(dissenting).
Section 6 of the Quota Act of 1921 imposes a fine upon any carrier which brings to this country an alien who is “not admissible.” If there were no more, it would make the carrier absolutely liable, regardless of the difficulty, or indeed the out and out impossibility, of detectiiig admissibles from inadmissibles before embarkation. To moderate the severity of this, the Secretary is given power to remit the fine if he thinks that the carrier could not have discovered the truth by reasonable diligence; but this power is his, not ours. No alien is ever admitted until he gets here and is examined, so that the carrier in all cases takes a chance when it brings one in. That chance may be remote, as for example when the ground for exclusion is a detectable disease; it may be very great, as where the admission depends upon the alien’s ability to earn a living, a standard about which people are bound to differ. But in all eases there is some chance, and the carrier must take it and rely upon the lenity of the Secretary, if the alien is excluded.
We did indeed make an exception in Compagnie Franeaise v. Elting (C. C. A.) 19 F. (2d) 773, a case where the alien was returning home from a temporary sojourn. This we did because of a departmental rule especially applicable to that situation, under which he was allowed to reserve his evidence until he arrived at the home port. Rightly or wrongly we thought this situation different because of that rule, upon which alone we squarely placed our earlier decision in North German Lloyd v. Elting (C. C. A.) 48 F.(2d) 547, where the facts were in my opinion indistinguishable from those at bar. The exception is now to swallow the rule, and consistently we shall always in the future have to exercise the discretion which the statute gives to the Secretary.