KELLER v. U S(1909)
[213 U.S. 138, 139] Section 3 of the act of Congress of February 20, 1907 (34 Stat. at L. 898, 899, chap. 1134, U. S. Comp. Stat. Supp. 1907, pp. 389, 392), entitled 'An Act to Regulate the Immigration of Aliens into the United States,' reads as follows:
The plaintiffs in error were indicted for a violation of this section, the charge against them being based upon that portion of the section which is in italics, and, in terms, that they 'wilfully and knowingly did keep, maintain, control, support, and harbor in their certain house of prostitution' (describing it), 'for the purpose of prostitution, a certain alien woman, to wit, Irene Bodi,' who was, as they well knew, a subject of the [213 U.S. 138, 140] King of Hungary, who had entered the United States within three years. A trial was had upon this indictment; the plaintiffs in error were convicted and sentenced to the penitentiary for eighteen months.
Messrs. Benjamin C. Bachrach and Elijah N. Zoline for plaintiffs in error.
[213 U.S. 138, 141] Assistant Attorney General Fowler for defendant in error.
Statement by Mr. Justice Brewer:
Mr. Justice Brewer delivered the opinion of the court:
The single question is one of constitutionality. Has Congress power to punish the offense charged, or is jurisdiction thereover solely with the state? Undoubtedly, as held, 'Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive [213 U.S. 138, 144] officers.' United States ex rel. Turner v. Williams, 194 U.S. 279, 289 , 48 S. L. ed. 979, 983, 24 Sup. Ct. Rep. 719. See also Fong Yue Ting v. United States, 149 U.S. 698, 708 , 37 S. L. ed. 905, 911, 13 Sup. Ct. Rep. 1016; Head Money Cases (Edye v. Robertson) 112 U.S. 580, 591 , 28 S. L. ed. 798, 801, 5 Sup. Ct. Rep. 247; Lees v. United States, 150 U.S. 476, 480 , 37 S. L. ed. 1150, 1151, 14 Sup. Ct. Rep. 163; United States v. Bitty, 208 U.S. 393 , 52 L. ed. 543, 28 Sup. Ct. Rep. 396.
It is unnecessary to determine how far Congress may go in legislating with respect to the conduct of an alien while residing here, for there is no charge against one; nor to prescribe the extent of its power in punishing wrongs done to an alien, for there is neither charge nor proof of any such wrong. So far as the statute or the indictment requires, or the testimony shows, she was voluntarily living the life of a prostitute, and was only furnished a place by the defendants to follow her degraded life. While the keeping of a house of ill-fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the state. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.
In Patterson v. Kentucky, 97 U.S. 501, 503 , 24 S. L. ed. 1115, 1116, is this declaration:
And in Barbier v. Connolly, 113 U.S. 27, 31 , 28 S. L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it is said:
Further, as the rule of construction, Chief Justice Marshall, speaking for the court in the great case of M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, declares:
In Houston v. Moore, 5 Wheat. 1, 48, 5 L. ed. 19, 30, Mr. Justice Story says:
Art. 10 of Amendments; New York v. Miln, 11 Pet. 102, 133, 9 L. ed. 648, 660; License Cases, 5 How. 504, 608, 630, 12 L. ed. 256, 303, 313; United States v. Dewitt, 9 Wall. 41, 44, 19 L. ed. 593, 594; Patterson v. Kentucky, 97 U.S. 501, 503 , 24 S. L. ed. 1115, 1116; Barbier v. Connolly, 113 U.S. 27, 31 , 28 S. L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Re Rahrer ( Wilkerson v. Rahrer) 140 U.S. 545, 555 , 35 S. L. ed. 572, 574, 11 Sup. Ct. Rep. 865; United States v. E. C. Knight Co. 156 U.S. 1, 11 , 39 S. L. ed. 325, 328, 15 Sup. Ct. Rep. 249; Cooley, Const. Lim. 574.
Doubtless it not infrequently happens that the same act [213 U.S. 138, 146] may be referable to the power of the state, as well as to that of Congress. If there be collision in such a case, the superior authority of Congress prevails. As said in New York v. Miln, 11 Pet. 102, 137, 9 L. ed. 648, 661:
In Gulf, C. & S. F. R. Co. v. Hefley, 158 U.S. 98, 104 , 39 S. L. ed. 910, 912, 15 Sup. Ct. Rep. 802, 804, the rule is stated in these words:
See also Lottery Case (Champion v. Ames) 188 U.S. 321 , 47 L. ed. 492, 23 Sup. Ct. Rep. 321.
The question is, therefore, whether there is any authority conferred upon Congress by which this particular portion of the statute can be sustained. By 2 of article 2 of the Constitution, power is given to the President, by and with the advice and consent of the Senate, to make treaties, but there is no suggestion in the record or in the briefs of a treaty with the King of Hungary under which this legislation can be supported.
The general power which exists in the nation to control the coming in or removal of aliens is relied upon, the government stating in its brief these two propositions:
... * *
But it is sufficient to say that the act charged has no significance in either direction.
As to the suggestion that Congress has power to punish one assisting in the importation of a prostitute, it is enough to say that the statute does not include such a charge; the indictment does not make it; and the testimony shows, without any contradiction, that the woman Irene Bodi came to this country in November, 1905; that she remained in New York until October, 1907; then came to Chicago, and went into the house of prostitution which the defendants purchased in November, 1907, finding the woman then in the house; that she had been in the business of a prostitute only about ten or eleven months prior to the trial of the case in October, 1908, and that the defendants did not know her until November, 1907. In view of those facts, the question of the power of Congress to punish [213 U.S. 138, 148] those who assist in the importation of a prostitute is entirely immaterial.
The act charged is only one included in the great mass of personal dealings with aliens. It is her own character and conduct which determine the question of exclusion or removal. The acts of others may be evidence of her business and character. But it does not follow that Congress has the power to punish those whose acts furnish evidence from which the government may determine the question of her expulsion. Every possible dealing of any citizen with the alien may have more or less induced her coming. But can it be within the power of Congress to control all the dealings of our citizens with resident aliens? If that be possible, the door is open to the assumption by the national government of an almost unlimited body of legislation. By the census of 1900 the population of the United States between the oceans was, in round numbers, 76,000,000. Of these, 10,000,000 were of foreign birth, and 16,000,000 more were of foreign parentage. Doubtless some have become citizens by naturalization, but certainly scattered through the country there are millions of aliens. If the contention of the government be sound, whatever may have been done in the past, however little this field of legislation may have been entered upon, the power of Congress is broad enough to take cognizance of all dealings of citizens with aliens. That there is a moral consideration in the special facts of this case, that the act charged is within the scope of the police power, is immaterial, for, as stated, there is in the Constitution no grant to Congress of the police power. And the legislation must stand or fall according to the determination of the question of the power of Congress to control generally dealings of citizens with aliens. In other words, an immense body of legislation, which heretofore has been recognized as peculiarly within the jurisdiction of the states, may be taken by Congress away from them. Although Congress has not largely entered into this field of legislation, it may do so, if it has the power. Then we should be brought face to face with such a change in the internal conditions of this country [213 U.S. 138, 149] as was never dreamed of by the framers of the Constitution. While the acts of Congress are to be liberally construed in order to enable it to carry into effect the powers conferred, it is equally true that prohibitions and limitations upon those powers should also be fairly and reasonably enforced. Fairbank v. United States, 181 U.S. 283 , 45 L. ed. 862, 21 Sup. Ct. Rep. 648. To exaggerate in the one direction and restrict in the other will tend to substitute one consolidated government for the present Federal system. We should never forget the declaration in Texas v. White, 7 Wall. 700, 725, 19 L. ed. 227, 237, that 'the Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states.'
The judgments are reversed, and the cases remanded to the District Court of the United States for the Northern District of Illinois, with instructions to quash the indictment.
Mr Justice Holmes, dissenting:
For the purpose of excluding those who unlawfully enter this country Congress has power to retain control over aliens long enough to make sure of the facts. Japanese Immigrant Case (Yamataya v. Fisher) 189 U.S. 86 , 47 L. ed. 721, 23 Sup. Ct. Rep. 611. To this end it may make their admission conditional for three years. Pearson v. Williams, 202 U.S. 281 , 50 L. ed. 1029, 26 Sup. Ct. Rep. 608. If the ground of exclusion is their calling, practice of it within a short time after arrival is or may be made evidence of what it was when they came in. Such retrospective presumptions are not always contrary to experience or unknown to the law. Bailey v. Alabama, 211 U.S. 452, 454 , 53 S. L. ed. --, 29 Sup. Ct. Rep. 141. If a woman were found living in a house of prostitution within a week of her arrival, no one, I suppose, would doubt that it tended to show that she was in the business when she arrived. But how far back such an inference shall reach is a question of degree, like most of the questions of life. And, while a period of three years seems to be long, I am not prepared to say, against the judgment of Congress, that it is too long.
The statute does not state the legal theory upon which it was enacted. If the ground is that which I have suggested, it is fair [213 U.S. 138, 150] to observe that the presumption that it creates is not open to rebuttal. I should be prepared to accept even that, however, in view of the difficulty of proof in such cases. Statutes of which the justification must be the same are familiar in the states. For instance, one creating the offense of being present when gaming implements are found (Com. v. Smith, 166 Mass. 370, 375, 376, 44 N. E. 503), or punishing the sale of intoxicating liquors without regard to knowledge of their intoxicating quality (Com. v. Hallett, 103 Mass. 452), or throwing upon a seducer the risk of the woman turning out to be married or under a certain age (Com. v. Elwell, 2 Met. 190, 35 Am. Dec. 398; R. v. Prince, L. R. 2 C. C. 154). It is true that, in such instances, the legislature has power to change the substantive law of crimes, and it has been thought that when it is said to create a conclusive presumption as to a really disputable fact, the proper mode of stating what it does, at least, as a general rule, is to say that it has changed the substantive law. 2 Wigmore, Ev. 1353 et seq. This may be admitted without denying that considerations of evidence are what lead to the change. And if it should be thought more philosophical to express this law in substantive terms, I think that Congress may require, as a condition of the right to remain, good behavior for a certain time, in matters deemed by it important to the public welfare, and of a kind that indicates a pre-existing habit that would have excluded the party if it had been known. Therefore I am of opinion that it is within the power of Congress to order the deportation of a woman found practising prostitution within three years.
If Congress can forbid the entry and order the subsequent deportation of professional prostitutes, it can punish those who cooperate in their fraudulent entry. 'If Congress has power to exclude such laborers . . . it has the power to punish any who assist in their introduction.' That was a point decided in Lees v. United States, 150 U.S. 476, 480 , 37 S. L. ed. 1150, 1151, 14 Sup. Ct. Rep. 163, 164. The same power must exist as to cooperation in an equally unlawful stay. The indictment sets forth the facts that constitute such cooperation, [213 U.S. 138, 151] and need not allege the conclusion of law. On the principle of the cases last cited, in order to make its prohibition effective, the law can throw the burden of finding out the fact and date of a prostitute's arrival from another country upon those who harbor her for a purpose that presumably they know, in any event, to be contrary to law. Therefore, while I have admitted that the time fixed seems to me to be long, I can see no other constitutional objection to the act, and, as I have said, I think that that one ought not to prevail.
Mr. Justice Harlan and Mr. Justice Moody concur in this dissent.