in New York; that the indictment shows only the case of an ordinary sale of a round-trip steerage ticket from Bremen to New York, and that what was lawfully done in Germany cannot be punished as a crime in New York.
The statute, of course, has no extraterritorial operation, [223 U.S. 512, 518] and the defendant cannot be indicted here for what he did in a foreign country. American Banana Co. v. United Fruit Co. 213 U.S. 347 , 53 L. ed. 826, 29 Sup. Ct. Rep. 511, 16 A. & E. Ann. Cas. 1047. But the parties in Germany could make a contract which would be of force in the United States. When, therefore, in Bremen the alien paid and the defendant received the 150 rubles for a return passage, they created a condition which was operative in New York. If, in that city, the company had refused to honor the ticket, the alien could there have enforced his rights. In like manner, if by reason of facts occurring in New York the statute operated to rescind the contract, the rights and duties of the parties could there be determined, and acts of commission or omission, which, as a result of the rescission, were there unlawful, could there be punished.
If, as argued, the company did nothing in New York except to retain money which had been lawfully paid in Germany, the result is not different, because, under the circumstances, nonaction was equivalent to action. The indictment charges that on December 16, 1910, it was found that the aliens had been unlawfully brought into this country. The company at once was under the duty of taking them back at its own cost. Instead of returning to them the money previously received for such transportation, the defendant retained it up to the date of the indictment, April 3, 1911, with intent to make charge and secure payment for their passage to Bremen. This retention of the money, with such intent, was an affirmative violation of the statute. The company could not take the aliens back free of charge, as required by law, and at the same time retain the fare covering the same trip.
The demurrer admits that, with knowledge that it was bound to carry the excluded aliens back at its own cost, the defendant in New York made a charge, and retained the 150 rubles, with intent to apply that money in satisfaction thereof. If that be true, the defendant violated [223 U.S. 512, 519] the statute within the southern district of New York, and can there be indicted and tried.
The judgment must therefore be reversed.