(dissenting). If the substitution of the word “alien,” in the first section of the act of February 20, 1907, for the word “passenger,” used in the former acts, were the only change made in the law, the argument founded on it would be stronger. But the word “alien” was substituted throughout the act for the words “alien immigrants” or “immigrants” used in former laws. The horsemen in question were seamen on the British steamship Minneapolis. This would be so by statute as to American vessels (Rev. Stat. U. S. 4612 [U. S. Comp. St. 1901, p. 3120]; see, also, The Minna [D. C.] 11 Fed 759), and is so as to British vessels by chapter 60, 57 & 58 Vict. 742. There is no evidence that they were shipped for the purpose of evading the immigration law. Though it happens that the persons now under consideration are horsemen and the particular provision of the immigration law involved is the head tax, it seems to me to follow from the decision that all alien seamen who are paid off under their articles in this country fall within the definition of aliens throughout the immigration law. The word literally covers seamen, but I cannot believe it was the intention of Congress to include them. Holy Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226. They belong to an ambulatory class. There is no presumption that when they are paid off here they will stay here. If there be any presumption, it is to the contrary — that they will continue to follow their calling on the sea. The complaint does not charge that the seamen in question intended to remain in the United States, although they were paid off. Rule 22, subd. “d,” of the Bureau of Immigration and Naturalization, enacted after the passage of the present law, provides that no head táx is due oil such seamen. It is as follows :
‘•'Head tax shall not be assessed on account of bona fide seamen landing in the pursuit of their calling. On account of such as are discharged with the intent to remain in the United States, and on account of those who are found or shown to have deserted and remained in the United States, the head tax símil be assessed.”
Tt is true that the cases of Taylor v. United States, 207 U. S. 120, 28 Sup. Ct. 53, 52 L. Ed. 130, and United States v. International Mercantile Marine Co., 171 F. 841, 96 C. C. A. 420, concerned deserting seamen; but it does not necessarily follow from what was said in them that seamen who are paid off at the termination of their agreements here must be held to be within the immigration law.
For these reasons, I feel compelled to dissent from the opinion of the court.