Petition for Writ of Certiorari — Hansen v. Haff

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PeriTiIon FOR Writ OF CERTIORARI..Z.........--0--00-----: BBB EL Rk RE

- Questions Presented a a a ee ae

Sumihary Statement of the Facts of the j Name NOY maee 8:

Reason Relied on for the Granting of the Petition—

Conflict of Decisions...................... sggpresenscecerensieeceteccneedeceseseee 4

Certificate of an Crna Seicaaen Stina Miiccaneante a ae

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Nonice « OF PRESENTATION OF PETITION FoR Writ OF CERTIORARI 9

Admission of. Serviee....2........ pabianaiecanend Jevesuieceseinesenssnmenseenssceee 10

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fs Brier In ‘SUPPORT OF PETITION eatoeeemnicnicniisiba ak aniebad tale cee 11

‘Statement Disclosing Basis of Jurisdiction......................... a

"Statement of the ND aetiecttasinconeeineliimiier auaticnesecann Saeed ee

Argument ............. ggrteceeeerecseceneeeseeecoees hicnsetiiasieletinaiadalinisaneitel ihscainiieente 15

The applicable Statutes......-------eerereetins atanlaibiaedthennspiibiadtinadidde 15

_ Jurisdiction’ of the Courts to interfere with the decision

of the immigration NE i ee 15

Burden of proof.................. AS TREN ERR a a 16

The petitioner was nota concubine........c...ccnsnnnne 16

Unless the petitioner’s entry was dominated and con-

trolled by an immoral purpose, she was not within

the condemnation of the statute..... ae

~

Unless the petitioner’s entry was for an immoral pur-

pose of the same general class as prostitution, she

was pot within the — diviipsiiidavideseehdmiasaelenindiies 20

I sects acceeccalcadins tc siseeiceiechcloniibitaininidncheidtedandedens 22

a

site hi mE

]

“Table of Cases and Statutes Cited

Cases 7 . oe

Alpert v. U. 8., 12 Fed. (2d) 352, C. C. A. 2nd... 7.1

Bilokumsky v. Tod, 68 L. Ed. 221, 223, 263 U. 8. 149, 155... 16

‘Caminetti Case, 242 U. S. 470, 491, 37 Sup. Ct. 192 (61

L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168) 7,19 *

gorpus Juris, Vol. 12, Seetion 392.......... alecics i dpleteonenianiniossbsaniaare ‘17

Ex parte. Morel, 292 Fed. 432......... Got 19

_ Ex par te p 30 Fed. (2d) iy Te AIR TEE er Pe ee 18, 20

Fisher. w. United States, 266 Fed. 667. C. C. A. 4#h......7. 8, 19. 20

Gegiow, v. Uhl, 239 U. S. 3, 36 Sup. Ct. 2, 60 L. Ed™“114.. 6

Hansen a Re ) . see ee 9

Hunter v: U. 8., 45 Fed. (2d) eee SS eee - 7. 18, 20

Interstate Aimemies Commission v. Louisville & N. R. Ce.

227 U. 8. 88, 33 Sup. Ct. 184 57 L. Ed. 431 at pg. 433... 16

' Lau Ow Bew v. United States, 144 U. 8. 47, 12 Sup. Ct. 517,

es I te IN cre cciccecensevevedecrsereevcesSoeseceeseecvesveen 12

| Lee v. City of Oxford, 134 Miss. 647,.99 So, 509.....2.0.00.0000.... 17 ;

:. Sloan v. United States, 287 Fed. 91, C7 C. A. 8th... 7,18 .

; fustek v.\U. 8., 213. Fed. 913, C. ©. A. 9th..:....... Deer 17

. Prilby v. State, 189 Ind. 205, 126 N.°E, 481, 482.000.0000. 7 17

United States’ v. Bitty, 208 U. 8. 393, 52 L. Ed. 543. 28

. Sup. Ct. ee + RAED jpanarvereniailbmevinnreapelecuncewersumpuininesicenes 6,7

Webster’s Dictionary ............. ssaseieateke eM Woe gta. 37

Welsch v. United States, 220 Fed. 764, €. C. A ith. WEN ...4, 18, 20

Zakonaite v. Wolf,.226 U. 8. 272, 33 Sup. Ct. 31, 57 L. Ed.i

asia iilinbancnnietin ROSE 16

36 Cye. 1119, RES RASTRee c Seedte., 21. |

. 2 Lewis’s Sutherland, Stat. Constr., Sec, 432, and authorities .

cited ° PoE TAREE REO EEA Ee A ES dS ne

STaTUTES s

Judicial Code, Sec. 238, as amended. February~13, 1925

(43 Stat. L. 936, 938, 28 U. S.C. A. 845) 2. , a.

Mann or White Slave Act (18 U.S. C. A., See. 398)...7:....> 7

‘Section 3 of Immigration Act of ree 5; 1917 (8 U.S.

iF Ca I” Tine cachaticccacnateagiciprcnenitlinnpaanecinaetietenebekinne ove: 2, 15, 21

Section 19 of Immigration Act of February 5, 1917 (8 U. S.

C. i SOR ER a 15

Ie Se

In the Supreme Court

Hnited States

October Term, 1933.

. . t ’

'

" INGER JULIANE HANSEN,’ ~\ | a

: , \_—~ Petitioner, /.,

_ VS. - | ; /

Epwarp L. Harr, Acting Commissioner of(’

Immigration for the Port of San Francisco, } ©

| Respondent.

?

PETITION FOR WRIT OF CERTIORARI’

To the United States Circuit Court of Appeals -

Aor the Ninth Circuit.

. ®

To the Honorable Charlies Evans Hughes, Chief Jus-

. tice of the United States, and to the Associate

Justices of the Supreme Court of the raion :

States:

The petition of Inger J uliane Hansen respectfully

shows:

QUESTIONS PRESENTED..

On November 14, 1931,.the petitioner was ordered .

deported to Denmark by the Secretary of Labor, on

’ 2) of habeas corpus was presented to the United States

ie

_» the ground that she is an n alien, who; at the time of her,

_return on September 6, 1931, from a temporary s6-

.journ in Europe, entered the United States for an

immoral purpose. Having. been taken into custody

for the purpose of deportation, a petition for a writ

Distr ict Court for the Northern District of Cali-

fornia, Southern Divi ision to. test the validity of the

order of deportation and the detention under it. The

petition was denied and,the Circuit Court of Appeals

for the Ninth Circuit jw te the order and’ judgment.

- of the District Court. a ansen v. Haff, 65 Fed.

(2d) 94. & ——

The, questions involved are: =»

~{T)- Whether or wt an alien resident of the United |

‘States, returning bo the United States from a

temporary sojourn abroad and having, at the time

_ of her return, the intention to indulge in occa-

‘sional sexual ratios, but having no. intention to

live in the staté of concubinage or to practise

prostitution, enters. for an “immoral purpose”’,

within the meaning of Section 3 of the Immigra-

| ‘tion Act of Febr uary 5, 1917, providing as follows: .

“That. the following classes of aliens shall be

‘excluded from admission into the United States:

* .* *° prostitutes, or persons coming into

the United States for the purpose of prostitu-

tion or for any other. immoral: purpose™

- @ULS.C.A, See. 136,

(2) Whether or not an alien resident of the United

States upon her return to the United States from

$ ‘©

E . “

a temporary sojourn abroad, enters for an “‘im

moral purpose’, within the meaning of: Section 3

3 of the Immigration. Act of February 5, 1917,

supra, where the facts establish that her return:

is dominated by a purpose to résume her resi-

dence in the United States to pursue therein a

| legitimate occupation; although she entertained.

the incidental intention to indulge in occasional,

illicit sexual relations, .

&

Fe . © ms

é. ge

SUMMARY STATEMENT OF THE FACTS OF THE CASE.

‘The petitioner, a native and citizen: of Denmark,

a cook and housemaid by occupation, was first ad-

mitted to the United States on September 19, 1922.

She has resided and remained continuously eversince

her admission’ in the United States, save for the fol- |

lowing trips to Europe: ' departed i in 1926 and returned

in May, 1928; departed in May, 1931, and returned

on September 6, 1931. In 1924, at Los Angeles, ‘Cali-

| fornia, she became acquainted ‘with a married man and

_An 1925 began to have illicit sexual relations with hir1; —

these relations continued, but she was employed ‘and

did not cohabit or live with him; in May, 1931, when

she departed from Los Angeles on-her second trip

to Europe, she was accompanied by this man and that —

they maintained illicit sexual relations part of the

time, but not all of the time, while in Europe; that

- upon her return to the United States, she was accom-

panied .by this man and, upon arrival at Seattle,

Se

aol . , ee i beats

Washington, where they entered the United States

on September 6, 1931, they went to a hotel and regis-

tered as man and wife for .one night. )

The foregoing statement of facts is taken on the

findings and decision of the.Secretary of Labor and

it is upon these fat&Sthat the decision of the Secretary

of Labor ordering the deporfation of the petitioner is...

. predicated. A copyof the findings and decision of the

Secretary of Labor was filed as an. exhiit to the:

petition for a writ af. habeas corpus. (Tr. of R. p. 1

ef seq.) +

REASON RELIED ON FOR THE GRANTING OF THE PETITION—

. CONZEEUS OF DECISIONS.

Diversity of judicial opinion is relied upon for the

granting of the petition: 3

_ Upon the questions presented, the Circuit Court of

Appeals for the ‘Ninth Circuit, in deciding the-case

“at bar, was, itself, divided. His Honor Judge Sawtelle,

writing the majority opinion, in which His Honor

Judge Wilbur concurred, held, under the facts stated,

_ as follows: | = Pig, aes

1. That indulgence in occasional illicit sexual rela- °

*.” tions is ‘contrary to good morals and that, there-

fore, the petitioner, who had the intention, at the

‘time of entry, to indulge in such relations, entered

. for-an immoral purpose within the meaning of |

i

Z

Section 3 of the Immigration. Act of February 5,

1917, aupes.

ae

2. That it was immaterial whether oronoMbe peti-

tioner e tered to live. in a/state of concubinage,

as long she intended to indulge in occasional

illicit sexu 1 relations.

3. That it ‘was immate¢rial whether or not the peti-

_ tioner at the time of her entry was returning to

an. established residence in the United States.

His Honor J judge Mack, in a strong ai opin-

! jon, held as follows: :

1.° That entry for an. immoral purpose, under See-

tion 3 of the Immigration Act of February 5,

1917, supra, contemplates an entry for the pur- |

pose of engaging in baer teaed: sone of, the

Same general class, ¢ jusdém generis, as prosti- -

tution. :

- That indulgence in occasional illicit sexual rela-

with prostitution and that; therefore, the peti-

tioner did not enter for an immoral purpose.

8. That_petitioner’s entry into-the United ‘States

- was dominated by the purpose to return to her

established -residence in the United States to. pur-

’ sue therein her occupation as a: cook and house-

-maid and that, therefore, she did not-enter for

an immoral purpose, although: she may-have had |

the incidental:purpose to indulge in occasional 7

illicit sexual relations. { '

tions is not an immoral practice ejusdem generis

The majority opinion is in direct conflict with the

decision of the District Court for the Southern Dis-

trict of Texas in the case of

Ex ‘parte Rocha, 30 Fed. (2d) 823,

in which. His Honor Judge Hutcheson held thatyas

long as an alien’s entry was dominated by a purpose

to return to an established residence and business in

the United States, an incidental or secondary purpose

to have illicit sexual relations cannot be found to be

the cause or purpose of his entry.

As pointed out by His Honor. Judge Mack, in his

dissenting opinion in the case at bar, the case of Ex

- parte Rocha, supra, is the only one cited or found

in which the question was directly invglved.

~ In principle, the. majority opinion, in failing to |

- apply the rule of ejusdem generis is, also, in conflict .

with the decision of ;

United States v. Bitty, 208 U. S. 393;-28 Sup.

Ct. 396, 52 L. Ed. 543, Si

which involved a criminal prosecution under the im-

- migration. laws for bringing an alien to the United

States ‘‘for the purpose of prostitution or for any

other immoral purpose.’’ There, the rule of ejusdem

generis was conceded to be applicable and the phrase

‘‘any other immoral purpose’’ was construed, o

‘in accordance with the familiar rule of ejus- -

dem generis, the immoral purpose referred to by

the words ‘any other immoral purpose,’ must be

one of the same general class or kind as the par-

ticular purpose of ‘prostitution’ specified in the

same clause of the statute.”’

7

“The majority opinion, also; runs counter to a line

of decisions, which involve the construction of the

words ‘‘immoral purpose’’, as found in the Mann or

“White Slave Act (18 U. S. C. A. Sec. 398). These

decisions hold that the wo1us ‘‘immoral purpose’

of import that a transportation in interstate commerce |

- must be dominated and controlled by an immogal pur-

_ pose and that where an interstate Journey was taken ~

definitely. for another purpose and would ‘have been

taken in any event, the faet that illicit intercourse

took place in the course of the journey, as an inci-

dental occurrence,, did not bring the case within the

meaning and intent of the statute:

Welsch v. United States, 220 Fed. 764, C. QO. A.

.

4th ; /

Fisher v. United States, 266 Fed. 667, C. C. A.

4th; | | |

Hunter v. United States, 45 Fed. (2d) 55, C. °-

C. A. 4th; 7

Alpert v. United States, 12 Fed. (2d) 352,

CC. C. A. 2nd;

Sloan v. United States, 287 Fed. 91, ©. C. A.

-- 8th.

The Mann or White Slave Aetna the Immigration

Act were read in pari: materia iy the tase of

Caminetti v. United ‘States, 242 U.S. 470, 37

_ Sup. Ct. 61 L. Ed. 442,

| to the extent that t’ i is Honorable Court, in construing

the words ‘‘immoral purpose’’, as found in the Mann

3°

vor White Slave Act, depended upon the construction,

which had been placed upon those words in the case’ of

United States 1. Bitty, supra.

A statement of the:case and an argument in support

of this petition are contained in the brief annexed

hereto. |

Wherefore petitioner respectfully prays that this °

’ Court will issue a- writ of certiorari to the Circuit

Court of Appeals for the Nitnh Circuit, in order that

the judgmerit of that Court in this case may be re-

Viewed and corrected. .

| Rockr O’DONNELL,

‘SrepHgn M. Wuirr,.

Counsel for Petitioner. —

‘ Dated: San Francisco, California,

August 4th, 1933.

>.

’ CERTIFICATE OF COUNSEL.

The undersigned counsel for petitioner certify that

‘the above and foregoing petition is not interposed for

_ delay, and that, in their opinion, said petition is well —

founded. |

aa RocrerR O’DONNELL,

| STePpHEN M. Wuitr,

Counsel for Petitioner.

Dated: San Francisco, California,

~ August 4th, 1933.

a

In the Supreme Court

United States

October Term, 1933.

No...

INGER J ULIANE HANSEN, *

Petitioner,

vs.

Epwarp L, Harr, Acting Commissioner of

Immigration for the Port of San Francisco,

| Respondent.

NOTICE OF PRESENTATION OF PETITION

FOR WRIT OF CERTIORARI.

To Honorable Homer S. Cuymings, Attorney Gen-

eral of the United States, Washington, D. C.:

Sir: | 3 “ae

You will please take notice that the petitioner above

named, through her counsel, will present, to the above

named court on the 8th day of August, 1933, at the

hour of twelve o’tlock noon of said day, or as soon

thereafter as his counsel can be heard, at the court-

room thereof in the Capitol Building, in the City of

Washington, District, of Colungbia, her petition for.

a writ of certiorari.

10

Said petition will be based upon this notice, the

accompanying petition for a writ of certiorari and all

of*the papers and records on file.

Yours, ete.

RocerR O’DONNELL,

StepHen M. Wuirtr,

Attorneys for Petitioner.

Dated: San Francisco, California,

August 4, 1933.

ADMISSION OF SERVICE.

Receipt of a copy of the foregoing petition for writ

of certiorari and notice of presentation of petition for

writ of certiorari is hereby admitted this 8th ie

of August, 1933. .

Attorney General of the United

' States.

-seeeee

Assistant Attorney General of

_ the United States.

*. Attorneys for Respondent.

In the Supreme Court

| nited States

October Term, 1933.

No.

INGER J ULIANE HANSEN, ,

Petitioner, }

VS. : ¢

Epwarp L. Harr, Acting Commissioner of .

Immigration for the Port of San Francisco,

i, Respondent.

BRIEF IN SUPPORT OF PETITION.

———

STATEMENT DISCLOSING BASIS OF JURISDICTION.

(a) The statutory provision " sustaining the juris-.

diction of this Court to allow the writ of certiorari is

contained in Section 238 of the Judicial Code, as:

amended February 13, 1925 (43 Stat. L. 9336, 938,

28 U. 8. C. A. 345). a 6

(b) A petition for a writ of aes corpus was

filed) in the District Court for the Northern District

_of California on December 30, 1931 (Transcript of

Record pp. 1-9.) .

12

(c) The judgment of the District Court denying

the petition for a writ of habeas corpus was filed

and. entered on ‘May 6, 1932 (Transcript of Record,

| .

_(d). The opinion of the Circuit Court of Appeals

for the Ninth Circuit was rendered and filed on May

8th, 1933 (Transcript of Record, p. 37). The opinion

is reported i in 65 Fed: (2d) 94.

(e) The judgnient of the Circuit Court of Appeals

was made, entered and filed on May 8th, 1933 (Trans- |

eript of Record, p. 45).

(f) No petition for re-hearing by Cireuit Court

of Avpeals was filed. ee Te.

(g) The judgment of the Circuit Court of Ap-

| peals i in habeas corpus Proceedings is a final judg-

ment, :

Lau Ow Bew v. United States, 144 U. S. 47, 12

Sup. Ct. 517, 36 L. Ed. 340, at page 344.

g

STATEMENT OF THE CASE.

_ The prgeeding. is in habeas corpus and was com-

menced7for the purpose of obtaining the discharge -

of the petitioner from the custody of the respondent,

who, upon orders of the Secretary of Labor, was hold-

ing her for deportation to Denmark.

On September 9, 1931, the Secretary of Labor issued

his warrant for the petitioner’s arrest on the charge

that she is in the United States in violation of the

13

Immigration Act of February 5, 1917, in that she

entered the United States on September 6, 1931, for

an immoral purpose. On November | 14,. #931, the

Secretary of Labor ‘issued his warrant for the peti-

tioner’s deportation | to Denmark on the charge stated.

The original iadaeuies pete which disclose

the proceedings resulting in the issuance by the See-

retary of Labor of the order of deportation, were

filed by respondent, as exhibits, at the -hearing of

the petition for a writ of habeas corpus in” the Dis-

trict Court. Upon appeal, these records, by order of

‘Court (Tr.-of R. p. 27) were transmitted to the

' Circuit Court, as part of the record on appeal, and are

now before this Honorable Court. 6,

The essential facts, in respect to which there is no

-_ are:

‘On September 19, 1922, the shies first came

to the United States; she has ever since resided

in the United States.

2. In 1924, she became ooietened at Los Angeles,

where she resided and where she was employed

as a domestic, with a married man and there-

after begay to have illicit sexual relations with

him; she did not live with him and was not

supported by him, but she lived where she was

employed and. supported herself from her own

earnings, which ran as high as $115.00 per month.

\

3. In May, 1931, she made a trip to Europe to

visit her parents in Denmark; prior to her de-

parture on this trip, she had arranged with an

ty

14

| employment agency to secure employment for her

_ as a domestic upon her return. -

4, On September 6, 31,. she returned to the United

States, through the Port of. Seattle; “W ashing-.

ton, and was admitted by the Senatigiiation au-

thorities at that port as a returning resident.

5. On her trip to Europe, she was accompanied by

-.*the man, whom: she had ‘previously met at Los -

- Angeles; this man went to Europe ‘to attend a

convention in Vienna; while in Europe, he visited

the petitioner at the: home of her parents, but

did not haye illicit relations with her there; part

of the time, he traveHed with the petitioner in

Europe and had illicit relations with her.

6. Following their return to the United States on

September 6, 1931, the petitioner and her com-

panion went to a hotel-at Seattle and registered

for one night as man and wife:.

7. When the petitioner entered the United States on’

September 6, 1931, she intended to have illicit

relations With her companion until she reached

her home in: Eos. Angeles; pen reaching Los

Angeles, she intended to resume her employment

as a domestic.

The foregoing facts are established by the evidence

adduced by the immigration authorities at the hear-

‘ing under the warrant of arrest.. (Original Immigra-

tion Regord, No. 57762/874.) The Secretary of Labor,

in his findings and decision, admits the facts (Tr. of

15

R. pp. 11-18) and the same have been adopted, in the

main, in the opinions, majority and minority, of the

Cireuit Court.

ARGUMENT.

THE APPLICABLE STATUTES.

Section 3 of the Immigration Act of February 5, |

_ > 1917, provides, as follows:

“That the following classes of Siew shall a

excluded from admission to the United States;

* * * prostitutes, or persons coming into the

United States fot the purpose of prostitution or

for any other immoral purpose; * .* *.”’

'(8 U.S. C. A. See. 136.)

Section 19 of the same Act provides, as follows:

‘“At any time within five years-after entry any

alien who at the time ef entry was a member of

one or more of the classes excluded by law

* * * shall, upon the! warrant of the Secre-:

tary. of Labor, be taken into custody and de-

ported ; | * - - ° 9

(8 U.S. C. A. See. 155)

JURISDICTION OF THE COURTS TO INTERFERE WITH THE

DECISION OF THE IMMIGRATION AUTHORITIEs.

If the immigration authorities draw an- erroneous:

conclusion of law from established, facts, the Courts

16

are empowered to release the alien 3 in habeas corpus

proceedings. ~ ;

Gegiow v. Uhl, 239 U. 8. 3, 36 Sup. Ct. 2, 60° L.

. Ed. 114. |

Moreover, the deéision of the immigration author-

ities must find ddequate support im the evidence.

Zakonatte v. Wolf, 226 U. S. 272, 33 hited Ct. 34,

57 L. Ed. 218; | ee

. Interstate Commerce Comuiasion v. Louisville.

& N.-R. Co., P27 U. S. 88, 33 Sup. Ct. 185,

. OTL. Ed. 431,.at page 433.

BURDEN OF PROOF.

In deportation proceedings, as distinguished from

exclusion proceedings, the burden is upon the immi-

gration authorities to show ‘that the alien has done

some act to forfeit his right of residence in the United

States. | } \

Bilokumsky v. Tod, 68 L. Ed. 221, 223, 263

U.S. 149,15 ,

“ THE PETITIONER WAS NOT A CONCUBINE. :

_ The majority opinion does not hold that the peti-

tioner was a concubine or that she entered the United

States to live in a state of concubinage. It merely

holds that the matter is immaterial, as long as the

petitioner had the purpose to indulge in. occasional

illicit sexual relations. However, the Secretary of

a“

eee tee

that ‘the petitioner was a. concubine (Tr.-of R, pp.

16-18).. From the established facts, his conclusion was

clearly. erroneous. é‘

dulged, were sporadic and clandestine. She did not

‘live or cohabit with her companion and he did. not

maintain or support, her. She was regularly employed

as a domestic, she lived where she was employed and_

she supported; herself, with her own earnings.

?

of concubinage. .

Ww ebster’ s Dictionery ; ;

Suslak v. U. S., 213 Fed. 913 c. C. A. 9th), at

‘pages 917 and 918;

Trilby v. State, .189 Ind. 205, 126 N. E. 481, 482;

Lee v. City of Oxford, 134 Miss. 647, 99, So.

12 2 Corpus Jere 392.

?

UNLESS THE PETITIONER’S ENTRY WAS DOMINATED AND

CONTROLLED BY AN IMMORAL PURPOSE, SHE WAS NOT

WITHIN THE CONDEMNATION OF THE STATUTE.

. ,

that the petitioner entered the United States for an,

immoral purpose, the immigration authorities were

required to prove that her entry was domi hated and

controlled by that particular purpose. \

The New Standard Dictionary defines ‘pu pose”

as ‘‘tlie idea or ideal kept before: the mind as an end

‘Labor predicates, his decision entirely upon. the. theory ae

The” sexual relations, in which: the. petitioner .iné |

‘Unlawful dohabitation § Is | essential t6 create a state.

To sustain an order of deportation on the ground

18

of effort or action; the particular thing that any object

or course of action is intended to effect or attempt.’’

Where illicit sexual relations are not the object or -

basic purpose of entry, but are merely incidental, there

is no. ‘‘immoral ‘purpose.’’ Such has been held to be

true of the statute under consideration.

In Ex parte Rocha, 30 Fed. (24) 823 (D. C. ), the

_ Court said:

_“* * * the dominant and real facts in the case,

** * are not that he came into the United States

for an immoral purpose, but that having gone

across the river for an hour’s visit, he returned

to his home and his business for the purpose of

pursuing the ordinary tenor of his life, and

whether he did or did not have improper relations .

with the woman on his return is. wholly imma- .

terial, and cannot be found to ws jhe cause or pur-

pose of his return.” :

It has hoon uniformly held under the White Slave

Act, regarding transportation of women for an ‘‘im:

- moral purpose’’. that the “unlawful intercourse sub-

sequently engaged in must have been the end and

object to be achieved, and if the transportation was

- only incidental to other purposes there has been no

violation of the law.

Fisher v. U. S., 266 Fed. 667 (C. C. A. 4th) ;

Hunter v. U. S., 45 Fed. (2d) 55

Alpert v. U. S., 12 Fed. (2d) 382; |

Sloan v. U. S., 287 Fed. 91 (C. C. A. 8th) ;

Welsch v. United States, 220 Fed. 764 bie C.A

4th).

19 _

There are numerous other authorities holding in this

saine vein. The case of Fisher v. U:.S., supra, is typi-

cal. In that case the defendant had illicit relations.

_with a girl domiciled in one state, took her across the -

_ state line for a visit and they subsequently returned

and continued their ‘illicit relations. The court held

there, had been no transportation for Qn ‘immoral

purpose’ within the contemplation of the statute.

Whether the proceedings arise under the Mann or

White Slave Act or under the immigration laws, the

words ‘‘immoral purpose’”’ have the same meaning.

Caminetti v. U. S8., 242 U. 8. 470, 37 7 Sup. ¢

61 L. Ed. 442; ‘a

Ex parte Morel, 292 Fed. 423.

In the case of ‘U. S. v. Bitty, 208 U.S 5. 393, 28 Sup.

Ct. 396,52 L. Ed. 548, this Honorable Court went no

fur ther ‘than to say that ‘‘the importation of an alien

woman brought here only that she might live in a state

of concubinage”’ was for an immoral purpose

The facts establish. that the petitioner, at the time of

her departure from the United States for Europe in.

May, 1931, was a lawfully domiciled resident of the

United States, her residence having been acquired in

1922; during her residence in the United States, she

pursued the occupation of a domestic and, prior to

her departure:on her trip, she had made arrange-

ments with-an .employment agency to secure’ employ-

‘ment for her upon her return; upon her return, on

September 6, 1931, she was admitted as a returning

resident. It cannot, therefore, reasonably be doubted

that the petitioner intended and had the purpose to

See OS

20

=

return to the United States to resume her residence

and to pursue her regular occupation therein. The

United States was her actual and only place of resi-

dence and her means of livelihood was dependent upon

her return thereto. These considerations naturally

and’ reasonably impel the conclusion that she would

“have, in any event and entirely irrespective of any

thought or purpose in mind: as regards future illicit.

sexual conduct, returned to the United States to pur-

sue the ordinary and normal tenor of her life. Be-

cause it is reasonable to expect that she would have,

in any évent, returned to the United States to resume

her residence and occupation therein, it ‘must follow

that there -was no perceptible relation of cause and

effect between her entry and her alleged illicit eonduct

or that her entry was induced or caused by a consid- —

eration of future illicit conduct.

‘Ex parte Rocha, supra;

Fisher v. U. S.,.supra;

Welsch v. U. vie supra ;

Hunter v. U. S., supra. 7 ‘

‘ e

UNLESS THE PETITIONER’S ENTRY WAS FOR AN IMMORAL

PURPOSE OF THE SAME GENERAL CLASS AS PROSTITU- —

TION, SHE WAS NOT WITHIN THE STATUTE.

It: is a fundamental rule of statutory construction -

that ‘where general words follow the enumeration of

particular classes of persons or things, these words

will be construed as applicable only to persons or

21

things of the same general nature or class as those

enumerated.

36 Cyc. 1119, 1122;

2 Lewis’s Suthérland, Stat. Constr., See. 423,

and authorities cited..

The statute under consideration places in an ex-

cluded class ‘‘prostitutes, or persons coming ‘into the

‘United States for the purpose of prostitution er for

any other immoral purpose.’ (8 U.S.C. A., See. 136.)

‘In the case of United States v. Bitty, supra, the

rule of ejusdem g generis was conceded and it was held

that an alien, who was brought to the United States

to live in a state of eoneubinage, was within the con-

demnation of the statute making it unlawful to bring ~

an alien to the United States “‘for the purpose - pros-

titution or for any other immoral purpose.’’ The

Court expressly said: ”

“ce *#* Tt may be admitted that, in accordance

with the familiar rule of ejusdem generis, the

immoral purpose referred to by the words ‘any

other immoral purpose’ must be one of the same

general class or kind as the particular purpose of

‘prostitution’ specified in the same clause of the

statute. 2 Lewis’s Sutherland, Stat. Constr. Sec.

423, and authorities cited. “But that rule cannot

ayail the accused in this case; for the immoral

purpose charged in the indictmént is of the same

general class or kind as the one that controls in

the importation of an alien woman for the pur-

pose strictly of prostitution * * *.”’

Common understanding does not’hold indulgence in

occasional clandestine sexual relations comparable to

* living in a state of concubinage or to practicing prosti- .

tution. As His Honor J etcae Mack, said, in his dis-

senting opinion:

‘That case, however, does not justify a. holding

that appellant falls within the rule; onthe con-

trary, while the concubine and the mistress are

comparable to the prostitute, common understand-

ing draws the line too sharply between those classes

and the class which indulges occasionally in- extra-

marital relations, to permit of a construction un-

der the ejusdem generis rule that would exclude

.the latter class as immoral persons like prosti-

tutes.”’

COWCLUSION.

- It is. 5 respectfully submitted that a writ of certiorari

should be granted and that this Court should review

the decision herein of the Circuit Court of Appes for

the Ninth Circuit.

Rocer O’DOoNNELL,

STEPHEN M. WHITE,

Counsel for Petitioner.

Dated: San Francisco, California,

August 4, 1933.

’