Ex parte Sichofsky

• Decision Date: 31 May 1921
• Docket Number: 2991.
• Citation: 273 F. 694
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte SICHOFSKY.

273 F. 694

Ex parte SICHOFSKY.

No. 2991.

United States District Court, S.D. California, Southern Division.

May 31, 1921

Cooper Collings & Shreve, of Los Angeles, Cal., for petitioner.

Robert O'Connor, U.S. Atty., and Thos. F. Green, Asst. U.S Atty., both of Los Angeles, Cal., for the United States.

BLEDSOE District Judge.

The contentions advanced by petitioner herein as a reason why he should be discharged from his present custody, maintained by the United States marshal in virtue of a commitment heretofore issued out of this court, following his plea of guilty as for a violation of law of the United States, may be briefly stated and determined:

The indictment to which petitioner pleaded guilty charged him, a citizen of Poland, with having, on or about the 23d day of August, 1920, entered and attempted to enter the United States from the republic of Mexico, 'without then and there bearing and having in his possession a passport duly viseed in accordance with the terms of section 31 of an executive order dated August 8, 1918, issued pursuant to an act of Congress approved May 22, 1918,' etc. (40 Stat 559 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs 7628e-7628h)). There is no specific averment upon the subject, but in the absence thereof, and in view of the fact that he was tried and found guilty before the superior court of the county of Los Angeles of the crime of grand larceny, committed in the county of Los Angeles 'on or about the 18th day of November, 1920,' it must be assumed that he did in fact enter the United States, and that the crime committed by him was not merely that of 'an attempt to enter.'

After this court, on March 22, 1921, had pronounced judgment upon petitioner, by sentencing him to three years' imprisonment in the federal penitentiary, and to pay a fine in the sum of $1,500, upon application made by the district attorney of Los Angeles county, because of an indictment pending in the superior court of that county, an order was made by this court on March 29, 1921, staying the execution of the sentence adjudged therein for the period of 15 days; and it was further ordered that 'the United States marshal take the above-named defendant to the Hall of Justice, to the courtroom thereof, in the city of Los Angeles, county of Los Angeles, state of California, at such times as his presence in the proceedings there pending against him under said indictment in the superior court of the state of California in and for said county of Los Angeles shall be required. ' It was further required in said order that the marshal 'keep the said defendant in his custody for the purposes herein stated. ' Pursuant to such order, and presumably in complete accordance therewith, the petitioner was taken to the superior court of Los Angeles county, there suffered trial, was regularly convicted and sentenced, etc. Since the first order staying execution, pending the hearing and determination of this writ, etc., upon the application or with the consent of petitioner, further stays have been granted, and he is now in consequence thereof still in the custody of the United States marshal in the county jail in Los Angeles.

The first claim advanced is that there is no law justifying the indictment or subsequent proceedings had against petitioner in this court. This is based upon three propositions: First, that the Act of May 22, 1918, hereinabove referred to, was by its terms limited to the period 'when the United States is at war,' and that in all substantial aspects of the case, the war having ceased and determined, the statute became inoperative and ineffective for any purpose before petitioner came into this country. The second contention is that the statute was repealed by implication in virtue of the Act of November 10, 1919 (41 Stat. 353), purporting to enact a new law upon the identical subject-matter, and which new law, by its own terms, was to continue in force and effect only 'until and including the 4th day of March, 1921,' a point of time anterior to the plea of guilty and pronouncement of judgment on petitioner herein. The third contention is that the act was expressly repealed by the joint resolution of Congress, adopted March 3, 1921 (section 3115 14/45f, Comp. Stats.), repealing certain designated 'wartime acts.'

I think it clear that this court may not now say that the war has ended, even within the meaning of that phrase as used in the statute of May 22, 1918. It is common knowledge, of course, that no treaty of peace has been ratified by this government, that no repeal of the declaration of war has been had, and that, subject only to the terms of an armistice, American troops are still on foreign soil. In such event, as I understand the law, there is no formal state of peace. United States v. Anderson, 9 Wall. 56, 19 L.Ed. 615; Hijo v. United States, 194 U.S. 315, 24 Sup.Ct. 727, 48 L.Ed. 994. Neither may the court say, in my judgment, that substantially and operatively we are at peace, and that therefore the validity possessed by the statute during war-time has failed, and that the reason for its original enactment has ceased. Conceding, under the decision of Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 Sup.Ct. 106, 64 L.Ed. 194, that the court might hold a statute inoperative on the theory that, the reason for the statute having ceased, the statute itself would cease, nevertheless I cannot accept the minor premise of the syllogism necessary to be entertained. The reason has not yet ceased. We have as yet no peace with Germany. Our troops are yet upon her soil. The court may not say, with the completeness and satisfaction that seems to be required, that there is no longer necessity for a watchfulness of the entry of immigrants across our border. Until the court may say that, it must hold that the wisdom of Congress, made manifest by the statute, must control and limit the rule of individual conduct. We do not have here the 'clear case' which must exist before the court may thus hold a law of the United States inoperative. Hamilton v. Kentucky Distilleries Co., supra.

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