United States v. Garfinkel, 1898-1904

• Decision Date: 01 April 1942
• Docket Number: No. 1898-1904,1909-1915.,1898-1904
• Citation: 44 F. Supp. 518
• Parties: UNITED STATES ex rel. IOANNIS et al. v. GARFINKEL, Divisional Director, Immigration and Naturalization Service.
• Court: U.S. District Court — Western District of Pennsylvania

44 F. Supp. 518

UNITED STATES ex rel. IOANNIS et al. v. GARFINKEL, Divisional Director, Immigration and Naturalization Service.

Nos. 1898-1904, 1909-1915.

District Court, W. D. Pennsylvania.

April 1, 1942.

Samuel Strauss, S. V. Albo, and Joseph D. Ripp, all of Pittsburgh, Pa., for petitioners.

W. Wendell Stanton, Asst. U. S. Atty., of Pittsburgh, Pa., for respondent.

McVICAR, District Judge.

The fourteen petitioners in the above cases each filed a separate petition for a writ of habeas corpus. The writ was awarded, an answer was filed in each case and a hearing was held.

At the hearing, the evidence disclosed that the petitioners were all Greek Nationals; that all of them were illegally within the United States; that the Department of Justice, which has the jurisdiction, supervision and control over the immigration of aliens entering the United States, 8 U.S.C.A. § 131, issued warrants of arrest during this month (March, 1942) against the petitioners, on the ground that they were illegally in the United States and were subject to deportation. Each of the petitioners offered a bond for his release, as provided for in 8 U.S.C.A. § 156. Each of said bonds was refused by the Attorney General. Hearings have been held by the Department of Justice but no final order or decision has been made.

The evidence further disclosed that the petitioners are all men of good moral character and not likely to become public charges. The evidence further disclosed that it has been the custom of the Department of Justice to accept bonds of those who have been arrested on the same charges prior to March, 1942, and that in some instances the bond of the alien is accepted without a surety.

Petitioners contend that the Attorney General, under the act aforesaid, is required to accept a satisfactory bond and that the word "may" therein should be read as if the word "shall" was substituted therefor. Section 156, 8 U.S.C.A., relating to bond, provides: "Pending the final disposal of the case of any alien so taken into custody, he may be released under a bond in the penalty of not less than $500 with security approved by the Attorney General, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within the United States."

The words in a statute are to be interpreted in their ordinary and usual meaning unless the language of the statute clearly indicates that the word or words were used otherwise. There is nothing in the statute before us that indicates that it was the intention of Congress that the word "may" should be used other than in its ordinary and usual sense, and we do not find anything therein which would require this word to be interpreted the same as if it read "shall."

There is a presumption against the construction of a statute which would render it ineffective or inefficient, or which would cause grave injury, or even inconvenience. United States v. Powers et al., 307 U.S. 214, 217, 59 S.Ct. 805, 83 L.Ed. 1245. It has been held that the word "shall" would ordinarily be construed as "may" as against the Government in a criminal statute. Richbourg Motor Co. v. United States, 281 U.S. 528, 50 S.Ct. 385, 74 L.Ed. 1016, 73 A.L.R. 1081. The statute before us is not a criminal statute but there are cogent reasons why the same rule of construction should apply.

In Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 980, 41 L.Ed. 140, it is...