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pose of prostitution or for any other immoral purpose; (b) the holding of such woman in pursuance of such illegal importation; and (c) the maintenance, supporting, or harboring in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien woman within three years after she shall have entered the country.
In plain language, this defendant is charged with having either brought his mistress into the United States, or with having brought here a woman who, so far as his desires go, shall be his mistress, if she is not already. He is thus accused of the first offense enumerated in the section above quoted; and the indictment, therefore, must stand or fall upon an interpretation of the words “or for any other immoral purpose. I adopt the definition of prostitution given in Commonwealth v. Cook, 12 Metc. (Mass.) 93, at page 97; i. e.:
"The act of permitting illicit intercourse for hire an indiscriminate intercourse, or what is deemed public prostitution.”
It may be that, as the court remarked in the case cited, this defendant is guilty of open violation of the divine law and of grossly immoral acts, so that such a case is not “the most favorable for a dispassionate consideration of questions of law, the decision of which involves the question whether the party defendant shall be punished, or discharged as not guilty of any offense cognizable by the statute." It is, however, necessary to apply to this statute, as to any other, the ordinary rules of construction, concerning which the discussion at bar has not revealed any substantial difference of opinion between opposing counsel.
It may be admitted that the immigration act of 1907 is in its general scheme remedial; and it is not denied that it is the duty of the court to give to each intelligible word of the statute its exact and precise meaning according to common understanding of the intent of the Legislature, so far as ascertainable from legal sources; and that intent, if expressed in apt language, must be enforced as long as the statute is in operation, though the result be cruel or ridiculous. So far as this statute is concerned I have been directed to no indication of legislative intent other than the language of the statute itself, except the report of the committee of the House of Representatives on immigration, made to the Fifty-Ninth Congress at its first session (No. 4,912), wherein it is stated that the scope of section 3 of this statute is extended beyond that of the corresponding section of the act of 1903, "so far as it relates to the immigration of prostitutes, in order effectively to prohibit undesirable practices alleged to have grown up.'
This I take to mean that the words “or for any other immoral purpose” have been added to the word "prostitution,” in order to prevent undesirable practices alleged to have grown up in relation to the immigration of prostitutes. Upon general principles the added words must be understood as meaning "for any other like immoral purpose," so that the question becomes this: whether a man who brings his mistress into this country is committing an act ejusdem generis with bringing in a prostitute.
Concubinage is the act upon the part of the woman of cohabiting with a man without ceremonial marriage, or consent and intent good at common law. A discussion of the difference between this status and that of the prostitute would be both needless and nauseating. It suffices to say that from any point of view, historical, social, or legal, I do not think that the mistress is near enough to the prostitute to be included by general words in a statute directed against the latter unfortunate class. Considering the section above quoted from a point of view perhaps more technical, it is, of course, highly penal, and to be given, in favor of the liberty of the citizen, the narrowest construction consistent with the plain significance of its words. Many other statutes for several hundred years have contained similar clauses, and, though it is certainly too late in the day to look with approval upon the doctrine that a statute making the “stealing of sheep or other cattle” a felony is too loosely expressed to warrant a conviction for stealing any other animal than a sheep (1 Black. Comm. 88), yet numerous cases can be cited, from Ex parte Hill, 3 C. & P. 225, holding that, under a statute making it a crime to maim "an ox, cow, heifer, sheep or other cattle,” it was not an offense to commit a like act against a bull, to People v. Richards, 108 N. Y. 137, 15 N. E. 371, 2 Am. St. Rep. 373, holding that, under a statute making it burglary to break and enter “any shop, store, booth, tent, warehouse or other building,” one who broke into and entered a tomb or mausoleum was guilty of no crime, all speaking in the same strain. Within the line of decisions, both ancient and modern, illustrated by the above citations, I do not think the words “other immoral purpose,” when used as modifying the word "prostitution,” can be held to include concubinage.
I am the more willing to arrive at this result from observing what would be the effect of a contrary holding as applied to the third offense created by the section under consideration: “Whoever shall keep * in any house *
for the purpose of prostitution, or for any other immoral purpose any alien woman within three years after she shall have entered the United States," --shall be guilty of a felony. In other words, if the offense charged in this indictment be within the act, any man who keeps an alien mistress before she has been three years in this country becomes a felon, even though (so far as the language of the statute is concerned) he had no knowledge whatever of her lack of citizenship. The weapon thus put in the hands of degraded women is so dangerous as to justify great insistence upon the penal character of this section and sone distrust of the remedial virtue contained therein.
It remains to be considered whether any function can be assigned to the words “other immoral purpose,” under the construction of the statute above indicated. It appears to me that sufficient scope is given for their application by the fact that there are others besides the unfortunate women themselves who are concerned in the trade of prostitution. The procuress, thinly disguised as the keeper of an employment agency, and her female assistants, posing as servants, are figures too sadly familiar to the courts to need enumeration or description. It is to them and their kind that the general language of the act must be applied.
The demurrer is sustained.
UNITED STATES V. AMERICAN SURETY CO.
A mail carrier and the surety on his bond, which is conditioned that the principal shall account for and pay over all property and money coming into his possession by virtue of his position, are liable to the United States for the full amount of money stolen by the carrier from a registered letter, notwithstanding the fact that by the postal regulations the United States limits its own liability for the loss of money contained in any
single registered letter to $25. On Demurrer to Plea.
Edwin W. Sims, U. S. Atty., and Seward S. Shirer, Asst. U. S. Atty.
Wm. E. O'Neill, ior defendant.
SANBORN, District Judge.* This is an action brought by the plaintiff against the defendant as surety on the bond of one Charles W. Wells, a mail carrier employed in the post office in the city of Chicago. The bond is dated the 28th day of August, A. D. 1899, the condition of which is as follows:
“Now, if each of said persons for himself as principal shall faithfully perform all the duties and trusts imposed upon him as such letter carrier, either by the postal laws of the United States or the rules and regulations of the Post Office Department of the United States, and shall faithfully account for and pay over to the postmaster at Chicago, Illinois, all moneys which shall come into his hands as such letter carrier, and shall, upon the termination of his office, return to the proper officer all property of every kind and de scription which shall be in his possession as such letter carrier, then the above obligation shall be void as to each of such persons and to no other; otherwise, of force."
The breach of the bond as set forth in the declaration is as follows:
“That heretofore, to wit, on the 12th day of October, in the year of our Lord 1903, the said Charles W. Wells, at Chicago aforesaid, did steal a large sum of money, to wit, forty dollars, from out of a certain letter which had been intrusted to him, in such capacity as aforesaid, for delivery to Henry L. Hertz, collector of internal revenue at Chicago, Illinois, which said letter was a registered letter and then and there bore the following direction and address, to wit: Henry L. Hertz, Esquire, Collector Internal Revenue, Chicago, Illinois —and which said letter was stolen as aforesaid before it had been delivered to the person to whom it was directed, all in the violation of the postal laws of the United States, to wit, in violation of section 5467, Revised Statutes of the United States."
Upon the date on which the bond in this case was executed the United States, by virtue of the laws governing the Post Office Department and the regulations of said department pursuant thereto, did, on or about the 27th day of February, A. D. 1897, by section 889 of the postal regulations of the United States, limit its liability for the loss of any one piece of first-class registered matter to the sum of $10. Later, on or about the 26th day of May, A. D. 1902, while said bond remained in full force and effect, the Post Master General's Depart
* Specially assigned.
ment promulgated an order under which the government of the United States increased its liability for the loss of any one piece of first-class registered matter to the sum of $25, providing, however, that the limit of the liability was never to extend beyond the actual loss; that is to say, when the government's liability was $10, all losses less than that were to be paid in full, and under the recent assumption of liability to the extent of $25 losses incurred by the loss of any one piece of firstclass matter to be paid in full if the loss is less than $25. This action is brought for the sum of $40, being the amount stolen by the principal on the bond, Charles W. Wells.
The defendant has filed its plea in this cause, admitting its liability to the extent that the government has been damnified, to wit, the sum of $25, but denying its liability for any amount in excess of that sum. To this plea the United States has filed a general demurrer. The only question, therefore, presented to this court, is whether or not the liability of the surety on the bond is limited to the amount to which the assured has been damnified. The position of the defendant is that its obligation to the plaintiff is to indemnify it to the extent of its loss, but not beyond that sum.
There is no question in this case as to the defendant's shifting liability on its bond occasioned by changes in the regulations of the Post Office Department, so long as the government assumption of liability is within the amount fixed in the bond. The only question is whether the ordinary rule by which a bailee may recover from a wrongdoer, who has injured, destroyed, or converted the property bailed, to the full value of the property, applies to this case.
The reason why the bailee is entitled to recover full damages against one who converts the property is that he is bound to restore the property to the general owner or stand responsible to him for the full value.
4 Suth. Dam. § 1097, citing Harker v. Dement, 9 Gill, 7, 52 Am. Dec. 670; Warren v Kelley, 80 Me. 512, 532, 15 Atl. 49; Densmore v. Mathews, 58 Mich. 616, 26 N. W. 146; Hamilton v. Lau, 24 Neb. 59, 37 N. W. 688. I have examined these cases and find that they support the text. In this case I am inclined to think that, although the regulations limit the liability of the government to $25, yet, if the government recovers the full value of the package stolen, it will be liable for the balance if the Court of Claims has jurisdiction to allow a claim for such balance. The jurisdiction of the Court of Claims extends to all claims upon any contract, expressed or implied, with the government of the United States. Rev. St. § 1059 [U. S. Comp. St. 1901, p. 734). In Emmons v. U. S. (C. C.) 42 Fed. 26, it is held that the United States is bound to refund to an entryman the price paid by him for public lands subsequently canceled as void. See, also, other instances of implied contracts. Solomon v. United States, 19 Wall. (U. S.) 17, 22 L. Ed. 46; United States v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846; Merrain v. United States, 29 Ct. C1. 250.
It seems to admit of no question that, if the government collects money from one person which is equitably due to another, an implied contract arises to restore or repay the money to the person so entitled. In an action on the bond by the government against Wells, the principal, it seems clear that the measure of damages would be the amount stolen, or $40. The bond provides that it shall be of force unless Wells shall pay over all moneys intrusted to him as mail carrier. He having defaulted, the measure of damages, both against him and his surety, is $40, with interest, notwithstanding the liability of the government to the owner of the money is only $25. The conclusion here reached is supported by National Surety Company v. United States, 129 Fed. 70, 63 C. C. A. 512, and United States v. Griswold, 76 Pac. 596, 80 Pac. 317, in the Supreme Court of the territory of Arizona.
Judgment is therefore ordered in favor of the plaintiff for $40, with
In re WILK.
(District Court, S. D. New York. August 29, 1907.) 1. CONTEMPT-VIOLATION OF ORDER OF COURT-NOTICE.
If a person has actual knowledge of an order of court, he is liable for the consequences of violating it, although he has not been formally served with it.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Contempt, $ 70.] 2. SAME-INTERFERENCE WITH RECEIVER IN BANKRUPTCY.
On the filing of a petition in involuntary bankruptcy, an injunction was granted and a receiver appointed, who took possession of the bankrupt's stock of goods and placed a lock on the door. When his custodian went to the place the next day, respondent, who was a city marshal, had broken open the door and was about to seize goods under a writ of repleyin. He was informed of the action of the bankruptcy court and that the property was in possession of its receiver, whose name was given, and was warned not to interfere with the same, but answered that he did not care for the United States court, and took and removed goods under his writ. Held, that he was guilty of contempt of the bankruptcy court, and a sentence of 60 days' imprisonment imposed as a punishment.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Contempt, $ 163.] In Bankruptcy. On motion to punish for contempt.
James, Schell & Elkus (James N. Rosenberg, of counsel), for the motion.
Maxwell R. Slutzkin, opposed.
HOLT, District Judge. This is a motion to punish Abraham Herman, a city marshal, for contempt. On August 8, 1907, a petition in involuntary bankruptcy was filed in this court against Harry Wilk, an application for an injunction and the appointment of a receiver was duly made, an injunction granted, and a receiver appointed. The receiver immediately qualified by giving a bond, which was duly approved. Immediately upon his qualification, about 1 o'clock p. m., he went to the place of business of the alleged bankrupt, 50 East Eighth street, took possession of the property there, consisting principally of ladies' cloaks and suits and unmanufactured cloth. He found a bookkeeper in charge of the place, informed him of his appointment as receiver, and the bookkeeper turned over the premises to him as receiver. The receiver remained there in possession that afternoon. Before leaving, he purchased a new lock, placed it upon the outside door, and left the premises locked. The next morning the receiver appointed Aaron