United States v. Vivian
Decision Date | 28 June 1955 |
Docket Number | No. 11313.,11313. |
Citation | 224 F.2d 53 |
Parties | The UNITED STATES of America, Plaintiff-Appellee, v. Frances VIVIAN, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Pearl M. Hart, Edmund Hatfield, Chicago, Ill., for appellant.
Robert Tieken, U. S. Atty., Anna R. Lavin, John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., for appellee.
Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
A subpoena issued by the Acting District Director of the Immigration and Naturalization Service, Chicago, Illinois, underlying this appeal, was served upon defendant, Vivian, April 2, 1954. She appeared in response to it; was granted a continuance until April 13, 1954, when she again appeared and refused to testify. By filing a complaint to compel Vivian's obedience to that subpoena, the government sought aid from the district court under § 235 of the Immigration and Nationality Act of 1952, 66 Stat. 198, 8 U.S.C.A. § 1225(a). That complaint, invoking § 235, was not served upon Vivian, nor was process, mentioned by Rule 4, Fed.R.Civ.Proc., 28 U.S.C.A., issued in connection with it. In his order, entered ex parte, the trial judge directed defendant to appear in the court below and "* * * give testimony in compliance with the mandate of the said subpoena * * *" A certified copy of this judicial order was then served on defendant, June 4, 1954, by the United States Marshal.
About a week later Vivian, acting through private counsel, interposed a motion to: (i) dismiss the government's complaint and, (ii) vacate the June 2, 1954 order. Subsequently this motion was implemented by amendment and memorandum of law. Defendant appeals the district court's order, entered September 17, 1954 after arguments of counsel, overruling her motion and further providing:
"that the defendant * * * appear before Joseph H. Kadlec, Investigator, Immigration and Naturalization Service, Room 934 * * * and then and there to give testimony in an investigation relating to Henry Halsey Noyes and Gertrude Stedman Noyes, pursuant to Section 235(a) of the Immigration and Nationality Act of 1952."
Congress granted power to subpoena, and provided for enforcement of such conferred power, in § 235, of the Act:
(Emphasis ours.)
Manifestly defendant's critical attack on 8 C.F.R. § 1.1(9) (i) and (ii), as constituting attempted delegation of administrative subpoena power, is unpersuasive. Because, the import of the nomenclature "immigration officer" employed in § 235, is derived first from this phraseology in § 101(a)(18), of the Act itself:
"The term `immigration officer\' means any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by this Act or any section thereof." 8 U.S.C.A. § 1101(a) (18). (Italics supplied.)
8 C.F.R.1 § 1.1, (9) (i) and (ii) follow:
Congress placed the designating power in the hands of the Attorney General and we refuse to strike down the relevant statutory sections because his appointees, or delegates might possibly be unqualified or selected from varying levels of workers. We take a dim view of the defendant's argument that the designating authority is conferred in such vague and indefinite language as to be violative of due process and in contravention of the Fifth Amendment. Necessarily enforcement and administration of this comprehensive piece of legislation requires considerable manpower and we think it unnecessary that Congress constitute itself a personnel bureau and set up job descriptions replete with all the myriad details of occupational qualifications. Sustaining the rent control aspects of the Emergency Control Act of 1942, 56 Stat. 23, 50 U.S.C.App. (Supp. II) § 901 et seq., the Supreme Court speaking through Mr. Justice Douglas, observed in Bowles v. Willingham, 1944, 321 U.S. 503, 515, 64 S.Ct. 641, 647, 88 L.Ed. 892.
Subsequent litigation has given narrow reading to Cudahy Packing Co. of Louisiana v. Holland, 1942, 315 U.S. 357, 788, 62 S.Ct. 651, 86 L.Ed. 895, cited by defendant in support of her contentions launched against subdelegation of subpoena power. See Fleming v. Mohawk Wrecking & Lumber Co., 1947, 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375; Edwards v. N. L. R. B., 5 Cir., 1951, 189 F.2d 970. But we think there is absent any issue of subdelegation, in this case, since as already pointed out the basic subpoena involved was signed by the Acting District Director. Now defendant simply blurs her point by asserting that the district judge has ordered her appearance before an "investigator" of the Service. If Vivian contends, as we think she does, that the language of § 235 (a) inhibited the district court's action because the word "investigator" is unmentioned by § 235(a), she is mistaken in light of § 101(a) (18) and the quoted regulations. A familiar canon of construction requires that the meaning of a statute is to be looked for in all its sections taken together and in that posture related to the end in view. Cherokee Intermarriage Cases, Red Bird v. United States, 1906, 203 U.S. 76, 89, 27 S.Ct. 29, 51 L.Ed. 96. It would sap life from the Immigration and Nationality Act if we agreed that constriction of the designating power was essential to validity of the subpoena authority. There must be some sensible granting of that authority coupled with enough elasticity to foresee and cope with daily problems confronting administrators of the Act. We think the legislation involved survives defendant's attack and is unimpaired in the respects suggested by Vivian.
Because Vivian's testimony is sought merely as a witness in contradistinction from status as a party, we say that although certiorari was granted, April 11, 1955, 349 U.S. 904, 75 S.Ct. 582, by the Supreme Court in United States v. Minker, 3 Cir., 1955, 217 F.2d 350, it is unnecessary to await a decision in that case. While neither party before us cited the Minker case, we were cited, by the government, to Application of Barnes, 2 Cir., 1955, 219 F.2d 137 in which, we now find, certiorari was also allowed, ...
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