United States v. Uhl

• Decision Date: 12 May 1920
• Docket Number: 191.
• Citation: 266 F. 646
• Parties: UNITED STATES ex rel. RAKICS v. UHL, Acting Commissioner of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

266 F. 646

UNITED STATES ex rel. RAKICS v. UHL, Acting Commissioner of Immigration.

No. 191.

United States Court of Appeals, Second Circuit.

May 12, 1920

Charles Recht, of New York City (Walter H. Pollak, Charles Recht, and Ruth I. Wilson, all of New York City, of counsel), for appellant.

Francis G. Caffey, U.S. Atty., of New York City (David V. Cahill Asst. U.S. Atty., of New York City, of counsel), for respondent.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

This is a deportation proceeding. The relator was arrested on May 5 1919, under a warrant issued by the United States Department of Labor. The warrant was issued pursuant to an application made by the inspector in charge of the Department of Labor at Cleveland, Ohio, based on statements made by the relator to a special agent of the Department of Justice, and on the minutes of a hearing accorded to him by the Department of Justice in March, 1919. On May 7, 1919, another hearing was accorded the relator at Cleveland by the inspector of the Immigration Service of the Department of Labor. The findings of the inspector are summarized as follows:

'This alien admits guilt on all of the charges mentioned in the warrant of arrest, with the exception that he denied that he believes in violence. He states that he believes in revolution, does not believe in the present form of government of the United States, does not believe in organized government, and does believe in sabotage. Besides being of the anarchistic class he is an ordinary thief. It is strongly recommended that he be deported.'

The minutes of the hearing, together with the findings of the inspector, were submitted to the Acting Secretary of the Department of Labor and were approved by him; and on May 26, 1919, that official issued a warrant of deportation addressed to the Commissioner of Immigration at Ellis Island, New York Harbor. The warrant states that the Acting Secretary of Labor has become satisfied that the relator--

'has been found in the United States in violation of an act approved October 16, 1918, for the following, among other reasons, to wit: That he believes in the overthrow by force or violence of the government of the United States; that he advocates the overthrow by force or violence of the government of the United States; that he advocates the unlawful destruction of property and that he disbelieves in all organized government.'

And it commanded the Commissioner of Immigration to return the relator to Hungary, the country from which he came. Thereupon the relator applied to one of the District Judges in the Southern district of New York, he having been brought within the district under the deportation warrant, for a writ of habeas corpus directing the Commissioner of Immigration to produce the relator before the court for a hearing and determination concerning his unlawful detention.

The petitioner was brought into the District Court on October 11, 1919. No evidence was taken in that court, but the case was disposed of on the petition, return, and traverse. The court below dismissed the writ of habeas corpus and remanded the petitioner to the custody of the Commissioner of Immigration.

The relator has appealed from the decree entered in the District Court dismissing the petition for habeas corpus. At the early common law it has been said that no appeal or writ of error was allowed from a judgment in a habeas corpus proceeding remanding or discharging a prisoner. Hammond v. People, 32 Ill. 446, 83 Am.Dec. 286; State v. Galloway, 5 Cold. (Tenn.) 326, 98 Am.Dec. 404. And even at the present time a conflict of opinion exists in the state courts upon the question whether a judgment in habeas corpus is appealable, and a number of the courts hold that in the absence of a statutory provision no appeal lies. People v. McAnally, 221 Ill. 66, 77 N.E. 544, 5 Ann.Cas. 590; Ex parte Cox, 44 Fla. 537, 33 So. 509, 61 L.R.A. 734; Bleakley v. Smart, 74 Kan. 476, 87 P. 76, 11 Ann.Cas. 125. In those jurisdictions where a decision in a habeas corpus proceeding is reviewable, the law is not uniform whether the remedy is by appeal, or by writ of error, or by certiorari. In the federal courts, in cases where there has been no trial by jury, ordinarily the remedy is by appeal, and not by writ of error. Hecht v. Boughton, 105 U.S. 235, 26 L.Ed. 1018; United States v. Union Pacific Railroad Co., 105 U.S. 263, 26 L.Ed. 1021. The Act of Congress of August 29, 1842, c. 257, expressly provides for appeals in cases of habeas corpus, and no question is raised in the present case as to the right to proceed in that manner.

The petitioner is a native of Hungary, and he has never declared his intention to become a citizen of the United States. He came to this country from Germany in 1907, and since 1917 he has been a member of the Industrial Workers of the World. The warrant of deportation is issued under the Act of October 16, 1918, 40 Stat.part 1, p. 1012, c. 186 (Comp. St. Ann. Supp. 1919, Secs. 4289 1/4b (1)-4289 1/4b (3)). Section 1 of that act (section 4289 1/4b (1)) provides as follows:

'That aliens who are anarchists; aliens who believe in or advocate the overthrow by force or violence of the government of the United States or of all forms of law; aliens who disbelieve in or are opposed to all organized government; aliens who advocate or teach the assassination of public officials; aliens who advocate or teach the unlawful destruction of property; aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized government, or that advocates the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the government of the United States or of any other organized government, because of his or their official character, or that advocates or teaches the unlawful destruction of property shall be excluded from admission into the United States.'

The relator, in his examination before a special agent of the Department of Justice on March 23, 1919, testified that he is married and has one child; that he is a member of the I.W.W., and for a time was secretary of one of its locals. He was asked whether he knew what the principles of the organization are, and replied that he did not know them all. Asked what the organization was striving for, he answered:

'They are striving for better conditions-- abolish the wage system.'

Then followed:

'Q. How do they intend to bring about these results? A. Organize the working people.

'Q. Organize them for what? A. For better conditions.

'Q. After the working people are organized, what steps does the I.W.W. expect to take to bring about these better conditions? A. I do not know.

'Q. Has no one in the I.W.W. ever told you of plans they had for bringing that about? A. They may have-- I have forgotten.

'Q. Are you satisfied with the form of government which we at present have in the United States? A. I am not.

'Q. What is your opposition to it? A. I cannot answer.

'Q. Would you like to see the government of the United States overthrown? A. Yes-- without bloodshed.

'Q. Do you believe it would be right to use force to overthrow the government of the United States? A. No.

'Q. Are you opposed to organized form of government in general? A. No.

'Q. Do you believe in the assassination of public officials? A. No.

'Q. Would you believe in the assassination of the President of the United States or any other particular official individual? A. No; I do not believe in anything like that at all.

'Q. Why do you wear a red necktie? A. Because this is our style.

'Q. Does it have any particular significance? A. Signifies internationalism.

'Q. Is it not also the symbol of the anarchist? A. No.

'Q. Are you an anarchist? A. No.

'Q. Did you understand the questions put to you yesterday in the other room? A. I was excited, and did not know what I was saying.

'Q. Do you know that you told us yesterday that you believed in the overthrow of the government of the United States by force? A. Yes; I know I said that; but I was excited and did not know what I was saying.

'Q. Who has visited you in jail? A. No one.

'Q. Has any one told you to deny what you told us yesterday? A. No.

'Q. Do you mean to tell me that yesterday you believed in the overthrow by force of the government of the United States, and that to-day you do not believe in it-- that you have changed your mind? A. I said that yesterday because I was very mad.

'Q. You believed it yesterday, but to-day you do not? A. I was mad; that is why I said it.

'Q. Have you any property or any money in the bank? A. No.'

On May 7, 1919, he was examined before the immigration inspector and testified in part as follows:

'Q. Did you belong to the radicals in Hungary before you came here? A. No.

'Q. When did you become a radical? A. Since the war started.

'Q. What made you a radical? A. When they sent the poor people to the butcher shop; that made me a radical.

'Q. What do you mean by sending the poor people to the butcher shop? A. Because the people could leave this war out and live like one family.

'Q. If the officers of the government, which are chosen by the people, as it is done in the United States, determine that it is for the interest of the country to go to war, don't you think it is the duty of the citizens and residents to back up the government in every shape and manner? A. Let those who declared war go and finish it, and not call on any one else. * * *

'Q. What are

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