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BUTLER, J., dissenting.

291 U.S.

woman that fall short of concubinage are not within the condemnation of the statute. But there is no ground for the assumption that petitioner is not the concubine of a married man. Since 1924 she has continued illicit relations with him. They cohabited as, and held themselves out to be, husband and wife abroad and in this country while not in the vicinity of his home. Admittedly, these relations were to continue until again they reached that neighborhood. There is abundant warrant for the Secretary's conclusion that petitioner returned to this country as, and intending to continue to be, that man's concubine. The findings quote Webster's definition—"a woman who cohabits with a man without being his wife.” The Secretary found her to be such a person. He relied upon, and I think rightly applied, the opinion in United States v. Bitty, 208 U.S. 393.

Bitty was indicted under a provision of the Act of February 20, 1907, 34 Stat. 898, forbidding “ the importation into the United States of any alien woman .. for the purpose of prostitution, or for any other immoral purpose.” The indictment alleged importation of a woman for an “immoral purpose," namely, “ that she should live with him as his [Bitty's] concubine.” The circuit court dismissed the indictment on the ground that the facts alleged did not constitute a violation of the statute. This court reversed. The phrase there construed is in the same words as that now under consideration. They undoubtedly have the same meaning. In that case defendant's counsel maintained that Congress did not by that Act intend to legislate against " those isolated cases where certain individuals come into this country with their mistresses.” But repelling that construction, this court said (p. 401) that: “In forbidding the importation of alien women 'for any other immoral purpose,' Congress evidently thought that there were purposes in connection with the importations of alien women which, as in the

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BUTLER, J., dissenting.

case of importations for prostitution, were to be deemed immoral.” After reference to the rule of ejusdem generis relied on by the defendant, the court said (p. 402): “But that rule cannot avail the accused in this case; for, the immoral purpose charged in the indictment is of the same general class or kind as the one that controls in the importation of an alien woman for the purpose strictly of prostitution. The prostitute may, in the popular sense, be more degraded in character than the concubine, but the latter none the less must be held to lead an immoral life, if any regard whatever be had to the views that are almost universally held in this country, as to the relations which may rightfully, from the standpoint of morality, exist between man and woman, in the matter of sexual intercourse. (p. 403.) The statute in question, it must be remembered, was intended to keep out of this country immigrants whose permanent residence here would not be desirable or for the common good, and we cannot suppose either that Congress intended to exempt from the operation of the statute the importation of an alien woman brought here only that she might live in a state of concubinage with the man importing her, or that it did not regard such an importation as being for an immoral purpose.

Moreover, the statute is not limited to prostitution and concubinage. While the Secretary regarded her as a concubine, his decision may not fairly be held to depend upon that characterization. Plainly it rests upon the ground there stated “ that she entered for an immoral purpose condemned by the statute. The law does not require him more definitely to classify. Refinements of nomenclature adopted for the sake of decency in speech may not be used to conjure up doubts and distinctions that obscure the real substance of the statute. The meaning of the findings is that petitioner's doings and course of living constitute a kind of immorality that bars admission. The

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Secretary rightly may have deemed that her admitted intention temporarily to continue, when coupled with environment, opportunity and temptation under which habitual transgression had developed and for years persisted, amounted to a fixed purpose indefinitely to remain in concubinage. That is enough.

And there is nothing in the opinion in United States v. Bitty, supra, or elsewhere, to support the idea that Congress intended to keep out only those coming exclusively for the purposes referred to and to admit prostitutes, concubines and the like intending to follow legitimate occupation while practicing, incidentally or otherwise, any of the immoralities covered by the statute. Indeed, the court's opinion implies that if concubinage were her principal or primary purpose she ought to be excluded even though she intended regularly to pursue her work as a domestic. The making of exclusion to depend upon the determination whether the immoral purpose is dominant or subordinate goes far to strike down the statute by making its enforcement difficult and in many cases practically impossible. Congress undoubtedly intended to exclude those who entertain a purpose here to practice prostitution or immorality of that sort. That is the construction adopted by the Secretary, the District Court and the Circuit Court of Appeals. They are right. Petitioner's application for a writ of habeas corpus was properly denied.

LIFE & CASUALTY INSURANCE CO. OF TEN

NESSEE v. McCRAY.

APPEAL FROM THE SUPREME COURT OF ARKANSAS.

No. 89. Argued February 5, 1934.—Decided March 5, 1934. 1. A state statute by which a life insurance company, if it fail to

pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reason.

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Opinion of the Court.

able in amount, and for a reasonable attorney's fee for collection, to be taxed by the court, is consistent with the due process and equal protection clauses of the Fourteenth Amendment, even though payment of the policy was resisted in good faith and upon reasonable grounds. Pp. 569–570.

So held where the statute was in effect when the policy was issued. 2. The nature of the insurance business and the peculiar hardships

commonly experienced by the beneficiary when payment does not follow promptly the death of the insured, justify these special

requirements. Pp. 569–570. 3. Damages of twelve per cent. of the face of the policy (the amount

fixed by the Arkansas statute here under consideration) can not be adjudged unreasonable and oppressive, in view of the contrary finding implied in the statute itself and of like measures in other

States long acquiesced in. P. 570. 4. The presumption of validity which applies to legislation generally,

is fortified by continued acquiescence. P. 572. 5. A statutory penalty for refusal to pay an obligation when due

may be unconstitutional if so extravagant in amount as to deter the honest debtor from making a bona fide defense in court, and yet may be valid if the amount be gauged reasonably as a stimulus to prompt settlement and as compensation to the creditor in case

of delay. P. 572. 187 Ark. 49; 58 S.W. (20) 199, affirmed.

APPEAL from a judgment affirming a recovery in an action on a policy of life insurance. Twelve per cent. damages and attorneys' fees were included in the judgment.

Mr. Moreau P. Estes, with whom Messrs. P. M. Estes and Myron T. Nailling were on the brief, for appellant.

Messrs. Joseph M. Hill and Henry L. Fitzhugh submitted for appellee.

MR. JUSTICE CARDOZO delivered the opinion of the Court.

On March 3, 1930, the appellant, an insurance company, issued to Jonas McCray a policy of life insurance for $500

Opinion of the Court.

291 U.S.

payable to his wife, the appellee in this court. The policy lapsed in June, 1931, for non-payment of a premium within the period of grace, but in August, 1931, it was reinstated with the company's consent. On May 10, 1932, the insured committed suicide. If suicide occurred within a year from the date of issue of the policy, the insurer's liability was limited to a return of any premiums paid by the insured. If suicide occurred after the expiration of the year, the liability was the same as upon a death from other causes. The appellee made proof of claim against the insurer, insisting that the year was to be calculated from the original date of issue. The company refused payment upon the ground that the year was to be calculated from the time of reinstatement. Judgment went against the insurer in the trial court, and again, upon appeal, in the Supreme Court of the State. 187 Ark. 49; 58 S.W. (20) 199. The controversy here grows out of the amount of the recovery. To the face of the policy with interest at six per cent there were added certain statutory allowances, which are contested in this court. One of the additions was an attorney's fee of $200 ($100 for the trial and $100 for the appeal). The other was an award of twelve per cent computed on the payments due under the contract. These increments are authorized by a statute of Arkansas which is quoted in the margin. The

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Section 6155, Digest of the Statutes of Arkansas (Crawford & Moses, 1921): "In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent. damages upon the amount of such loss, together with all reasonable attorneys' fees for the prosecution and collection of said loss; said attorneys' fees to be taxed by the Court where the same is heard on original action, by appeal or otherwise and to be taxed up as a part of the costs therein and collected as other costs are or may be by law collected."

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