United States Ex Rel. Schlueter v. Watkins

Second Circuit

United States Ex Rel. Schlueter v. Watkins

158 F.2d 853, 1946 U.S. App. LEXIS 2480

CourtCourt of Appeals for the Second Circuit

DecidedDecember 31, 1946

Docket136, Docket 20435

StatusPublished

Cited by21 cases

This text of 158 F.2d 853 (United States Ex Rel. Schlueter v. Watkins) 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.

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United States Ex Rel. Schlueter v. Watkins, 158 F.2d 853, 1946 U.S. App. LEXIS 2480 (2d Cir. 1946).

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Opinion

FRANK, Circuit Judge.

The facts are fully stated in the excellent opinion of District Judge Rifkind; see United States ex rel. Schlueter v. Watkins, 67 F.Supp. 556. We agree with him that the statute authorized the making of an order of removal of an alien enemy without a court order and without a hearing of any kind, except on the issue of whether or not the relator actually is an alien enemy which was not controverted in this case. Minotto v. Bradley, N.D.Ill., 252 F. 600. 50 U.S.C.A. § 24 refers, disjunctively, to executive action pursuant to § 21 or to a court order. Court jurisdiction, conferred solely by § 23, arises only when a “complaint” is filed by a citizen. When the procedure is through executive action, the statute calls for no hearing in court or elsewhere. Early in its history, the statute was so construed by Mr. Justice Washington; Lockington v. Smith, C.C.D.Pa., 1817 15 Fed.Cas. No. 8448, p. 758. 1

We agree with Judge Rifkind, and with Judge Prettyman’s opinion in Citizens Protective League v. Clark, App.D.C., 155 F.2d 290 that the statute, thus construed, is constitutional. The President duly exer *854 cised his statutory power in Proclamations Nos. 2526 and 2655. They did not compel a hearing which would meet the requirements of due process.

Affirmed.

1

See also Lockington’s Case, Brightly N. P., Pa., 269, 296; DeLacey v. United States, 9 Cir., 249 F.2d 625, 627, L.R.A. 1918E, 1011.

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FRANK, Circuit Judge.

The facts are fully stated in the excellent opinion of District Judge Rifkind; see United States ex rel. Schlueter v. Watkins, 67 F.Supp. 556. We agree with him that the statute authorized the making of an order of removal of an alien enemy without a court order and without a hearing of any kind, except on the issue of whether or not the relator actually is an alien enemy which was not controverted in this case. Minotto v. Bradley, N.D.Ill., 252 F. 600. 50 U.S.C.A. § 24 refers, disjunctively, to executive action pursuant to § 21 or to a court order. Court jurisdiction, conferred solely by § 23, arises only when a “complaint” is filed by a citizen. When the procedure is through executive action, the statute calls for no hearing in court or elsewhere. Early in its history, the statute was so construed by Mr. Justice Washington; Lockington v. Smith, C.C.D.Pa., 1817 15 Fed.Cas. No. 8448, p. 758. 1

We agree with Judge Rifkind, and with Judge Prettyman’s opinion in Citizens Protective League v. Clark, App.D.C., 155 F.2d 290 that the statute, thus construed, is constitutional. The President duly exer *854 cised his statutory power in Proclamations Nos. 2526 and 2655. They did not compel a hearing which would meet the requirements of due process.

Affirmed.

1

See also Lockington’s Case, Brightly N. P., Pa., 269, 296; DeLacey v. United States, 9 Cir., 249 F.2d 625, 627, L.R.A. 1918E, 1011.

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158 F.2d 853, 1946 U.S. App. LEXIS 2480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-schlueter-v-watkins-ca2-1946.

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