273 F. 694 | S.D. Cal. | 1921
The contentions advanced by petitioner herein as a reason why he should be discharged from his present custody, maintained by the United States marshal in virtue of a commitment heretofore issued out of this court, following his plea of guilty as for a violation of law of the United States, may be briefly stated and determined:
The indictment to which petitioner pleaded guilty charged him, a citizen of Poland, with having, on or about the 23d day of August, 1920, entered and attempted to enter the United States from the republic of Mexico, “without then and there bearing and having in his possession a passport duly viséed in accordance with the terms of section 31 of an executive order dated August 8, 1918, issued pursuant to an act of Congress approved May 22, 1918,” etc. (40 Stat. 559 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 7628e-7628h]). There is no specific averment upon the subject, but in the absence thereof, and in view of the fact that he was tried and found guilty before the superior
After this court, on March 22, 1921, had pronounced judgment upon petitioner, sentencing him to three years’ imprisonment in the federal penitentiary, and to pay a fine in the sum of $1,500, upon application made by the district attorney of Los Angeles county, because of an indictment pending in the superior court of that county, an order was made by this court on March 29, 1921, staying the execution of the sentence adjudged therein for the period of 15 days; and it was further ordered that “the United States marshal take the above-named defendant to the Hall of Justice, to the courtroom thereof, in the city of Los Angeles, county of Los Angeles, state of California, at such times as his presence in the proceedings there pending against him under said indictment in the superior court of the state of California in and for said county of Los Angeles shall be required.” It was further required in said order that the marshal “keep the said defendant in his custody for the purposes herein stated.” Pursuant to such order, and presumably in complete accordance therewith, the petitioner was taken to the superior court of Los Angeles county, there suffered trial, was regularly convicted and sentenced, etc. Since the first order staying execution, pending the hearing and determination of this writ, etc., upon the application or with the consent of petitioner, further stays have been granted, and he is now in consequence thereof still in the custody of the United States marshal in the county jail in Los Angeles.
The first claim advanced is that there is no law justifying the indictment or subsequent proceedings had against petitioner in this court. This is based upon three propositions: First, that the Act of May 22, 1918, hereinabove referred to, was by its terms limited to the period “when the United States is at war,” and that in all substantial aspects of the case, the war’ having ceased and determined, the statute became inoperative and ineffective for any purpose before petitioner came into this country. The second contention is that the statute was repealed by implication in virtue of the Act of November 10, 1919 (41 Stat. 353), purporting to enact a new law upon the identical subject-matter, and which new law, by its own terms, was to continue in force and effect only “until and including the 4th day of March, 1921,”‘a point of time anterior to the plea of guilty and pronouncement of judgment on petitioner herein. The third contention is that the act was expressly repealed by the joint resolution of Congress, adopted March 3, 1921 (section 311514/45L Comp. Stats.), repealing certain designated “wartime acts.”
This joint resolution, enacted in the last days of the Sixty-Sixth Congress, repealing certain w^ar-time acts, carried with it a saving clause to the effect that nothing therein contained should be held “to exempt from prosecution or to relieve from punishment” any offense theretofore committed in violation of the acts therein repealed or referred to, etc. In view of the express and positive provisions of section 13 of the Revised Statutes (Comp. St. § 14), this saving clause was hardly necessary. U. S. v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480. Its insertion, however, makes it clear and indubitable that Congress was intending to make punishment possible for thosé who had violated the law previous to its repeal.
That it should be given effect in this wise is too plain for argument or extended discussion. Counsel make the point, however, that though, by the terms of the saving clause, the act itself was kept in force and effect, yet nothing in the saving clause served to keep in force and ef
“Tliat wlien tlie United States is at war, if tlie President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this act he imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful—
“(a) Por any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe.”
It is obvious, then, that Congress was intending to declare that in virtue of the exigencies brought about by the war, as long as the President deemed it necessary and should make proclamation thereof, it should be unlawful to enter the country, except in virtue of the regulations to be established by him. No entry at all could be lawful, as long as the condition of danger attached, to be determined by the President, except in compliance with his instructions and regulations. This was followed (section 3) by the provision that any person who should willfully “violate any of the provisions of this act, or of any order or proclamation of the President promulgated, or of any permit, rule, or regulation issued thereunder,” should upon conviction be punished, etc.
Petitioner’s argument, in effect, with respect to pending prosecutions, is that, though there was no repeal of the law, because of the saving clause, yet there was a repeal of the presidential proclamations and regulations, because they were not specifically mentioned in and covered by the saving clause. The law possessed no efficacy, however, except as the proclamations or regulations duly promulgated by the President gave it efficacy, and to hold, with respect to prosecutions already begun or violations, already had, that the law remained, but that the proclamations and regulations were repealed, would be to retain the shadow and disregard the substance, to keep the incident and destroy the principal. Such cannot be the construction to be accorded to the action taken. The violation charged herein, and for which petitioner must stand for judgment, was not of a proclamation of the President or regulations promulgated by him, but a violation of a law which said that no entry might be had, save under enumerated circumstances. In this wise it is clear that any saving clause which applied to the law itself would sutiice to support and justify any prosecution had and maintained under the law.
I conclude, then, that ample authority existed for the rendering of the indictment herein, and that the court had jurisdiction, in virtue of petitioner’s plea of guilty, to pronounce the judgment under which he is held.
It is obvious, of course, that as against the prote'st of the petitioner, which protest must be considered as having been impliedly made, the court could not, by granting a stay of execution, add to the length of time that he should be deprived of his liberty. In that behalf, I am persuaded that petitioner is entitled to have subtracted from the tótal period of incarceration adjudged against him, the length of time elapsed since the rendering of the judgment herein. In re Jennings, supra.
The order of the court therefore will be that the writ of habeas corpus herein is discharged, and the prisoner is remanded to the custody of the United States marshal, to abide the judgment of this court heretofore delivered herein. The commitment eventuating ’from thait judgment, being a process emanating from this very court, and being still within the control of this court, should now be recalled and amended to conform to the opinion and judgment rendered necessary herein. An order will be entered, therefore, recalling the commitment and decreeing its amendment, to the effect that the term of imprisonment heretofore adjudged upon petitioner will begin to run as from the date of pronouncement of the aforementioned judgment herein.