215 U.S.

190
30 S.Ct. 35
54 L.Ed. 153

UNITED STATES, Plff. in Err.,

v.
TILDEN B. STEVENSON and Amede Bellaire, alias Joseph
Bellaire.
No. 292.
Argued and submitted October 14, 15, 1909.
Decided November 29, 1909.

Solicitor General Bowers for plaintiff in error.

[Argument of Counsel from pages 191-193 intentionally omitted]
Messrs. Herbert Parker, Charles C. Milton, and Henry H. Fuller for
defendants in error.
[Argument of Counsel from pages 193-194 intentionally omitted]
Mr. Justice Day delivered the opinion of the court:

This case comes to this court under the provisions of the criminal appeals act of
March 2, 1907, providing for writs of error on behalf of the United States in
certain criminal cases. 34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp.
1907, p. 209. The defendants in error were indicted for the violation of the
immigration act of February 20, 1907 (34 Stat. at L. 898, chap. 1134, U. S.
Comp. Stat. Supp. 1907, p. 389), and charged with unlawfully assisting certain
alien contract laborers to migrate from Canada to the United States, in violation
of the statute. The district court, upon demurrer to the indictment, held the
second count thereof to be invalid, because the sole remedy for a violation of
the statute was in a civil action for the recovery of a penalty under 5 of the
act. The court also held the second count bad because it did not sufficiently
specify the acts of assistance constituting the alleged offense. Rulings were
made concerning the first count, not involved in this proceeding.

From this statement it is apparent that the court below proceeded upon two
grounds, one of which concerned the construction of the statute, the other of
which decided the invalidity of the indictment upon general principles of
criminal law. We are therefore met at the threshold of the case with the
question whether a writ of error will lie in such a case as the one under
consideration, under the provisions of the criminal appeals act of 1907.

This statute was before the court in the case of United States v. Keitel, 211 U.
S. 370, 53 L. ed. 230, 29 Sup. Ct. Rep. 123, and is given in full in the margin of
the report of that case. In that case it was held that the purpose of the statute
being to permit a review in this court of decisions based upon the invalidity or
construction of the criminal statutes of the United States, the decisions of the
lower courts were intended to be reviewed only upon such questions, and the
whole case could not be brought here for review. In the Keitel Case it was
insisted that this court should consider the validity of the indictment upon
questions of general law not decided in the court below. We are here confronted
with a case in which a decision of the court below sustaining a demurrer to an
indictment involves not only the construction of a Federal statute, but another
ground upon which the decision was also rested, which involves the sufficiency
of the indictment on general principles.

The object of the criminal appeals statute was to permit the United States to
have a review of questions of statutory construction in cases where indictments
had been quashed, or set aside, or demurrers thereto sustained, with a view to
prosecuting offenses under such acts when this court should be of opinion that
the statute, properly construed, did in fact embrace an indictable offense.
Inasmuch as the United States could not bring such a case here after final
judgment, it was intended to permit a review of such decisions as are embraced
within the statute, at the instance of the government, in order to have a final and
determinative construction of the act, and to prevent a miscarriage of justice if
the construction of the statute in the court below was unwarranted.

In the Keitel Case this court said (211 U. S. 398):

'That act [act of March 2, 1907] we think plainly shows that, in giving to the
United States the right to invoke the authority of this court by direct writ of
error in the cases for which it provides, contemplates vesting this court with
jurisdiction only to review the particular question decided by the court below
for which the statute provides.'

As the question of general law involved in the decision of the court below is not

within either of the classes named in the statute giving a right of review in this
court, we must decline to consider it upon this writ of error.
8

We come now to consider the construction of the statute and the validity of the
indictment in that respect. Sections 4 and 5 of the immigration act under
consideration are given in the margin.1

A reading of these sections makes it apparent that the act makes it a

misdemeanor to assist or encourage the importation of contract laborers, and
that violations thereof may be punished with forfeiture and payment of $1,000
for each offense, which, it is provided, may be sued for and recovered by the
United States, or by any person bringing the action, as debts of like amounts are
recovered in the courts of the United States; and it is made the duty of the
district attorney of the proper district to prosecute every such suit when brought
by the United States.

10

The contention of the defendants in error is that the action for a penalty is
exclusive of all other means of enforcing the act, and that an indictment will not
lie as for an alleged offense within the terms of the act. The general principle is
invoked that, where a statute creates a right and prescribes a particular remedy,
that remedy, and none other, can be resorted to. An illustration of this doctrine
is found in Globe Newspaper Co. v. Walker, 210 U. S. 356, 52 L. ed. 1096, 28
Sup. Ct. Rep. 726, in which it was held that, in the copyright statutes then in
force, Congress had provided a system of rights and remedies complete and
exclusive in their character. This was held because, after a review of the history
of the legislation, such, it was concluded, was the intention of Congress.

11

The rule which excludes other remedies where a statute creates a right and
provides a special remedy for its enforcement rests upon the presumed
prohibition of all other remedies. If such prohibition is intended to reach the
government in the use of known rights and remedies, the language must be
clear and specific to that effect. Dollar Sav. Bank v. United States, 19 Wall.
227, 238, 239, 22 L. ed. 80, 82. In the present case, if it could be gathered from
the terms of the statute, read in the light of the history of its enactment, that
Congress has here provided an exclusive remedy, intended to take from the
government the right to proceed by indictment, and leaving to it only an action
for the penalty, civil in its nature, then no indictment will lie, and the court
below was correct in its conclusion.

12

It is undoubtedly true that a penalty of this character, in the absence of statutory

provisions to the contrary, may be enforced by criminal proceedings under an

indictment. The doctrine was stated as early as Adams v. Woods, 2 Cranch,

336, 341, 2 L. ed. 297, 299, wherein Mr. Chief Justice Marshall said:
13

'Almost every fine or forfeiture under a penal statute may be recovered by an

action of debt as well as by information. . . . In this particular case, the statute
which creates the forfeiture does not prescribe the mode of demanding it;
consequently, either debt or information would lie.'

14

In Lees v. United States, 150 U. S. 476-479, 37 L. ed. 1150, 1151, 14 Sup. Ct.
Rep. 163, the doctrine was laid down that a penalty may be recovered by
indictment or information in a criminal action, or by a civil action in the form of
an action for debt. It is to be noted that this statute ( 5 of the immigration act)
does not in terms undertake to make an action for the penalty an exclusive
means of enforcing it, and only provides that it may be thus sued for and
recovered. There is nothing in the terms of the act specifically undertaking to
restrict the government of this method of enforcing the law. It is not to be
presumed, in the absence of language clearly indicating the contrary intention,
that it was the purpose of Congress to take from the government the wellrecognized method of enforcing such a statute by indictment and criminal
proceedings.

15

When we look to the history of the act, we think it becomes manifest that
Congress did not so intend. The immigration act of 1903 (32 Stat. at L. 1213
chap. 1012) was amended by the act of 1907, now under consideration. The
original act made it unlawful to assist or encourage the importation or
migration of certain aliens into the United States. The amended act declares that
such assistance, etc., shall be a misdemeanor. It is not to be presumed that this
change is meaningless, and that Congress had no purpose in making it. Nor can
we perceive any purpose in making the change except to manifest the intention
of Congress to make it clear that the acts denounced should constitute a crime
which would carry with it the right of the government to prosecute as for a
crime. This term 'misdemeanor' has been generally understood to mean the
lower grade of criminal offense as distinguished from a felony. It is true that the
term has often been used in the statutes of the United States without strict
regard to its common-law meaning, and sometimes to describe offenses of a
high grade, which have been declared in the statutes to be misdemeanors. In the
statutes of the states, the term has generally been defined as embracing crimes
not punishable by death or imprisonment in the penitentiary. And we may note
that the new Penal Code of the United States, which will go into effect on
January 1, 1910 ( 335, 35 Stat. at L. 1152, chap. 321), provides that all
offenses which may be punished by death, or imprisonment for a term
exceeding one year, shall be termed felonies; all other offenses shall be termed

misdemeanors. But, at all times, a misdemeanor has been a crime. Kentucky v.

Dennison, 24 How. 66, 69, 16 L. ed. 717.
16

Congress having declared the acts in question to constitute a misdemeanor, and

having provided that an action for a penalty may be prosecuted, we think there
is nothing in the terms of the statute which will cut down the right of the
government to prosecute by indictment if it shall choose to resort to that method
of seeking to punish an alleged offender against the statute. Nor does this
conclusion take away any of the substantial rights of the citizen. He is entitled
to the constitutional protection which requires the government to produce the
witnesses against him, and no verdict against him can be directed, as might be
the case in a civil action for the penalty. Hepner v. United States, 213 U. S.
103, 53 L. ed. 720, 29 Sup. Ct. Rep. 474.

17

We therefore reach the conclusion that the court erred in sustaining the
demurrer to the second count of the indictment, so far as that ruling is based
upon the construction of the statute in question. The judgment is reversed and
the case remanded to the District Court of the United States for the District of
Massachusetts for further proceedings in conformity with this opinion.

18

Reversed.

Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or

corporation, in any manner whatsoever, to prepay the transportation or in any
way to assist or encourage the importation or migration of any contract laborer
or contract laborers into the United States, unless such contract laborer or
contract laborers are exempted under the terms of the last two provisos
contained in section two of this act.
Sec. 5. That, for every violation of any of the provisions of section four of this
act, the persons, partnership, company, or corporation violating the same by
knowingly assisting, encouraging, or soliciting the migration or importation of
any contract laborer into the United States, shall forfeit and pay for every such
offense the sum of one thousand dollars, which may be sued for and recovered
by the United States, or by any person who shall first bring his action therefor
in his own name and for his own benefit, including any such alien thus
promised labor or service of any kind, as aforesaid, as debts of like amount are
now recovered in the courts of the United States; and separate suits may be
brought for each alien thus promised labor or service of any kind, as aforesaid.
And it shall be the duty of the district attorney of the proper district to prosecute

every such suit when brought by the United States.