utes merely prohibit contract laborers being brought in. The later ones prohibit the bringing in of immigrants,-persons who come into this country with the intention of remaining, of fixing a residence here, and who are calculated to become a charge upon the country, or who are unfit, on account of moral character, previous conviction of crime, or disease, to be admitted as citizens. Nothing in the scope of the statutes seems to contemplate, or can be rationally held to contemplate, the prohibition of the bringing within the country by vessels of their crews engaged under contracts made out of the country, to labor on the vessels while approaching and while in the ports of this country, and to sail again with the vessels from this country. By sections 1, 2, and 3 of the act of February 26, 1885 (1 Supp. Rev. St. U. S. p. 479), it is provided that it is illegal for any person to in any way assist or encourage the migration of any alien or foreigner into the United States under previous contract with said alien or foreigner to perform labor or service of any kind in the United States, its territories, or the District of Columbia. Such contracts are avoided, and a penalty of $1,000 is imposed for every such offense as to each alien or foreigner. Thus it is made illegal to assist or encourage the migration of any alien into the United States under previous contract with him to perform labor in the United States; that is to say, it is illegal to assist or encourage any alien to remove or change his residence into the United States under previous contract with him to perform labor in the United States. Now, every foreign seaman on a vessel of this or a foreign country, signed on the articles abroad, is an alien contracted with to perform duty in the United States while the vessel lies in the United States, loading; but he is not contracted with to remove to the United States, or assisted or encouraged to migrateto change his residence-to the United States, to perform labor there. It is to be assumed that congress uses language employed by it in its enactments in its ordinary meaning and acceptation. The particular statute invoked on behalf of the respondent, being that of March 3, 1891, clearly relates to immigration, and is leveled only against immigrants, that is, those who are coming to the United States to make it a home,-for in the first section it is declared that certain classes of aliens shall be excluded from admission into the United States "in accordance with the existing acts regulating immigration." The third section excludes the encouragement of immigration to this country of aliens by promise of employment, advertisement, and the like. The fourth makes it unlawful for steamships or transportation companies or vessel owners, by writing or other wise, to solicit or encourage immigration of aliens into the United States, other than by stating the sailings of their vessels and their facilities. The sixth section forbids the bringing into the United States of any aliens not lawfully entitled to enter, and punishes the offense; and the eighth section provides that upon the arrival by water of alien immigrants at any port it shall be the duty of the master to report the name, nationality, etc., of the alien to the proper officers, and provides for an inspection of these persons before they can be lawfully landed. The tenth section then declares that all aliens who may unlawfully come into the United States shall be sent

99 F.-57

back on the vessel by which they were brought in at the cost of the master or owner, and, if the said master shall refuse to receive back such aliens as he unlawfully brought to the United States and as were sent back to the vessel, or shall refuse or neglect to return them to the port from which they came, he shall be punished in a fine of not less than $300, and shall not have clearance of his ship until it is paid. Here we see a definite purpose to exclude the immigration, and the bringing of persons intending to immigrate, into the United States, if they belong to the excluded classes, with definite specific provisions for their deportation by the medium through which they entered the country. If this law applied to the crews of ships generally, by section 6 of this last act, as well as by the section of the previous act cited in the earlier part of this opinion, no vessel, foreign or domestic, could lawfully enter the ports of the United States with an alien seaman on board. I cannot so interpret the law. If it be said that the mere bringing into the United States of these alien seamen may not be an offense, but that landing them would be, notwithstanding the law forbids in the disjunctive,—the bringing into "or" landing,-then we have presented by this contention the duty, as one imposed by congress, that the masters of all ships, American or otherwise, shall either imprison, put under hatches, put in irons, or guard every alien seaman in their crews during their entire stay in port, however protracted by the exigencies to commerce and the ship's loading, lest one of these aliens should set foot at some time on shore for recreation or health, or for supplying his limited needs in the shops of the country. This cannot be the just interpretation of the laws of congress upon the subject of immigration, and such interpretation is not justified by the terms of those statutes, upon a general survey of them in all their parts. These immigration statutes are to be construed as a whole, and not by singling out particular words or sections, and interpreting them according to their strict letter. A thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence." Holy Trinity Church v. U. S., 143 U. S. 461, 12 Sup. Ct. 512, 36 L. Ed. 228. "Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion." Lau Ow Bew v. U. S., 144 U. S. 59, 12 Sup. Ct. 520, 36 L. Ed. 344. Α consideration of the whole legislation on the subject of alien immigra tion, of the circumstances surrounding its enactment, and of the unjust results which would follow from giving such meaning to it as is here claimed for it, makes it unreasonable to believe that congress intended to include a case like the present one. My opinion is that these statutes do not contemplate the exclusion of the crews of vessels which lawfully trade to our ports, and that they do not, in spirit or in letter, apply to seamen engaged in their calling, whose home is the sea; who are here to-day and gone to-morrow; who come on a vessel into the United States with no purpose to reside

therein, but with the intention, when they come, of leaving again, on that or some other vessel, for the port of shipment or some other foreign port in the course of her trade. To hold that these statutes apply to aliens comprising the bona fide crews of vessels engaged in commerce between the United States and foreign countries would lead to great injustice to such vessels, oppression to their crews, and serious consequences to commerce.

I have carefully considered the ruling of the assistant secretary of the treasury in the case of the crew of the Lancashire, which may be justified by the facts in that particular case, as they existed, and as they were doubtless made known to him. In that case, the vessel, which had been partly wrecked on the coast of Jamaica, and partially restored there, and had changed flags, came to Mobile for docking and more complete repair; then to load out a cargo for foreign lands. She had shipped at Kingston, besides the ordinary crew usually required on vessels of her class, a large number of additional men, who desired to come to the United States, and who were engaged at Jamaica to come to Mobile at a wage of one shilling per month each, to work chiefly at pumping the leaking vessel, and to be here discharged, an absurdly small wage unless the men were working their passage to the United States, as they manifestly were doing. Under such facts as existed in that case, these men, so working their pas sage at the equivalent of 25 cents for the month, but who were actually paid $5 each for the month's service (where the ordinary wages were $15 per month), and who stipulated for discharge here in the United States, were plainly immigrants, and properly treated as such, and therefore properly deported under the ruling of the secretary; and this, not because bona fide crews of ships fall under the immigration laws, but because they were not a bona fide crew of the ship. Were the court to adopt all the views contained in the letter of instruction of the secretary of the treasury referred to in the Lancashire case, it would not aid the respondent in this case, as it is sufficient to say that the secretary there applied his ruling exclusively to discharged seamen, who came into the United States under the circumstances above stated, on the evident theory that, after they were discharged, they became a part of the mass of the people of the country, and were indistinguishable from any other immigrants. Such is not the case here. I am satisfied that the master of this vessel has committed po offense against the immigration laws, and is entitled to his clearance without paying any fine imposed by such laws.

I am not unmindful of the provision of the act of August 18, 1894, that "in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final unless reversed on appeal to the secretary of the treasury" (2 Supp. Rev. St. U. S. p. 253), and of the rulings made thereon. Lem Moon Sing v. U. S., 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082; Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140; In re Moses (C. C.) 83 Fed. 995, and other cases. Under these decisions the status of any alien, and the question of his right to enter the United States, is ex

clusively vested in the executive department of the government; and, where it has been legitimately exercised, the courts cannot interfere in behalf of the alien. But no question arises in this case upon that clause of the law, for the reason that, as I have interpreted it, the alien seamen using the ports of the country in their ships are not alien immigrants, and are, therefore, not aliens coming into the country, within the meaning of the statute, and whose right to remain here can be definitely and finally determined by the executive officers of the government. But, besides this, whatever may be the right of any officer to determine the status of a particular alien as between the government and the alien, the right to enforce a penalty against the ship that brings him is essentially a judicial right, and when, therefore, it is attempted on the part of the executive officer to constrain a ship master to pay a penalty, or when clearance is refused to his ship for failure to pay such penalty, the courts are not excluded from a consideration of the question whether a case is made for the imposition of the penalty or the restraint of the ship. Let a peremptory writ of mandamus issue.

MCNULTA v. WEST CHICAGO PARK COM'RS.

WEST CHICAGO PARK COM'RS v. McNULTA.

(Circuit Court of Appeals, Seventh Circuit. March 2, 1900.)

Nos. 580, 603.

1. BANKS-DEPOSIT OF PUBLIC FUNDS-LIABILITY FOR MISAPPROPRIATION BY OFFICER.

A private banking firm transacted practically its entire business through a national bank. It cleared through such bank, and kept an account therein, in which it deposited all checks and cash items received, and against which checks drawn upon it and coming through the clearing house were charged. At a time when the firm was largely indebted to the bank, and known by the bank officers to be insolvent, one of the partners was appointed treasurer of a city park board, the president of the bank becoming surety on his bond. A portion of the park funds was at once used in paying a large overdraft of the firm in its bank account, the remainder being for a time carried in a separate account in the bank to the credit of the treasurer, but from which he from time to time checked amounts in payment of further overdrafts of the firm. Subsequently the entire account was transferred and merged in that of the firm, the treasurer from that time nominally making the private firm his depositary, and the firm depositing the park funds in its own bank account, as was known by the bank officers. Both the bank and the firm suspended through insolvency. Held, that the bank was a party to the misappropriation of the park funds by the treasurer, and was liable for the amount so misappropriated, and of which it received to some extent the benefit. 2. SAME-SUIT TO RECOVER-PLEADING.

Under a bill filed by the park board against the bank, evidence of the insolvency of the firm of which the treasurer was a member at the time the park funds were appropriated to its use, and that such fact was known to defendant, was competent in support of the charge of misappropriation, although not directly alleged.

8. APPEAL-ASSIGNMENT OF ERRORS.

An assignment of errors that the court erred in finding the defendant indebted in the sum it did, or any other sum, is not sufficient to present the question whether the inclusion of an item of interest was erroneous.

4 BANKS-INSOLVENCY-CLAIM OF PREFERENCE.

A deposit of public funds on which, under the law, interest must be paid, cannot be special or in trust, and, in case of insolvency of the depositary, stands on the same footing with other deposits.

Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

Thomas A. Moran and John P. Wilson, for appellant.

John S. Miller, E. O. Brown, and Francis Riddle, for appellee. Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

WOODS, Circuit Judge. These appeals are from a decree by which the West Chicago Park Commissioners, a quasi municipal corporation, was adjudged entitled to recover of the National Bank of Illinois, at Chicago, the sum of $316,013.40, and the receiver of the bank was directed to pay the complainant as a creditor for that amount ratably with other creditors of the bank. The receiver, who is the principal appellant, challenges the liability of the bank. The contention on the cross appeal is that the sum due the park commissioners should have been declared a preferred claim. The theory of the bill, in brief, is that Edward S. Dreyer, who was the senior member of the banking firm of E. S. Dreyer & Co., and from March 13, 1894, until December 21, 1896, was the treasurer of the West Chicago Park Commissioners, misapplied the moneys of that body to the discharge of the liabilities of E. S. Dreyer & Co. to the National Bank of Illinois, at Chicago; the officers of the bank participating in the wrong.

The facts and circumstances in evidence are set out in great detail in the report of the special master, but only a summary statement here is deemed necessary. E. S. Dreyer & Co. was a partnership, composed of Edward S. Dreyer and Robert Berger, a son-in-law of George Schneider, who from August, 1871, to the end, in December, 1896, was the president of the National Bank of Illinois. The business of the partnership, commencing about 1879, was at first confined to dealings in real estate and mortgage loans, but later was extended to private banking. This was done at the instance of Schneider, the president, and W. A. Hammond, the second vice president, of the National Bank of Illinois, who promised that the bank would see the firm "through." The subsequent transactions of the bank which have been brought into question in this suit seem to have been efforts to make good that promise. The firm was not a member of the Chicago Clearing House, but "cleared" through the National Bank of Illinois. It is substantially true, as stated in the brief for the appellant, that, from the inception of the business until the failure of the bank, the firm kept a deposit account in the bank, "to the credit of which were placed all checks deposited with E. S. Dreyer & Co., and all moneys received by them and paid out over their counter, and to which account all checks upon E. S. Dreyer & Co. coming through the clearing house were charged, and also all cash paid by said bank to the firm of E. S. Dreyer & Co. This method