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sional actors, artists, lecturers, or singers, nor to persons employed strictly as personal or domestic servants :

Section 2 of the act of 1903 specifies certain classes of persons who shall be excluded; among others, “those who have been, within one year from the date of application for admission to the United States, deported as being under offers, solicitations, promises, or agreements to perform labor or service of some kind therein.” This section also contains the following provisos:

And provided further, That skilled labor may be imported if labor of like kind unemployed can not be found in this country: And provided further, That the provisions of this law applicable to contract labor shall not be held to exclude professional actors, artists, lecturers, singers, ministers of any religious denomination, professors for colleges or seminaries, persons belonging to any recognized learned profession, or persons employed strictly as personal or domestic servants.”

Unless, then, it can be shown that these aliens are artists within the meaning of the statutes, or that skilled labor of like kind, unemployed, can not be found in this country, the appeal must be dismissed. A decision upon either point in favor of the aliens would entitle them to admission.

As the appeal should clearly be sustained on the second ground upon the evidence submitted, I deem it unnecessary to determine whether the appellants are artists.

On the former point the evidence is so free from contradiction that were the case being tried by a judge and jury the court would be obliged to direct a verdict for the aliens. Their counsel, at the hearing before the board of inquiry, called officers of five different lithographic companies to testify to the scarcity of lithographic artists in this country. Henry W. Kupfer, superintendent of the art drawing department of the American Lithographic Company, testified that he had been for four years in charge of that department, and that during all that time part of his duty had been to hire lithographic artists; that while his company could use to advantage twenty or twenty-two artists it had only ten. He further testified that for three or four years there had been the same difficulty in securing men to do this work. It also appears from his testimony that the company, in the belief that to meet this situation it was necessary to bring men in from abroad, applied early in 1907 to your Department to know how this might be done. The Commissioner-General of Immigration suggested that before any steps were taken looking to the importation of labor it was advisable to demonstrate to the satisfaction of the authorities that no labor of like kind, unemployed, was available in this country. In accordance with his suggestions advertisements were inserted three times a week for four weeks in twelve newspapers of general circulation in the eight cities where it seemed most likely that lithographic artists could be secured. There were thirty-two answers to these advertisements. No personal applications were made, and the company did not secure a single lithographic artist as a result of its efforts. The reasons why none of the thirty-two who communicated with the company were selected are clearly and satisfactorily explained in the record you have submitted for my consideration. The company thereupon entered into

contract, above referred to, with Kurzdorfer and Haering, informing the Commissioner-General of Immigration of the fact and of the date upon

which the aliens would reach New York in order that a test case might thus be made.

All of these witnesses swore that the demand for high-grade lithographic artists was constantly increasing in this country. The work, however, has been going abroad, because the lack of skilled lithographic artists, according to the statements of these witnesses, prevents its being done in this country.

Counsel for appellants has also put in evidence a report of the Bureau of Statistics, showing that the value of lithographic importations has increased from under $950,000 for the fiscal year ending June 30, 1898, to approximately $2,700,000 for the last fiscal year. This development has been gradual and steady, every year showing an increase over the year before, and the figures for the first nine months of the current fiscal year show a still further increase.

This testimony as to the scarcity of labor is practically uncontradicted. Counsel for the Lithographic Artists, Engravers, and Designers' League attempted to show that the difficulty in securing men was due to a strike which had been declared in August, 1906. This idea is negatived by the statements of the witnesses above referred to to the effect that the shortage existed for several years prior to the time the strike was declared. Nowhere in the record is there a scintilla of evidence even tending to contradict this.

Richard Kitchett, president of that National Lithographic Artists, Engravers, and Designers' League, testified that there were about two hundred and forty members of his organization unemployed in the United States, and that this was a sufficient number to fill all vacancies and to meet the demands of the lithographic business. Counsel for the aliens then put in evidence a circular issued, with the knowledge of Mr. Kitchett, by the national advisory board of the Lithographic Artists, Engravers, and Designers' League, of which he admitted he was the head, which ran in part as follows: “ The employers' own figures show that the number of men they lack in the art department is actually greater than the whole number now out, so that were the strike to be settled to-morrow there would not be enough men to fill all vacancies."

In view of this statement, issued with his authority by a board of which he was the head, his testimony to the contrary is entitled to but little weight.

I therefore advise you that the record you have submitted shows beyond any reasonable doubt that there are not in the country at this time a sufficient number of lithographic artists, employed and unemployed, to meet the demands of the business. The decision of the board of special inquiry should, therefore, be reversed, and the aliens admitted.

IMMIGRATION-PROMISE OF EMPLOYMENT_PAYMENT OF PASSAGESTATE INTERVENTION-Advance Sheets, 26 Op., page 411.The Secretary of Commerce and Labor submitted an inquiry to the AttorneyGeneral on the question of the admission of a Cuban laborer, brought to New Orleans by the Louisiana State board of agriculture and immigration. The facts as submitted by the Secretary are as follows:

Geronimo Garcia arrived at the port of New Orleans from Cuba on August 5, 1907. His passage was paid by Mr. Reginald Dykers, who at the time was the regularly authorized agent of the Louisiana State board of agriculture and immigration, out of funds appropriated in regular manner by the State legislature. Mr. Dykers and a Mr. L. H. Allen, the latter also being a representative of the said board, approached the alien in Habana and solicited him to immigrate to the State of Louisiana, assuring him that employment as a farm laborer would be secured for him on his arrival in said State. In exchange for the passage money the alien gave to the said officials a receipt, in which he promised to return to the Louisiana State board of agriculture and immigration within a year the sum so advanced. It is the expectation of the State agent that in such cases, upon the alien securing employment, his employer will loan him the amount necessary to reimburse the State and deduct the same from his wages; but no method has been provided whereby an employer can be compelled to make such loan, it being the intention of the State board to rely upon the moral obligation of the alien's promise to reimburse the State, and not upon any legal measures against him or his employer. The alien is left free to select such employer as he pleases, although the expectation of the agent is that aliens selected by him under this plan will be of such a reliable class that they will usually seek employment from parties who can be depended upon to advance to the alien the amount of the passage and enable him to therewith reimburse the State fund. It also appears

. that, while the alien Garcia had seen advertisements published abroad by the Louisiana State board of agriculture and immigration, reciting the inducements the State of Louisiana offers for immigration thereto, he was not induced to come to the United States solely by reason of such inducements; nor was the sole inducement the fact that his passage was paid by another, nor the fact, brought out in the testimony, that his father had previously come to this country. These facts operated to some extent, however, to lead him to endeavor to avail himself of the assurances given by the above-named agents that employment as a farm laborer would be secured for him on his landing in Louisiana.

Ålthough the desire of the State agent is that Garcia, if landed, shall enter the employ of an individual planter who would be willing to loan him the cost of his passage and gradually deduct it from his wages, thus enabling said alien to immediately reimburse the State fund, he is, as above stated, left free to accept other employment if he so desires; and there is no evidence that shows positively that the said Garcia (or any other alien imported in accordance with the plan) might not, after landing, be employed by a corporation, association, or society as freely and in the same manner as by an individual; suggesting a possibility that, under the indirect method of attempting to eventually secure reimbursement to the State fund of the amount of the alien's passage, a condition could arise which might, perhaps, be regarded as being, remotely but yet in effect, a payment of such passage by a corporation, society, or association.

Upon these facts the Attorney-General ruled that Garcia was not entitled to admission, as appears from his opinion, which construes the immigration act of February 20, 1907, and is as follows:

1. It appears that from this statement representatives of the Louisiana State board approached Garcia in Habana and solicited him to emigrate to Louisiana, assuring him that employment as a farm laborer would be secured for him on his arrival, and that such assurances operated as a material, if not the principal, inducement to his immigration, since neither the advertisements published by the State, nor the payment of his passage, nor his father's previous coming, was the sole inducement to his coming, but these matters operated to some extent to lead him to endeavor to avail himself of the assurances of employment given him by the representatives of the State board.

Among the classes of aliens excluded by section 2 of the act of 1907 (34 Stat. 898) are: “ Persons hereinafter called contract laborers, who have been induced or solicited to migrate to this country by offers or promises of employment or in consequence of agreements, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskilled." This provision, as stated in my opinion rendered the President on March 20, 1907, excludes “ aliens solicited or induced to immigrate by reason of offers or promises, even when there is no contract of employment." (26 Op. 199, 207.)

The assurances given to Garcia by the State agents constitute, in my opinion, promises of employment within the inhibition of the statute. While it is provided that aliens coming to this country in consequence of advertisements by a State of its inducements to immi: gration shall not be treated as coming under a promise of employment (sec. 6), there is no exception in favor of a State in reference to specific promises of employment to individual immigrants such as were held out to Garcia by the representatives of the State board. Neither is there any requirement in the act that the promises of employment in order to work exclusion must be the sole inducement to the immigration.

Therefore, since, as stated in my opinion rendered the President on March 6, 1907, the unquestionable right of Congress to regulate the admission of aliens into the United States clearly controls the action of any State agent in this respect (26 Op. 180, 193), it follows that on account of the assurances of employment that were given to Garcia as an inducement to his immigration, he should be excluded from admission.

2. Furthermore, as his passage was paid out of State funds, unless it was also clearly shown that he did not belong to any of the classes, such as paupers, etc., specifically excluded by the act, he comes within the provision of section 2 of the act (34 Stat., 898) excluding any person whose ticket or passage is paid for with the money of another, or who is assisted by others to come, unless it is affirmatively and satisfactorily shown that such person does not belong to one of the foregoing excluded classes, and that said ticket or passage was not paid for by any corporation, association, society, municipality, or foreign government, either directly or indirectly.” Under this provision, while the payment of an immigrant's passage out of State funds does not of itself require his exclusion, yet such payment by a State, just as by an individual, operates to throw upon the immigrant the burden of clearly showing that he does not come within any of the otherwise excluded classes, and in case of his failure to so show he is not entitled to admission.

3. In reference to your suggestion that, under the indirect method of attempting to eventually secure reimbursement to the State fund of the amount of the alien's passage, a condition might arise which could perhaps be regarded as in effect a payment of his passage by a corporation, society, or association, as the statement of facts does not show that any such condition actually exists, or that his passage money is in fact to be so repaid, I am of the opinion, without passing upon the question as to what would be the effect of such a condition if it did arise, that the mere hypothetical possibility of such a condition would not be a ground of exclusion,

30619_Bull. 71–08


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