17 F.(2d) 46 1910 the Public Service Commission was created by statute in South Carolina, with power to fix and establish maximum rates for the supply of water, gas, and electricity. Code 1912, vol. 1, §§ 922-925. By act of 1922, however, this commission was abolished, and jurisdiction over such utilities was vested in the Railroad Commission. Act March 24, 1922, appendix Code of 1922, vol. 3, p. 1785. The act of 1922 also provided that, whenever a public utility company should desire to put into effect a new rate, it should file with the commission a new schedule or schedules embodying same, not less than 30 days prior to the time same were to become effective. In 1919 the Public Service Commission approved and put into effect a schedule of rates for electric power ranging from 9 cents to 3 cents per k. w. h. in accordance with the quantity of current used, which, however, made no provision for special rates to large users of power, generally termed wholesale customers. Some time prior to June 20, 1922, plaintiff filed with the commission a schedule of rates showing the charge for current as ranging from 9 cents to 3 cents per k. w. h., and containing the following statement: "Power.-Retail rate same as lighting rate. Wholesale rate made by special contract. .[3, 4] In considering this question, we are confronted with the fact that on this branch of the case both sides moved for a directed verdict. The effect of this was to waive a jury trial and submit all questions of fact as well as of law to the judge. He has found in favor of the plaintiff, and we are powerless to review his finding, unless satisfied, after viewing the evidence in the light most favorable to plaintiff and resolving all controverted questions in its favor, that there was no evidence upon which the finding can be sustained; in other words, unless we think that upon the evidence a verdict should have been directed for the defendant as a matter of law. Lawton v. Carpenter (C. C. A. 4th) 195 F. 362; Sena v. American Turquoise Co., 220 U. S. 497, 501, 31 S. Ct. 488, 55 L. Ed. 559; Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654. We think, however, that the defendant was clearly not entitled to a directed verdict, first, because the filing of the list of wholesale customers with the contract rate paid by each was clearly not the filing of a schedule of rates within the meaning of the act; and, secondly, because there was evidence from which the judge was justified in finding that the amounts paid by defendant were paid voluntarily. [5] As to the first proposition, it is clear "Special Rates.-For wholesale power that the filing of the list of wholesale cuscustomers only." On June 20, 1922, the chairman of the Railroad Commission wrote plaintiff that, in looking over its schedules of rates, he found that they did not give plaintiff's wholesale power rates, and asked that plaintiff let the commission have these rates, so as to complete its schedules. On June 21, 1922, plaintiff wrote in answer to this letter that power to wholesale customers was furnished under contract, and that, to give a complete schedule of rates charged, it would be necessary to furnish a list of its power contracts. On July 21, 1922, it filed with the commission a list of its wholesale power customers, with the contract rate charged each of them for power, showing that defendant paid for power under its contract one cent per k. w. h. A regular schedule of wholesale power rates was not filed and approved until April 24, 1924. Defendant's contention is that this action on the part of plaintiff established one cent per k. w. h. as the legal rate to be charged defendant until the filing and approval of new rates in accordance with the statute, and that it is entitled to recover the difference between this rate and the rate actually paid. 17 F. (2d)-4 tomers, with the rate paid by each, was not the filing or establishment of a schedule of rates, within the meaning of the South Carolina statutes, and that it was filed, not for the purpose of establishing rates for the future, but as information as to rates fixed by contracts entered into in the past. The rate fixed by the contract with defendant was fixed for a limited time, and the contract was notice that it would expire with the contract. It was not a rate made to the public generally, to continue until changed, but was protected as a contract rate only for the life of the contract by the terms of the statute, which provided: "That nothing contained in this act shall authorize the Railroad Commission to declare any rate, toll, charge or fare, contained in any contract heretofore voluntarily entered into for a term of years by and between any public utility and any person, firm or corporation for the sale and purchase of gas, electricity or other commodity the subject of said contract, to be unreasonable, and noncompensatory, without the consent of both parties to said contract, said rates, tolls, charges and fares are hereby declared, for the life of said contracts, to be reasonable and compensatory within the meaning of this 3. Constitutional law act." Act March 24, 1922, § 3. Moreover, it appears that in filing the list of wholesale power customers, with the rates charged them, plaintiff gave notice that these rates were fixed by special contract, and it further appears that the schedule of rates previously filed contained an express provision to this effect. When the contract with defendant expired, the special contract rate ceased to exist, and there was no rate applicable to wholesale customers, unless the schedule filed in 1919 be held to apply to them. If these be held applicable, however, defendant cannot recover anything, for it has paid much less than would have been due under them. [6] But, even if the rate fixed by the contract be deemed a continuing rate, fixed under the statute, because notice thereof was filed with the commission, defendant cannot recover, for it has paid the rates charged by plaintiff, and there is evidence to support the trial judge's conclusion that it paid them voluntarily. Knudsen-Ferguson Fruit Co. v. Chicago, St. P., M. & O. R. Co. (C. C. A. 7th) 149 F. 973, certiorari denied 204 U. S. 671, 27 S. Ct. 786, 51 L. Ed. 672; Hardaway v. Southern Ry. Co., 90 S. C. 475, 73 S. E. 1020, Ann. Cas. 1913D, 266. See note to 18 L. R. A. (N. S.) 124.' There was no error, and the judgment of the District Court is affirmed. Affirmed. 62-Regulations for enforcement may not enlarge or narrow provisions of statute. Authority given by a statute to an executive department to make a regulation for its enforcement extends only to such regulations as are consonant with the statute itself. 4. Aliens 39-War power, given President to impose restrictions on immigration, held terminated by Immigration Act (Immigration Act 1924 [Comp. St. §§ 428934-42893⁄4nn]; Act May 22, 1918, § 1 [Comp. St. § 7628e]; Act March 2, 1921, § 1 [Comp. St. § 7628hh]). The power given the President by the War Act of May 22, 1918, § 1 (Comp. St. § 7628e), by proclamation to impose additional restrictheir entry into the United States, continued in tions on the departure of persons from and effect by Act March 2, 1921, § 1 (Comp. St. § 7628hh), "until otherwise provided by law," was terminated as to immigrants by Immigration Act 1924 (Comp. St. §§ 42894-42893⁄41⁄4nn), which carefully revised the immigration laws. Johnson, Circuit Judge, dissenting Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge. lation of Francesco Tarantino, against John Petition by Cornelius F. Keating, on reP. Johnson, Commissioner of Immigration, for writ of habeas corpus. From a decree granting the writ, respondent appeals. Af firmed. George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Dist. Atty., of Boston, Mass., on the brief), for appellant. Cornelius F. Keating, of Boston, Mass., for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. The court below on habeas corpus held Tarantino an alien entitled to admission as a nonquota immigrant returning after a temporary absence abroad. Tarantino first arrived from Italy in July, 1920. He was lawfully admitted. He took out his first citizenship papers in April, 1922. He remained in the United States until January, 1925, when he went to Italy to visit his sick mother. He bought a return ticket before his departure. On his arrival at Providence in October, 1925, he was excluded, on the sole ground that he had no return permit or immigration visa, and the steamship company that brought him in was fined $1,000 and $107 passage money under section 26 of the Immigration Act of 1924 (43 Stat. 158 [Comp. St. § 42894e]). 17 F.(2d) 50 ly admitted to the United States and who depart therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa." [1,2] The narrow question is whether, without an immigration visa or a return permit, he is entitled to admission. His rights depend upon the proper interpretation of the applicable provisions of the Immigration Act, supra. It is a question of law, reviewable on habeas corpus. Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114. Concededly, he is a nonquota alien under section 4 (b) being Comp. St. § 428934b. "Sec. 4. When used in this act the term clusive (for instance as against error or 'nonquota immigrant' means "(b) An immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." Other sections which must be considered in determining the problem are: "Sec. 8. A consular officer may, subject to the limitations provided in sections 2 and 9, issue an immigration visa to a nonquota immigrant as such upon satisfactory proof, under regulations prescribed under this act, that the applicant is entitled to be regarded as a nonquota immigrant." "Sec. 10. (a) Any alien about to depart temporarily from the United States may make application to the Commissioner General for a permit to reenter the United States, stating the length of his intended absence, and the reasons therefor. Such application shall be made under oath, and shall be in such form and contain such information as may be by regulations prescribed, and shall be accompanied by two copies of the applicant's photograph." "Sec. 10. (f) A permit issued under this section shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning." Comp. St. §§ 42894d, 42894e. Section 13 (Comp. St. § 42894ff), which falls under the heading "Exclusion from the United States," is as follows: "Sec. 13. (a) No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa, or was born subsequent to the issuance of the Immigration visa of the accompanying parent; (2) is of the nationality specified in the visa in the immigration visa; (3) is a nonquota immigrant, if specified in the visa in the immigration visa as such; and (4) is otherwise admissible under the immigration laws. "(b) In such classes of cases and under such conditions as may be by regulations prescribed immigrants who have been legal That the return permit was intended as a mere convenience both to the alien and to the immigration officials is obvious, especially from the language, supra, in section 10 (f), which, in the first clause, guards the government against permits being held con fraud), and, in the second clause, guards the right of the alien against such construction as would make the permit "the exclusive means of establishing that the alien is so returning" from a temporary absence. So, also, as to immigration visas: Under section 13 (b), immigrants, legally admitted and temporarily absent, may come in without the immigration visa referred to in section 13 (a) (3). Taking the provisions as to permits and visas together, we think it clear that Congress intended them as convenient, but not essential, evidence for determining the real status of nonquota immigrants returning from a temporary absence. In section 24 (Comp. St. § 4289341) we find the usual power for the department to prescribe rules and regulations for the enforcement of the provisions of the act. Turning to the regulations (issue of July 1, 1925) we find in rule 3, subdivision 1, entitled "Nonquota Status Proof," paragraphs 2 and 5, the following: "Par. 2. An alien claiming to be nonquota immigrant by reason of having been previously lawfully admitted to the United States and to be returning from a temporary visit abroad shall be required to establish such fact to the satisfaction of the examining immigration official: Provided, that the presentation of a return permit duly issued to such alien pursuant to the provisions of section 10 of the Immigration Act of 1924 shall be deemed prima facie evidence of the fact that such alien is returning from a temporary visit abroad." "Par. 5. Where an immigrant claiming a nonquota status fails to satisfactorily establish such status in the manner required by this subdivision, he shall be held for examination in relation thereto by a board of special inquiry." These are plain and reasonable regulations. They show that the immigration authorities intended to allow such aliens-not having the permit (made merely prima facie proof) or the immigration visa-an opportunity to establish their status by testimony at a hearing before the examining immigration official, whose adverse decision may be revised by a board of special inquiry. This method of determining the rights of aliens accords with the practice and procedure of that department for many years. It gives to the returning alien the usual fair, though summary, hearing, in order that his status may be determined in the light of the facts. These regulations construe the statutes as we now construe them. But the government now undertakes to ground Tarantino's exclusion upon another regulation found in the same rule 3, subdivision F, entitled "Immigration and Passport Visas," which, so far as now pertinent, reads: "No immigrant, whether a quota immigrant or nonquota immigrant, of any nationality shall be admitted to the United States unless such immigrant shall present to the proper immigration official, at the port of arrival, an immigration visa duly issued and authenticated by an American consular officer: Provided that such aliens who are returning from a temporary visit to any other foreign country and who are in possession of a permit to re-enter the United States issued in accordance with the provisions of section 10 of the Immigration Act of 1924 if otherwise admissible, shall be permitted to enter the United States without an immigration visa." This paragraph is, at least as now construed, inconsistent with the regulation above quoted found in subdivision I of the same rule. Clearly, there was no sense in providing in subdivision I, supra, that a nonquota immigrant like Tarantino should "be required to establish such fact to the satisfaction of the examining immigration official," with the right to have an adverse decision reviewed by a board of special inquiry-if the only method of establishing such fact, open either to the examining officer or to the board of special inquiry, be the presentation of an immigration visa or a return permit. [3] But we need not rest our decision on the inconsistency of the regulations. We go farther. Congress never delegated to immigration officials authority to make a regulation which cuts down substantially the rights given by the act itself. It is probable, perhaps certain, that Congress could not delegate such substantive legislative power. See Field v. Clark, 143 U. S. 649, 694, 12 S. Ct. 495, 36 L. Ed. 294. The language in section 13 (b), that such nonquota immigrant may be let in "under such conditions as may be by regulations prescribed," does not give authority to prescribe regulations which do not operate "for the enforcement of the provisions of this act" (section 24), but operate to enlarge the excluding features of the act. Without further elaboration, we regard it as inconceivable that, if Congress had intended to make the rights of such returning aliens entirely dependent upon the possession of a return permit or an immigration visa, it would not have said so in unmistakable terms. A nonquota immigrant like Tarantino is entitled to come in, if he establishes his statutory status by any reasonable method. Williamson v. United States, 207 U. S. 425, 461, 462, 28 S. Ct. 163, 52 L. Ed. 278. Otherwise put, a regulation which undertakes to exclude all evidence of nonquota status, except a return permit or an immigration visa, is unreasonable, inconsistent with the gener-. al import of the act, and therefore void. Parenthetically, it might, in this particular case, be of significance that this provision in subdivision B, paragraph 1, under which Tarantino is now sought to be excluded, was, as stated in the government's brief, incorporated in the regulations after Tarantino's departure, but before his return. Perhaps some additional color is given to the injustice of the proceeding from the fact that Tarantino sought to obtain an immigration visa in Italy, and was told that none was needed. Clearly, if Congress had intended that return permits or immigration visas should be the sole means of establishing the status of such returning aliens, it would, as matter of elementary justice, have provided for full notice to its consular officers, and for such notice to departing aliens as to enable them to take proper steps to protect their rights. As now applied, the regulation (subdivision F, supra) operated as a trap to cheat Tarantino out of his plain rights. And these observations also apply to the steamship company, whose good faith in transporting Tarantino cannot be questioned; yet under the decision of the department the company is assessed a fine of $1,000, besides $107 of passage money. [4] The government contends that a proclamation of the President may also be relied upon as adequate legal ground for holding that returning immigrants like Tarantino are admissible only if possessing either a return permit or an immigration visa. We cannot accept that proposition. This proclamation, dated January 12, 1925, is made "by virtue of the authority vested in me by the act of Congress ap 17 F.(2d) 50 proved May 22, 1918, entitled 'An act to prevent in time of war, departure from and entry into the United States contrary to the public safety,' as extended by the Act of Congress of March 2, 1921, entitled 'An act making appropriations for the diplomatic and consular services for the fiscal year ending June 30, 1922,' and with reference to the Act of Congress of May 26, 1924, known as the 'Immigration Act of 1924.'" So far as pertinent to the present case, the proclamation reads: I hereby prescribe the following regulations governing the entry of aliens into the United States: "1. Immigrants. They must present immigration visas, quota or nonquota, in accordance with the requirements of the immigration act of 1924, except "2. Aliens who have previously been admitted legally into the United States, who have departed therefrom and have returned within six months." As Tarantino was absent nine months, he is held to fall within paragraph 1 of this proclamation. The President's authority to make passport regulations is found in the Act of May 22, 1918, 40 Stat. 559, the relevant part of which is as follows: "That when the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful-(a) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe." Section 1 (Comp. Stat. § 7628e). It was a war act. It is contended that it is now in force under the Act of March 2, 1921, 41 Stat. 1217, as follows: "Passports and visas from aliens seeking entry into the United States. The provisions of the Act approved May 22, 1918, shall, in so far as they relate to acquiring passports and visas from aliens seeking to come to the United States, continue in force and effect until otherwise provided by law." Section 1 (Comp. Stats. § 7628hh). This extended war power, granted in 1921, of the President to require visas "from aliens seeking to come to the United States," does not, in our opinion, vest in the President practically paramount control over the administrative features of the Act of 1924, passed three years later. The act of 1921 under which this proclamation was issued is, as quoted above, to "continue in force and effect until otherwise provided by law." We think that the act of 1924, containing the provisions above cited and discussed, now contain (so far as our present problem is concerned) provisions of law excluding any power otherwise vested in the President under the act of 1921, and that Congress had "otherwise provided by law," when the proclamation was issued. It is inconceivable that, when Congress was, in 1924, carefully revising the immigration laws, so as to limit as far as possible hardships, inconsistencies, and injustices, which are the inevitable incidents of the most careful and conscientious administration of the sound national policy underlying the act, Congress left vested in the President the power to make regulations, now sought to be applied to the creation of a result so harsh and so absurd as the exclusion of Tarantino; for, to repeat, Tarantino is, on the undisputed and apparently indisputable facts, entitled to admission, unless he can be excluded for lack of the possession of an unimportant scrap of paper. Even if Congress had undertaken to empower the President to make regulations as to the admission of aliens under the act of 1924 (as we think Congress did not), this regulation, as now construed and applied, is unreasonable, and therefore invalid. That the real effect of the proclamation (as now construed) was ever considered by the President we find it impossible to believe. Flora v. Rustad (C. C. A.) 8 F. (2d) 335, and Koyama v. Burnett (C. C. A.) 8 F. (2d) 940, we think not applicable to the problem before us. The decree of the District Court is affirmed. |