Ex parte Ver Pault, 48.

• Citation: 86 F.2d 113
• Decision Date: 02 November 1936
• Docket Number: No. 48.,48.
• Parties: Ex parte VER PAULT.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

86 F.2d 113 (1936)

Ex parte VER PAULT.

No. 48.

Circuit Court of Appeals, Second Circuit.

November 2, 1936.

George Foster, Jr., of New York City, for appellant.

Lamar Hardy, U. S. Atty., of New York City (Malcolm A. Crusius, Asst. U. S. Atty., of New York City, of counsel), for respondent.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

Thomas Ver Pault, a boy of fifteen, arrived from Ireland on the S. S. Samaria on November 27, 1935, and sought admission as the son of a native-born citizen, Alfred Ver Pault. Before a Board of Special Inquiry the relatrix testified that she was an alien and the applicant was her son, born at sea when she was returning from the United States to Ireland in January, 1920; that his father was Alfred Ver Pault, to whom she was never married. The boy was excluded from admission on the ground that he was a quota immigrant without an immigration visa, and this decision was affirmed by the Board of Review. Thereafter affidavits were submitted in support of the claim that the applicant's father and mother had contracted a common law marriage in the state of New York in 1918. The case was reopened and new evidence submitted. But the Board of Special Inquiry decided the issue against the applicant and again ordered his exclusion; and again its decision was affirmed by the Board of Review. This writ of habeas corpus was then sued out by the mother on behalf of her son upon the ground that the hearing was unfair and the Board's decision arbitrary and unsupportable.

As the District Judge pointed out, there was substantial evidence to support the finding that no common-law marriage was contracted by the applicant's parents. The findings of the administrative tribunals are conclusive if supported by any evidence; the court is not to weigh the evidence pro and con. United States ex rel. Shore v. Corsi (C.C.A.) 61 F.(2d) 761; Kwock Jan Fat v. White, 253 U.S. 454, 457, 40 S.Ct. 566, 64 L.Ed. 1010. Hence the contention that the excluding decision was so arbitrary and unsupportable as to justify judicial intervention must fail.

More may be said in favor of the contention that the hearing was unfair. It is urged that the Board displayed a hostile bias to the claim of marriage and did not question the father in respect to vital points on which he might have corroborated the testimony of the applicant's mother. In brief summary the mother's story was as follows: In the autumn of 1918 Alfred Ver Pault proposed marriage without a church ceremony because, he said, being in the army he had to keep the marriage secret. She was a young Irish girl, seventeen or eighteen years old, who had been in this country about a year. He told her the marriage would be just as legal as if a priest officiated and she believed him. He gave her a wedding ring and took furnished rooms in which they lived as husband and wife for some two months. To their landlords, to friends, and to relatives they represented that they were married. After she became pregnant, he left her. When she explained the situation to her sister, she was told that without a marriage certificate she could not be legally married. Believing this, she returned to Ireland under her maiden name. Her son was born on shipboard. At her mother's home in Ireland she adopted the name of Mary Ver Pault "to hide her shame." She subsequently returned to the United States under her maiden name and in 1935 her son sought admission. When he was excluded after the first hearing, she consulted an attorney, and he advised, after hearing her story, that she and Ver Pault had contracted a valid common-law marriage. On many points her story was corroborated by the testimony of the McGees, the Mulvaneys, and Alfred Ver Pault himself. But on the very crux of the matter, namely, the terms upon which the parties had mutually agreed to live together, Ver Pault was not questioned at all. He was asked whether he was married to the boy's mother, and replied that he was not "legally married" because "we weren't married in church or in city hall." He admitted that he promised to marry her, had lived with her for two months in furnished rooms, and had represented to her sister and to friends of hers that she was his wife. He explained that these representations were made in order to enable them to spend the night together at the homes of her sister and of friends named Mulvaney. He also said that at the time he did not know what a common-law marriage was. From his testimony it may be inferred that he did not intend to enter into a contract of marriage per verba in præsenti. But his secret intention or his supposition as to what the law required to constitute a legal marriage is not controlling, for it is the reasonable meaning to the promisee of the promisor's expression of intention which is determinative in law as to a contract of marriage as well as to any...