IN RE imCCIARELW.'
(Oircuit Oo'U'I't, S. D. New Yo"".ll'ebruary 28,'1891.)
Tberegulation of the secretary of the treasury declares tlHit the superintendent' of immigration at the port of Ne'w Y drk 'sball examine into theconditiQn of PS&-l Bengers arriving at that port, and report to tbe collector whether any person is within the prohibition of Act Congo Feb. 26, 1885. Act Congo Feb. 28. 1887, amending tbe act of 1885, provides that if, on such examination by the superintendent, any person shall be found within the probibition of tbe act, and tbe same is reported to the collector, sucb person shall not be permitted to land. Held, that such power of determination is vested in tbe superintendent of immigration, and not in the collector.
At Law. Robert D. Benedict, for petitioners. Edward Mitchell, U. S. Dist. Atty., and John O. Mott, Asst. U. S. Dist. . r if Atty. ,for collector. ,
W ALLACE,J. Under regulations of secretary :of the treasur;K of the ,the duty is devolved upon the superintendent of imn:ligrittion at the port of New York, or the dfJicers assign¢q. and employed under his superviSion, to examine into the condition of passengers arfivingat thatport,.imd report'#nhecollectorin in such examination there htlsbeen found any person included in'the prohibition of act ofcppgress of ,Fepruary 26, as amended'Feb· ruary 28, 1881.: Section 6 of the amendatory. aet:or February 23,1887, declares 'that 'if in ,such examination there shall be found any person' included in the prohibition 'of theact,and the same is reported in writing to the ool1'ecto1', such person shall hot' be permitted to land; 'Undoubtedly, under the powers conferred upon the secretary pf the, and 7 of the atnendatory act, the power of determination might have been conferred .by the secretary'ofthe treasury upon the collector. it has not beep conferred upon the collector, and But by devolves upon the ,superintendent ofimmigfation, qr the officers acting under his Bupervision; ConflequentlY,"the collector has no judicial functions, and is not called upon to decide whether any passenger belongs to anyone of the prohibited classes. It follows that, if there was any competent evidence to justify a report by the superintenderit of immigration or the acting superintendent that the petitioners migrated under a contract to perform labor or service, the rlecision of the superintendent or of his aSElistant is conclusive. This court cannot undertake to weigh oonflictingeviderice for the· purpose of Whether a' correct elusion was reached. Ihhe only evidence of a contract with thepetitionel's werethatcol,ltained in the letter from Nicola Grilli to Alberico Sel'anno, ahd the letter ftom Berafinoto Barsotti, I should hold; without hesitation, that it did not appear that the petitioners carrie' here un'der a efevious ,contl'aci:;. But the affidavits made by the eltligrsntsmay the letter h'ad'been written to Serafino by'Ba1'sotti,prorriising t& E1mploythem at specified wages per diem., and, in; that
view that there was a contract, within the prohibition of the statute. If the superintendent of im!Digration chooses to make a supplemental report to the collector, to the effect that the basis of this report is the evidence of the previous contract contained in the letters of Grilli and Serafino, and no other evidence, the collector may amend his return on or before the 3d day of March, setting forth that such a report has been filed. The further hearing of the case is postponed until the 4th day of March.
(O£rcuU Court, D. Montana. January 15,1891.)
RAILROADs-RIGHT 011' WAy-PLEADINGS.
the allegations of the, petition, sets up an easement of way under a grant by Act Cong. July 2, 1864, over the land, Which at that time was public land, and alleges that plaintiff's entry thereon was subject to the grant, but fails to averspecitically a compliance with all the provisions of ,the statute which are prerequisites to the takillg effect of the grant, and the replication admitted the grant, but alleged that of way across his farm was not the route selected under the terms of the statute, whioh,had been located some years before several miles further south, and that the company's olaim to a right of way under the grant was exhausted thereby,: it was error to enter judgment for defendant on the pleadings.
ll. AWARD II'OR DAMAGES-A(JTION-PLEADIJIG.
road Company for a right of way across plaintiff's land, the answer, after denying
Where, in an action on an award of damages against the Northern Pacific Rail-
Where a complaint ill an action on an award appraising damages sustained by plaintiff from the building of 'a railroad across his land sets out his ownership of the land, that defendant, a ,railroad corporation, has constructed its road over his premises, and appropriated a way therefor, the appointment of oommissioners by a court of competent jurisdiction, their award, and the failure of defendant to pay the same: a cause of action i,s stated, without negativing any defense which defendant may nave.
EVIDENOB-JUDICIAL NOTIOE-MAP 011' RIGHT 011' WAY.
Where the issue is as to the selection and location by defendant railroad company of a right of way across IlUblic land, under Aot Congo July 2, 1864, and the defendant omits to plead the specific acts constituting the alleged location the court can" not take judicial notice of the filing of the, map of its route with the secretary of the interior on February' 21, 1872, or that, the route thereby fixed was its general route, and not its definIte route, the tIxingof which required further surveys, although the map by the tIling became a part of the department records.
At Law. J. H. Slwb(ff' and J. W. Kinsley, for plaintiff. Oullen, Sand(ff's Shelton, for defendant.
KNOWLES, J. This case was brought in the territorial district court. On motion of defendant, judgment was rendered against the plaintiff from this judgment to the upon the pleadings. The plaintiff supreme court of the territory, and the case was pending there when Montana became a state in the Union. From this latter court it was -transferred to this court l under the provisions of the act under which Montana. was admitted into the Union. The ruling of the court in granting the motion for judgment on the pleadings is assigned as error. The aotionin this case was brought on what may be called an award