47 F. 447 | E.D.N.Y | 1891
This case comes before the court upon the return made by James O’Beirne, as acting commissioner of immigration and inspector of immigration, to a writ of habeas corpus issued upon the petition of Adolph Feinknopf, an alien immigrant, who has arrived by water at the port of New York, and has been ordered by the said inspector of immigration to be returned to the port whence he came. The return shows that the petitioner, upon arrival, was inspected by the inspector, and, a special inquiry having been demanded by the petitioner, such special inquiry was had by the said inspector; and thereupon it was determined and decided by the said inspector that the petitioner was a person likely to become a public charge, and therefore the inspector directed that the petitioner be detained, and sent back to the place whence ho came. In connection with the return is the testimony taken upon the special inquiry hold by the inspection officer. This evidence, which is set forth at length in the return, consists of the testimony of several sworn witnesses produced by the petitioner, whose testimony, if believed, shows that the petitioner is 40 years old; that he is a native o! Austria; that ho is a cabinet-maker by trade, and has exercised that trade for 25 years; that he has no family; that he has baggage with him, worth 020, arc! 50 cents in cash; that he is a man who can find employment in his trade, and is willing to exercise the same. The affidavit of the immigrant before the inspection officer on the preliminary inquiry stated the same facts, and, in addition, that the immigrant has not been an inmate of an almshouse, and has not received public aid or support, and has not been convicted of crime. No testimony was offered upon the special inquiry to contradict this testimony, and upon the argument here it was conceded on behalf of the inspector that there was not before him testimony from any witness tending to contradict the testimony produced by the immigrant. Of course this testimony,
I am unable to assent to the position taken by the district attorney, that the act of 1891 confers upon the inspection officer power to detain and send back an alien immigrant as being a person liable to become a public charge, in the absence of any evidence whatever tending to establish that fact. Assuming that the power to send back to the country whence they came aliens who have been permitted to come within the boundaries of the United States is one of the governmental powers of the United States; and assuming also that, if the United States government has that power, it rests with the congress of the United States to say when and how it shall be exercised; and assuming, but not deciding, that, notwithstanding the provision of the constitution of the United States forbidding the suspension of the writ of habeas corpus, it is a valid exercise of that power by congress to make conclusive upon the courts the determination of an inspection officer, made in the exercise of arbitrary power, and without evidence of any fact, that the immigrant is a person likely to become a public charge, and therefore to direct the detention and return of the immigrant, — still the question remains, is the statute of 1891 such a statute? Was it the intention of congress by the act of 1891 to confer upon the inspection officer appointed by that act power upon his mere inspection of the immigrant
“Tin; court issuing the writ must inquire and adjudge whether the eommissiouer acquired jurisdiction of the matter by conforming to the requirements of the treaty and the statute, whether he exceeded his jurisdiction, and whether he had any legal or competent evidence of facts before him on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insufficient to warrant his conclusion. * * * The proper inquiry is to be limited to ascertaining whether the commissioner had jurisdiction, and did not exceed his jurisdiction, and had before him legal and competent evidence of facts whereon to pass judgment as to the fact, of the criminality, and did not arbitrarily commit the accused for surrender without any legal evidence.”
These decisions are equally applicable to a case arising under the statute of 1891. But it is said the act of 1882 contained no provision like
It has been further contended that the application for the petitioner’s discharge is premature, that the statute provides for appeals to the superintendent of immigration, and from him to the secretary of the treasury; and that the decision upon such appeals should be made before the court will entertain a petition for habeas corpus. But in a case like this, whore there has been no determination capable of being reviewed, because not made upon any evidence whatever, in view of the law as above stated, the result of the appeals, if taken, would necessarily be the discharge of the petitioner, and no reason is seen for compelling the petitioner to remain in custody pending appeals that cannot accomplish such a review as the statute contemplates, for the reason that no such determination as the statute contemplates has been had. Such being my opinion as to the construction to be put upon the act of 1891, the right, as well as the duty, to discharge the petitioner follows. The privilege of tlie writ of habeas corpus is preserved by the constitution of the United States, save in the case of rebellion and insurrection; and courts established under the constitution cannot, therefore, either directly or indirectly, be deprived of the power by means of the writ of habeas corpus