Joseph Keller v. United States No 653 Louis Ullman v. United States No 654

• Decision Date: 05 April 1909
• Docket Number: 654,Nos. 653,s. 653
• Citation: 53 L.Ed. 737,29 S.Ct. 470,16 Ann. Cas. 1066,213 U.S. 138
• Parties: JOSEPH KELLER, Plff. in Err., v. UNITED STATES. NO 653. LOUIS ULLMAN, Piff. in Err., v. UNITED STATES. NO 654
• Court: U.S. Supreme Court

213 U.S. 138

29 S.Ct. 470

53 L.Ed. 737

JOSEPH KELLER, Plff. in Err.,

v UNITED STATES.

NO 653.

LOUIS ULLMAN, Piff. in Err.,

v. UNITED STATES.

NO 654.

Nos. 653, 654.

Argued March 1, 1909.

Decided April 5, 1909.

Section 3 of the act of Congress of February 20, 1907 (34 Stat. at L. 898, 899, chap. 1134, U. S. Comp. Stat. Supp. 1907, pp. 389, 392), entitled 'An Act to Regulate the Immigration of Aliens into the United States,' reads as follows:

'Sec. 3. That the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, is hereby forbidden; and whoever shall, directly or indirectly, import, or attempt to import, into the United States, any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, or whoever shall hold or attempt to hold any alien woman or girl for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution, or for any other immoral purpose, any alien woman or girl, within three years after she shall have entered the United States, shall, in every such case, be deemed guilty of a felony, and, on conviction thereof, be imprisoned not more than five years, and pay a fine of not more than five thousand dollars; and any alien woman or girl who shall be found an inmate of a house of prostitution or practising prostitution, at any time within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States, and shall be deported as provided by sections twenty and twenty-one of this act.'

The plaintiffs in error were indicted for a violation of this section, the charge against them being based upon that portion of the section which is in italics, and, in terms, that they 'wilfully and knowingly did keep, maintain, control, support, and harbor in their certain house of prostitution' (describing it), 'for the purpose of prostitution, a certain alien woman, to wit, Irene Bodi,' who was, as they well knew, a subject of the King of Hungary, who had entered the United States within three years. A trial was had upon this indictment; the plaintiffs in error were convicted and sentenced to the penitentiary for eighteen months.

Messrs. Benjamin C. Bachrach and Elijah N. Zoline for plaintiffs in error.

[Argement of counsel from pages 140-141 intentionally omitted.]

Assistant Attorney General Fowler for defendant in error.

[Argement of counsel from Pages 141-143 intentionally omitted.]

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court:

The single question is one of constitutionality. Has Congress power to punish the offense charged, or is jurisdiction thereover solely with the state? Undoubtedly, as held, 'Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers.' United States ex rel. Turner v. Williams, 194 U. S. 279, 289, 48 L. ed. 979, 983, 24 Sup. Ct. Rep. 719. See also Fong Yue Ting v. United States, 149 U. S. 698, 708, 37 L. ed. 905, 911, 13 Sup. Ct. Rep. 1016; Head Money Cases (Edye v. Robertson) 112 U. S. 580, 591, 28 L. ed. 798, 801, 5 Sup. Ct. Rep. 247; Lees v. United States, 150 U. S. 476, 480, 37 L. ed. 1150, 1151, 14 Sup. Ct. Rep. 163; United States v. Bitty, 208 U. S. 393, 52 L. ed. 543, 28 Sup. Ct. Rep. 396.

It is unnecessary to determine how far Congress may go in legislating with respect to the conduct of an alien while residing here, for there is no charge against one; nor to prescribe the extent of its power in punishing wrongs done to an alien, for there is neither charge nor proof of any such wrong. So far as the statute or the indictment requires, or the testimony shows, she was voluntarily living the life of a prostitute, and was only furnished a place by the defendants to follow her degraded life. While the keeping of a house of ill-fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the state. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.

In Patterson v. Kentucky, 97 U. S. 501, 503, 24 L. ed. 1115, 1116, is this declaration:

"In the American constitutional system,' says Mr. Cooley, 'the power to establish the ordinary regulations of police has been left with the individual states, and cannot be assumed by the national government.' Cooley, Counst. Lom. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate, by any general rule, the exact limitations which the states must observe in its exercise, the existence of such a power in the states has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; License Cases, 5 How. 504, 12 L. ed. 256; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Henderson v. New York (Henderson v. Wickham) 92 U. S. 259, 23 L. ed. 543; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989. It is embraced in what Mr. Chief Justice Marshall, in Gibbons v. Ogden, calls that 'immense mass of legislation' which can be most advantageously exercised by the states, and over which the national authorities cannot assume supervision or control.'

And in Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it is said:

'But neither the amendment—broad and comprehensive as it is nor any other amendment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.'

Further, as the rule of construction, Chief Justice Marshall, speaking for the court in the great case of M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, declares:

'This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.'

In Houston v. Moore, 5 Wheat. 1, 48, 5 L. ed. 19, 30, Mr. Justice Story says:

'Nor ought any power to be sought, much less to be adjudged, in favor of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the Constitution.'

Art. 10 of Amendments; New York v. Miln, 11 Pet. 102, 133, 9 L. ed. 648, 660; License Cases, 5 How. 504, 608, 630, 12 L. ed. 256, 303, 313; United States v. Dewitt, 9 Wall. 41, 44, 19 L. ed. 593, 594; Patterson v. Kentucky, 97 U. S. 501, 503, 24 L. ed. 1115, 1116; Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Re Rahrer (Wilkerson v. Rahrer) 140 U. S. 545, 555, 35 L. ed. 572, 574, 11 Sup. Ct. Rep. 865; United States v. E. C. Knight Co. 156 U. S. 1, 11, 39 L. ed. 325, 328, 15 Sup. Ct. Rep. 249; Cooley, Const. Lim. 574.

Doubtless it not infrequently happens that the same act may be referable to the power of the state, as well as to that of Congress. If there be collision in such a case, the superior authority of Congress prevails. As said in New York v. Miln, 11 Pet. 102, 137, 9 L. ed. 648, 661:

'From this it appears that whilst a state is acting within the legitimate scope of its power as to the end to be attained, it may use whatsoever means, being appropriate to that end, it may think fit, although they may be the same, or so nearly the same as scarcely to be distinguishable from those adopted by Congress, acting under a different power, subject only, say the court, to this limitation, that, in the event of collision, the law of the state must yield to the law of Congress. The court must be understood, of course, as meaning that the law of Congress is passed upon a subject within the sphere of its power.'

In Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 104, 39 L. ed. 910, 912, 15 Sup. Ct. Rep. 802, 804, the rule is stated in these words:

'Generally it may be said, in respect to laws of this character, that, though resting upon the police power of the state, they must yield whenever Congress, in the exercise of the powers granted to it, legislates upon the precise subject-matter, for that power, like all other reserved powers of the states, is subordinate to those in terms conferred by the Constitution upon the nation. 'No urgency for its use can authorize a state to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.' Henderson v. New York (Henderson v. Wickham) 92 U. S. 259, 271, 23 L. ed. 543, 548. 'Definitions of the police power must, however, be taken subject to the condition that the state cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.' New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 661, 29...