United States v. Rothstein

• Decision Date: 05 January 1911
• Docket Number: 1,663.
• Citation: 187 F. 268
• Parties: UNITED STATES v. ROTHSTEIN.
• Court: U.S. Court of Appeals — Seventh Circuit

187 F. 268

UNITED STATES v. ROTHSTEIN.

No. 1,663.

United States Court of Appeals, Seventh Circuit.

January 5, 1911

In December, 1908, Rothstein was indicted jointly with one Rubin for harboring an alien woman for immoral purposes within three years after her immigration. During the same December term he pleaded nolo contendere, was convicted and fined $200, paid the fine; and the money was transferred to the treasury. On April 5, 1909, the Supreme Court declared the harboring provision of the immigration act unconstitutional. Keller v. United States, 213 U.S. 138, 29 Sup.Ct 470, 53 L.Ed. 737. At the July, 1909, term of the District Court the following order was entered under the title of the aforesaid criminal cause: 'This day comes the United States, by Edwin W. Sims, its attorney, and come also the defendants, by Benjamin C. Bachrach, their attorney, and this cause coming on to be heard on the motion of said defendants to vacate and set aside all proceedings herein, and for a restitution to said defendants of all the money received from them pursuant to said proceedings, and the court, having heard argument of counsel and after due consideration of said motion, finds that that portion (of the immigration act) upon which the indictment herein was based having been declared unconstitutional by the Supreme Court, said indictment and all proceedings thereunder are a nullity and are entirely void and of no effect whatever. * * * It is therefore ordered, adjudged, and determined by the court that the indictment herein be and the same is hereby dismissed, and that all orders and proceedings herein, including said order of January 4, 1909, wherein said defendants were each fined $200, be and the same are hereby vacated, set aside, and held for naught. It is further ordered, adjudged, and determined by the court that said Rothstein is of right entitled to the restitution of said $200 by him paid as a fine,' and that said Rubin is entitled to like restitution.

Restitution not having been made, Rothstein brought the present action against the government, under section 2 of the act of March 3, 1887 (24 Stat. 505, c. 359 (1 U.S. Comp. St. 1901, p 753)), to enforce his claim. His petition set out the foregoing facts, and was based particularly on the above-recited order of July, 1909. The government's answer admitted that the history of the proceedings was correctly stated, but averred 'that said order of July 1909, was invalid and entirely void by reason of the fact that the term at which the judgments were entered had, prior to July, 1909, expired, and the said District Court was without authority or power to enter an order such as was ordered to be made in said cases vacating said judgment sentence, and fine,' and further alleged that the fines 'were paid voluntarily and without protest, and were not paid under duress or threat of any kind.'

The District Court found the facts in accordance with the petition, and rendered judgment in Rothstein's favor.

Edwin W. Sims, U.S. Atty., and Harry A. Parkin, for the United States.

Benjamin C. Bachrach, for defendant in error.

Before BAKER and SEAMAN, Circuit Judges, and CARPENTER, District judge.

BAKER Circuit Judge (after stating the facts as above).

Payment of the fine, even if the judgment of conviction was void, is not to be deemed a voluntary contribution to the government, and therefore is not a bar, if the recovery in other respects is sustainable. Durr v. Howard, 6 Ark. 461; Devlin v. U.S., 12 Ct.Cl. 266; Reinhard v. City of Columbus, 49 Ohio St. 257, 31 N.E. 35.

Contentions for reversal may be summarized thus: The District Court was the organism provided by law and clothed with the duty of hearing the criminal charge against Rothstein. Section 563 Rev. St. (U.S. Comp. St. 1901, p. 455). When the parties appeared, the court had jurisdiction of them and of the subject-matter of the indictment. Even on Rothstein's plea, 'I will not contest,' the court's duty of administering justice...