(after stating the fads as above.) Section 2 of the act of August 3, 1882, (22 St. at Large, 214,) under which these immigrants are detained, provides that “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 bo 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.” The report to the collector, made in this case by the secretary of the board, purported to be the act of the board. It was regular upon its face. Properly it should have stated that the persons were “unable to take care of themselves without becoming a public charge,” and not merely that they wore “liable to become a public charge.” But, waiving this irregularity of form, which, however, I do not mean to say is immaterial, the report was otherwise presumptively sufficient to require the collector to detain these immigrants and not permit them to land.
The secretary of the board and Commissioner Stephenson were both sworn as witnesses upon the issue raised by the traverse to the collector’s return; and from their testimony it appears that one of the subordinate employes who examined the passengers by the Leerdam returned a list of these persons, with certain brief affidavits, with his oral report to the secretary, that he thought these persons ought not to be admitted, and that the secretary’s report in writing to the collector was based upon this subordinate’s report only; that the secretary had never been authorized by the board to make adverse reports to the collector until such affidavits taken by the subordinate, with Ms recommendation thereon, had been first submitted to, and examined and approved by, one of the commissioners; and that in the present ease no such examination had been pre*776viously made by any of the commissioners, or any authority to report to the collector given. It further appears that Commissioner Stephenson, after the report had been made, did examine carefully into the condition of these 21 persons; that he found them to be able-bodied, healthy, intelligent, and much above the average of immigrants ordinarily allowed to land; nearly all with friends in this city; some with considerable means; a few with only a little money in their pockets, hut with baggage containing articles designed for trade; and all of them, entitled, upon admission, to the further sum of $10 each, which ivas in the hands of the steam-ship company, being a prepayment of their return passage in case they should be refused a landing; and that, in his judgment, they were able to take care of themselves without becoming a public charge.
Upon this testimony it is plain that the intention of the statute had not been complied with at the time the report was made to the collector, and that the report was made by the secretary without authority. The question whether immigrants should he allowed to land, or be sent hack, is one that cannot be allowed to be determined except under the responsibility which the statute imposes. It must be either by the hoard of commissioners, or by some one of them, or by some person whom the hoard of commissioners has authorized to pass finally upon the question. It is sometimes a matter of no small difficulty to adjust the claims of humanity and justice to the faithful enforcement of the law, and to determine justly whether particular persons come within the prohibited classes. The commissioners, as appears from the evidence, have never devolved upon any subordinate the right to determine this question, or whether an adverse report shall be made to the collector. The report in this case must therefore be treated as a nullity; and as a sufficient examination appears to have been made by one of the commissioners to show that the persons ought not to be detained, and no further examination appearing to be needed or desired, they should be discharged, and allowed to land. In re Cummings, 32 Fed. Rep. 75; In re O’Sullivan, 31 Fed. Rep. 447.