United States Ex Rel. Petach v. Phelps

Second Circuit

United States Ex Rel. Petach v. Phelps

40 F.2d 500, 1930 U.S. App. LEXIS 3215

CourtCourt of Appeals for the Second Circuit

DecidedApril 7, 1930

Docket279, 280

StatusPublished

Cited by7 cases

This text of 40 F.2d 500 (United States Ex Rel. Petach v. Phelps) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States Ex Rel. Petach v. Phelps, 40 F.2d 500, 1930 U.S. App. LEXIS 3215 (2d Cir. 1930).

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Opinion

CHASE, Circuit Judge (after stating the facts as above).

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.” Thex-e 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 eaeh ease is affirmed.

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CHASE, Circuit Judge (after stating the facts as above).

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.” Thex-e 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 eaeh ease is affirmed.

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40 F.2d 500, 1930 U.S. App. LEXIS 3215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-petach-v-phelps-ca2-1930.

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