Principe v. Ault

• Decision Date: 30 August 1945
• Docket Number: Civil Action No. 23225.
• Citation: 62 F. Supp. 279
• Parties: PRINCIPE v. AULT, Inspector In Charge of Cleveland Office, et al.
• Court: U.S. District Court — Northern District of Ohio

62 F. Supp. 279

PRINCIPE v. AULT, Inspector In Charge of Cleveland Office, et al.

Civil Action No. 23225.

District Court, N. D. Ohio, E. D.

August 30, 1945.

Geo. D. Costello and Geo. A. Costello, both of Cleveland, Ohio, for plaintiff-relator.

Don C. Miller, U. S. Atty., and William C. Graves, Asst. U. S. Atty., both of Cleveland, Ohio, for defendant-respondent.

WILKIN, District Judge.

This case came on for hearing on the application of the defendant-respondent for continuance and on the application of the plaintiff-relator for bail.

The plaintiff-relator was brought into court in response to the alternative writ of habeas corpus issued by this court on August 17.

In his application for writ of habeas corpus the plaintiff alleged that he had been arrested in March, 1941, on an order or warrant of deportation issued by the Commissioner of Immigration and Naturalization and approved by the Attorney General of the United States; that thereafter he was released on bail of $500. On August 14, 1945, he was again taken into custody for the purpose of being deported from the United States to Italy. He further alleged that the reason for such order of arrest and deportation was the claim of the defendant-respondent that his presence violated the immigration law because he had been found guilty of a felony involving moral turpitude within five years of the time of his last entry into the United States. But the plaintiff denied that said conviction was within such five-year period. Plaintiff further alleged that he has lived in this country for 25 years, is married, has three children, and that the order of deportation is arbitrary and contrary to law.

Upon the return date of the writ the defendant requested postponement of the hearing to allow time for the production of required witnesses and evidence. The application of the defendant was granted, and the plaintiff thereupon filed his application for bail. The question now to be determined therefore is whether this court has authority to grant bail to an alien ordered deported pending the hearing of his application for writ of habeas corpus.

Because of the conflict of authorities and general confusion regarding the question of bail in such cases, the issue was argued by counsel and memo. of authorities submitted.

It has long been the practice of this court to grant bail when the circumstances of such cases so warrant. It has been the view of the judges of this court that persons brought into court in response to its preliminary writ were in the custody of the court and that there was inherent power in the court to release or enlarge them on bail pending final disposition of the case. Because a number of other courts have expressed contrary views, the same legal arguments arise every time bail is requested. This court therefore felt obliged to set down the reasons for its views so that the law would be settled so far as this court is concerned, unless some higher authority reverses the ruling. Until such reversal, subsequent cases can be disposed of on the facts.

There is no statute expressly authorizing the court to grant bail in such cases. Congress has provided, in Title 8, Sec. 156 U.S.C.A. that the Attorney General may do so. Sections 591 and 596 of Title 18 U.S. C.A. provide for bail by courts in criminal cases, but all authority recognizes that an application for a writ of habeas corpus is not a criminal case. Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826. The statutes dealing with habeas corpus, 28 U.S.C.A. § 451 to 466, inclusive, do not mention bail. The power of the court to admit to bail, if it exists, must therefore be inherent, unless Sec. 461 of such title is an inferential grant of such power.

On the question of inherent power to grant bail in such cases, the courts have divided themselves into two groups. The following cases support the contention that the power to admit to bail is incident to the power to hear and determine the case: United States v. Evans, 6 Cir., 1880, 2 F. 147; In re Gannon, D.C.Pa.1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; In re Ah Tai, D.C.Mass., 125 F. 795; In re Chin Wah, D.C.Or., 1910, 182 F. 256; United States v. Yee Yet, D.C.N.J.1911, 192 F. 577; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241.

The following cases support the view that there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute: In re Carrier, D.C.Colo.1893, 57 F. 578; Case of Chinese Wife, C.C.Cal.1884, 21 F. 808; Chin Wah v. Colwell, 9 Cir., 1911, 187 F. 592; United States v. Curran, 2 Cir., 1924, 297 F. 946, 36 A.L.R. 877; United States v. Pizzarusso, D.C., 28 F.Supp. 158; In re Hanoff, D.C.Cal.1941, 39 F.Supp. 169; Ex parte Perkov, D.C.Cal.1942, 45 F.Supp. 864; United States v. Longo, D.C.Conn.1942, 46 F. Supp. 169; Bongiovanni v. Ward, D.C.Mass. 1943, 50 F.Supp. 3.

The privilege of both the writ of habeas corpus and of bail have Constitutional recognition. Constitution of the United States, Art. 1, Sec. 9, and Amendment VIII. It is generally conceded that the American colonists brought with them to this country the remedy by habeas corpus as it existed in England as part of the common law. 39 C.J.S., Habeas Corpus, § 3, p. 427. The power to grant bail was very broad at common law. Chitty (I Criminal Law, 2d Ed., p. 97,) states:

"The Court of King's Bench, or any judge thereof in vacation, * * * in the plenitude of that power which they enjoyed at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crime in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is where the commitment is for a contempt, or in execution."

This was conceded even in the Curran case, supra 297 F. 954:

"It is true that courts of common law have power to admit to bail and that they possess it independently of statute. In Queen v. Spilsbury, 2 Q.B.Div. (1898) 615, Lord Chief Justice Russell in a criminal case declared:

"`This court has, independently of statute, by the common law, jurisdiction to admit to bail.'" (Not criminal, but extradition case.)

See also Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948.

The earlier cases in this country seem to recognize the inherent power of courts to grant bail in habeas corpus proceedings. The power seems to have been recognized by the Supreme Court in Ex parte Bollman, 1807, 8 U.S. 75, 4 Cranch 75, 2 L.Ed. 554. Warren in "The Supreme Court in U. S. History," Vol. I, at p. 397, comments:

"The day after the close of the arguments, the court stated that it `had not yet been able to make up a decisive opinion; in the meantime, as the situation of the prisoners might be irksome to them, if they could find bail, they might be bailed until tomorrow'".

It therefore seems that the court at that early time sua sponte exercised such inherent power. In the case of Wright v. Henkel, supra 190 U.S. 40, 23 S.Ct. 787, the Supreme Court said:

"We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief."

It has very generally been thought that the custody of the prisoner is entirely under the direction and control of the court to which the return is made. 39 C.J.S., Habeas Corpus, § 94, p. 659; Barth v. Clise, 79 U.S. 400, 12 Wall. 400, 20 L.Ed. 393; In re Hamilton, F.Cas.No.5,976; Mahler v. Eby, 264 U.S. 32, 45, 46, 44 S.Ct. 283, 68 L.Ed. 549. And it has been recognized as a general rule that the court may admit to bail the person detained, pending the determination of the habeas corpus proceeding. 39 C.J.S., Habeas Corpus, § 95, n. 64, p. 660 (citations to state authorities); United States v. Doss et al., Fed.Cas.No. 14,985; In re Chow Goo Pooi, C.C.Cal., 25 F. 77, 78. As was stated by Mr. Justice Nelson in the case of In re Kaine, 14 How. 103, at page 133, 14 L.Ed. 345:

"And pending the examination or hearing, the prisoner, in all cases, on the return of the writ, is detained, not on the original warrant, but under the authority of the writ of habeas corpus. He may be bailed on the return de die in diem, or be remanded to the same jail whence he came, or to any other place of safe keeping under the control of the court, or officer issuing the writ, and by its order brought up from time to time, till the court or officer determines whether it is proper to discharge or remand him absolutely."

If this were not the law, the very purpose of the writ might be defeated. The person deprived of his liberty requires some freedom for the preparation of his case. If there is a protracted hearing or a postponement, peculiar circumstances might make it cruel and unjust to leave the applicant for the writ in the custody of the person against whom the application is directed.

Judge Learned Hand, in the case of United States v. Sisson, D.C., 220 F. 538, 540, said:

"A writ of habeas corpus does not put the relator into the custody of this court. It does not assume to disturb the custody of the person then detaining the relator. It requires his production and examines the legality of the custody. This court has no proper power to enlarge the relator while the inquiry proceeds, and less power to do so after the writ has been dismissed."

The language used by this honored judge should be restricted to the case then before him. He was dealing with an application for bail pending appeal after the application for writ of habeas corpus had been dismissed. Judge Hand further said:

"If the writ be sustained, and the person...