Section 10 of the Act of March 3, 1891, 26 Stat. 1084, which
imposes upon one who has brought immigrants into the United States
not permitted to land here the duty of returning them to the place
from whence they came, with a penalty in case the duty is
neglected, is a highly penal statute, and must be strictly
construed; the word "neglect" cannot be construed so as to make the
shipowner or master an insurer of the absolute return of the
immigrant at all hazards, but it does require him to take every
precaution to prevent the immigrant from escaping, and holds him to
the care and diligence required by the circumstances.
Where, in an action under § 10 of the Act of March 3, 1891,
the Attorney General and the other party have stipulated the facts
as to the escape of immigrants and that the escape did not occur by
reason of any negligence or want of proper care on the part of the
master or officers of the vessel, the court cannot regard the
stipulation as to lack of negligence a mere conclusion of law and
find that there was negligence on the evidentiary facts as
stipulated. It will presume that the Attorney General has done his
duty and not stipulated away any of the rights of the prosecution,
and the defendant is entitled to have the case tried upon the
assumption that the ultimate fact of lack of negligence stipulated
into the record was established as well as the specific facts
recited.
Page 197 U. S. 443
This case is here on writ of certiorari to the Circuit Court of
Appeals for the Ninth Circuit to review a judgment of that court
affirming a judgment of the District Court for the District of
Hawaii in which the petitioner, Hackfeld & Company, was
adjudged guilty of a violation of § 10 of the Act of March 3,
1891, 26 Stat. 1084, and to pay a fine of $600 for neglecting to
return to the port from whence they came, Yokohama, Japan, two
certain Japanese immigrants unlawfully in the United States in
violation of the act of Congress. The conviction was upon
information filed and trial had to the court, a jury having been
waived, and upon a stipulated finding of facts, agreed upon by the
attorney for the United States and the petitioner. After statements
as to the corporate character of the defendant company, and that it
was the agent of the steamship
Korea, a vessel plying
between the State of California and the Empire of Japan, it is
stipulated that the vessel brought into the port of San Francisco,
in the United States, two certain Japanese immigrants from
Yokohama, Japan, on October 28, 1902; that, on the following day,
October 29, 1902, the said Japanese were denied admission into the
United States by the board of special inquiry at the port of San
Francisco, and the said board, being duly appointed and authorized
in the premises, ordered the deportation of the said Japanese
immigrants. That, on the 7th day of November, 1902, the said
Japanese were received on board the vessel Korea for transportation
to Japan. The stipulation then recites the following facts:
"That on the twelfth day of November, A.D. 1902, the said
steamship
Korea did arrive at the port of Honolulu, in the
District and Territory of Hawaii; that, at the time of the arrival
of said steamship
Korea at said port of Honolulu, the said
immigrants were still on board of said vessel; that said Japanese
immigrants, together with certain deported Chinese, were placed in
a room on board said vessel and locked up by the steerage steward
of said vessel; at 12 o'clock midnight of said twelfth day of
November, A.D. 1902, said Japanese were still
Page 197 U. S. 444
on board said vessel in said room; that between that time and 5
o'clock on the morning of the thirteenth day of November, A.D.
1902, said Japanese had effected their escape; that the only method
of egress was through portholes, which were nearly 25 feet above
the water; that this method of escape could not have been
reasonably anticipated by the master or officers or agents of said
steamship
Korea; that said escape did not occur by
vis
major or inevitable accident, and that said escape did not
occur by reason of any negligence or lack of proper care on the
part of the officers of the vessel or said defendant."
"That the said defendant made search for said escaped
immigrants, but up to the present time have not apprehended the
said immigrants, and said immigrants have not been returned to
Japan."
From the conviction in the lower court upon these stipulated
facts, a writ of error was taken to the Circuit Court of Appeals
for the Ninth Circuit. In that court, without passing upon the
question whether the statute justified conviction without proof of
negligence, it was held that the judgment of conviction should be
affirmed because the facts recited left room for the inference that
the petitioner was found guilty of negligence in putting the
Japanese in the room without taking the necessary precautions
against escape through the portholes. The stipulation that the
escape did not occur by reason of negligence or lack of proper care
on the part of the officers of the vessel it was held did not bind
the court, nor prevent it from placing upon the facts stipulated
the construction which, in its judgment, they should properly
receive. 125 F. 596.
Page 197 U. S. 446
MR. JUSTICE DAY, after making the foregoing statement, delivered
the opinion of the Court.
The circuit court of appeals disposed of this case upon the view
that the judgment of conviction would have been warranted upon the
evidentiary facts stipulated, and that the stipulation, insofar as
it stated that the escape of the immigrants could not have been
reasonably anticipated by the master or officers of the steamship,
and did not occur by reason of any negligence or want of proper
care upon their part, was the statement of a mere conclusion, not
binding upon the court, and would not prevent it from rendering an
independent judgment upon the facts stated. We cannot take this
view of the case. It may be conceded that, where the facts are all
stated, the court cannot be concluded by a stipulation of the
parties as to the legal conclusions to be drawn therefrom, but we
know no rule of public policy which will prevent the United States
attorney from stipulating with the defendant in a case of this
character as to the ultimate facts in the controversy. It is to be
presumed that such an officer will do his duty to the government,
and not stipulate away the rights of the prosecution. The question
of negligence in a given case is not usually reduced to one of law,
and, as is the case here, its presence or absence is the ultimate
question to be decided between the parties. Ordinarily, the issue
of negligence is one of fact to be determined
Page 197 U. S. 447
by the jury. This proposition has been so often adjudicated in
this Court that it is only necessary to refer to the cases in
passing. It has been held that, where there is no reasonable doubt
as to the facts or the inference to be drawn from them, the
question becomes one of law. Where the state of facts is such that
reasonable minds may fairly differ upon the question as to whether
there was negligence or not, its determination is a matter of fact
for the jury to decide.
Grand Trunk Ry. Co. v. Ives,
144 U. S. 408,
144 U. S. 417;
Baltimore & Ohio R. Co. v. Griffith, 159 U.
S. 603,
163 U. S. 611;
Texas & Pacific Ry. Co. v. Gentry, 163 U.
S. 353,
163 U. S. 368;
Warner v. Baltimore & Ohio R. Co., 168 U.
S. 339.
The evidentiary facts in the stipulation upon which this case
was tried are not very fully set forth, and the government and the
defendant were content to stipulate that the method of escape
through the portholes (assuming that it was by this means the
immigrants escaped) could not have been reasonably anticipated by
those in charge of the
Korea, and that the escape did not
occur by reason of any negligence or lack of proper care upon the
part of the officers of the vessel or the defendant.
We think the parties were entitled to have this case tried upon
the assumption that these ultimate facts, stipulated into the
record, were established no less than the specific facts
recited.
We come, then, to the important question in this case as to the
construction of the statute under which the petitioner was
convicted and fined. The conviction was under section 10 of the Act
of March 3, 1891, 26 Stat. 1084, which is as follows:
"SEC. 10. That all aliens who may unlawfully come to the United
States shall, if practicable, be immediately sent back on the
vessel by which they were brought in. The cost of their maintenance
while on land, as well as the expense of the return of such aliens,
shall be borne by the owner or owners of the vessels on which such
aliens came, and if any master, agent, consignee, or owner of such
vessel shall refuse to receive back
Page 197 U. S. 448
on board the vessel such aliens, or shall neglect to detain them
thereon, or shall refuse or neglect to return them to the port from
which they came, or to pay the cost of their maintenance while on
land, such master, agent, consignee, or owner shall be deemed
guilty of a misdemeanor, and shall be punished by a fine of not
less than three hundred dollars for each and every offense, and any
such vessel shall not have clearance from any port of the United
States while any such fine is unpaid."
The question is as to the effect of this requirement upon
shipowners who have wrongfully brought aliens into this country,
and who, having received them on board the vessel for the purpose
of returning them to the place from whence they came, shall neglect
to detain them thereon, or neglect to return them. In this case,
the court found the defendants guilty as charged in the information
in that they refused and neglected to return to the port from
whence they came the two Japanese immigrants. It is the contention
of the government that this statute requires of persons situated as
were the defendants the absolute duty of returning to the place
from whence they came immigrants unlawfully brought into the ports
of the United States, and that the word "neglect," as used in this
statute, is equivalent to the word "fail" or "omit," and the return
of the immigrants is required at all hazards, and the vessel owner
will only be relieved when the default is the result of
vis
major or inevitable accident. This contention finds support in
the case of
Warren v. United States, 58 F. 559, decided in
November, 1893, in the Circuit Court of Appeals for the First
Circuit, in which section 10 of the Act of March 3, 1891, was
directly under consideration. We are cited to no other cases
construing this section wherein it was directly involved, although
in
United States v. Spruth, 71 F. 678, a case in the
District Court for the Eastern District of Pennsylvania, involving
the eighth section of the same act, Judge Butler criticized the
decision in the
Warren case and expressed doubts as to the
construction therein given to the language of a criminal statute.
The word "neglect,"
Page 197 U. S. 449
as sometimes used, imports an absence of care or attention in
the doing or omission of a given act, or it may be used in the
sense of an omission or failure to perform some act. To "neglect"
is not always synonymous with to "omit." Whether the use of the
term is intended to express carelessness or lack of attention
required by the circumstances, or to express merely a failure to do
a given thing, depends upon the connection in which the term is
used and on the meaning intended to be expressed. These meanings
find illustration in the lexical definition of the word, as well as
the adjudicated cases in which it has been construed when applied
to different subjects. In Webster's Dictionary, the verb "neglect"
is defined as meaning "not to attend to with due care or attention;
to forbear one's duty in regard to; to suffer to pass unimproved,
unheeded, undone." In the Standard Dictionary, the word is defined
as meaning "to fail to perform through carelessness." And in the
Century Dictionary:
"1. To treat carelessly or heedlessly; forbear to attend to or
treat with respect; be remiss in attention or duty toward; . . . 2.
To overlook or omit; disregard; . . . 3. To omit to do or perform;
let slip; leave undone; fail through heedlessness to do or in doing
[something]."
As defined in the penal statutes of several of the states, the
word "neglect" is said to import "a want of such attention to the
nature or probable consequences of the act or omission as a prudent
man ordinarily bestows in acting in his own concerns." Words and
Phrases Judicially Defined, vol. 5, p. 4940.
While the term may be used as indicative of carelessness, it may
also merely mean an omission or failure to do or perform a given
act. This meaning finds illustration in the case of
Rosenplaenter v. Roessle, 54 N.Y. 262, 266, in which a
guest at a hotel who failed to deposit his valuables for
safekeeping, as required by the statute, was held to have
"neglected" to deposit within the meaning of the law, for, having
the opportunity so to do, he omitted to avail himself of this means
of safekeeping. An illustration of the meaning of the term when
indicative
Page 197 U. S. 450
of a want of care is found in
Watson v. Hall, 46 Conn.
204, 206, in which case it was held that, in a statute by which a
grand juror is made subject to prosecution when he shall neglect to
make seasonable complaint of a crime, the word "neglect" was
construed to be used in the sense of omission from carelessness to
do something that can be done and that ought to be done, and the
grand juror was held not to have neglected the complaint when,
after investigation, he had become convinced that the offense
should not be prosecuted.
In which sense is the term used in this statute? This is a
highly penal statute, and we think the well known rule, as laid
down by Mr. Chief Justice Marshall in the case of
United
States v. Wiltberger, 5 Wheat. 76,
18 U. S. 95, is
applicable here:
"The rule that penal laws are to be construed strictly is
perhaps not much less old than construction itself. It is founded
on the tenderness of the law for the rights of individuals and on
the plain principle that the power of punishment is vested in the
legislative, not in the judicial, department. It is the
legislature, not the court, which is to define a crime and ordain
its punishment."
It is true that, in the construction of penal statutes, as well
as others, the object and purpose is to ascertain the correct
meaning of the act, with a view to carrying out the expressed
intent of the legislature, and penal statutes are not to be
construed so strictly as to defeat the obvious intention of the
legislature.
United States v. Lacher, 134 U.
S. 624. We are to search for the true meaning of this
statute, remembering that it undertakes to define an offense which
is not to be broadened by judicial construction so as to include
acts not intended by Congress. The statute imposes upon one who has
brought immigrants into the United States not permitted to land
here the duty of returning them to the place from whence they came,
with a penalty by fine in case the duty is neglected. If by this
requirement it was intended to make the shipowner or master an
insurer of the absolute return of the immigrant at all hazards,
except when excused by
vis major or inevitable
Page 197 U. S. 451
accident, it would seem that Congress would have chosen terms
more clearly indicative of such intention, and, instead of using a
word of uncertain meaning, would have affixed the penalty in cases
wherein the owner or master omitted or failed to safely return the
immigrant illegally brought here, or provided some punishment for
the person who had so far complied with the terms of the statute as
to receive the immigrant on board his vessel, but had permitted the
escape, either with or without fault upon his part. Where the
statute permits of a construction which does not require this
absolute insurance of the return of the immigrant, but holds the
shipowner to the care and diligence required by the circumstances,
we do not feel inclined to adopt the construction least favorable
to the accused. This statute imports a duty, and, in the absence of
a requirement that it shall be performed at all hazards, we think
no more ought to be required than a faithful and careful effort to
carry out the duty imposed.
It is urged by the government that, in view of the reenactment
of section 10 as section 19 of the act of 1903, 32 Stat. 1213 it is
to receive a construction in harmony with the judicial
interpretation given to the act before the revision. While
recognizing the rule that doubtful terms which have acquired
through judicial interpretation a well understood legislative
meaning are presumed to be used by the legislature in the sense
determined by authoritative decisions,
The Abbotsford,
98 U. S. 440 -- we
do not think the rule applies to this case. So far as we know,
there has been but one decision, in the
Warren case,
supra, which was doubted in the
Spruth case,
supra. In 1900, the construction of this act was under
consideration by the Attorney General of the United States upon a
question submitted by the Secretary of the Treasury, involving the
remission of fines to which the owner or master of a vessel was
supposed to be liable under the terms of the act now under
consideration. In construing section 10 of the act, the Attorney
General said:
"But, while I assume nothing relative to the facts in this
Page 197 U. S. 452
case, with which it is your duty to deal, and not mine, I am
clearly of the opinion that, in a case where every precaution to
detain in safe custody and prevent escape has been rigidly taken,
and yet in some real and unforeseen emergency an escape has
occurred, there is no such neglect as the act contemplates. If the
question were regarded otherwise, the act would rather have said,
'if any such alien
shall escape from such vessel, such
master shall be deemed guilty of a misdemeanor, and shall be
punished.' Opinions of Attorneys General, v. 23, p. 277."
In this state of judicial and official opinion, we do not think
this act can be said to have received such judicial interpretation
as should control its legislative meaning. We think the Attorney
General, in the case cited, laid down the true rule, which does not
make the shipowner the insurer, at all hazards, of the safe return
of the immigrant, but does require every precaution to detain him
and prevent his escape.
It is further urged by the government that, if the burden of
proof in cases under this act is placed upon the prosecution, it
will be impossible to convict, as the facts and circumstances under
which the escape took place are within the knowledge of the
defendants alone. We are not dealing with the question of burden of
proof in this case, for here it is expressly stipulated that the
defendants could not have anticipated the escape by the method
employed, and were not guilty of any want of care in the premises.
Undoubtedly the act of Congress should be given a reasonable
interpretation, with a view to effect its purpose to prevent the
introduction into this country of classes of persons excluded by
the immigration laws. If this act should be construed as requiring
the return, at all hazards, of the immigrants, those who are
required to perform its mandate will doubtless claim the right to
use all the force necessary to avoid the penalty of the law in
delivering the immigrant to the country or place from whence he
came. What would be the result of such power it is easy to imagine.
It is difficult to see how a shipowner could insure the return of
such immigrants
Page 197 U. S. 453
without such confinement or imprisonment as may result in great
hardship to that class of individuals who may themselves have had
no intention to violate any law of this country. We think this
statute was intended to secure not the delivery of the immigrant at
all hazards, but to require good faith and full diligence to carry
him back to the port from whence he came. It follows that the
judgment of the circuit court of appeals must be reversed, and the
cause remanded to the district court with instructions to discharge
the petitioner.
