#### NEDERLANSCH - AMERIKAANSCHE STOOMVART MAATSCHAPPIJ (HOLLAND-AMERICA LINE) v. THE UNITED STATES.

[No. 32,831.

Decided June 3, 1918.]

*On the Proofs.*

*Statutory construction.*— Section 16 of tlie act of February 20,1907, 34 Stat., 898, 903, does not obligate steamship lines transporting alien immigrants to defray the expense of the treatment, care, and maintenance of aliens in hospitals where they are treated prior to their examination by immigration officials and subsequent landing and admission to the United States, but contemplates that the United States shall pay the charges incurred for maintenance and treatment preceding examination and admission to the country.

*Rules and regulations, effect of.*— Since such rules and regulations as the Commissioner General of Immigration was authorized to establish under section 22 of the act of February 20, 1907, *supra,*must be consistent with the act itself, they could only, have the force and effect of law when not in contravention of law.

*Payments, what are involuntary.*— Plaintiff’s contract was entered into through coercion of the defendants and if carried into effect would have destroyed plaintiff’s business; hence such charges as were paid thereunder were not voluntary payments.

*The Reporter’s*statement of the case:

*Messrs. Howard Mansfield*and *Franklin Grady*for the plaintiff. *Mr. Lucms H. Beers*was on the briefs.

*Mr. Horace S.*'Whitman, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

This cause arose under the act of February 20, 1907, 34 Stat., 898, known as the Immigration Act. This act superseded the act of March 3, 1903, 32 Stat., 1213, and preceding acts. A study of the immigration acts will show that the Government intended that no alien should land in the United States unless and until admitted by proper authority, and that all expenses for the care and custody of aliens until that time were imposed upon the vessel bringing the *523aliens to this country. Act March 3, 1875, sec. 5, 18 Stat., 477; act March 3,1903, 32 Stat., 1213; act February 20,1917, 34 Stat., 898.

The steamship companies by their contract of carriage were bound to take care of aliens until they were admitted by the immigration authorities.

The steamship company was engaged in carrying passengers for hire from Rotterdam to New York, and the contract of carriage covered the period of time from the entering of the passengers upon the premises of the steamship company in Rotterdam until the passengers were finally landed in New York and had left the premises of the company.

The relation of carrier and passenger having been constituted continues until the journey expressly or impliedly contracted for has been concluded and the passenger has left the carrier’s premises. 10 Corpus Juris, p. 623, sec. 1047; 5 A. & E. Encyl., 2d ed., p. 497; *D. dk B. G. R. R. Co.*v. *Berry,*27 L. R. A. N. S., 761; *Hardin*v. *Fort Worth & D. C. By.*Co., 77 W. S., 431.

In the case of *Gilhooly*v. *N. Y. & Savannah Navigation Co.,*1 Daly, 197, the court held that where a passenger who had taken passage from Savannah to New York was removed from the ship at quarantine and his baggage was carried on to New York, that the relationship of carrier and passenger continued until the baggage was landed and delivered in New York.

It is the duty of the carrier by water to furnish passengers food and to render aid to sick or disabled passengers. 2 *Hutchinson on Carriers,*3d ed., secs. 1156-8 and 1163. Landing of passengers is a part of the duty of a carrier by water and the contract of carriage is not complete until the landing at the port of destination has taken place. *Pacific Steam Whaling Co.*v. *Grismore,*117 Fed., 68; *LaBlanc*v. *Sweet,*107 La., 355; *Prichett*v. *N. O. Anchor Line,*13 Mo. A., 436.

It is provided by section 24 of the act of 1907 that—

“ Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry.”

*524Section 25 of said act provides in part as follows:

“ * * * Such boards (boards of special inquiry) shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported. * * * Provided that in every case where an alien is excluded from admission to the United States, under any law or treaty now existing or hereafter made the decision of appropriate officers, if adverse to the admission of such alien, shall be final, unless reversed or appealed to the Secretary of Commerce and Labor.”

The finality of the decision of the immigration inspector has been upheld in *Nishimura Ehiu*v. *United States,*142 U. S., 651.

In the decision of the district judge and the circuit court, 205 Fed., 943; 212 Fed., 116, the error was fallen into in that it was held that the statute did not impose upon the steamship the duty of paying the hospital expenses of these aliens. The only obligation which rested upon the steamship while the alien was aboard that did not rest upon the steamship while the alien was at Ellis Island was the obligation of “ taking charge of ” the alien and preventing or detaining him from entering. The obligation of restraint from landing was transferred from the steamship to the immigration authorities while the alien was at Ellis Island.

This construction has always been contended for by the Government and acquiesced in by the steamship companies. The use of the terms “ take charge of ” and “ responsibility for detention ” never were intended to throw upon the United States the burden of providing subsistence and caring for the alien while at Ellis Island. The Government has always exacted payment for maintenance charges of aliens landed at Ellis Island pending examination. These subsistence charges were not even questioned after the decision in the case of the *United States*v. *Holland America Line*in the United States Circuit Court for the Southern District of New York on May 16, 1913.

The circuit court of appeals, however, erred in holding:

“ The section holds the companies liable for the detention and maintenance of immigrants landed temporarily for examination at places where they remain in the companies’ charge. Then it goes on to provide that where the Govern*525ment uses a suitable building for detention and examination, the immigration officials shall take charge of them and the companies shall be relieved of responsibility thereafter for their detention until the immigrants are returned for deportation. The buildings on Ellis Island are just such suitable buildings, erected, indeed, by means of the head money tax of four dollars paid by the companies on each alien immigrant as required by the act. So also the State hospitals, where immigrants having contagious diseases were at that time sent until they could be removed to Ellis Island for examination, were suitable buildings, and the expense so incurred was defrayed by the Government out of the same source. We think the immigration officials and not the defendant were, in the language of the act, in charge of the immigrants in question at both places, for all purposes.”

Such construction of the statute is contrary to the construction that has always been applied by the department under which it was administered and by the steamship companies against whom it was construed. The steamship companies have always admitted and paid without protest the subsistence expenses of aliens temporarily held for illness pending admission, and have always admitted without any protest liability for the hospital expenses of such alien for a period for observation to determine the nature of the alien’s ailment. The question now arises, what effect is to be given to such interpretation placed upon the act by the parties to the suit.

It is a general rule of law that the courts will not interfere with a settled practice of interpretation of a law by those called upon to carry it into effect. *Grant*v. Raymond, 6 Peters, 218; *United States*v. Pugh, 99 U. S., 265; *Fairbanks*v. *United*States, 181 U. S., 283.

And when the construction by the department has been followed for many years with acquiescence by parties against whom enforced with any attempt on the part of Congress to change it, such construction will not be disregarded without the most cogent and persuasive reasons. *Robertson*v. Downing, 127 U. S., 607.

Section 16 of the act of 1907 was a reenactment of the act of 1903. The immigration officers after the act of 1903, as well as before that time, were enforcing the hospital liability against the steamship companies. This liability had been *526enforced at least since 1891. The Supreme Court held in *United States*v. *Hermanos y*Campania, 209 XJ. S., 837, 339;

“ And we have decided that the reenactment by Congress, without change, of a statute which had previously received .long continued executive construction is an adoption by Congress of such construction.” *United States*v. *Falk,*204 U. S., 143,152.

Congressional sanction of construction contended for by the defendant is further evidenced by the fact that shortly after the decision of the United States District Court on May 13, 1913, construing the act differently from the construction placed upon it by defendant’s agents, and holding that the steamship companies were not liable for these hospital expenses, Congress by enactment of October 22, 1913, 38 Stat., 226, definitely placed the responsibility for these expenses upon the companies.

Attention is called to the first section of the immigration act establishing the immigrant fund. It is “ to be used under the direction of the Secretary ” for certain purposes, or, in other words, the expenditure of the fund is in the discretion of the Secretary. It is necessary to give this discretion of the expenditure of the fund to someone. The number of aliens arriving in the United States is not a sum fixed and certain, and hence the amount of the immigrant fund is not fixed or certain. The discretion as to the expenditure of this fund was properly placed with the officers who had charge of regulating immigration. The fund was limited.

In 1915 and 1916 the money collected for the immigrant fund was not sufficient to meet all expenses of immigration plus the hospital expenses involved in this suit. Of course, there were many other steamship lines bringing aliens to the country for whom such hospital expenses were incurred which were not involved in this suit. If the contention of the claimant is sustained, the money would be expended under the direction of the court and not under the direction of the Secretary of Commerce and Labor.

Where a statute confers discretionary powers upon the executive courts will not interfere with that executive in the administration of this power. The law upon this subject is set forth in the opinion of this court in *Fidelity Trust Oo.**527v. *United*States, 45 C. Cls., 3G2, citing the decision of *Decatur*v. Paulding, 14 Peters, 497; *United States ex rel. Dim-lap*v. Black, 128 U. S., 40; see also *Marbury*v. Madison, 1 Cranch, 137.

Claim is made that section 16 of the act is mandatory, and the Government should receive at Ellis Island all immigrants, whether admissible to entry or not. No such interpretation is to be placed upon that section. The inspectors have the final say as to those who are admissible. It would be futile to say that the inspectors could not say upon a preliminary examination upon shipboard that cei’tain aliens afflicted with diseases should not be brought to the station when they have the unqualified power to return such aliens to the ship the minute the alien’s foot is placed upon the island. The immigration authorities did not refuse to accept any aliens at Ellis Island, but insisted only that a preliminary examination should be made on shipboard and that only those who were sick were to be detained on shipboard. All the others were to be taken to Ellis Island to undergo further physical examination and examination to determine whether the alien may be excludable for any of the various causes set forth in section 2 of the act. Such action on the part of the immigration officers charged with the administration of the immigration laws was certainly not unlawful and could not therefore constitute duress.

In support of this theory of interpretation of the statute, the defendant acquiesced for six years after the passage of the act of 1903 containing the proviso in question without any protest, and all during the time involved in the suit and up to the present time the steamship company is concurring in the preliminary examination on board of the steerage passengers to determine if any are diseased or ill, in order that those diseased or ill may be sent to hospitals. The only difference between what was in force and what was proposed was that the Government officials would refuse to land those who were ill at Ellis Island. If the steamship company wanted to land them temporarily for hospital treatment, they could. The plaintiff has never objected to the preliminary examination of the cabin passengers in the manner proposed for all aliens.

*528Hat, *Judge,*

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the defendants for the actual cost and reasonable value of the maintenance and medical care and treatment furnished by the defendants to a number of aliens who had been brought by the plaintiff to the United States on its steamers. These aliens at the time of their arrival were found to be suffering with certain diseases. Because they were suffering with these diseases it was not practicable for the immigration officials to examine them at the time of their respective arrivals for the purpose of ascertaining whether or not they were entitled to land. The immigration officials decided that it was necessary to hold these aliens for such examination until they had recovered from the diseases with which they were suffering. Those suffering with contagious diseases were removed from the vessel under order of the medical officers of the immigration service to public hospitals in or near New York City under contract arrangement made by the officers of the United States, whereby the hospitals charged the United States at agreed rates for the treatment, care, and maintenance of said aliens. When these aliens were discharged from these hospitals they were taken to Ellis Island, the immigrant station for the port of New York, for examination as to their right to land, and all of these aliens for whose treatment, care, and maintenance the defendants exacted the sum now in suit were admitted.

Other aliens afflicted with other than contagious diseases were, upon arrival, removed from the vessels to Ellis Island for examination, and upon being examined there by medical officers, they were found to be afflicted with diseases which necessitated treatment before they could be permitted to land, and they were placed in the Ellis Island Hospital for treatment. Upon being discharged therefrom they were examined by the immigration officer and were all admitted.

The aliens for whom these charges were incurred were brought by the defendants to the port of New York between May 27,1908, and December 9, 1918.

It is claimed by the plaintiff that the defendants were not authorized by law to compel it to pay the sum in suit for *529tbe treatment, care, and maintenance of aliens in hospitals where they were being treated prior to their landing and being admitted to the United States. They base this contention upon the ground that the statute contains no provision which either expressly or by implication imposes upon the plaintiff the obligation of paying for these hospital expenses in cases of aliens who are after examination admitted to the United States. The statute which controls this case is the act of February 20, 1907; after a careful examination it is not perceived that there is any specific authority in that statute which would require the plaintiff to pay these charges, nor can it be implied from the language of the statute that Congress intended that these charges should be paid by the plaintiff.

Section 16 of the act of February 20, 1907, 34 Stat., 898, *90S,*is as follows :

> “That upon the receipt by the immigration officers at any port of arrival of the lists or manifests of incoming aliens provided for in sections twelve, thirteen, and fourteen of this act, it shall be the duty of said officers to go or to send competent assistants to the vessel to which said lists or manifests refer, and there inspect all such aliens, or said immigration officers may order a temporary removal of such aliens for examination at a designated time and place, but such temporary removal shall not be considered a landing, nor shall it relieve the transportation lines, masters, agents, owners, or consignees of the vessel upon which said aliens are brought to any port of the United States from any of the obligations which, in case such aliens remain on board, would, under the provisions of this act, bind the said transportation lines, masters, agents, owners, or consignees: *Provided,*That where a suitable building is used for the detention and examination of aliens the immigration officials shall there take charge of such aliens, and the transportation companies, masters, agents, owners, and consignees of the vessels bringing such aliens shall be relieved of the responsibility for their detention thereafter until the return of such aliens to their care.”

It will be seen from the reading of this section that the steamship companies are held liable for the detention and maintenance of aliens landed temporarily for examination at places where they remain in the companies’ charge; but *530in tbe proviso to tbe section it is provided where'tbe Government uses a suitable building for tbe detention and examination of aliens the immigration officials shall there take charge of such aliens and the companies shall be relieved of the responsibility for their detention thereafter until the return of such aliens to their care.

Judge Ward in the case of the *United States*v. *Holland America Line,*212 Fed., 116, 119, says:

> “ The buildings on Ellis Island are just such suitable buildings, erected, indeed, by the means of the head money tax of $i paid by the companies on each alien immigrant as required by the act. So also the State hospitals where immigrants having contagious diseases were at that time sent until they could be removed to Ellis Island for examination were suitable buildings, and the expense so incurred was defrayed by the Government out of the same source. We- think the immigration officials, and not the defendant, were, in the language of the act, in charge of the immigrants in question at both places for all purposes.”

Further, the language of the act is that where suitable buildings are used for “ detention and examination ” the immigration officials shall take charge of such aliens. The word “ examination ” is significant in this connection for the reason that the examination contemplated by the act could not take place until the aliens who were suffering with disease had been treated, cared for, and maintained, and it seems to the court that the act contemplated that the Government should pay charges which led up to the examination which was to take place before the alien could be admitted, and with which the plaintiff had nothing to do, after the alien had been taken from its custody and placed in that of the defendants. It would seem that if Congress had intended to require from the plaintiff the payment of these charges it would have said so in plain terms, for the same act specified with great care and particularity what obligations and penalties the steamship companies are liable for. In sections 19 and 20 of the act these obligations and penalties are set out, and the omission from these obligations of these hospital charges is a pregnant circumstance going to show that it was not intended by Congress to impose them in that act; for by the act of October 22,1913 this obligation was imposed upon *531the steamship companies. Such a law would not have been enacted if Congress had believed that it was already a law. It is, however, contended by the defendants that this act has been given a practical construction by the immigration authorities by the adoption of rules and regulations which impose upon the plaintiff the liability of paying the charges under consideration.

By section 22 of the act of 1907, the Commissioner General of Immigration is authorized to establish rules and regulations not inconsistent with law. He can not make rules and regulations which are inconsistent with law, nor by such rules and regulations, impose a liability which is not imposed by the act itself. If such a regulation imposing a liability is in the power of the officer it must have its source in the act under which the regulation is promulgated. Unless such power is conferred by the act the regulation becomes legislation by an administrative officer. It is a well-established principle that legislation can not be exercised under the guise of a regulation. This court has repeatedly passed upon the effect of regulations of the executive departments. It has uniformly held that such regulations could only have the force and effect of law when they are not in contravention to existing law. *Illinois Central Railroad Company*v. *United*States, 52 C. Cls., 53, and cases there cited.

As the act under consideration does not impose the obligation upon the plaintiff of paying these charges no rule or regulation could have that effect.

As to the claim of the defendants that the plaintiff bound itself by contract to pay these charges, it is only necessary to say that from the evidence it appears that the plaintiffs were coerced into the making of that contract by a threat of the defendants which if carried into effect would have destroyed the plaintiff’s business. In *United States*v. *Holland America*Line, supra, the court said:

> “ It seems to us that the rule adopted by the immigration authorities was not consistent with law and was oppressive because it compelled the companies to pay in order to escape the alternative of having their steamers turned into hospitals and houses of detention. Such payments were not voluntary. They could not in the nature of things have been resisted.”

*532For the foregoing reasons judgment will be entered in favor of the plaintiff for the sum of $16,993.50, and it is so ordered.

Downey, *Judge;*Barney, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.