Reporter's Statement of the Case We ask for a reopening of this case and await with confidence your unbiased decision. We will be represented before the Department by our Washington lawyer, Mr. A. Warner Parker. Attached to this protest was a certificate dated Lulea, November 16, 1926 and signed by three persons, as follows: Olov Gottfrid Anderson, carpenter, 37 years of age, from Boden, was examined by me on July 23rd, 1926. No symptoms of tuberculosis could then be found, which, upon request, is hereby certified. (Signed.) A. J. ANMEUS, City Physician in Charge. Name: Olaf Gottfrid Anderson. 9. December 15, 1926, the commissioner of immigration forwarded to the Commissioner General of Immigration, at Washington, the notice of liability for fine in the case of Olaf G. Anderson, with plaintiff's protest and accompanying certificate. On January 4, 1927, plaintiff filed its brief with the Bureau of Immigration in the Department of Labor. February 2, 1927, the Commissioner General of Immigration wrote a letter to the commissioner of immigration at Ellis Island, which was approved by the Second Assistant Secretary of Labor, as follows: Reference is made to your letter of December 15th, no. 98974/281, relative to a proposed fine against the S. S. Drottningholm, arriving on August 24, 1926, for bringing to the United States the alien Olaf G. Anderson, who was certified as being afflicted with chronic pulmonary tuberculosis, far advanced, which, in the opinion of the examining Public Health surgeons, might have been detected by means of a competent medical examination at the foreign port of embarkation. Reporter's Statement of the Case The protest of the line against the imposition of a fine, dated December 8th, with its numerous accompanying papers, and that of its Washington attorney, dated January 4th, have been reviewed with care. Briefly, these set forth that the alien was examined prior to embarkation, by three physicians, one of whom had served in the past in the U. S. Public Health Service, and that none discovered any signs of tuberculosis. It is contended that the examinations were all competent, and that the disease could have been detected only by Xray, and that the use of this is outside the scope of a competent medical examination. Medical certificates showing inspection prior to embarkation are in the Bureau's file at this time, having been submitted with the company's protest. The alien claimed that he had always been in good health and had had no difficulties of a physical nature save about six years ago, when he had "water on the right lung." Apparently he had been able to support his numerous family. The official medical certificate is, of course, the outstanding evidence in the case. In view of the three examinations given this alien prior to his embarkation the line might be relieved from responsibility were it not for the fact that the disease is far advanced. In the Bureau's opinion, the state of the disease makes it impossible to reach any other conclusion than that it existed at the time the alien embarked and that it might have been detected at that time by means of a competent medical examination. It is ruled, therefore, that the penalty as provided in section 26 of the act of May 26, 1924, should be imposed, and you are directed to take appropriate action whereby the sum of $1,000 may be covered into the Treasury as an immigration fine in this case. The amount of passage money, $135, is to be returned to the alien, he having been deported. February 2, 1927, the Commissioner General of Immigration advised plaintiff's attorney that a fine of $1,000 had been imposed and that passage money in the sum of $125 had been ordered returned to the alien. February 8, 1927, the commissioner of immigration advised the collector of customs at New York that a fine of $1,000 and passage money in the amount of $125 had been imposed against plaintiff in the case of the alien Olaf G. Anderson, that $1,000 was to be covered into the Treasury 78975-37-cc-vol. 83-7 Reporter's Statement of the Case and $125 was to be returned to the alien. A copy of this notice was served on plaintiff. February 10, 1927, plaintiff advised the commissioner of immigration that the amount of $125 as passage money had already been repaid to the alien, Anderson, as required by Swedish law. Thereafter the Secretary of Labor canceled the requirement as to the paying of passage money to the collector of customs. March 3, 1927, plaintiff paid the amount of $1,000 to the collector of customs at New York. 10. In neither the Larsson nor the Anderson case did the Secretary of Labor submit the protest and accompanying certificate which had been filed by plaintiff with the Department of Labor to the United States Public Health surgeons. 11. June 25, 1925, plaintiff had executed a bond, with sureties, to the collector of customs of the port of New York, in the penal amount of ten thousand ($10,000) dollars, conditioned as follows: Now, therefore, the condition of this obligation is such that if the above bounden principal shall pay to the collector of customs at the port of New York any and all fines and amounts of passage money found by the Secretary of Labor to be due and payable under the provisions of said Immigration Act of 1924, then this obligation to be void, otherwise to remain in full force and effect; the said principal to have, however, the privilege of making such payments under protest, and without prejudice to any and all legal rights of recovering by appropriate action or proceedings any and all sums so paid as fines or passage money under this bond. This bond was on file with the collector of customs of the port of New York, and was at all times during the transaction set out in these findings in full force and effect. 12. By reason of this bond, plaintiff was not required to make deposits of the amounts of the fines, as set out in and as required by the notices of October 11 and October 27, 1926. Plaintiff did not make such deposits, nor was clearance withheld from plaintiff's ships Gripsholm and Drottningholm, pending the determination of plaintiff's liability to fine in the cases of said aliens. Opinion of the Court 13. During the period here involved, according to the procedure in effect in the office of the collector of customs for the port of New York for the collection of fines imposed under the immigration laws by the Secretary of Labor, where the company had posted a blanket bond covering any fines that might be so imposed, a deposit of the amount of the proposed fine was not required at the time the notice of liability to fine was served on the company, and no steps were taken to collect the amount until the Secretary of Labor had finally imposed the fine. This procedure also provided that upon notice from the Secretary that a fine had been imposed, a stop order be placed against the vessel which had brought over the alien as to whom the fine was imposed, and clearance be withheld from the vessel until the fine was paid, notwithstanding the fact that bond had been posted. This procedure further provided that if the vessel was not then in the port of New York, clearance would be withheld at her next arrival at that port until the fine had been paid. This procedure was in effect from May 26, 1924, to December 6, 1933, following which there was a change in procedure. 14. Plaintiff's vessels were not detained, nor was clearance withheld from them at the time or prior to payments of the fines here involved. No specific notice was served on plaintiff, either at the time or prior to such payments to the effect that its vessels would be detained until the fines were paid. The fines were involuntarily paid by the plaintiff because of its knowledge of the practice then in effect in the office of the collector of customs, port of New York (finding 13), and by reason of its knowledge that under such procedure its vessels would if in port, or if not in port, upon their next arrival, be refused clearance, unless and until the respective fines were paid. The court decided that plaintiff was not entitled to recover. LITTLETON, Judge, delivered the opinion of the court: Each of the fines involved in this case was imposed by the Secretary of Labor as a result of the certificates of the examining U. S. Public Health surgeons that the aliens were Opinion of the Court afflicted with tuberculosis and that this condition might have been detected at the foreign port of emigration by competent medical examination. Examinations were had by the Board of Special Inquiry and the records of the proceedings before this board were also before the Secretary, all of which he considered in connection with plaintiff's protests or appeals set forth in the findings. Section 9 of the Immigration Act of 1917 as amended by section 26 of the Act of 1924, U. S. Code, title 8, section 145, makes it unlawful for any person or company to bring to the United States either from a foreign country or any insular possession of the United States any alien afflicted with tuberculosis in any form and provides that "if it shall appear to the satisfaction of the Secretary of Labor that any alien so brought to the United States was afflicted with any of the said diseases or disabilities at the time of foreign embarkation, and that the existence of such disease or disability might have been detected by means of a competent medical examination at such time, such person or transportation company shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000, and in addition a sum equal to that paid by such alien for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, for each and every violation of the provisions of this section, such latter sum to be delivered by the collector of customs to the alien on whose account assessed." Section 16 of the Act of 1917, U. S. Code, title 8, section 154, provides that "The physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health Service who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical officers in any such alien." The controlling question is whether the decisions of the Secretary of Labor imposing the fines were arbitrary and unfair. We think they were not in the light of the record before him. Plaintiff relies upon the case of Lloyd Sabaudo Societa Anonima Per Aziono v. Elting, 287 U. S. 329. We |