GRANT BROTHERS CONSTRUCTION COMPANY et al., Plffs. in Err., v. UNITED STATES.

In an action of debt, tried to the court and a jury, in one of the district courts of the territory of Arizona, the United States recovered a judgment against the Grant Brothers Construction Company, a California corporation, for the prescribed penalty of $1,000 for each of forty-five alleged violations of § 4 of the alien immigration act of February 20, 1907 (34 Stat. at L. 898, chap. 1134, U. S. Comp. Stat. Supp. 1911, p. 499); and upon an appeal to the supreme court of the territory, the judgment was affirmed. 13 Ariz. 388, 114 Pac. 955. The construction company and the surety upon its supersedeas bond then sued out this writ of error, claiming that divers errors had been committed by the trial court which should have been, but were not, corrected by the appellant court.

The portions of the statute upon which the action was founded are as follows:

'Sec. 2. That the following classes of aliens shall be excluded from admission into the United States: . . . persons hereinafter called contract laborers, who have been induced or solicited to migrate to this country by offers or promises of employment, or in consequence of agreements, oral, written, or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled; . . . And provided further, That skilled labor may be imported if labor of like kind unemployed cannot be found in this country: And provided further, That the provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists, lecturers, singers, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants.

* * * * *

'Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way to assist or encourage the importation or migration of any contract laborer or contract laborers into the United States, unless such contract laborer or contract laborers are exempted under the terms of the last two provisos contained in section two of this act.

'Sec. 5. That for every violation of any of the provisions of section four of this act the persons, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any contract laborer into the United States, shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any such alien thus promised labor or service of any kind as aforesaid, as debts of like amount are now recovered in the courts of the United States; and separate suits may be brought for each alien thus promised labor or service of any kind as aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States.'

The petition contained forty-five counts, each charging, with considerable detail, that the defendant, by offers and promises of employment and by providing transportation and paying expenses, assisted, encouraged, and solicited the migration and importation into the United States from Mexico of a designated alien laborer who was not within the terms of either of the last two provisos in § 2 of the statute. A different alien laborer was named in each count, and the date of the offending act was given in all as October 29, 1909.

In a preliminary way, the evidence tended to show these facts: The construction company was building a line of railroad in southern Arizona, near Naco, a town on the international boundary. Laborers in large numbers were required for the work, and in August, 1909, the company employed one Carney to procure laborers for it and to take them to the vicinity of the work. For this he was to be paid $1 in gold for each laborer secured, and 20 cents for each meal provided while they were en route. It was contemplated that he would arrange with others to aid him, and he secured the assistance of Holler, Rupelius, and Randall, who, like himself, were located at Nogales, another boundary town. Under this employment Carney procured, and the company accepted, prior to the transaction in question, about 450 laborers, 95 per cent of whom were Mexicans. Many of these came across the line on their own initiative and were then engaged by Holler, but a substantial number were engaged in Mexico by Rupelius, and then brought into the United States at Nogales. Only a few days before the transaction in question, Rupelius gathered together 80 or 90 in Mexico, and induced them to enter the United States at Nogales by promising that the construction company would employ them, which it did.

As respects the forty-five laborers named in the petition there was evidence tending to show the following: These men were citizens of Mexico, and were unskilled laborers who were not within the exemptions specified in the last two provisos in § 2 of the statute. They were secured at Hermosillo, Mexico, by Rupelius, October 28, 1909, were brought into the United States, at Naco, by Randall the next day, were there taken into custody by an immigration inspector, and were examined before a board of special inquiry. The board found that they were alien contract laborers, ordered that they be excluded, and notified them of the order and of their right to an appeal. After consulting with the Mexican consul at Naco they waived that right, and most of them were returned to Mexico, a few being detained as witnesses. Rupelius had induced them to leave Hermosillo and come into the United States by offers and promises of employment by the construction company. They were brought to Naco upon a railroad pass procured by Carney, and purporting to have been issued on account of the construction company, and their only meal en route was provided by Holler at Carney's suggestion. During the latter part of their journey they were in charge of Randall, who had been directed by Carney to deliver them to McDonald, as agent of the construction company, who was expected to be at Naco to receive them. McDonald was there, having come in from one of the company's camps that day. He endeavored to hasten the proceedings before the board of inquiry in order that he might get the men out to the camp that afternoon, and also provided a meal for them while the proceedings were in progress. This was the first party of Mexicans that Carney had attempted to bring into the country at Naco. Others had been brought in at Nogales. According to his statement, the inspection officers at the latter place had been particularly liberal in admitting Mexican laborers procured for the construction company; and he suggested to the inspectors at Naco that like action on their part would be appreciated, but the suggestion did not find favor with them.

There were some direct contradictions in the evidence, different portions gave rise to opposing inferences, and parts of it were more or less improbable; but as it was the province of the jury to pass on such matters, which it did by the verdict, they require no other notice than they will receive presently.

As several of the alleged errors, not involving anything fundamental or jurisdictional, were not presented to the appellate court for consideration, they must be regarded as waived, and will be passed without further notice. Montana R. Co. v. Warren, 137 U. S. 348, 351, 34 L. ed. 681, 682, 11 Sup. Ct. Rep. 96; Gila Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 98, 58 L. ed. ——, 34 Sup. Ct. Rep. 229.

It is complained that the trial court permitted the government to read in evidence the depositions of absent witnesses, instructed the jury to return a verdict for the government if the evidence reasonably preponderated in its favor, and in other ways treated the case as civil in substance as well as in form. But the trial court was right. An action such as this is civil, and is attended with the usual incidents of a civil action. United States v. Regan, 232 U. S. 37, 58 L. ed. ——, 34 Sup. Ct. Rep. 213.

The petition did not allege that the acts charged against the construction company were knowingly done, and it is said that this operated to render the recovery erroneous. No doubt the petition was defective. A right to the penalty arises only where § 4 is violated 'by knowingly assisting, encouraging, or soliciting the migration or importation' of an alien contract laborer into the United States. Knowledge being an element of what is penalized, it must be included in the statement of a cause of action for the penalty. But there are reasons why the defect did not render the recovery erroneous. The defect was not pointed out in the trial court. On the contrary, the case was tried as if the omitted allegation were in the petition. Both parties introduced evidence bearing upon the company's knowledge, both presented requests for instructions treating it as an essential factor in the case, and the jury was instructed upon that theory. In its charge the court said that before any verdict could be returned for the government it must appear from the evidence that some representative of the defendant company, for whose act it would be responsible, 'knowingly assisted, or knowingly encouraged, or knowingly solicited, or knowingly caused others to assist or encourage or solicit, the migration or importation of an alien Mexican contract laborer into the United States.' And again: 'Where knowledge is an essential ingredient of a cause of action, the existence of the knowledge becomes a question to be determined by the jury upon a consideration of all the facts and circumstances in the case.' It is therefore quite plain that the jury found from the evidence that the acts charged against the defendant were knowingly done, and the petition may well be treated as amended to conform to the facts. Ariz. Rev. Stat. 1901, §§ 1288, 1293; Reynolds v. Stockton, 140 U. S. 254, 266, 35 L. ed. 464, 468, 11 Sup. Ct. Rep. 773. The defendant was in no wise prejudiced by the defect, and to make it a ground for reversing the judgment, notwithstanding the theory upon which the trial proceeded, would be most unreasonable. San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 96, 56 L. ed. 680, 683, 32 Sup. Ct. Rep. 399; Campbell v. United States, 224 U. S. 99, 106, 56 L. ed. 684, 686, 32 Sup. Ct. Rep. 398.

Complaint is made of the denial of a motion to suppress certain depositions, subsequently read in evidence, which the government had taken under a commission issued by the clerk. The only ground for the motion to which our attention is invited is that the preliminary notice described the case as pending in the second district when it was pending in the first. The case had been brought in the former, and was transferred to the latter at the defendant's instance. The notice and accompanying interrogatories were prepared before and served after the transfer. The purpose of the notice was to inform defendant's counsel of the intended application for a commission, and of the proposed interrogatories, and to give opportunity for filing cross interrogatories. See Ariz. Rev. Stat. 1901, §§ 2507, 2513. No cross interrogatories were filed in either district, and after the expiration of the time allowed for them the clerk of the district in which the case was pending issued the commission. Counsel for the defendant could not have been misled or confused by the error in the notice, for they were fully informed of the transfer, having perfected it the day before the notice was served. In these circumstances the trial court, as also the supreme court of the territory, held that the error was inconsequential and did not require the suppression of the depositions. We perceive no reason for disturbing that conclusion. On the contrary, we think it was plainly correct.

Over the defendant's objection, the decision of the board of special inquiry was admitted in evidence as tending to prove that the forty-five men were aliens, and it is said that this was error because the defendant was not a party to the proceeding. One of the questions committed by law to the board for decision, subject to an appeal to the Secretary of Commerce, was whether the men were aliens. The document admitted in evidence disclosed that, after a hearing, the board determined that question in the affirmative, and that the men acquiesced by waiving their right to an appeal. In that way their status as aliens was conclusively established as between themselves and the United States. It is true that the defendant was not a party to that proceeding, and that, as a general rule, a judgment binds only the parties and their privies. But it is equally true that a judgment in a prior action is admissible, even against a stranger, as prima facie, but not conclusive, proof of a fact which may be shown by evidence of general reputation, such as custom, pedigree, race, death, and the like, and this because the judgment is usually more persuasive than mere evidence of reputation. 1 Starkie, Ev. 386; 1 Greenl. Ev. §§ 139, 526, 555; Patterson v. Gaines, 6 How. 550, 599, 12 L. ed. 553, 573; Pile v. McBratney, 15 Ill. 314, 319; McCollum v. Fitzsimons, 1 Rich. L. 252. In principle, alienage is within the latter rule, and so the board's decision was properly admitted in evidence for the purpose stated.

Considerable evidence was admitted, over the defendant's objection, of the acts and declarations of Carney and his assistants while they were procuring laborers in Mexico and bringing them into the United States, and it is contended that this was violative of the rule that the acts and declarations of a professed agent are not admissible to prove the existence or extent of his agency. See United States v. Boyd, 5 How. 29, 50, 12 L. ed. 36, 45. But the contention rests upon a misconception of what the record discloses. This evidence was not admitted to establish the agency or its extent, but to show that the laborers came into the United States in circumstances which rendered their migration or importation unlawful. Whether the defendant was responsible for what was done was another question. The trial court recognized this, and expressly ruled that the agency must be otherwise shown, and we agree with the territorial courts in thinking there was other evidence tending to prove the agency, and that it embraced what was done.

The evidence disclosed that when the arrangement was made with Carney, and on one or two occasions thereafter, he was in terms instructed not to engage any laborer in Mexico, and not to induce or assist any laborer to migrate thence into the United States, and because of this it is said that the evidence afforded no basis for holding the defendant responsible for the acts of Carney and his assistants in inducing and aiding the migration or importation of the laborers named in the petition. In dealing with this point the courts below held that under the evidence as a whole, it was an admissible conclusion that the instructions to Carney were not given in good faith, or were in effect abrogated by acquiescence in their nonobservance. An examination of the evidence as set forth in the record satisfies us that it afforded reasonable support for either of these conclusions, and therefore that the question was properly one for the jury. And upon looking at the court's charge as incorporated into the record we find that the matter was fairly and adequately submitted.

Although conceding that there was evidence that ten of the men were citizens of Mexico, the company claims that there was no evidence of the alienage of the other thirty-five. It must be held otherwise. Not only did the decision of the board of inquiry constitute such evidence, but it was destinctly testified by some of the men, who became witnesses at the trial, that 'they were all Mexicans,' meaning thereby, as the context shows, that they were all citizens of Mexico.

Still another contention is that, as all the men named in the petition were brought into the United States at one time, there was but a single violation of the statute, and only one penalty could be recovered. The statute declares that 'separate suits may be brought for each alien thus promised labor or service,' and this plainly means that a separate penalty shall be assessed in respect of each alien whose migration or importation is knowingly assisted, encouraged, or solicited in contravention of the statute. See Missouri, K. & T. R. Co. v. United States, 231 U. S. 112, 58 L. ed. ——, 34 Sup. Ct. Rep. 26.

The action of the court in rendering judgment against the defendant for the costs is challenged, but this was so clearly right as to render discussion of it unnecessary. Ariz. Rev. Stat. 1901, §§ 1543, 2639; Kittredge v. Race, 92 U. S. 116, 121, 23 L. ed. 488, 490; United States v. Verdier, 164 U. S. 213, 219, 41 L. ed. 407, 409, 17 Sup. Ct. Rep. 42.

As we find no prejudicial error in the record, the judgment is affirmed.