Opinion
Nos. 279, 280.
April 7, 1930.
Appeals from the District Court of the United States for the District of Vermont.
Separate applications for writs of habeas corpus by the United States on relation of John Petach, and by the United States on the relation of Michael Dizazzo, against Clifford Phelps, Immigration Officer in charge at St. Albans, Vt. From orders sustaining a demurrer to the petition in each case, relators appeal.
Affirmed.
These two appeals present identical questions for review. The appellants are both aliens. Petach was arrested on a warrant dated April 19, 1929, signed by W.N. Smelser, Assistant to the Secretary of Labor, and ordered deported by virtue of a warrant dated June 6, 1929, signed by P.T. Snyder, Assistant to the Secretary of Labor. The ground of deportation was that he had been found in the United States in violation of the Immigration Act of February 5, 1917 (8 USCA § 101 et seq.), in that he was at the time of his entry a person likely to become a public charge, and that he had entered the United States by land at a place other than a designated port of entry for aliens. In the Dizazzo Case, the facts are exactly the same, except that his warrant of arrest was dated April 19, 1929, and of deportation May 15, 1929.
The petitions are based on the claim that these warrants were not signed by the Secretary of Labor, or by an Assistant Secretary of Labor, or Second Assistant Secretary of Labor, but by an Assistant to the Secretary of Labor, and consequently furnish no legal basis for the arrest and attempted deportation. The demurrers were directed solely to the validity of this claim.
Wm. R. McFeeters, of St. Albans, Vt., for appellants.
Harry B. Amey, U.S. Atty., of Burlington, Vt., and Allen Martin, Asst. U.S. Atty., of Essex Junction, Vt., for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
We take judicial notice of the fact that at the times when these arrest and deportation warrants were signed both Smelser and Snyder were Assistants to the Secretary of Labor, duly appointed and qualified under the Act of Congress of March 4, 1927 (5 USCA § 613a). Keyser v. Hitz, 133 U.S. 138, 10 S. Ct. 290, 33 L. Ed. 531; MacKusick v. Johnson (C.C.A.) 3 F.2d 398. These assistants were by the above statute empowered to "perform such duties as may be prescribed by the Secretary of Labor or required by law." There is no express statutory requirement making it their duty to sign such warrants, and there is nothing in the record to indicate whether the Secretary of Labor has, or has not, prescribed such duties as something to be performed by them. They were, however, public officers, who assumed to act with authority to sign these warrants. Under the statute, the power to so act could have been conferred upon them by the Secretary of Labor. Lew Shee v. Nagle (C.C.A.) 22 F.2d 107. In the absence of any allegation and showing to the contrary, we will take it for granted that he did so before they acted, Knox County v. Ninth National Bank, 147 U.S. 91, 97, 13 S. Ct. 267, 37 L. Ed. 93; United States v. Royer, 268 U.S. 394, 398, 45 S. Ct. 519, 69 L. Ed. 1011, and apply the familiar rule that public officials will be presumed to have the power to do the official acts they perform until he who relies on the contrary has alleged and proved it. Nofire v. United States, 164 U.S. 657, 660, 661, 17 S. Ct. 212, 41 L. Ed. 588.
The judgment in each case is affirmed.