Ex parte Gouyet

• Decision Date: 01 June 1909
• Citation: 175 F. 230
• Parties: Ex parte GOUYET.
• Court: U.S. District Court — District of Montana

175 F. 230

Ex parte GOUYET.

United States District Court, D. Montana.

June 1, 1909

E. A Carleton, for petitioner.

James W. Freeman, U.S. Atty.

BEAN District Judge.

This is an application for a writ of habeas corpus to inquire into the cause of the imprisonment of the petitioner, who is now confined in the United States prison at Leavenworth, Kan under sentence of this court for violation of Act Cong. Feb 20, 1907, c. 1134, Sec. 3, 34 Stat. 899 (U.S. Comp. St. Supp. 1909, p. 450), entitled 'An act to regulate the immigration of aliens into the United States,' which 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 practicing 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 indictment under which the petitioner was tried and convicted contained three counts. The first charged him with importing into the United States an alien woman for the purpose of prostitution; the second, with holding or attempting to hold her for such purpose, in pursuance of such illegal importation; and the third, with keeping, harboring, and maintaining her for purposes of prostitution within three years after she had entered the United States. Upon the trial, the second count was abandoned by the government, and the defendant found guilty on the first and third counts, for which offenses he was sentenced to confinement in the penitentiary at Leavenworth for the term of 20 months.

Since the trial and conviction, the Supreme Court of the United States has decided that the provisions of the section above set out, under which the third count was framed, is unconstitutional, because Congress has no authority to make the acts therein mentioned a crime, as they are within the reserve powers of the state. Keller v. United States (decided April 5, 1909) 213 U.S. 138, 29 Sup.Ct. 470, 53 L.Ed. 737. It is therefore conceded by the government that the conviction, so far as that count is concerned, was void. On behalf of the petitioner, it is contended that the entire judgment and sentence is void, for the reasons, first, that the act of Congress making the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, a crime, is invalid, and not within the power of Congress to enact; and, second, because the conviction and sentence was on a count in the indictment which, it is now admitted, did not state a crime against the government.

In my opinion, neither of these petitions is sound. That it is within the power of Congress to prohibit the importation into this country of aliens for immoral or undesirable purposes, and to punish any person who shall import or attempt to import an alien for a prohibited purpose, is to my mind clear. It is a power which has long been exercised, and has been upheld by the Supreme Court. The third section of Act Cong. Feb. 26, 1885, c. 164, 23 Stat. 333 (U.S. Comp. St. 1901, p. 1291), which was an act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories and the District of Columbia (23 Stat. 332, c. 164), provides that for every violation thereof, the offender--

'shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor, including any such alien or foreigner, who may be a party to any such contract or agreement, as debts of like amount are now recovered in the Circuit Courts of the United States.'

In Lees v. United States, 150 U.S. 476, 14 Sup.Ct. 163, 37 L.Ed. 1150, it was insisted that the act referred to, so far as it imposes a penalty for violation thereof, is unconstitutional; but the court held that, since Congress had the power to exclude aliens, it might legally punish those who assisted in their importation, Mr. Justice Brewer saying:

'Given the power to exclude, it has a right to make that exclusion effective by punishing those who assist in introducing or attempting to introducing aliens in violation of its prohibition. The importation of alien laborers, who are under previous contract to perform labor in the United States, is the act

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