# Mahler v. Eby

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United States Supreme Court
264 U.S. 32
Mahler v. Eby
Argued: Jan. 24 and 25, 1924. --- Decided: Feb 18, 1924
Writs of habeas corpus, by Herbert Mahler, by Joseph Oates, by Petro Nigra, by John Avilla, and by William Moran, against Howard Eby, Inspector in Charge of Immigration Service, United States Department of Labor, at Chicago, Ill. From a judgment dismissing all of the writs, petitioners appeal. Judgment reversed, with directions not to discharge petitioners until the Secretary of Labor shall have a reasonable time in which to correct and perfect his findings, or to initiate another proceeding against them.
This is an appeal from a judgment of the District Court of the United States for Northern Illinois, dismissing five writs of habeas corpus and remanding the appellants, who are aliens, to the custody of the Immigration Inspector at Chicago for deportation, in pursuance to warrants issued by the Secretary of Labor. The cases were consolidated in the court below.
In 1918, all the appellants were tried and found guilty of violation of section 5 of the Selective Service Act of May 18, 1917 (chapter 15, 40 Stat. 76, 80 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044e]), and of section 4 of the Espionage Act of June 15, 1917 (chapter 30, 40 Stat. 217, 222 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212d]). All but Petro Nigra were sentenced to the United States penitentiary at Leavenworth, Kan., for a period of 5 years, and Nigra was sentenced to the same place for 18 months. Upon error to the Court of Appeals these sentences were affirmed and became final.
Pending the imprisonment of appellants, the Secretary of Labor issued warrants for arrest of the appellants under the Act of May 10, 1920, c. 174, 41 Stat. 593 (Comp. St. Ann. Supp. 1923, §§ 4289 1/4 b[4] to 4289 1/4 b[6]).
They were all in the same form. That as to Mahler was as follows:
'Warrant of Arrest No. 54616/151.
'United States of America, U.S. Department of Labor, Washington.
'To Harry R. Landis, Inspector in Charge, Chicago, Illinois:
'Whereas, from evidence submitted to me, it appears that the alien, Herbert Mahler, who landed unknown at the port of Seattle, Wash., on or about the 1st day of April, 1913, has been found in the United States in violation of the act of May 10, 1920, for the following among other reasons:
'That he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled 'An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,' approved June 15, 1917, or the amendment thereof, approved May 16, 1918, the judgment on such conviction having become final, and that he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act, 'An act to authorize the President to increase temporarily the military establishment of the United States,' approved May 18, 1917, or any amendment thereof or supplement thereto; the judgment on such conviction having become final:
'I, Theodore G. Risley, Acting Secretary of Lobor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to take into custody the said alien and grant him a hearing to enable him to show cause why he should not be deported in conformity with law,' etc.
On June 14 and 15, 1921, each appellant had a hearing before Immigrant Inspector Paul at Leavenworth, at which appellants were examined orally, and the indictment, the judgments, and the opinion and judgment of the Circuit Court of Appeals were introduced in evidence. The Secretary of Labor, on the records thus made and presented to him, issued a warrant of deportation of each appellant in all respects, mutatis mutandis, like that in the case of Herbert Mahler, as follows:
'To Commissioner of Immigration, Montreal, Canada, or to Any Officer or Employee of the U.S. Immigration Service:
'Whereas, from proofs submitted to me, after due hearing before Immigrant Inspector C. H. Paul, held at Leavenworth, Kansas, I have become satisfied that the alien, Herbert Mahler, who landed at the port of Seattle, Washington, on or about the 1st day of September, 1913, has been found in the United States in violation of the Act of May 10, 1920; that he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled 'An act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,' approved June 15, 1917, or the amendment thereof approved May 16, 1918, the judgment on such conviction having become final; that he is an alien who since August 1, 1914, has been convicted of a violation of or a conspiracy to violate an act entitled 'An act to authorize the President to increase temporarily the military establishment of the United States, approved May 18, 1917, or any amendment thereof or supplement thereto, the judgment on such conviction having become final:
'I, E. J. Henning, Assistant Secretary of Labor, by virtue of the power and authority vested in me by the laws of the United States, do hereby command you to return said alien to Canada the country whence he came, at the expense of the appropriation, 'Expenses of Regulating Immigration, 1922.'
'For so doing this shall be your sufficient warrant.
'Witness my hand and seal this 10th day of November, 1921.
'[Signed] E. J. Henning,
'Assistant Secretary of Labor.'
The Act of Congress enacted May 10, 1920 (chapter 174, 41 Stat. 593) provides that aliens of certain classes described in the act, in addition to those for whose expulsion authority already exists, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the manner provided in sections 19 and 20 of the Immigration Act of February 5, 1917 (39 Stat. p. 889 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 4289 1/4 jj, 4289 1/4 k]), 'if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States.' The classes include all aliens interned as enemies by the President's proclamation under R. S. § 4067 (Comp. St. § 7615) and alien convicts under the Espionage Act, the Explosives Act, the act restricting foreign travel, the Sabotage Act, the Selective Draft Act, the act punishing threats against the President, the Trading with the Enemy Act, and certain sections of the Penal Code. Section 2 makes the decision of the Secretary of Labor in ordering expulsion of an alien under the act final.
The petitions for writs of habeas corpus charged that the warrant of deportation under which the petitioners were held were void because, at the time of the issue of the warrants, the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1012a et seq.) and the Selective Draft Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044a et seq.), for convictions under which they were about to be deported, had been repealed, that the Act of May 10, 1920, under which the warrant was issued, was an ex post facto law, because the convictions for which they were to be deported were for acts committed before its passage, that there was no legal evidence to establish that petitioners were aliens amenable to deportation under the act, that the hearing and proceedings were without due process of law, and that for these and other reasons the commitment was void.
Counsel for the appellants, in their brief and in their argument, attacked the constitutionality of the act of 1920, not only because it was an ex post facto law, but because it delegated legislative power to an executive officer, and because the criterion for his finding-i. e., that the persons to be deported should be 'undesirable residents of the United States'-was so vague and uncertain that it left the liberty of the alien to the whim and caprice of an executive officer, in violation of due process required by the Fifth Amendment. They further attacked the validity of the warrants on the ground that they did not show a finding by the Secretary that the appellants were undesirable residents of the United States, a condition precedent to a legal deportation. They further alleged that as to all the petitioners there was no evidence to sustain such a finding, if it had been made, and that as to Petro Nigra there was also a fatal lack of evidence at his hearing to show that he had been convicted of the violations of the statutes charged in the warrant.
Messrs. Walter Nelles, of New York City, and Otto Christensen, of Chicago, Ill., for appellants.
Mr. Geo. Ross Hull, of Washington, D. C., for appellee.
Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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