Joseph Keller v. United States No 653 Louis Ullman v. United States No 654, Nos. 653

• Court: United States Supreme Court
• Writing for the Court: Brewer
• Citation: 53 L.Ed. 737,29 S.Ct. 470,16 Ann. Cas. 1066,213 U.S. 138
• Parties: JOSEPH KELLER, Plff. in Err., v. UNITED STATES. NO 653. LOUIS ULLMAN, Piff. in Err., v. UNITED STATES. NO 654
• Docket Number: 654,Nos. 653
• Decision Date: 05 April 1909

213 U.S. 138 29 S.Ct. 470 53 L.Ed. 737 JOSEPH KELLER, Plff. in Err.,

v.

UNITED STATES. NO 653. LOUIS ULLMAN, Piff. in Err., v. UNITED STATES. NO 654.

Nos. 653, 654. Argued March 1, 1909. Decided April 5, 1909.

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Section 3 of the act of Congress of February 20, 1907 (34 Stat. at L. 898, 899, chap. 1134, U. S. Comp. Stat. Supp. 1907, pp. 389, 392), entitled 'An Act to Regulate the Immigration of Aliens into the United States,' 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 practising 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 plaintiffs in error were indicted for a violation of this section, the charge against them being based upon that portion of the section which is in italics, and, in terms, that they 'wilfully and knowingly did keep, maintain, control, support, and harbor in their certain house of prostitution' (describing it), 'for the purpose of prostitution, a certain alien woman, to wit, Irene Bodi,' who was, as they well knew, a subject of the

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King of Hungary, who had entered the United States within three years. A trial was had upon this indictment; the plaintiffs in error were convicted and sentenced to the penitentiary for eighteen months.

Messrs. Benjamin C. Bachrach and Elijah N. Zoline for plaintiffs in error.

[Argement of counsel from pages 140-141 intentionally omitted.]

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Assistant Attorney General Fowler for defendant in error.

[Argement of counsel from Pages 141-143 intentionally omitted.]

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Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court:

The single question is one of constitutionality. Has Congress power to punish the offense charged, or is jurisdiction thereover solely with the state? Undoubtedly, as held, 'Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive

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officers.' United States ex rel. Turner v. Williams, 194 U. S. 279, 289, 48 L. ed. 979, 983, 24 Sup. Ct. Rep. 719. See also Fong Yue Ting v. United States, 149 U. S. 698, 708, 37 L. ed. 905, 911, 13 Sup. Ct. Rep. 1016; Head Money Cases (Edye v. Robertson) 112 U. S. 580, 591, 28 L. ed. 798, 801, 5 Sup. Ct. Rep. 247; Lees v. United States, 150 U. S. 476, 480, 37 L. ed. 1150, 1151, 14 Sup. Ct. Rep. 163; United States v. Bitty, 208 U. S. 393, 52 L. ed. 543, 28 Sup. Ct. Rep. 396.

It is unnecessary to determine how far Congress may go in legislating with respect to the conduct of an alien while residing here, for there is no charge against one; nor to prescribe the extent of its power in punishing wrongs done to an alien, for there is neither charge nor proof of any such wrong. So far as the statute or the indictment requires, or the testimony shows, she was voluntarily living the life of a prostitute, and was only furnished a place by the defendants to follow her degraded life. While the keeping of a house of ill-fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the state. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.

In Patterson v. Kentucky, 97 U. S. 501, 503, 24 L. ed. 1115, 1116, is this declaration:

"In the American constitutional system,' says Mr. Cooley, 'the power to establish the ordinary regulations of police has been left with the individual states, and cannot be assumed by the national government.' Cooley, Counst. Lom. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate, by any general rule, the exact limitations which the states must observe in its exercise, the existence of such a power in the states has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; License Cases, 5 How. 504, 12 L. ed. 256; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Henderson v. New York (Henderson v. Wickham) 92 U. S. 259, 23 L. ed. 543; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989. It is embraced in what Mr. Chief Justice Marshall, in Gibbons v. Ogden, calls that 'immense mass

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of legislation' which can be most advantageously exercised by the states, and over which the national authorities cannot assume supervision or control.'

And in Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it is said:

'But neither the amendment—broad and comprehensive as it is nor any other amendment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.'

Further, as the rule of construction, Chief Justice Marshall, speaking for the court in the great case of M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, declares:

'This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.'

In Houston v. Moore, 5 Wheat. 1, 48, 5 L. ed. 19, 30, Mr. Justice Story says:

'Nor ought any power to be sought, much less to be adjudged, in favor of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the Constitution.'

Art. 10 of Amendments; New York v. Miln, 11 Pet. 102, 133, 9 L. ed. 648, 660; License Cases, 5 How. 504, 608, 630, 12 L. ed. 256, 303, 313; United States v. Dewitt, 9 Wall. 41, 44, 19 L. ed. 593, 594; Patterson v. Kentucky, 97 U. S. 501, 503, 24 L. ed. 1115, 1116; Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Re Rahrer (Wilkerson v. Rahrer) ...