The opinion of the court was delivered by: WILKIN
This case came on for hearing on the application of the defendant-respondent for continuance and on the application of the plaintiff-relator for bail.
The plaintiff-relator was brought into court in response to the alternative writ of habeas corpus issued by this court on August 17.
In his application for writ of habeas corpus the plaintiff alleged that he had been arrested in March, 1941, on an order or warrant of deportation issued by the Commissioner of Immigration and Naturalization and approved by the Attorney General of the United States; that thereafter he was released on bail of $ 500. On August 14, 1945, he was again taken into custody for the purpose of being deported from the United States to Italy. He further alleged that the reason for such order of arrest and deportation was the claim of the defendant-respondent that his presence violated the immigration law because he had been found guilty of a felony involving moral turpitude within five years of the time of his last entry into the United States. But the plaintiff denied that said conviction was within such five-year period. Plaintiff further alleged that he has lived in this country for 25 years, is married, has three children, and that the order of deportation is arbitrary and contrary to law.
Upon the return date of the writ the defendant requested postponement of the hearing to allow time for the production of required witnesses and evidence. The application of the defendant was granted, and the plaintiff thereupon filed his application for bail. The question now to be determined therefore is whether this court has authority to grant bail to an alien ordered deported pending the hearing of his application for writ of habeas corpus.
Because of the conflict of authorities and general confusion regarding the question of bail in such cases, the issue was argued by counsel and memo. of authorities submitted.
There is no statute expressly authorizing the court to grant bail in such cases. Congress has provided, in Title 8, Sec. 156 U.S.C.A. that the Attorney General may do so. Sections 591 and 596 of Title 18 U.S.C.A. provide for bail by courts in criminal cases, but all authority recognizes that an application for a writ of habeas corpus is not a criminal case. Ex parte Tom Tong, 108 U.S. 556, 2 S. Ct. 871, 27 L. Ed. 826. The statutes dealing with habeas corpus, 28 U.S.C.A. § 451 to 466, inclusive, do not mention bail. The power of the court to admit to bail, if it exists, must therefore be inherent, unless Sec. 461 of such title is an inferential grant of such power.
On the question of inherent power to grant bail in such cases, the courts have divided themselves into two groups. The following cases support the contention that the power to admit to bail is incident to the power to hear and determine the case: United States v. Evans, 6 Cir., 1880, 2 F. 147; In re Gannon, D.C. Pa. 1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; In re Ah Tai, D.C. Mass., 125 F. 795; In re Chin Wah, D.C. Or., 1910, 182 F. 256; United States v. Yee Yet, D.C.N.J. 1911, 192 F. 577; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241.
The following cases support the view that there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute: In re Carrier, D.C. Colo. 1893, 57 F. 578; Case of Chinese Wife, C.C. Cal. 1884, 21 F. 808; Chin Wah v. Colwell, 9 Cir., 1911, 187 F. 592; United States v. Curran, 2 Cir., 1924, 297 F. 946, 36 A.L.R. 877; United States v. Pizzarusso, D.C., 28 F.Supp. 158; In re Hanoff, D.C. Cal. 1941, 39 F.Supp. 169; Ex parte Perkov, D.C. Cal. 1942, 45 F.Supp. 864; United States v. Longo, D.C. Conn. 1942, 46 F.Supp. 169; Bongiovanni v. Ward, D.C. Mass. 1943, 50 F.Supp. 3.
The privilege of both the writ of habeas corpus and of bail have Constitutional recognition. Constitution of the United States, Art. 1, Sec. 9, and Amendment VIII. It is generally conceded that the American colonists brought with them to this country the remedy by habeas corpus as it existed in England as part of the common law. 39 C.J.S.,Habeas Corpus, § 3, p. 427. The power to grant bail was very broad at common law. Chitty (I Criminal Law, 2d Ed., p. 97,) states:
'The Court of King's Bench, or any judge thereof in vacation, * * * in the plenitude of that power which they enjoyed at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crime in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is where the commitment is for a contempt, or in execution.'
This was conceded even in the Curran case, supra (297 F. 954):
'It is true that courts of common law have power to admit to bail and that they possess it independently of statute. In Queen v. Spilsbury, 2 Q.B.Div. (1898) 615, Lord Chief Justice Russell in a criminal case declared:
"This court has, independently of statute, by the common law, jurisdiction to admit to bail." (Not ...