HOLMES, Circuit Judge.
The Secretary of Labor found that, on February 3, 1935, Pan American Airways, Inc., an air transportation company, had transported a passenger afflicted with pulmonary tuberculosis from Nassau, Bahamas, to Miami, Florida, in violation of Chapter 29, Section 9, of the Immigration Act of 1917, as amended. The Secretary accordingly directed the company and its surety to pay to the Collector of Customs at Tampa the sum of $1,000 plus passage money, the amount of the fine fixed by the statute for the offense. The passage money was refunded, but the fine was not paid; and this suit was brought by the United States to enforce payment. Judgment was entered below for the Government, and appellants have appealed.
These are appellants’ contentions: (1) That the said Immigration Act has no application to transportation by air, but that the rights and obligations of carriers by air with respect to immigration are fixed by the Air Commerce Act of 1926, 49 U.S.C.A. §§ 171-184, and the regulations promulgated thereunder, which impose a maximum fine of $500 for the offense committed; (2) that the Government’s declaration failed to trace the authority under which the Secretary purported to act in imposing the fine, and, by reason thereof, appellants’ demurrer should have been sustained; and (3) that Section 7(d) (3) of the Air Commerce Act, by which the Secretary derived authority to regulate the application of immigration laws to civil air navigation, was an unconstitutional delegation of legislative power.
We have no occasion to consider or decide the constitutional question thus posed, for we think the relevant section of the Immigration Act of 1917, as amended in 1924, has application to air commerce and is determinative of the merits of the appeal. This being true, whatever may be the provisions of the Air Commerce Act and whether or not those provisions are unconstitutional are of no concern here. Moreover, we have examined the declaration, and find no fault in it. Our discussion, therefore, will be confined to the first issue, whether the Immigration Act is applicable to air commerce and, if so, whether its provisions properly were applied to the facts of this case.
Chapter 29, Section 9, of the Immigration Act of 1917, as amended in 1924, makes it unlawful for any person, including any transportation company other than railway lines entering the United States from foreign contiguous territory, to bring into the United States, either from a foreign country or any insular possession of the United States, any alien afflicted with tuberculosis in any form; and, if it appears to the satisfaction of the Secretary of Labor that any alien- thus brought to the United States was so afflicted at the time of foreign embarkation, and that the existence of such disease might have been detected by means of a competent physical examination at such time, such person or transportation company shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 plus passage money for each violation of the section.
That Pan American Airways, Incorporated, was both a person and a transportation company other than a railway line, and was etymologically within the language •of the statute, cannot be seriously questioned; but it is argued that commerical air-craft transportation was unkn.Jwn in 1917, when the statute was enacted, and could not have been within the contemplation of Congress or intended to be embraced within the scope of the Act. The case of McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816, holding that the Motor Vehicle Theft Act, 18 U.S.C.A. § 408, did not apply to air craft because the language of the statute and the legislative history surrounding its enactment indicated the Congressional intent that motor vehicles should mean only surface vehicles, is heavily relied upon.
The obvious answer to the contention is that the statute here under consideration was designed to protect the health and general welfare of the nation against the hazards incident to the importation of aliens afflicted with any loathsome or contagious disease. The Congressional intent was to prevent such immigration, regardless of the means by which the importation might be accomplished, and language sufficiently comprehensive to include this offender was deliberately used to effectuate that purpose. With the sole exception of aliens imported by rail from foreign contiguous territories, any person or transportation company that brings to ¡this country any alien so afflicted violates -.the Act.
The fine levied against appellants was in the amount fixed by the statute, and was imposed by the proper authority after administrative proceedings contemplated . by the statute. The cause was correctly decided by the court below, and its judgment is
Affirmed.
39 Stat. 880, 43 Stat. 166, 8 U.S.C.A. § 145.
Cf. Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013.