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: