Bennedsen v. Nelson

• Decision Date: 28 October 1924
• Citation: Bennedsen v. Nelson, 2 F.2d 296 (D. Minn. 1924)
• Parties: BENNEDSEN v. NELSON, Sheriff, et al.
• Court: U.S. District Court — District of Minnesota

2 F.2d 296 (1924)

BENNEDSEN v. NELSON, Sheriff, et al.

District Court, D. Minnesota, Fourth Division.

October 28, 1924.

Grady & Fosmark, of Crookston, Minn., for petitioner.

Lafayette French, Jr., U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn., for respondents.

CANT, District Judge.

This matter came on for hearing on an order to show cause why a writ of habeas corpus should not issue as prayed for in the petition herein. The petitioner is an alien, but is not a hostile alien, and during the month of July last he entered the United States from the Dominion of Canada without the presentation of any passport. Shortly thereafter he was arrested by officers of the United States and is now in custody. The writ of habeas corpus should issue, "unless it appears from the petition itself that the party is not entitled thereto." U. S. Revised Statutes, § 755 (U S. Compiled Statutes, § 1283). Does such want of merit appear from the petition?

1. By chapter 81, Act May 22, 1918, 40 Statutes at Large, 559 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 7628e-7628h), Congress provided as follows:

"That when the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful —

"(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe."

Section 3 (section 7628g) of said act provides substantial penalties for a violation of any of the provisions thereof and for the violation of any order or proclamation of the President promulgated, or of any permit, rule, or regulation issued thereunder. Pursuant thereto and on August 8, 1918, President Wilson issued a proclamation and supplemental thereto an executive order, providing that hostile aliens should not be permitted to enter the United States from Canada, except upon the production of a passport duly viséed by a diplomatic or consular officer of the United States. Said executive order further provided that no passports to enter the United States from Canada should be required of persons other than hostile aliens.

2. On November 10, 1919, Congress passed the act of that date, known as chapter 104, 41 Statutes at Large, 353 (Comp. St. Ann. Supp. 1923, §§ 7628i-7628m). At this time it was believed that the formal ending of the war was near at hand.

The act last referred to was in the main a re-enactment of the Act of May 22, 1918, but with the following special features: (a) The words found in the earlier act, "When the United States is at war," were stricken out. (b) By its own terms the act expired by limitation on March 4, 1921. (c) In various of its provisions, the act specifically mentioned passports and visés. This act evidenced the legislative intent that the policy of regulation and restriction of immigration should not be limited to the war period, but should be extended into the period of reconstruction.

3. By chapter 113, Act of March 2, 1921, 41 Statutes at Large 1205, at 1217, § 1 (Comp. St. Ann. Supp. 1923, § 7628hh), it was provided as follows:

"The provisions of the act approved May 22, 1918, shall, in so far as they relate to requiring passports and visés from aliens seeking to come to the United States, continue in force and effect until otherwise provided by law."

Having in mind the historical setting of this act, it is clear that Congress thereby intended to extend the policy of regulation and restriction of immigration into the then at hand peace period and for an indefinite time in the future.

An inspection of the Act of May 22, 1918, will disclose that while it speaks of permits to enter the United States and of evidences of such permission, no specific mention is therein made of passports or visés. In working out the purposes of the act, President Wilson by executive order specified the use of passports and visés as effective means to be employed. Taken literally, therefore, the language above quoted from the Act of March 2, 1921, was inaccurate but was easily understood. It was "the provisions of the act" which were continued in force — not the provisions of any proclamation or executive order. The meaning was to revive and continue those parts of the act which supported and authorized regulation and restriction through the use of passports, visés, and other permits.

4. If, as above indicated, the purpose of the Act of March 2, 1921, was to carry forward indefinitely into peace times the policy of regulation and restriction with respect to immigration, and if that purpose was to be effected, it was necessary that there be a body of immigrants to which the act would apply, and Congress must have so understood and intended.

So far as we are here concerned, President Wilson's restrictions and limitations applied only to hostile aliens. If those restrictions and limitations were to remain unchanged, the advent of peace would leave the law high and dry, with no class of aliens upon which it could operate, and the evident purpose of Congress would thus be wholly defeated. At the time the Act of March 2, 1921, announcing a definite policy...