A-13628, FEBRUARY 12, 1927, 6 COMP. GEN. 523

A-13628: Feb 12, 1927

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IMMIGRATION FINES - REFUNDS WHERE IMMIGRATION FINES WERE IMPOSED AND COLLECTED UNDER A BLANKET DETENTION ORDER ISSUED UNDER THE PROVISIONS OF SECTION 20 OF THE ACT OF MAY 26. A SUBSEQUENT ADMINISTRATIVE CONCLUSION THAT BLANKET DETENTION ORDERS ARE ILLEGAL IS NOT AUTHORITY TO REFUND THE FINES AS BEING MADE THROUGH ERROR OF GOVERNMENT OFFICERS. 000 AS REFUND OF AN IMMIGRATION FINE ALLEGED TO HAVE BEEN ERRONEOUSLY COLLECTED JANUARY 5. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THERE WAS NO AUTHORITY FOR REFUND OF THE FINE. YOU ARE HEREBY DIRECTED TO DETAIN ON BOARD (ALL MEMBERS OF THE CREW EXCEPT EIGHT OFFICERS) THE FOLLOWING NAMED ALIENS. IT IS REPORTED THAT THE UNITED STATES DISTRICT COURT AT GALVESTON.

A-13628, FEBRUARY 12, 1927, 6 COMP. GEN. 523

IMMIGRATION FINES - REFUNDS WHERE IMMIGRATION FINES WERE IMPOSED AND COLLECTED UNDER A BLANKET DETENTION ORDER ISSUED UNDER THE PROVISIONS OF SECTION 20 OF THE ACT OF MAY 26, 1924, 43 STAT. 164, A SUBSEQUENT ADMINISTRATIVE CONCLUSION THAT BLANKET DETENTION ORDERS ARE ILLEGAL IS NOT AUTHORITY TO REFUND THE FINES AS BEING MADE THROUGH ERROR OF GOVERNMENT OFFICERS, PROVIDED FOR IN THE APPROPRIATION ACT OF MAY 28, 1924, 43 STAT. 240.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 12, 1927:

THE SOCIETA LIGURE DI ARMANENTO REQUESTED, DECEMBER 11, 1926, REVIEW OF SETTLEMENT NO. 0132506, DATED DECEMBER 7, 1926, DISALLOWING ITS CLAIM FOR $7,000 AS REFUND OF AN IMMIGRATION FINE ALLEGED TO HAVE BEEN ERRONEOUSLY COLLECTED JANUARY 5, 1925, FOR VIOLATION OF A BLANKET DETENTION ORDER OF DECEMBER 19, 1924, SERVED ON THE MASTER OF THE STEAMSHIP MARTE. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THERE WAS NO AUTHORITY FOR REFUND OF THE FINE.

THE IMMIGRATION INSPECTOR OF THE DEPARTMENT OF LABOR AT NEW ORLEANS, LA., ISSUED ON DECEMBER 19, 1924, A BLANKET DETENTION ORDER FOR THE ENTIRE CREW OF THE STEAMSHIP MARTE, SAVE OFFICERS, SERVING THE MASTER OF THE SHIP WITH THE FOLLOWING NOTICE:

PURSUANT TO THE PROVISIONS OF THE ACTS OF FEBRUARY 5, 1917, AND DECEMBER 26, 1920, AND THE IMMIGRATION REGULATIONS ISSUED BY THE SECRETARY OF LABOR THEREUNDER, YOU ARE HEREBY DIRECTED TO DETAIN ON BOARD (ALL MEMBERS OF THE CREW EXCEPT EIGHT OFFICERS) THE FOLLOWING NAMED ALIENS, WITH THEIR BAGGAGE, YOUR ATTENTION BEING INVITED TO THE APPROPRIATE SECTIONS OF THE STATUTE APPEARING ON THE REVERSE SIDE HEREON.

THE SHIP LEFT NEW ORLEANS, LA., AND PROCEEDED TO NORFOLK, VA., WHERE THE IMMIGRATION OFFICER ASCERTAINED THAT SEVEN ALIEN MEMBERS OF THE CREW HAD LEFT THE SHIP SOME TIME AFTER THE ISSUANCE OF THE AFORESAID DETENTION ORDER OF DECEMBER 19, 1924. HE SERVED NOTICE OF INTENTION TO EXACT THE FINE, UNDER AUTHORITY OF SECTION 20 OF THE ACT OF MAY 26, 1924, 43 STAT. 164, WHEREUPON THE SMOKELESS FUEL CO., FOR AND ON BEHALF OF THE OWNERS OF THE VESSEL, DEPOSITED $7,000, THE AMOUNT OF THE FINE, WITH THE COLLECTOR OF CUSTOMS. IT IS REPORTED THAT THE UNITED STATES DISTRICT COURT AT GALVESTON, TEX., IN MAY OR JUNE, 1925, IN THE BARCELONA CASE, ENJOINED THE COLLECTION OF A FINE FOR VIOLATION OF A SIMILAR BLANKET DETENTION ORDER COVERING ALL THE SEAMEN ON BOARD THE VESSEL, NOT MENTIONING THE SEAMEN BY NAME OR THEIR POSITIONS ON THE SHIP'S COMPANY. IT APPEARS THAT THE DEPARTMENT OF LABOR ACCEPTED THAT COURT'S ACTION IN THE BARCELONA CASE AS A FINAL DETERMINATION THAT SUCH BLANKET ORDERS ARE UNAUTHORIZED AND THAT FINES COLLECTED FOR VIOLATION OF SUCH ORDERS WERE COLLECTED ILLEGALLY. THE ACTION OF THE DEPARTMENT IN SO INTERPRETING AND APPLYING THE COURT'S ACTION IN THAT CASE APPEARS TO BE THE BASIS OF THE CLAIM FOR REFUND IN THIS CASE.

SECTIONS 19 AND 20 OF THE ACT OF MAY 26, 1924, 43 STAT. 164, ARE, IN PART, AS FOLLOWS:

SEC. 19. NO ALIEN SEAMAN EXCLUDED FROM ADMISSION INTO THE UNITED STATES UNDER THE IMMIGRATION LAWS AND EMPLOYED ON BOARD ANY VESSEL ARRIVING IN THE UNITED STATES FROM ANY PLACE OUTSIDE THEREOF, SHALL BE PERMITTED TO LAND IN THE UNITED STATES, EXCEPT TEMPORARILY FOR MEDICAL TREATMENT, OR PURSUANT TO SUCH REGULATIONS AS THE SECRETARY OF LABOR MAY PRESCRIBE FOR THE ULTIMATE DEPARTURE, REMOVAL OR DEPORTATION OF SUCH ALIEN FROM THE UNITED STATES.

SEC. 20. (A) THE OWNER, CHARTERER, AGENT, CONSIGNEE, OR MASTER OF ANY VESSEL ARRIVING IN THE UNITED STATES FROM ANY PLACE OUTSIDE THEREOF WHO FAILS TO DETAIN ON BOARD ANY ALIEN SEAMAN EMPLOYED ON SUCH VESSEL UNTIL THE IMMIGRATION OFFICER IN CHARGE AT THE PORT OF ARRIVAL HAS INSPECTED SUCH SEAMAN (WHICH INSPECTION IN ALL CASES SHALL INCLUDE A PERSONAL PHYSICAL EXAMINATION BY THE MEDICAL EXAMINERS), OR WHO FAILS TO DETAIN SUCH SEAMAN ON BOARD AFTER SUCH INSPECTION OR TO DEPORT SUCH SEAMAN IF REQUIRED BY SUCH IMMIGRATION OFFICER OR THE SECRETARY OF LABOR TO DO SO, SHALL PAY TO THE COLLECTOR OF CUSTOMS OF THE CUSTOMS DISTRICT IN WHICH THE PORT OF ARRIVAL IS LOCATED THE SUMS OF $1,000 FOR EACH ALIEN SEAMAN IN RESPECT OF WHOM SUCH FAILURE OCCURS. NO VESSEL SHALL BE GRANTED CLEARANCE PENDING THE DETERMINATION OF THE LIABILITY TO THE PAYMENT OF SUCH FINE, OR WHILE THE FINE REMAINS UNPAID, EXCEPT THAT CLEARANCE MAY BE GRANTED PRIOR TO THE DETERMINATION OF SUCH QUESTION UPON THE DEPOSIT OF A SUM SUFFICIENT TO COVER SUCH FINE, OR OF A BOND WITH SUFFICIENT SURETY TO SECURE THE PAYMENT THEREOF APPROVED BY THE COLLECTOR OF CUSTOMS.

(B) PROOF THAT AN ALIEN SEAMAN DID NOT APPEAR UPON THE OUTGOING MANIFEST OF THE VESSEL ON WHICH HE ARRIVED IN THE UNITED STATES FROM ANY PLACE OUTSIDE THEREOF, OR THAT HE WAS REPORTED BY THE MASTER OF SUCH VESSEL AS A DESERTER, SHALL BE PRIMA FACIE EVIDENCE OF A FAILURE TO DETAIN OR DEPORT AFTER REQUIREMENT BY THE IMMIGRATION OFFICER OR THE SECRETARY OF LABOR.

THE ACT OF MAY 28, 1924, 43 STAT. 205, MAKING APPROPRIATIONS FOR THE DEPARTMENT OF LABOR, AMONG OTHERS, FOR THE FISCAL YEAR ENDING JUNE 30, 1925, MADE AN APPROPRIATION, PAGE 240, UNDER THE HEADING BUREAU OF IMMIGRATION, FOR:

* * * REFUNDING OF HEAD TAX, MAINTENANCE BILLS, AND IMMIGRATION FINES UPON PRESENTATION OF EVIDENCE SHOWING CONCLUSIVELY THAT COLLECTION WAS MADE THROUGH ERROR OF GOVERNMENT OFFICERS * * *.

THE MASTER OF THE ITALIAN STEAMSHIP MARTE REPORTED IN LETTER OF JANUARY 7, 1925, THAT:

IN REFERENCE TO THE FINE OF $7,000.00 WHICH HAS BEEN IMPOSED UPON MY SHIP, THE ITALIAN S.S. MARTE, I BEG TO STATE THAT MY SHIP ARRIVED AT NEW ORLEANS ON DECEMBER 20TH, 1924, TO LOAD A CARGO OF GRAIN. SHE WAS DOCKED ON DECEMBER 20TH AT THE PIER OF THE PUBLIC ELEVATOR, WHERE SHE REMAINED FOR 8 DAYS.

ON ARRIVAL OF MY SHIP I WAS NOTIFIED BY THE UNITED STATES IMMIGRATION INSPECTOR TO DETAIN ON BOARD 23 MEMBERS OF MY CREW, THIS BEING THE ENTIRE CREW WITH THE EXCEPTION OF THE 7 OFFICERS AND STEWARD. HAVING IN MIND THE INSTRUCTIONS OF THE INSPECTOR, I EMPLOYED TWO WATCHMEN FOR DAYLIGHT WATCHING AND ALSO TWO WATCHMEN FOR THE NIGHT WATCH, WHO WERE INSTRUCTED NOT TO ALLOW ANY OF THE CREW ASHORE; AND IN ADDITION TO THE WATCHMEN, MY OFFICERS WERE INSTRUCTED TO MAKE EVERY EFFORT TO PREVENT ANY OF THE CREW ESCAPING.

ON THE NIGHT OF DECEMBER 23D, 5 OF MY CREW DESERTED, AT WHICH TIME I IMMEDIATELY NOTIFIED MY AGENTS, MESSRS. RICHARD MEYER AND COMPANY, AND ON DECEMBER 27TH 2 OTHERS ESCAPED, MY AGENTS BEING ALSO NOTIFIED PROMPTLY OF THE DESERTION OF THESE MEN.

I AM UNABLE TO STATE HOW THE MEN ESCAPED, BUT IT IS MY BELIEF THAT THEY MADE THEIR ESCAPE FROM THE SIDE OF THE SHIP OPPOSITE TO THE PIER, AS WITH TWO WATCHMEN ON DUTY, THEY HAD NO POSSIBLE WAY OF GETTING ASHORE ON THE PIER SIDE WITHOUT BEING OBSERVED. BEFORE I SAILED FROM NEW ORLEANS I FILED WITH MY AGENTS THE USUAL IMMIGRATION FORM, SHOWING THE NAMES OF THE 7 MEN WHO HAD DESERTED, AND ALSO I ADVISED THE UNITED STATES IMMIGRATION INSPECTOR WHEN HE CAME ABOARD BEFORE MY SHIP SAILED. IN VIEW OF THE FACT THAT I MADE EVERY EFFORT TO COMPLY WITH THE INSTRUCTIONS OF THE UNITED STATES IMMIGRATION AUTHORITIES, TO KEEP MY MEN ON BOARD, AND THAT I HAD NO OTHER MEANS OF KEEPING THEM ON BOARD EXCEPT BY EMPLOYING WATCHMEN, THIS BEING DUE TO THE FACT THAT THE ENTIRE CREW WAS ORDERED DETAINED, I RESPECTFULLY ASK THAT THE FINE AGAINST MY SHIP BE RESCINDED OR MITIGATED.

THERE IS THUS NO DOUBT THAT SEVEN OF THE CREW MEN DESERTED TO THE UNITED STATES. IT MAY BE CONCEDED, ARGUENDO, THAT IF THE BLANKET DETENTION ORDER HAD BEEN CHALLENGED, AS IN THE BARCELONA CASE, IT WOULD HAVE BEEN HELD VOIDABLE, BUT IT WAS NOT SO CHALLENGED AND THE FINE IMPOSED THEREUNDER WAS PAID. THEREFORE, THE MATTER HERE PRESENTED IS ESSENTIALLY DIFFERENT FROM THE MATTER BEFORE THE COURT IN THE BARCELONA CASE. THERE WOULD APPEAR TO BE FOR APPLICATION HERE THE PRINCIPLE OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, DATED JANUARY 3, 1927, IN UNITED STATES V. SAMUEL GETTINGER AND HARRY POMERANTZ, WHERE IT WAS HELD THE UNITED STATES WAS ENTITLED TO RETAIN A FINE WHICH HAD BEEN PAID UNDER A STATUTE LATER HELD TO BE UNCONSTITUTIONAL AND VOID. THAT WAS A STRONGER CASE THAN THIS ONE, FOR THE REASON THAT GETTINGER AND POMERANTZ ATTEMPTED TO RESERVE A RIGHT TO REFUND OF THE FINE IN EVENT THE STATUTE SHOULD BE HELD TO BE UNCONSTITUTIONAL, WHEREAS THE VALIDITY OF THE ORDER FOR THE VIOLATION OF WHICH THE FINE IN THIS CASE WAS IMPOSED DOES NOT APPEAR TO HAVE BEEN QUESTIONED BY THE CLAIMANT AT ANY TIME PRIOR TO PAYMENT OF THE FINE.

IT MUST BE HELD THAT ANY IRREGULARITY IN THE DETENTION ORDER WAS WAIVED BY PAYMENT OF THE FINE WITHOUT PROTEST OF ALLEGED IRREGULARITY AND THAT A SUBSEQUENT CHANGE IN ADMINISTRATIVE PROCEDURE AS TO THE ISSUANCE OF DETENTION ORDERS DOES NOT HAVE THE EFFECT OF ENTITLING TO A REFUND OF THE FINE.

THE DECISION OF THE SUPREME COURT DATED DECEMBER 13, 1926, IN WRIGHT V. YNCHAUSTI COMPANY, CITED BY COUNSEL FOR CLAIMANT, HAS NO APPLICATION TO THE FACTS OF THIS CASE, FOR THE ADMINISTRATIVE OFFICERS HAVE NOT BEEN GIVEN STATUTORY AUTHORITY FINALLY TO DETERMINE WHETHER AN IMMIGRATION FINE WAS COLLECTED THROUGH ERROR OF GOVERNMENT OFFICERS, AS REQUIRED BY THE TERMS OF THE ACT OF MAY 28, 1924, BEFORE FUNDS APPROPRIATED THEREIN ARE AVAILABLE FOR REFUND THEREOF.