only be obtained upon such terms as he may exact, is as onerous as any charge which can well be imposed, and, when imposed upon persons of particular classes, is in conflict with this statute. In re Ah Fong, (1874) 3 Sawy. (U. S.) 144.

An indictment against a tax collector, alleging that a certain person was deprived of a right secured to him by this statute, in that there was exacted from him a certain sum by the defendant under color of a certain law of the state, is bad when it contains no aver

ment describing the person as one coming within the provisions of the state law. "The statute requires that a party shall be subjected to a deprivation of right secured by the statute under color of some law, statute, order, or custom; but if this exaction, although made by a tax collector, has been levied upon a person not within the provisions of the state law, the exaction cannot be said to have been made under color of law.'" U. S. v. Jackson, 3 Sawy. (U. S.) 59.

An act supplementary to the acts in relation to immigration.

[Act of March 3, 1875, ch. 141, 18 Stat. L. 477.]

[SEC. 1.] [Agreement by immigrant for immoral purposes - Consular inquiry and certificate.] That in determining whether the immigration of any subject of China, Japan, or any Oriental country, to the United States, is free and voluntary, as provided by section two thousand one hundred and sixty-two of the Revised Code, title "Immigration," it shall be the duty of the consulgeneral or consul of the United States residing at the port from which it is proposed to convey such subjects, in any vessels enrolled or licensed in the United States, or any port within the same, before delivering to the masters of any such vessels the permit or certificate provided for in such section, to ascertain whether such immigrant has entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes; and if there be such contract or agreement, the said consul-general or consul shall not deliver the required permit or certificate. [18 Stat. L. 477.]

SEC. 2. [Transportation of subjects of China or Japan, etc., without free consent, how punished · contracts for term of service void.] That if any citizen of the United States, or other person amenable to the laws of the United States, shall take, or cause to be taken or transported, to or from the United States any subject of China, Japan, or any Oriental country, without their free and voluntary consent, for the purpose of holding them to a term of service, such citizen or other person shall be liable to be indicted therefor, and, on conviction of such offense, shall be punished by a fine not exceeding two thousand dollars and be imprisoned not exceeding one year; and all contracts and agreements for a term of service of such persons in the United States, whether made in advance or in pursuance of such illegal importation, and whether such importation shall have been in American or other vessels, are hereby declared void. [18 Stat. L. 477.]

SEC. 3. [Importation of women for purposes of prostitution — penalty.] That the importation into the United States of women for the purposes of prostitution is hereby forbidden; and all contracts and agreements in relation thereto, made in advance or in pursuance of such illegal importation and pur

poses, are hereby declared void; and whoever shall knowingly and willfully import, or cause any importation of, women into the United States for the purposes of prostitution, or shall knowingly or willfully hold, or attempt to hold, any woman to such purposes, in pursuance of such illegal importation and contract or agreement, shall be deemed guilty of a felony, and, on conviction. thereof, shall be imprisoned not exceeding five years and pay a fine not exceeding five thousand dollars. [18 Stat. L. 477.]

The provisions of this section apply to all countries, oriental and other. U. S. v. Johnson, (1881) 7 Fed. Rep. 453.

An indictment which states that the defendants imported into a certain district in the United States, from a certain foreign place, certain named women, is a sufficient averment of importation; it is not necessary to state the facts constituting the ultimate fact of importation. U. S. v. Pagliano, (1893) 53 Fed. Rep. 1001; U. S. v. Johnson, (1881) 7 Fed. Rep. 453.

The use of the word "prostitution" is sufficiently definite without specifying the kind of

prostitution referred to. U. S. v. Pagliano, (1893) 53 Fed. Rep. 1001.

The place at which women are to be used for the purposes of prostitution need not be stated in the indictment. U. S. v. Pagliano, (1893) 53 Fed. Rep. 1001.

That the importation was in pursuance of an agreement made prior to the importation need not be alleged in the indictment. U. S. v. Pagliano, (1893) 53 Fed. Rep. 1001.

The use of the words "did import and bring" in the indictment, whereas the statute used the word "import" only, is not objectionable. U. S. v. Pagliano, (1893) 53 Fed. Rep. 1001.

SEC. 4. [Contracting to supply labor of cooly in violation of law.] That if any person shall knowingly and willfully contract, or attempt to contract, in advance or in pursuance of such illegal importation, to supply to another the labor of any cooly or other person brought into the United States in violation of section two thousand one hundred and fifty-eight of the Revised Statutes, or of any other section of the laws prohibiting the cooly-trade or of this act, such person shall be deemed guilty of a felony, and, upon conviction thereof, in any United States court, shall be fined in a sum not exceeding five hundred dollars and imprisoned for a term not exceeding one year. [18 Stat. L. 477.]

R. S. sec. 2158, above referred to, is given supra, p. 290.

SEC. 5. [Immigration of convicts and women for prostitution - inspection and forfeiture of vessels.] That it shall be unlawful for aliens of the following classes to immigrate into the United States, namely, persons who are undergoing a sentence for conviction in their own country of felonious crimes other than political or growing out of or the result of such political offenses, or whose sentence has been remitted on condition of their emigration, and women "imported for the purposes of prostitution."

Every vessel arriving in the United States may be inspected under the direction of the collector of the port at which it arrives, if he shall have reason to believe that any such obnoxious persons are on board; and the officer making such inspection shall certify the result thereof to the master or other person in charge of such vessel, designating in such certificate the person or persons, if any there be, ascertained by him to be of either of the classes whose importation is hereby forbidden.

When such inspection is required by the collector as aforesaid, it shall be unlawful, without his permission, for any alien to leave any such vessel arriving in the United States from a foreign country until the inspection shall have been had and the result certified as herein provided; and at no time thereafter shall any alien certified to by the inspecting officer as being of either of the classes whose immigration is forbidden by this section, be allowed to land in the United States, except in obedience to a judicial process issued pursuant to law.

If any person shall feel aggrieved by the certificate of such inspecting officer stating him or her to be within either of the classes whose immigration is forbidden by this section, and shall apply for release or other remedy to any proper court or judge, then it shall be the duty of the collector at said port of entry to detain said vessel until a hearing and determination of the matter are had, to the end that if the said inspector [sic] shall be found to be in accordance with this section and sustained, the obnoxious person or persons shall be returned on board of said vessel, and shall not thereafter be permitted to land, unless the master, owner, or consignee of the vessel shall give bond and security, to be approved by the court or judge hearing the cause, in the sum of five hundred dollars for each such person permitted to land, conditioned for the return of such person, within six months from the date thereof, to the country whence his or her emigration shall have taken place, or unless the vessel bringing such obnoxious person or persons shall be forfeited, in which event the proceeds of such forfeiture shall be paid over to the collector of the port of arrival, and applied by him, as far as necessary, to the return of such person or persons to his or her own country within the said period of six months.

And for all violations of this act, the vessel, by the acts, omissions, or connivance of the owners, master, or other custodian, or the consignees of which the same are committed, shall be liable to forfeiture, and may be proceeded against as in cases of frauds against the revenue laws, for which forfeiture is prescribed by existing law. [18 Stat. L. 477.]

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[SEC. 1.] [Duty on each alien passenger - “ immigrant fund."] That there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.

The said duty shall be paid to the collector of customs of the port to which such passenger shall come, or if there be no collector at such port, then to the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel, within twenty-four hours after the entry thereof into such port. The money thus collected shall be paid into the United States Treasury, and shall constitute a fund to be called the immigrant fund, and shall be used, under the direction of the Secretary of the Treasury, to defray the expense of regulating immigration under this act, and for the care of immigrants arriving in the United States, for the relief of such as are in distress, and for the general purposes and expenses of carrying this act into effect. The duty imposed by this section shall be a lien upon the vessels which shall bring such passengers into the United States, and shall be a debt in favor of the United States against the owner or owners of such vessels; and the payment of such duty may be enforced by any legal or equitable remedy. Provided, That no greater sum shall be expended for the purposes hereinbefore mentioned, at any port, than shall have been collected at such port. [22 Stat. L. 214.]

"Head money" raised to' one dollar and to be covered into treasury by Act of Aug. 18, 1894, ch. 301, following.

Exemptions from this duty are contained in section 22 of the Act of June 26, 1884, ch. 121, following.

[Head money increased to one dollar-immigration receipts to be covered into treasury.] Bureau of Immigration: The head money from alien passengers on and after the first day of October next, collected under the Act of August third, eighteen hundred and eighty-two, to regulate immigration, shall be one dollar in lieu of the fifty cents as provided in said Act, and such head money and all other receipts which shall be collected on and after July first, eighteen hundred and ninetyfive, in connection with immigration shall be covered into the Treasury; [28 Stat. L. 391.]

* *

*

This is from the Sundry Civil Appropriation Act of Aug. 18, 1894, ch. 301.

SEC. 22. [Passengers by vessels between U. S. and Canada or Mexico exempt from alien passenger tax.] That until the provisions of section. one, chapter three hundred and seventy-six, of the laws of eighteen hundred and eighty-two, shall be made applicable to passengers coming into the United States by land carriage, said provisions shall not apply to passengers coming by vessels employed exclusively in the trade between the ports of the United States and the ports of the Dominion of Canada or the ports of Mexico. [23 Stat. L. 58.]

The above section 22 is from the Act of June 26, 1884, ch. 121, " to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade."

Constitutional. This statute was within the power of Congress to enact, as being a regulation of commerce with foreign nations, and does not violate the constitutional provision that a tax "shall be uniform throughout the United States." The law applies to all ports alike, and gives no preference to one over another. Head-Money Cases, (1884) 112 U. S. 580.

The power exercised in enacting this statute is not the taxing power. The sum demanded of the ship owner is not, strictly speaking, a tax or duty within the meaning of the Constitution, as money thus raised, though paid into the treasury, is appropriated in advance to the uses of the statute, and 'constitutes a fund raised from those who are engaged in the transportation of passengers, and who make a profit out of it, for the temporary care of the passengers and for the protection of the citizens among whom they are landed. Head-Money Cases, (1884) 112 U. S. 580.

This statute is not unconstitutional as conflicting with existing treaties. If there is such conflict, the Act of Congress must prevail in a judicial forum. Head-Money Cases, (1884) 112 U. S. 580. See also Thingvalla Line v. U. S., (1889) 24 Ct. Cl. 255.

Exclusive federal jurisdiction. A state statute levying a duty for each and every alien passenger who shall come by vessel from a foreign port to a port within the state is void. Such a tax as this is a regulation of commerce with foreign nations, confided by the Constitution to the exclusive control of Congress. People . Compagnie Générale Transatlantique, (1882) 107 U. S. 59; People

v. Pacific Mail Steam Ship Co., (1883) 16 Fed. Rep. 344. See also Passenger Cases, (1849) 7 How. (U. S.) 283. See Chy Lung v. Freeman, (1875) 92 U. S. 275.

The calculation of head money is in practice based on the list of passengers furnished by the master of the vessel under section 9 of the Passenger Act of Aug. 2, 1882, 22 Stat. L. 186. (1890) 19 Op. Atty.-Gen. 706.

The passengers on whom the capitation tax is laid are those who make the United States their place of destination and not those who merely touch at our ports en route to some other country. (1897) 21 Op. Atty.-Gen. 543.

The duty is collectible on account of all itinerant persons, not citizens of the United States, coming to the ports of this country from foreign ports, and is demandable as often as such person enters. (1885) 18 Op. Atty. Gen. -185, 196.

Children under one year of age are 66 passengers so as to be chargeable with the duty. The Head-Money Cases, (1883) 18 Fed. Rep. 135.

Discharged or deserting seamen are pas sengers, within the meaning of that term as used in this statute, if they shipped as seamen as a convenient method of securing passage to this country, and for the purpose of entering as other alien immigrants. But if they shipped with the intention in good faith to continue their occupation as seamen, and with no intention to make entry into this country, then they are not passengers, and are exempt from the tax. (1901) 23 Op. Atty. Gen. 521.

Head taxes illegally, improperly, or excessively imposed may be refunded by the secre

tary of the treasury under section 26 of the Act of June 26, 1884, 23 Stat. L. 59. (1890) 19 Op. Atty.-Gen. 660.

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But the secretary must obey the law in finding that the tax has been illegally, improperly, or excessively imposed, and cannot regard the tax as improperly" collected, and refund the money, merely because it might involve the country in a controversy with a foreign nation. Thingvalla Line v. U. S., (1889) 24 Ct. Cl. 255.

Authority of secretary of treasury - Appoint a supervising inspector. If in the judgment of the secretary of the treasury it is necessary so to do, in order properly to regulate immigration or to carry the Acts relating thereto into full and effective execution, he is authorized to appoint a supervising inspector, or a special inspector, to perform such duties in connection with the service as the secretary shall direct, and the appointee may be paid from the immigrant fund. (1891) 20 Op. Atty.-Gen. 76, 259.

Expenses on Ellis Island. - Under this statute and sections 7 and 8 of the Act of March 3, 1891, 26 Stat. L. 1085, the secretary of the treasury is fully authorized to provide subsistence on Ellis Island, to expend from the immigrant fund such moneys as are

required to properly complete the necessary improvements in connection with putting the place in condition for use as a receiving station, and to pay such proper expenses as may be required to carry the immigration laws into effect. (1891) 20 Op. Atty.-Gen. 217.

Effect of Act of June 10, 1890. The head tax is not subject to the provisions of the Act of June 10, 1890, any further than it may be affected by the repeals contained in section 29. (1890) 19 Op. Atty.-Gen. 660.

The duty should be exacted of convicts, lunatics, etc., although by the terms of the statute, section 2, infra, they are not to be permitted to land, but are to be returned to the place whence they came. (1885) 18 Op. Atty. Gen. 135.

Employment of counsel. The duties of United States attorneys are prescribed by law, and among those duties are not those of advising or defending boards of immigration. The provision of this section empowering the secretary of the treasury to pay out of the immigrant fund "the expense of regulating immigration" under the Act gives him the power to employ and pay counsel for the purposes mentioned. (1885) 18 Op. Atty.-Gen.

108.

SEC. 2. [Secretary of Treasury to execute act-contracts with State immigration authorities-examination of condition of arrivals - convicts, lunatics, etc., not to land.] That the Secretary of the Treasury is hereby charged with the duty of executing the provisions of this act and with supervision over the business of immigration to the United States, and for that purpose he shall have power to enter into contracts with such State commission, board, or officers as may be designated for that purpose by the governor of any State to take charge of the local affairs of immigration in the ports within said State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need public aid, under the rules and regulations to be prescribed by said Secretary; and it shall be the duty of such State commission, board, or officers so designated to examine into the condition of passengers arriving at the ports within such State in any ship or vessel, and for that purpose all or any of such commissioners or officers, or such other person or persons as they shall appoint, shall be authorized to go on board of and through any such ship or vessel; and if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such persons shall not be permitted to land. [22 Stat. L. 214.]

The secretary of the treasury is not confined to the agencies mentioned in this section and section 4, infra, but it is within his discretion whether he will use them or not, and he may adopt any other appropriate means for carrying out the objects of the statute. (1890) 19 Op. Atty.-Gen. 486.

The power of the secretary of the treasury to enter into contracts with state commissions, boards, or officers, is withdrawn by the provisions of the Act of March 3, 1891. (1891) 20 Op. Atty. Gen. 69.

The authority of the commissioners of immigration, individually or through persons

whom they may appoint, to go on board any ship or vessel bringing immigrants, does not authorize them to delegate to any persons other than themselves the important functions- quasi judicial in their character which are by the statute confided to them. The action of a committee, appointed by the commissioners, determining as to the condition of immigrants, has not the same legal effect as the action of the commissioners themselves. In re Murnane, (1889) 39 Fed. Rep. 99.

A report by the secretary of a state board,. based upon a report of a subordinate em