Davidowitz v. Hines

• Decision Date: 30 November 1939
• Docket Number: No. 201.,201.
• Citation: 30 F. Supp. 470
• Parties: DAVIDOWITZ v. HINES, Secretary of Labor and Industry, et al.
• Court: U.S. District Court — Western District of Pennsylvania

30 F. Supp. 470

DAVIDOWITZ v. HINES, Secretary of Labor and Industry, et al.

No. 201.

District Court, M. D. Pennsylvania.

November 30, 1939.

Isidor Ostroff, Herman Steerman, and Harold Jethro Budd, all of Philadelphia, Pa., and Ralph P. Needle and Joseph S. Needle, both of Scranton, Pa., for plaintiffs.

A. Harry Levitan, Francis Fisher Kane, Francis R. Taylor, Louis F. McCabe, and Leopold Mamolen, all of Philadelphia, Pa., for associations allowed to file briefs as friends of the Court.

Claud T. Reno, Atty. Gen., and William S. Rial and M. Louise Rutherford, Deputy Attys. Gen., for defendants.

Before BIGGS and JONES, Circuit Judges, and WATSON, District Judge.

BIGGS, Circuit Judge.

The General Assembly of the Commonwealth of Pennsylvania has enacted a statute approved June 21, 1939, P.L. 652, 35 P.S.Pa. § 1801 et seq. requiring certain aliens to register annually with the Department of Labor and Industry of the Commonwealth and to carry and, upon demand of any police officer or agent of the Department of Labor and Industry, to exhibit identification cards.

This Act, No. 304 of the 163rd General Assembly,¹ requires such registration to be made by these aliens on or before the first day of January, 1940 and during the month of December, 1939. Certain aliens are excepted from the operation of the Act, including those residing in the Commonwealth who are father or mother of a son or daughter who served in the service of the United States during any war, or those who have filed declarations of intention to become American citizens within a period of three years and who have not been convicted of any criminal offense in any court of record, or who have resided continuously in the United States since December 31, 1908. The Act provides that each registration shall show the name, age, address and occupation of the alien, the name of his or her employer, the characteristics or appearance of the alien and such other data and details as the Department of Labor and Industry shall direct. The Act provides also that no motor vehicle shall be registered in the name of any non-exempt alien and that a license to operate an automobile shall not be issued to any non-exempt alien except upon the exhibition of his identification card for the current registration period.

Drastic punishments are provided for those aliens who are required to register and fail to do so and lesser penalties are prescribed for the non-exempt alien who fails to carry with him his identification card or refuses to exhibit it upon proper demand. A copy of the Act is set out upon the margin of this opinion.²

The suit at bar is brought by the plaintiffs to test the validity of the Act. They pray for an injunction against the defendants, all officers of the Commonwealth of Pennsylvania, prohibiting the enforcement of the Act. The suit is framed as a class bill brought by the plaintiffs on behalf of "residents, citizens and taxpayers" of Pennsylvania.

The plaintiff, Davidowitz, is a naturalized citizen of the United States, a resident of Philadelphia and a taxpayer of the Commonwealth of Pennsylvania. The complaint alleges that he is of foreign appearance and speaks English with a noticeable foreign accent and therefore despite his naturalization he will be subjected to constant questioning by police officers, will be compelled to demonstrate constantly that he is not an alien required to carry a registration card, will be unjustly discriminated against, constantly embarrassed and will have to carry proof of his naturalization with him continuously.

The plaintiff, Travaglini, is an alien who has resided in the City of Philadelphia, since his arrival in the United States from Italy in 1920. The complaint sets forth sufficient facts to show that he is not included within the exemptions of the Act. Travaglini contends that the Act encroaches upon a field confided by the Constitution to the Federal Government and that its enforcement will deny him equal protection of the laws. He states that he will be discriminated against also because by the terms of the Act the Secretary of Revenue must refuse to issue to him either driver's license or owner's certificate for a motor vehicle except upon the production of his registration card and that this will interfere "* * * with his right as a resident alien of * * * Pennsylvania to obtain employment requiring the use and operation of an automobile."

The defendants have filed an answer admitting all well pleaded facts. The plaintiffs have moved for judgment upon the pleadings in accordance with the provisions of Rule 12 (c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Jurisdiction.

As to the Plaintiff, Travaglini.

Jurisdiction is vested in this court by virtue of the provisions of Section 266 of the Judicial Code, as amended, 28 U.S.C.A. § 380,³ and of Section 24 (14) of the Judicial Code as amended by 36 Stat. 1092, 28 U.S.C.A. § 41(14) providing that the District Courts of the United States shall have original jurisdiction of all suits at law or in equity "* * * to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States." Hague v. Committee for Industrial Organization, 370 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

The Act requires non-exempt aliens to be registered no later than January 1, 1940. Registration of aliens is to commence upon December 1, 1939. The damage threatened to Travaglini therefore is imminent. The action at bar is not brought prematurely. Truax v. Raich, 239 U.S. 33, 36, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283; Detroit Creamery Co. v. Kinnane, D. C., 264 F. 845, decree affirmed Kinnane v. Detroit Creamery Co., 255 U.S. 102, 41 S.Ct. 304, 65 L.Ed. 531; Pennsylvania v. West Virginia, 262 U.S. 553, 592, 43 S. Ct. 658, 67 L.Ed. 1117, 32 A.L.R. 300; Trade Dollar Consolidated Mining Co. v. Fraser, 9 Cir., 148 F. 585; Louisville & N. R. Co. v. Railroad Commission of Alabama, C.C., 157 F. 944.

As to the Plaintiff, Davidowitz.

As to the plaintiff, Davidowitz, a naturalized citizen of the United States, his right to reside in the State of Pennsylvania and to move freely within that Commonwealth without unlawful interference by its police is protected by law and the Constitution. His rights as a citizen, however, are not justiciable in the suit at bar. The Act is not directed at citizens, either naturalized or native born. If any such were to suffer personal inconvenience, annoyance or embarrassment from enforcement of the Act, they would find existing law quite adequate to redress their grievances. Well advised, indeed, would be the police officer, attempting to enforce the statute, not to lay hands upon or annoy or harass any law-abiding citizen, regardless of his place of birth. In fact, the possible annoyance and embarrassment generally, which Davidowitz fears, would have to be so carefully guarded against by any one attempting to enforce the Act, that it is questionable whether the Act could be enforced at all. In any event, the point is that Davidowitz, like all other citizens, has no present complaint in this case, cognizable in a United States court. While he is a taxpayer of the Commonwealth of Pennsylvania, as averred and admitted, his complaint does not rest on a taxpayer's equity but on a merely anticipated violation of his rights as a citizen. The complaint, therefore, states no present cause of action in Davidowitz.

The Law.

We are of the opinion that the Act is unconstitutional.

The Act Encroaches Upon a Field Reserved to Federal Action.

The Act fails to state or suggest its purpose. The Commonwealth contends that the statute provides for nothing more serious than a census and that its enforcement will be of service to Pennsylvania in administering certain state laws relating to aliens. For example, statutes of Pennsylvania provide that unnaturalized foreign born residents may not fish within the confines of the Commonwealth, P.L. 448, Section 240, 30 Purdon's Pennsylvania Statutes Annotated, § 240, or hunt therein, P.L. 359, Article IX, Sections 901-905 (34 Purdon's Pennsylvania Statutes Annotated, §§ 901-905), or be employed upon any public work, P.L. 269, Section 1, 43 Purdon's Pennsylvania Statutes Annotated § 151. In our opinion, however, the Act is far more than a census statute. It places conditions upon the right of an alien to reside in Pennsylvania. The alien must register annually and carry his alien registration certificate, simply a card of identity, with him at all times under pain of a drastic penalty. He must produce his registration certificate upon the demand of any police officer, and if he fails to do so may suffer a penalty nearly as drastic. The alien is thus placed under the constant surveillance of the police power of Pennsylvania, not as any other resident might be placed upon the occasion of the commission of a crime or for the good of the Commonwealth, but simply because he is an alien.

It must be assumed that Travaglini was lawfully admitted to the United States and that his admission was pursuant to the provisions of Federal law. He was admitted therefore, as was stated by the Chief Justice in Truax v. Raich, supra, 239 U.S. page 39, 36 S.Ct. page 9, 60 L. Ed. 131, L.R.A.1916D, 545, Ann.Cas. 1917B, 283, "* * * with the privilege of entering and abiding in the United States, and hence of entering and abiding in any state in the Union." His right to reside in the United States or in any State depends upon and is settled by Federal law. This principle is decisive in the case at bar. It has been enunciated by the Supreme Court several times. In ...