Flora v. Rustad

• Decision Date: 23 September 1925
• Docket Number: No. 6959.,6959.
• Citation: 8 F.2d 335
• Parties: FLORA v. RUSTAD, United States Marshal.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 335 (1925)

FLORA v. RUSTAD, United States Marshal.

No. 6959.

Circuit Court of Appeals, Eighth Circuit.

September 23, 1925.

F. A. Grady and Alexander Fosmark, both of Crookston, Minn., for appellant.

Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., and George A. Heisey, Sp. Asst. U. S. Atty., of Minneapolis, Minn., for appellee.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

LEWIS, Circuit Judge.

This is an appeal from an order denying appellant's petition for writ of habeas corpus. The issuance of the writ was denied on the showing made in the petition, which alleged that appellee is United States Marshal for the District of Minnesota, that the United States Attorney for that district filed a criminal complaint with the United States Commissioner charging "* * * that on or about the 14th day of July, 1924, at a point near Noyes, in Kittson County, District of Minnesota, Stefan Flora, in violation of Section 7628hh, U. S. Compiled Statutes, 1916, 1923 Supplement, did unlawfully enter the United States from Canada, at a point near Noyes, as aforesaid, he being an alien and not duly admitted into the United States by an immigrant inspector nor being lawfully entitled to enter the United States, against the peace and dignity of the United States and contrary to the form of the statute in such case made and provided"; that a warrant of arrest embodying the charge set up in the complaint was issued by the commissioner for the apprehension of Flora, that pursuant thereto appellee arrested him, put him in jail and was holding him there; and it was alleged that appellant was being thus unlawfully restrained of his liberty. The petition further alleged that neither the charge filed with the commissioner nor the warrant which he issued stated facts sufficient to show that petitioner had committed an offense, but petitioner's counsel has submitted the case here on broader grounds, ignoring the question of the sufficiency of the charge in matters of form, which is largely a statement of conclusions; and contends that in July, 1924, there was no law of the United States making appellant's entry a criminal offense.

Section 7628hh (so called), named in the charge defines no offense. It refers to a prior act, which is the real basis of the complaint and warrant. The prior act, approved May 22, 1918 (40 Stat. 559 Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 7628e-7628h), is entitled: "An act to prevent in time of war departure from or entry into the United States contrary to the public safety." In part it reads thus:

"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 2 (section 7628f) makes it unlawful, after the presidential proclamation provided for in the act has been published and while it is in force, for any citizen of the United States to depart from or enter the United States without complying with the limitations and exceptions authorized and prescribed by the President, unless he bears a valid passport.

Section 3 (section 7628g) reads thus:

"That any person who shall willfully violate any of the provisions of this act, or of any order or proclamation of the President promulgated, or of any permit, rule, or regulation issued thereunder, shall, upon conviction, be fined not more than $10,000, or, if a natural person, imprisoned for not more than twenty years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by like fine or imprisonment, or both; and any vehicle or any vessel, together with its or her appurtenances, equipment, tackle, apparel, and furniture, concerned in any such violation, shall be forfeited to the United States."

On August 8, 1918, proclamation issued, wherein the President found that the public safety required that restrictions and prohibitions on departure and entry, in addition to those provided otherwise than by the Act of May 22, 1918, should be imposed, and ordered that no citizen should receive a passport, and no alien should receive permission, entitling them to depart from or enter the United States unless it should affirmatively appear that there was reasonable necessity for such departure or entry and that such departure or entry would not be prejudicial to the interests of the United States. On August 8th the President also issued an executive order on the subject of passports, permits and permissions to leave or enter the United States, providing among other things, that "* * * no alien shall be allowed to enter the United States unless he bears a passport duly visaed in accordance with the terms of the Joint Order of the Department of State and the Department of Labor Issued July 26, 1917."

On February 1, 1922, President Harding issued an executive order amending the executive order of August 8th. On June 14, 1924, President Coolidge issued an executive order prescribing regulations governing the entry of aliens into the United States, the closing paragraph of which reads:

"This order shall take effect July 1, 1924, and shall supersede the Executive Order of August 8, 1918, entitled: `Rules and Regulations Governing the Issuance of Permits to Enter and Leave the United States' and all subsequent Executive Orders amendatory thereof."

The crime denounced by the Act of May 22, 1918, is the departure from or entry into the United States by a citizen during a state of war, without his complying with the limitations and exceptions authorized and prescribed by the President under the Act, unless he has a valid passport, and the departure from or entry into the United States by an alien when the United States is at war, contrary to and in violation of the President's proclamation or of any permit, rule, or regulation issued thereunder. Criminal liability, if any, must rest on a violation of President Coolidge's Executive Order which requires that all aliens (immaterial exceptions) must present immigration visés, issuance of which is provided for in the general Immigration Act of May 26, 1924 (Comp. St. Supp. 1925, §§ 4289¾-4289¾nn). Peace was declared July 2, 1921 (42 Stat. 1939, et seq.), which terminated the force and effect of the Act of May 22, 1918, unless Congress had theretofore extended it into times of peace. A like result would have followed from the Joint Resolution of the two Houses of Congress, approved March 3, 1921, which terminated war measures (41 Stat. 1359).

It is the contention of the district attorney that appellant is liable criminally under the Act of May 22, 1918, which, he says, was extended beyond the war period by the Act of March 2, 1921 (41 Stat. 1205, 1217). The act last named is entitled "An act making appropriations for the Diplomatic and Consular Service for the fiscal year ending June 30, 1922," and that part of it relied on by the district attorney is found in a paragraph, p. 1217, which reads thus:

"For expenses of regulating entry into the United States, in...