GRANT BROS. v. UNITED STATES

Mr. Isidore B. Dockweiler, with whom Mr. A.C. Baker and Mr. Robert B. Murphey were on the brief, for plaintiffs in error:

The statute is highly penal and must be strictly construed so as to bring within its condemnation only those who are shown by direct and positive averments in the complaint to be embraced within the terms of the law.

Although this action is civil in form, it is in fact in the nature of a criminal proceeding in that it seeks to recover a penalty for the commission of a crime. United States v. Edgar, 45 F. 46; United States v. M'Elroy, 115 U.S. 252; United States v. Gay, 95 F. 226; United States v. Tsokas, 163 F. 129; Regan v. United States, 183 F. 293; Lees v. United States, 150 U.S. 476; United States v. Hepner, 213 U.S. 103; United States v. Stevenson, 215 U.S. 190.

For the distinction between remedial and penal statutes see Huntington v. Attrill, 146 U.S. 657; Brady v. Daly, 175 U.S. 153; 2 Bishop's New Crim. Law, par. 504; Dunbar v. United States, 156 U.S. 185; United States v. Scott, 74 F. 213; United States v. Mitchell, 141 F. 666; State v. Williams, 139 Ind. 43; State v. Waterbury, 133 Iowa 137; State v. Root, 94 A.D. 84; Rex v. Lawley, 2 Stra. 904.

Knowingly, when applied to an act or thing done, imports knowledge of the act or thing so done, as well as an evil intent or bad purpose in doing such thing. Rosen v. United States, 161 U.S. 29; Price v. United States, 165 U.S. 311; Verona Cheese Co. v. Murtaugh, 50 N.Y. 314; Driskill v. Parish, 7 Fed. Cases, 1100; Darnborough v. Benn, 187 F. 580; United States v. Craig, 28 F. 795; United States v. Borneman, 41 F. 751; Rex v. Hayes, 23 Can. L.T. 88, 5 Ont. L. Rep. 198; State v. Davis, 14 R.I. 281; Pettibone v. United States, 148 U.S. 209; United States v. Terry, 42 F. 317, 318; United States v. Kirby, 7 Wall. 482; United States v. Claypool, 14 F. 127; Dunbar v. United States, 156 U.S. 185; United States v. Koplik, 155 F. 919; United States v. Highleyman, 26 Fed. Cas., No. 15,361; United States v. Janke, 183 F. 277; Blakely Bank v. Davis, 135 Ga. 687; Robinson v. State, 6 Ga. App. 696; State v. Bridgewater, 171 Ind. 1; State v. Smith, 18 N.H. 91; Gregory v. United States, 17 Blatchf. 330; Clark Marshall, Crimes, par. 55; McDonald v. Williams, 174 U.S. 397, 406; Felton v. United States, 96 U.S. 699; Potter v. United States, 155 U.S. 538; Yates v. Jones' Natl. Bank, 206 U.S. 158; St. Louis S.F.R. Co. v. United States, 169 F. 69; St. Joseph Stock Yards Co. v. United States, 187 F. 104; United States v. Beatty, 24 Fed. Cas. 14,555; State v. McBarron, 66 N.J.L. 680; Utley v. Hill, 155 Mo. 232; State v. Smith, 119 Tenn. 521.

None of the forty-five counts of the complaint contains any allegation that the defendant knowingly assisted, encouraged or solicited the migration or importation to the United States of the person named in each count, or that the defendant knew at the time that such person was an "alien contract laborer" as defined by the statute. Cases supra; Ledbetter v. United States, 170 U.S. 606; United States v. Cook, 17 Wall. 168, 174; United States v. Cruikshank, 92 U.S. 542, 558; United States v. Carll, 105 U.S. 611; United States v. Simmons, 96 U.S. 360; United States v. Hess, 124 U.S. 483; Evans v. United States, 153 U.S. 584.

Failure to allege an essential element of a statutory offense is fatal, can be taken advantage of at any time, and is not cured by verdict. Supreme Lodge v. McLennan, 171 Ill. 417.

This ground is not one which is waived even by failure to demur, so it is obvious that it was not waived by consent that it be overruled. Evans v. Gerken, 105 Cal. 311; Morris v. Courtney, 120 Cal. 63; United States v. Carll, 105 U.S. 611; 1 Bishop's New Crim. Pro., par. 123, sub. 3; Teal v. Walker, 111 U.S. 242; Kentucky Ins. Co. v. Hamilton, 63 F. 93.

It was error to admit the minutes of the Board of Special Inquiry showing that at a meeting of that board the laborers were excluded from admission to the United States as alien contract laborers.

Defendant was not a party to, or present, or represented at, and had no notice of, the ex parte hearing of the board whose summary order the Government seeks, in this case, to introduce against it. United States v. Sing Tuck, 194 U.S. 161. United States v. Hills, 124 F. 831, is not a valid authority in this case. See Pearson v. Williams, 202 U.S. 281; Lee Sing v. United States, 180 U.S. 488; Leggate v. Clark, 112 Mass. 308.

The order of the special board of inquiry is not competent as a public record. Naanes v. State, 143 Ind. 299; Dewey v. Algire, 37 Neb. 6.

For cases in which coroners' verdicts have been held to be incompetent, see State v. Turner, Wright, 20; Wheeler v. State, 34 Ohio St. 394, 398; Colquit v. State, 107 Tenn. 381; Memphis C.R. Co. v. Wombach, 84 Ala. 149; Hollister v. Cordero, 76 Cal. 649; Rowe v. Such, 134 Cal. 573; Germania Ins. Co. v. Ross-Lewin, 24 Colo. 43; Central Railroad v. Moore, 61 Ga. 151, 152; State v. Commissioners, 54 Md. 426; Supreme Council v. Brashears, 89 Md. 624; Wasey v. Insurance Co., 126 Mich. 188; Cox v. Royal Tribe, 42 Or. 365.

The courts below erred in permitting evidence as to the making of offers and promises of employment to Mexicans in Mexico, and in permitting witnesses to testify to acts of assistance and encouragement rendered by them to the Mexicans in their migration from Mexico into the United States, and also in admitting the passes.

An agency, or the extent of an agency, or the authority of an agent, cannot be proven by the acts and declarations of the person professing authority to act as such agent. United States v. Boyd, 5 How. 29; Regan v. United States, 183 F. 293.

The ex parte depositions taken by the Government should have been suppressed. A commission issued without notice having been served is void. Harris v. Wall, 7 How. 695; Kline Bros. v. Insurance Co., 184 F. 969; Knode v. Williamson, 17 Wall. 587; Buddicum v. Kirk, 3 Cr. 293; W.U. Tel. Co. v. Collins, 45 Kan. 94; Garner v. Cutler, 28 Tex. 183[ 28 Tex. 183]; Indiana Pub. Co. v. Ayer, 34 Ind. App. 284.

The use of depositions in an action to recover a penalty as a punishment for a criminal act was improper and infringed on defendant's constitutional right to be confronted by the witnesses, and the defendant was prejudiced thereby. Rulofson v. Billings, 140 Cal. 252.

Verdict for defendant should have been directed.

A trial court may direct a verdict for one party to an action whenever, upon all the evidence, a contrary verdict, if rendered by the jury, would have to be set aside as unjustified and unsupported by the evidence. Ryder v. Wombwell, L.R. 4 Exch. 39; Giblin v. McMullen, L.R. 2 P.C. Apps. 335; Improvement Co. v. Munson, 14 Wall. 448; Parks v. Ross, 11 How. 373; Merch. Bk. v. State Bk., 10 Wall. 637; Hickman v. Jones, 9 Wall. 201; Estate of Morey, 147 Cal. 495.

The governing officers of the defendant, and they only, should be regarded as the corporation in determining whether the defendant corporation knowingly assisted, encouraged or solicited the migration or importation of any alien contract laborers. Lake Shore R. Co. v. Prentice, 147 U.S. 101; Hollard v. Vinton, 105 U.S. 7; Hindman v. First National Bank, 98 F. 562; Denver Rio Grande Ry. Co. v. Harris, 122 U.S. 597; Salt Lake City v. Hollister, 118 U.S. 256; Philadelphia, W. B.R.R. Co. v. Quigley, 21 How. 202; United States v. Kelso, 86 F. 304, 306; State v. Morris E.R. Co., 23 N.J.L. 360; Regina v. Gt. N. of Eng. Ry., 58 E.C.L. 315; Commonwealth v. Proprs. of New Bedford Bridge, 2 Gray, 339.

The distinction between the civil liability of a corporation for the acts of its servants and agents, and the criminal liability of a corporation for the criminal acts of its servants or agents is important in this case.

A master or principal is not liable criminally for the criminal acts of his servant or agent unless he directed, assented to or acquiesced in such illegal acts.

If the master does not aid or abet, countenance or approve, or have knowledge, of the act of his servants, it is the general rule that he cannot be punished criminally therefor. Taylor v. Nixon (1910), 2 I.R. 94; Rex v. Huggins, 2 Ld. Raym. 1574; 2 New Am. Eng. Enc. Law Pr. 834; 20 Am. Eng. Ency. Law, 176 (2d ed.); 26 Cyc. 1545; 1 Clark Marshall, Agency, 1140; Mechem, Agency, par. 746; 88 Am. St. Rep. 797; Hoover v. Wise, 91 U.S. 311; Whitton v. State, 37 Miss. 379; Anderson v. State, 22 Ohio St. 305; Commonwealth v. Nichols, 10 Met. 259; Commonwealth v. Junkin, 170 Pa. 194; Cushing v. Dill, 2 Scammon (Ill.), 460; Cushman v. Oliver, 81 Ill. 444; Satterfield v. West. Un. Tel. Co., 23 Ill. App. 446; State v. Balti. Ohio R.R. Co., 15 W. Va. 362; Hall v. Nor. West. R. Co., 44 W. Va. 36; Williams v. Hendricks, 115 Ala. 277; State v. Bacon, 40 Vt. 456; Parks v. People, 49 Mich. 333; Whitecraft v. Vanderver, 12 Ill. 235; Nall v. State, 40 Ala. 262; Seibert v. State, 40 Ala. 60; Spokane v. Patterson, 46 Wn. 93; Hipp v. State, 5 Blakf. (Ind.) 149.

In this case the guilty knowledge of the defendant company is an essential ingredient of the offense. The general rule applies that the master is not criminally responsible unless he participates in, authorizes or consents to the unlawful act. The exception to the rule in cases where knowledge is not an essential element of the offense has no application to the present case. St. Louis S.F.R. Co. v. United States, 169 F. 69; Felton v. United States, 96 U.S. 699; United States v. Beatty, 24 Fed. Cas. 14,555; Chisholm v. Doulton, 22 Q.B.D. 736; Verona Cheese Co. v. Murtaugh, 50 N.Y. 314; Coubon v. Muldowney (1904), 2 Irish Law Reports, 498; State v. Smith, 10 R.I. 258; State v. Hayes, 67 Iowa 27; Taylor v. Nixon (1910), 2 I.R. 94; Williams v. Hendricks, 115 Ala. 277; Patterson v. State, 21 Ala. 571.

There is no evidence in the case at bar which can justify or support a verdict for the Government involving a finding that the defendant construction company knowingly induced, assisted, encouraged or solicited, or caused to be induced, assisted, encouraged or solicited, the migration or importation of any of the forty-five laborers named in the complaint.

The majority of laborers engaged in railroad construction work in Arizona are of Mexican descent.

It was proper and lawful for anyone to employ, in the United States, Mexican citizens who had migrated to the United States, whether of their own accord, or whether they had been unlawfully induced to come by the acts of others, not known to the employer.

There is no evidence that defendant's contract with Carney authorized or contemplated any violation whatever of the immigration act; the undisputed evidence shows that it gave strict orders not to assist, encourage or solicit the importation or migration of any laborers from Mexico, and not to even talk to laborers in Mexico.

The positive and specific instructions given to Carney were given in absolute good faith. There is no evidence to the contrary. This is the only conclusion which can be drawn from the evidence as a matter of law.

The knowledge contemplated by the statute, essential to be proven in the case at bar, is actual knowledge, and not constructive knowledge or notice of facts which, upon inquiry, would lead to actual knowledge.

There is no evidence that any of defendant's officers had any actual knowledge of the illegal acts of Carney and others acting under him.

There is no evidence that the defendant itself furnished conveyance or transportation, or paid any of the expenses of said laborers from Mexico to the United States.

Proof of the alienage of each and every of the forty-five laborers named in each of the forty-five counts respectively of the complaint was essential under the statute. There was no proof as to thirty-five. The mere fact that the laborers were of Mexican descent is no proof that they were born in Mexico.

As the act makes the offense a misdemeanor, the Government, even when proceeding for the penalty only, must furnish the degree of proof required in a criminal case. United States v. Regan, 203 F. 433; Boyd v. United States, 116 U.S. 616; Lees v. United States, 150 U.S. 476; Huntington v. Attrill, 146 U.S. 657; Equitable Life Assur. Soc. v. Commonwealth, 113 Ky. 126; Coffey v. United States, 116 U.S. 436; Wisconsin v. Pelican Ins. Co., 127 U.S. 265; United States v. The Burdett, 9 Pet. 682; Gilbert v. Bone, 79 Ill. 341; Atchison, T. S.F.R. Co. v. People, 227 Ill. 270; Riker v. Hooper, 35 Vt. 457; White v. Comstock, 6 Vt. 405; W.H. Small Co. v. Commonwealth, 134 Ky. 272.

The court erred in refusing to charge the jury that their verdict if for the Government could not exceed one thousand dollars. There was but one act done, one offense committed, and but one penalty incurred, and not forty-five offenses nor forty-five penalties.

Under the statute one shipment of laborers constitutes but one misdemeanor, and but one penalty is incurred. One act cannot be split or divided into many offenses and the penalties thereby multiplied. Balt. Ohio S.W.R.R. Co. v. United States, 220 U.S. 94; Standard Oil Co. v. United States, 164 F. 376.

The mere inducing and soliciting of an alien laborer fixes the status of the person as an alien contract laborer, but does not authorize a verdict for the penalty.

The instruction authorized a verdict for the Government without any finding of knowledge by the defendant of the status of the person as an alien contract laborer.

The instruction is an attempt to extend the issues raised in the pleadings, and is therefore erroneous. 11 Ency. Pl. Pr., p. 159.

One cannot be said to consent to an act of the commission of which he had no knowledge. McDonald v. Williams, 174 U.S. 397, 406.

It was error to award judgment for costs against the defendant. Phillips v. Gaines, 131 U.S. CLXIX, appx.

At common law costs are not recoverable against the opposite party. United States v. Ringgold, 8 Pet. 150; Antoni v. Greenhow, 107 U.S. 769; United States v. Verdier, 164 U.S. 213; Pine River Co. v. United States, 186 U.S. 279.

Mr. Assistant Attorney General Wallace for the United States.