LACOMBE, Circuit Judge.
Defendant was indicted March 3, 1911, for making a charge and taking security for the return passage of two aliens brought to this country on defendant’s steamer Rhein in December, 1910. This_ indictment was demurred to in the lower court, where the demurrer was sustained. The Supreme Court reversed that judgment and upheld the indictment. 223 U. S. 512, 32 Sup. Ct. 244, 56 L. Ed. 531.
[12]*12The section under which the indictment was found provides as follows :
“19. 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 * * * 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 any * * * owner, * * * of any such vessel * * * shall make any charge for the return of any such alien, or shall take any security from him for the payment of such charge, such * * * owner, * * * shall be deemed guilty of a misdemeanor and shall, on conviction, be punished by a fine of not less than $300 for each and every such offense.”
The controversy arose by reason of the fact that defendant at its office in Bremen sold to one Dossik tickets to New York and also return tickets for himself and his wife from New York to Bremen; thereafter the aliens were brought to New York on defendant’s steamer •Rhein.
[1, 2] The contention upon the demurrer was to the effect that whatever violation there had been of the terms of the statute was committed outside of1 the jurisdiction, to wit, in Germany. The demurrer conceded averments of the indictment that the Dossiks were brought to this country in violation of law and that they were ordered deported by competent authority. There was no such concession on the trial and the burden of proving these averments was on the government, since, as we have seen, the nineteenth section imposes a penalty only in the case of aliens “brought to this country in violation of law.” Before considering the testimony by which it is sought to sustain these averments, it may be well to cite some passages from the Immigration Taws and Regulations. Sectioñ’2 contains a long enumeration of classes of aliens to be excluded. The first group includes among others idiots, imbeciles, insane persons, persons afflicted with tuberculosis or with loathsome or dangerous contagious disease, paupers, persons likely to become a public charge, and “persons not comprehended within any of1 the foregoing excluded classes who are found to be and certified by the examining surgeon—as being mentally or physically defective, such mental or physical defect being of -a nature which may affect the ability of such alien to earn a living.”
Section 26 provides:
“That any alien liable to be excluded because likely to become a public charge or because of physical disability other than tuberculosis or loathsome or dangerous contagious disease may, if otherwise admissible, nevertheless be admitted in the discretion of the Secretary of Commerce and Labor upon the giving of a suitable and proper bond or undertaking, approved by said Secretary,” etc.
In the Immigration Regulations provision is further made for admissions under bond. Rule 20 provides that:
“Where an alien is liable to be excluded because likely, to become a public charge or because of physical disability and it is foun'd that the alien is not afflicted with tuberculosis or with a loathsome or dangerous contagious disease and that he is otherwise admissible, and, after notice of his right to do so, the alien signifies his intention of applying for admission under bond, the board of special inquiry shall not pass upon the alien’s right to enter as in ■other cases, but shall make special finding of fact in the premises and report [13]*13the same, including the certificate of the medical examiner, to the immigration officer in charge, who shall forward the report, together with his recommendation to the Secretary of Commerce and Labor, through the Commissioner General of Immigration. If in the exercise of the discretion conferred by law, the Secretary, decides to admit the alien, a bond will-be required,” etc.
' The facts shown by the record are as follows: Some time about the latter part of November, Dossik applied in Bremen for his passage to this country. The agents of the steamship sold him round trip tickets. They testified that they did so because he told them that he and his wife were going to America to make a short visit to two of their children who were living there. Dossik testified that he tpld them he expected to stay with his children and not return. In the view we take of this case it is unimportant which account is correct. Upon arrival the aliens were examined by the- government surgeons, who certified as to both that they were “physically defective, and such physical defect is of a nature which affects the aliens’ ability to earn a living. Has senility.” The aliens and thése certificates next came before a board of special inquiry (December 17, 1910), which found that:
“The aliens are lifcely to become a public charge for the following among other reasons: They are both aged, decrepid, and incapable of self-support; they have no one in this country legally obligated to render them any assistance; while they have about $200, it is insufficient in our opinion to provide for these aged aliens; the witness, a son-in-law, appearing is in no position to give them the necessary assistance. Upon all the facts, including incidentally the medical certificates, we find that the aliens are persons suffering from physical defects of such a nature that may and will affect their ability to earn a living.
“Aliens informed of their exclusion, right of appeal and that they will be returned at the .expense of the steamship company. Aliens excluded and ordered deported.”
The trial judge apparently 'concluded that this deliverance of the board of special inquiry ended the matter, as no doubt it would if the other provisions of the statute had not been invoked. We do not concur with him because we are convinced from this record that such provisions were invoked. If strictly construed the certificate of the board was premature; it does not state that the alien was notified that he had a right to apply to the Secretary of Commerce and Labor for. admission under bond. Rule 20 provides that until he has been given such notice, so that he may signify his intention of making such application, the “board of special inquiry shall not pass upon the alien’s right to enter.”
[3] But whether premature or not, and whether or not the statement in the board’s minutes that the alien was informed of his “right of appeal” means thqt he was then given the notice which rule 20 requires, the fact is that the Secretary did admit the Dossiks on April 22, 1911, upon the giving of a bond in the sum of $500 for each of them. Manifestly these aliens were within the class covered by section 26, above quoted, whose admission to or exclusion from this country is determined finally, not by the action of the board of special inquiry, but by the exercise of the discretion of the Secretary.
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LACOMBE, Circuit Judge.
Defendant was indicted March 3, 1911, for making a charge and taking security for the return passage of two aliens brought to this country on defendant’s steamer Rhein in December, 1910. This_ indictment was demurred to in the lower court, where the demurrer was sustained. The Supreme Court reversed that judgment and upheld the indictment. 223 U. S. 512, 32 Sup. Ct. 244, 56 L. Ed. 531.
[12]*12The section under which the indictment was found provides as follows :
“19. 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 * * * 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 any * * * owner, * * * of any such vessel * * * shall make any charge for the return of any such alien, or shall take any security from him for the payment of such charge, such * * * owner, * * * shall be deemed guilty of a misdemeanor and shall, on conviction, be punished by a fine of not less than $300 for each and every such offense.”
The controversy arose by reason of the fact that defendant at its office in Bremen sold to one Dossik tickets to New York and also return tickets for himself and his wife from New York to Bremen; thereafter the aliens were brought to New York on defendant’s steamer •Rhein.
[1, 2] The contention upon the demurrer was to the effect that whatever violation there had been of the terms of the statute was committed outside of1 the jurisdiction, to wit, in Germany. The demurrer conceded averments of the indictment that the Dossiks were brought to this country in violation of law and that they were ordered deported by competent authority. There was no such concession on the trial and the burden of proving these averments was on the government, since, as we have seen, the nineteenth section imposes a penalty only in the case of aliens “brought to this country in violation of law.” Before considering the testimony by which it is sought to sustain these averments, it may be well to cite some passages from the Immigration Taws and Regulations. Sectioñ’2 contains a long enumeration of classes of aliens to be excluded. The first group includes among others idiots, imbeciles, insane persons, persons afflicted with tuberculosis or with loathsome or dangerous contagious disease, paupers, persons likely to become a public charge, and “persons not comprehended within any of1 the foregoing excluded classes who are found to be and certified by the examining surgeon—as being mentally or physically defective, such mental or physical defect being of -a nature which may affect the ability of such alien to earn a living.”
Section 26 provides:
“That any alien liable to be excluded because likely to become a public charge or because of physical disability other than tuberculosis or loathsome or dangerous contagious disease may, if otherwise admissible, nevertheless be admitted in the discretion of the Secretary of Commerce and Labor upon the giving of a suitable and proper bond or undertaking, approved by said Secretary,” etc.
In the Immigration Regulations provision is further made for admissions under bond. Rule 20 provides that:
“Where an alien is liable to be excluded because likely, to become a public charge or because of physical disability and it is foun'd that the alien is not afflicted with tuberculosis or with a loathsome or dangerous contagious disease and that he is otherwise admissible, and, after notice of his right to do so, the alien signifies his intention of applying for admission under bond, the board of special inquiry shall not pass upon the alien’s right to enter as in ■other cases, but shall make special finding of fact in the premises and report [13]*13the same, including the certificate of the medical examiner, to the immigration officer in charge, who shall forward the report, together with his recommendation to the Secretary of Commerce and Labor, through the Commissioner General of Immigration. If in the exercise of the discretion conferred by law, the Secretary, decides to admit the alien, a bond will-be required,” etc.
' The facts shown by the record are as follows: Some time about the latter part of November, Dossik applied in Bremen for his passage to this country. The agents of the steamship sold him round trip tickets. They testified that they did so because he told them that he and his wife were going to America to make a short visit to two of their children who were living there. Dossik testified that he tpld them he expected to stay with his children and not return. In the view we take of this case it is unimportant which account is correct. Upon arrival the aliens were examined by the- government surgeons, who certified as to both that they were “physically defective, and such physical defect is of a nature which affects the aliens’ ability to earn a living. Has senility.” The aliens and thése certificates next came before a board of special inquiry (December 17, 1910), which found that:
“The aliens are lifcely to become a public charge for the following among other reasons: They are both aged, decrepid, and incapable of self-support; they have no one in this country legally obligated to render them any assistance; while they have about $200, it is insufficient in our opinion to provide for these aged aliens; the witness, a son-in-law, appearing is in no position to give them the necessary assistance. Upon all the facts, including incidentally the medical certificates, we find that the aliens are persons suffering from physical defects of such a nature that may and will affect their ability to earn a living.
“Aliens informed of their exclusion, right of appeal and that they will be returned at the .expense of the steamship company. Aliens excluded and ordered deported.”
The trial judge apparently 'concluded that this deliverance of the board of special inquiry ended the matter, as no doubt it would if the other provisions of the statute had not been invoked. We do not concur with him because we are convinced from this record that such provisions were invoked. If strictly construed the certificate of the board was premature; it does not state that the alien was notified that he had a right to apply to the Secretary of Commerce and Labor for. admission under bond. Rule 20 provides that until he has been given such notice, so that he may signify his intention of making such application, the “board of special inquiry shall not pass upon the alien’s right to enter.”
[3] But whether premature or not, and whether or not the statement in the board’s minutes that the alien was informed of his “right of appeal” means thqt he was then given the notice which rule 20 requires, the fact is that the Secretary did admit the Dossiks on April 22, 1911, upon the giving of a bond in the sum of $500 for each of them. Manifestly these aliens were within the class covered by section 26, above quoted, whose admission to or exclusion from this country is determined finally, not by the action of the board of special inquiry, but by the exercise of the discretion of the Secretary. There is no snecific proof of the various steps which brought the matter before that officer; but we must assume that the Secretary as a public officer .acted [14]*14in conformity to law, and,since it is conceded that he did exercise his discretion by admitting the aliens, upon giving a bond, it is to be presumed that the matter came before him in the regular course of official business, in conformity with the provisions of rule 20.
It appears therefore conclusively that Dossik and his wife, after being fully examined, were, in conformity to the provisions of the Immigration Act, admitted into the United States. How, in view of that fact, it can be held that in selling them return tickets the owner of the steamship made charge or took security for the return of “aliens brought to this country in violation of law,” we are unable to conceive.
When the case was before the Supreme Court, it was held that, although the original acceptance of the money in Bremen was an act outside'of the jurisdiction, the retention of that money here, after being advised that the aliens were to be excluded and deported, would be an act within the jurisdiction. It now appears that the so-called return ticket or “passage order” entitled the holder either to passage to Bremen or to the return of ithe amount paid therefor; that the defendant was at all times ready to make such repayment, provided the passage order were returned; and that this was not done because the passage order was taken from the alien by the authorities at Ellis Island and was retained by the government officers for more than two months, until after the grand jury had found this indictment. Thereupon it was returned to him with the statement that he could get some money on it. Although the disposition we have made of the other point in the case makes it unnecessary to consider the contentions of defendant as to the effect of these transactions, we note them to express our disapproval.
The judgment is reversed.