United States v. Western Union Telegraph Co.

• Decision Date: 25 February 1921
• Citation: 272 F. 311
• Parties: UNITED STATES v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Southern District of New York

272 F. 311

UNITED STATES v. WESTERN UNION TELEGRAPH CO.

United States District Court, S.D. New York.

February 25, 1921

[Copyrighted Material Omitted]

Francis G. Caffey, U.S. Atty., of New York City (Earl B. Barnes, of New York City, of counsel), for the United States.

Rush Taggart, of New York City (Joseph P. Cotton and Francis R Stark, both of New York City, of counsel), for defendant.

AUGUSTUS N. HAND, District Judge (after stating the facts as above).

Two questions of law arise: (1) Whether in the absence of congressional legislation the President has the power to prevent unauthorized cable landings on the shores of the United States or the operation of cable lines connecting with foreign countries in a way contrary to executive policy. (2) Whether there is any congressional legislation under which the defendant may validly operate. If there is, all parties concede that no executive permission is necessary.

The right of the United States to secure a judicial decision as to the legality of the steps proposed by the Executive, and if they be lawful, to secure injunctive relief against the defendant, is not questioned by any of the parties to this suit, and seems to be warranted by the decision of the Supreme Court in the case of In re Debs, 158 U.S 564, 15 Sup.Ct. 900, 39 L.Ed. 1092.

If the President has the original power sought to be exercised, it must be found expressly, or by implication, in the Constitution. It is not sufficient to say that he must have it because the United States is a sovereign nation and must be deemed to have all customary national powers. Knox v. Lee, 12 Wall. 457, 20 L.Ed. 287. However true this may be, it does not follow that the Executive has the necessary authority. Certainly many, if not most, executive powers flow from legislative enactments. There is no doubt that Congress, by virtue of its authority to regulate foreign commerce, could regulate the laying and operation of cables, and has often done this. I cannot regard a failure by Congress to exercise its undoubted powers as proof that some other branch of the government has the right to do what Congress might readily have authorized.

The powers of the President are set forth in article 2 of the Constitution. Section 1, subd. 1, of that article, provides that 'the executive power shall be vested in a President of the United States of America.

* * * ' Subdivision 7 requires that before the President enters on the execution of his office he shall take the following oath or affirmation:

'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'

By section 2 the President is made commander-in-chief of the army and navy and is given power by and with the advice and consent of the Senate to make treaties and to appoint ambassadors and other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution and which shall be established by law.

By section 3 the President is given the right to receive ambassadors and other public ministers, and it is provided that 'he shall take care that the laws be faithfully executed. * * * '

It is reasonably plain from the foregoing enumeration of the President's powers that such decisions as In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092; In re Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55; Chinese Exclusion Case, 130 U.S. 581, 9 Sup.Ct. 623, 32 L.Ed. 1068; and Fong Yue Ting v. United States, 149 U.S. 698, 13 Sup.Ct. 1016, 37 L.Ed. 905, do not dispose of the questions involved in the present controversy. In the above cases Congress had passed laws for the carrying of the mails, the holding of Circuit Courts, and the exclusion of aliens. The Executive Department of the government in every case was enforcing these laws or seeing that enforcement was not impeded, and the court in substance held that such action was necessarily within the executive prerogative. The constitutional grant of general executive power, and the specific provision that 'he shall take care that the laws be faithfully executed,' each necessarily called for the judicial decisions which were rendered.

The power here invoked is far more doubtful than in the instances I have cited where it could be justified as an executive enforcement of legislative provisions. In this case, if it exists at all, it must be derived by implication from the sweeping grant of general executive power which, the Constitution says, 'shall be vested in a President,' and by the special authority to make treaties and appoint ambassadors by and with the consent of the Senate, and to act as Commander-in-chief of the army and navy.

It can hardly be doubted that the President as commander-in-chief of the army and navy could repel any forces coming to this country with apparent hostile purpose, even though no war had been declared by the Congress. If there should be any reasonable basis for regarding such an attempt as imminent, the matter doubtless would be non justiciable because it would be then the prerogative of the President to determine the degree of danger and the necessary means to be employed to avert it.

While it is contended by the government that the control of cables would be useful in time of war, it is nowhere suggested that there is any hostile purpose in the attempt to land the cables of the Western Union at Miami Beach.

Under the war power, as was said by Judge Learned Hand in the case of Commercial Cable Co. v. Burleson (D.C.) 255 F. 99, Congress can empower the President to seize cables and can delegate to him the absolute determination as to the necessity of doing this, but it does not appear from the opinion in that case that the President, either in the exercise of the delegated legislative powers given him by Congress or in the exercise of his constitutional power to negotiate treaties, could seize cables even in time of war without legislative authority. A different question might, of course, arise if the President as commander-in-chief of the army and navy were obliged in order to conduct military operations to seize cables, without congressional authority, that were found within the field of military operations itself.

The implications of the power contended for by the government are very great. If the President has the right, without any legislative sanction, to prevent the landing of cables, why has he not a right to prevent the importation of opium on the ground that it is a deleterious drug, or the importation of silk or steel because such importation may tend to reduce wages in this country and injure the national welfare? In the same way, why does not the President, in the absence of any act of Congress, have the right to refuse to admit foreigners to our shores, and to deport those aliens whose presence he regards as a public menace? While the prerogative of the British Crown in respect to the admission and deportation of aliens is not clearly ascertainable, its right, in the absence of an act of Parliament, to refuse permission to aliens to enter British territory was contested by Sir W. Phillimore on behalf of the alien in 1891, in the case of Musgrove v. Chun Teeon Toy (L.R. 1891, A.C. 272), and the privy council said that the question involved such important considerations that they would express no opinion as to it, and would decide the case solely under the act of Parliament invoked by the Australian government. Lord Herschell intimated that no authority existed that an alien had a right of action for exclusion from the country.

As eminent an authority as Prof. Dicey makes the unqualified assertion in his book on 'The Law of the Constitution' that--

'The crown cannot, except under statute, expel from England any alien whatever, even though he were a murderer, who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The Executive therefore must ask for, and always obtains, aid from Parliament. An alien act enables the ministry in times of disturbance to expel any foreigner from the country; a foreign enlistment act makes it possible for the ministry to check intervention in foreign contests or the supply of arms to foreign belligerents. Extradition acts empower the government at the same time to prevent England from becoming a city of refuge for foreign criminals and to co-operate with foreign states in that general repression of crime in which the whole civilized world has an interest. Nor have we yet exhausted the instances in which the rigidity of the law necessitates the intervention of Parliament. There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The ministry must break the law and trust for protection to an act of indemnity. A statute of this kind is (as already pointed out) the last and supreme exercise of parliamentary sovereignty. It legalizes illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries how to combine the maintenance of law and the authority of the houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country.' (4th Ed.) pp. 339-340.

An act of indemnity somewhat like the one mentioned by Prof. Dicey was upheld by the Supreme Court as a valid act of the Legislature of the Philippine Islands in the case of ...