Ex parte Morel

NETERER, District Judge (after stating the facts as above), This is a peculiar case. There is none like it in the books. The decision of the District Court of the Southern District of New York is not published. The per curiam decision of the Circuit Court of Appeals contains 90 words, aside from the citation of two cases. The case involves the welfare of three persons — one a child, a citizen^ of the United States, born since the court decisions; another the wife, born in the United States, never lived elsewhere, who lost her citizenship by marriage with the petitioner; and the petitioner, a resident of the United States for 22 years, less one year, when he left the United States to perform some special work in the city of Vancouver, B. C. There is no legal testimony in the record that the petitioner is an anarchist. There is attached a statement, purported to have been made by the petitioner, saying he was a philosophical anarchist. This statement was not shown to him. There is nothing in the record that this is a correct statement of what he did say, and aside from his answers to the direct questions should not be considered. The party to whom this statement is alleged to have been made was not produced, did not testify, and, without the specific identification, the statement of the inspector that the statement would be attached, without specific identification and oath that it is correct, should not be considered, nor should the Roebas letter be considered. But for the consideration of the effect upon the life of the child and mother, the issue, while entitled to the same consideration, might not be approached with the same deliberation. I do not regard Morell v. Baker (C. C. A.) 270 Fed. 577, as conclusive here. The testimony to a limited degree may be cumulative, but considered in the light of [427] a revelation of truth I think may be considered as a whole in the elucidation of the true relation of the actors before the law bearing upon the charge against the petitioner and his belief in governmental institutions, and his regard for and loyalty to organized government, and especially that which is provided by the Constitution of the United States. Approaching this issue in the light of this testimony, I am convinced that the Acting Commissioner and Commissioner of Immigration were right in concluding that there is no testimony to show that the 'petitioner was an anarchist. They had the opportunity of observing the petitioner, to note his manner pf testifying, his acts with relation to environment, disclosed under their view, and were in a position above that of any person connected with the consideration of this case, whose duty it was to examine, consider, and conclude upon the facts. A glance of a living witness, tone of voice, and manner of speaking sometimes conveys more in a minute with relation to the truthfulness of a statement than the reading of a volume could prove. The Commissioner and Acting Commissioner were in a position to say whether there was any evidence to sustain any of the charges, and, having found there is none, I think, in view of the situation here presented, this court is justified in saying that their conclusion should be final, and that in the light of the new testimony presented should supervene the statement of the Circuit Court of Appeals as to the former finding, that the woman was imported for immoral purposes. The testimony is conclusive that the petitioner and the woman believed they were married; they had lived together under that belief. They had entered into the contractual relation, and assumed a social status. There is no evidence of any immoral or illicit purposes, or intimation of such purpose, in the entire record. The mere fact that the parties entered into a common-law marriage relation, not recognized by the state of California, where it was entered into, since 1895, of which the petitioner was ignorant, should not brand the act as criminal, or the conduct as immoral. There is nothing essentially or inherently immoral or vicious in the conduct of the parties, according to their own understanding and belief, and that of their friends who were present when the ceremony was performed. The criminal character of the cohabitation does not come from the fact of their cohabiting together as husband and wife, but only by reason of legislative enactment, and of this they were ignorant, and immorality of their conduct cannot be predicated upon such act. Temescal Rock Co. v. Ind. Accid. Com., 180 Cal. 637, 182 Pac. 448, 13 A. L. R. 683. Sexual intercourse of the parties must be the motive and purpose of the importation, and where parties enter the United States upon the belief that they bad a lawful right to sustain the relation of husband and wife they may not be regarded as within the provisions denounced by the Immigration Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 42891/4a-4289i4u) with relation to importation for immoral purposes, where there can be no question with relation to the good faith of the parties. Fisher v. U. S. (C. C. A.) 266 Fed. 667. The primary purpose of .the act is to be protected against men and women who are [428] weak, vicious, and bad. The question under this act is not whether Morel and the woman were legally married, but the purpose of bringing the common-law wife from Vancouver'to Seattle; and the record-unquestionably shows that these parties each in good faith believed they were legally married, and, so believing, neither of them could have entertained any immoral purpose. Whether the parties offended against the law of the state of Washington by cohabiting as man and wife without a legal marriage is a mattér for the state (U. S. v. Sibray [C. C.] 178 Fed. 144), and has no relation to the Immigration Act. The parties having entered into a common-law marriage relation, consummated by cohabitation in California and Washington for a period of years before removing to British Columbia, as husband and wife, continuing the common-law marriage relation in that province, so living and cohabiting in the Dominion of Canada, the conduct ripened into a recognized legal common-law relation in Canada, at least. Robb v. Robb, 20 Ont. 591; Breakey v. Breakey, 2 U. C. Q. B. 349; Pelpit v. Cote Rap. Jud. Que. 20 C. S. 338; L. R. A. 1915E, note page 12. And being so recognized in Canada, the parties in good faith so believing, no presumption arises that the woman was- brought into this country for the purpose of prostitution or other immoral purposes. Crime is not presumed, and the record in this case is devoid of any immoral purpose, or such intent, when the circumstances are considered with relation to the provisions of the Immigration Act. Gegiow v. Uhle, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed. 114. It may also be said that Act Feb. 5, 1917, '§ 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%jj), reading, “Any alien who shall import * * * any person for the purpose of prostitution or for any other immoral purpose,” contains no language importing an intent to make this provision retroactive. The importation charged was three years prior to the enactment under which deportation is invoked. “Shall” may be ranged in two classes: (a) implying futurity; or (b) implying a mandate. The present use clearly has relation to future conduct. “ ‘Words in a statute ought not to have a retrospective operation, unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.’ U. S. v. Heth, 3 Cranch, 399, 2 L. Ed. 479; U. S. v. North German Lloyd S. S. Co. (C. C.) 185 Fed. 158, 162.” U. S. v. Tsuji Suekichi, 199 Fed. 750, 118 C. C. A. 188 (9th Circuit). The word “shall” in its common and ordinary usage, unless accompanied by qualifying words which show a contrary intent, always refers to the future. 35 Cyc. 145, and cases cited. “In the early English, and hence in our English Bible, ‘shall’ is an auxiliary mainly used in all persons to express futurity.” Webster.' It is manifest that denunciation by the act, supra, is as to conduct looking to the future, and it applies only to immigrant aliens, and not to resident aliens. . [4] Nor is there, as above stated, any legal evidence, when the fundamental principles that inhere in, due process of -law are considered (The Japanese Immigration Case [Yamataya v. Fisher] 189 U. S. 86, 231 [429] Sup. Ct. 611, 47 L. Ed. 721), that the petitioner is an anarchist; and it is the duty of the court to consider the competency and legal admissibility of the evidence presented in determining whether a fair trial was given (Hanges v. Whitfield [D. C.] 209 Fed. 675; Ex parte Plastino [D. C.] 236 Fed. 295). )The charge that the petitioner was likely to become a public charge is without testimony and has apparently been abandoned. The writ is granted.