Opinion
No. 136, Docket 20435.
December 31, 1946.
Appeal from the District Court of the United States for the Southern District of New York.
Habeas corpus proceeding by the United States of America on the relation of Herman Schlueter against W. Frank Watkins, as District Director of Immigration and Naturalization of the United States for the district of New York, or such person, if any, as may have the said Herman Schlueter in custody, for release from custody under order for removal of alien enemy. From an order dismissing the writ, 67 F. Supp. 556, relator appeals.
Affirmed.
David S. Kumble and George C. Dix, both of New York City, for appellant.
John F.X. McGohey, of New York City (Stanley H. Lowell, of New York City, and Thomas M. Cooley, II, of Waterford, Va., of counsel), for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
The facts are fully stated in the excellent opinion of District Judge Rifkind; see United States ex rel. Schlueter v. Watkins, 67 F. Supp. 556. We agree with him that the statute authorized the making of an order of removal of an alien enemy without a court order and without a hearing of any kind, except on the issue of whether or not the relator actually is an alien enemy which was not controverted in this case. Minotto v. Bradley, N.D.Ill., 252 F. 600. 50 U.S.C.A. § 24 refers, disjunctively, to executive action pursuant to § 21 or to a court order. Court jurisdiction, conferred solely by § 23, arises only when a "complaint" is filed by a citizen. When the procedure is through executive action, the statute calls for no hearing in court or elsewhere. Early in its history, the statute was so construed by Mr. Justice Washington; Lockington v. Smith, C.C.D.Pa., 1817 15 Fed.Cas. No. 8448, p. 758.
See also Lockington's Case, Brightly N.P., Pa., 269, 296; DeLacey v. United States, 9 Cir., 249 F.2d 625, 627, L.R.A. 1918E, 1011.
We agree with Judge Rifkind, and with Judge Prettyman's opinion in Citizens Protective League v. Clark, App.D.C., 155 F.2d 290 that the statute, thus construed, is constitutional. The President duly exercised his statutory power in Proclamations Nos. 2526 and 2655. They did not compel a hearing which would meet the requirements of due process.
Affirmed.