BORIS MEJOFF, petitioner, away.
MEJOFF, petitioner, away.2 Considering that this Government desires to expel the alien, and does not relish
vs.
DIRECTOR OF PRISONS, respondent.
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's
regime in these Islands. Upon liberation he was arrested aa a Japanese spy, by U. S.
Army Counter Intelligence Corps. Later he was handed to the Commonwealth
Government for disposition in accordance with Commonwealth Act No. 682.
Thereafter the People's Court ordered his release. But the deportation board taking his
case up, found that having no travel documents Mejoff was illegally in this country,
and consequently refferd the matter to the immigration authorities. After the
corresponding investigation, the Board oF Commissioners of Immigration on April 5,
1948, declared that Mejoff had entered the Philippines illegally in 1944,
withoutinspection and admission by the immigration officials at a designated port of
entry and, therefore, it ordered that he be deported on the first available
transportation to Russia. The petitioner was then under custody, he having been
arrested on March 18, 1948. In May, 1948, he was transferred to the Cebu Provincial
Jail together with three other Russians to await the arrival of some Russian vessels. In
July and in August of that year two boats of Russian nationality called at the Cebu
Port. But their masters refused to take petitioner and his companions alleging lack of
authority to do so. In October, 1948, after repeated failures to ship this deportee
abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has
been confined up to the present time, inasmuch as the Commissioner of Immigration
believes it is for the best interest of the country to keep him under detention while
arrangements for his deportation are being made.
It is contended on behalf of petitioner that having been brought to the
Philippines legally by the Japanese forces, he may not now be deported. It is enough
to say that the argument would deny to this Government the power and the authority
to eject from the Islands any and all of that members of the Nipponese Army of
occupation who may still be found hiding in remote places. Which is absurd. Petitioner
likewise contends that he may not be deported because the statutory period to do that
under the laws has long expired. The proposition has no basis. Under section 37 of the
Philippine Immigration Act of 1940 any alien who enters this country "without
inspection and admission by the immigration authorities at a designated point of
entry" is subject to deportation within five years. In a recent decision of a similar
litigation (Borovsky vs. Commissioner of Immigration) we denied the request for
habeas corpus, saying:
"It must be admitted that temporary detention is a necessary step in the process of
exclusion or expulsion of undesirable aliens and that pending arrangements for his
deportation, the Government has the right to hold the undesirable alien under
confinement for a reasonable lenght of time. However, under established precedents,
too long a detention may justify the issuance of a writ of habeas corpus.1
"The meaning of "reasonable time" depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of transfortation, the diplomatic
arrangements concerned and the efforts displayed to send the deportee
keeping him at the people's expense, we must presume it is making efforts to carry out
the decree of exclusion by the highest officer of the land. On top of this presumption
assurances were made during the oral argument that the Government is really trying
to expedite the expulsion of this petitioner. On the other hand, the record fails to show
how long he has been under confinement since the last time he was apprehended.
Neither does he indicate neglected opportunities to send him abroad. And unless it is
shown that the deportee is being indefinitely imprisoned under the pretense of
awaiting a chance for deportation3 or unless the Government admits that itcan not
deport him4 or unless the detainee is being held for too long a period our courts will
not interfere.
"In the United States there were at least two instances in which courts fixed a time
limit within which the imprisoned aliens should be deported5 otherwise their release
would be ordered by writ of habeas corpus. Nevertheless, supposing such precedents
apply in this jurisdiction, still we have no sufficient data fairly to fix a definite
deadline."
The difference between this and the Borovsky case lies in the fact that the record
shows this petitioner has been detained since March, 1948. However, considering that
in the United States (where transportation facilities are much greater and diplomatic
arrangements are easier to make) a delay of twenty months in carrying out an order of
deportation has not been held sufficient to justify the issuance of the writ of habeas
corpus,6 this petition must be, and it is hereby denied. So ordered.
HEAD MONEY CASES EDYE V. ROBERTSON
112 U.S. 580 (1884)
The suit is brought to recover from Robertson, collector of the port of New
York, sum of money he received from the plaintiffs, on account of their landing in that
port, passengers not citizens of the United States. The collection was based on the act
of Congress entitled “An act to regulate immigration” on August 3, 1882. The act
provides that there shall be levied, collected, and paid a duty of 50 cents for each and
every passenger, not a citizen of the United States, who shall come by steam or sail
vessel from a foreign port to any port within the United States. The said duty shall be
paid to the collector of customs of the port where the passenger shall come.
The plaintiffs are partners in trade in the city of New York under the firm name Funch,
Edye & Co. involved in the business of transporting passengers and freight upon the
high seas between Holland and the United States of America as consignees and agents.
On October 2, 1882, it sailed to the port of New York and carried 382 persons not
citizens of United States and among said persons, there were 20 severally under age of
one year and 59 were severally between the ages of one year and eight years. On this
account, Robertson, the collector of the said port, decided that the plaintiffs must pay
a duty of 191 dollars for the said passengers costing 50 cents for each of the 382
passengers before they be permitted to land. The plaintiffs paid and protested against
the payment.
The circuit court rendered judgment in favor of the defendant and which is called
upon review.
The issue is whether the act of Congress violates treaties by the Unites States
with friendly nations?
The opinion of the court is that as far as the provisions of the act may be found to be in
conflict with any treaty with foreign nation, the act must prevail in all judicial courts of
this country.
The court held that:
“A treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and the honor of the governments which
are parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses to seek redress,
which may in the end be enforced by actual war. It is obvious that with all this the
judicial courts have nothing to do and can give no redress.
But a treaty may also contain provision which confer certain rights upon the citizens or
subjects of one nations residing in the territorial limits of the other, which partake of
the nature of municipal law, and which are capable of enforcement as between private
parties in the courts of the country.
…The constitution of the United States places provisions in the treaties in the same
category as other laws of Congress by its declaration that “this constitution and the
laws made in pursuance thereof, and all treaties made or which shall be made under
authority of the United States, shall be the supreme law of the land”.
A treaty, then, is a law of the land as an act of Congress is, whenever its provisions
prescribe a rule by which the rights of the private citizen or subject may be
determined. And when such rights are of a nature to be enforced in a court of justice,
that court resorts to the treaty for a rule decision for the case before it as it would to a
statute.
But even in this aspect of the case there is nothing in this law which makes it
irrepealable or unchangeable. The constitution gives it no superiority over and act of
Congress in this respect, which may be repealed or modified by an act of a later date.
Nor is there anything in its essential character, or in branches of the government by
which the treaty is made, which gives it this superior sanctity.
The court opined that so far as a treaty made by the United States with any foreign
nation can become the subject of judicial cognizance in the courts of this country, it is
subject to such acts as Congress may pass for its enforcement, modification, or repeal.”
The judgment of the circuit court is affirmed.
Whitney v. Robertson
United States Supreme Court 124 U.S. 190 (1888)
Facts
Whitney (plaintiff), a merchant engaged in importing sugar to the United States from
the Dominican Republic brought suit against Robertson (defendant), a United States
Customs official, arguing that he should not be required to pay duties on the sugar
because his product was similar to sugar being imported duty-free into the United
States from the Hawaiian Islands. In making this argument, Whitney cited a treaty
between the United States and the Dominican Republic which guaranteed that no
higher duty would be imposed on goods imported by the United States from the
Dominican Republic than on goods imported from any other country. However, an act
of Congress also existed which authorized the collection of these duties on goods
imported from the Dominican Republic. The statute was passed after the United States
entered into its treaty with the Dominican Republic. The lower court held for
Robertson, and Whitney appealed.
Held: It follows, therefore, that when a law is clear in its provisions, its validity cannot
be assailed before the courts for want of conformity to stipulations of a previous treaty
not already executed. Considerations of that character belong to another department
of the government. The duty of the courts is to construe and give effect to the latest
expression of the sovereign will. In Head Money Cases, 112 U. S. 580, it was objected
to an act of Congress that it violated provisions contained in treaties with foreign
nations, but the Court replied that so far as the provisions of the act were in conflict
with any treaty, they must prevail in all the courts of the country, and after a full and
elaborate consideration of the subject it held that “so far as a treaty made by the
United States with any foreign nation can be the subject of judicial cognizance in the
courts of this country, it is subject to such acts as Congress may pass for its
enforcement, modification, or repeal.”
Brief Fact Summary. The Tinoco regime, which was the former government of
Costa Rica, was alleged by Great Britain to have granted oil concession to a British
company that had to be honored by the present regime.
Synopsis of Rule of Law. A government need not conform to a previous
constitution if the government had established itself and maintained a peaceful de
facto administration and non-recognition of the government by other government
does not destroy the de facto status of the government.
Facts. The Tinoco regime that had seized power in Costa Rica by coup was not
recognized by Great Britain and the United States. When the regime was removed, the
new government nullified all Tinoco’c contract including an oil concession to a British
company. The claim of Great Britain (P) was that the contract could not be repudiated
because the Tinoco government was the only government in existence at the time of
the contract was signed. This view was not shared by Costa Rica (D) who claimed that
Great Britain (P) was estopped from enforcing the contract by its non-recognition of
the Tinoco regime. The matter was sent for arbitration.
Issue. Does a government need to conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration
and does non-recognition of the government by other government destroy the de facto
status of the government?
Held. (Taft, C.J., Arb). No. A government need not conform to a previous constitution
if the government had established itself and maintained a peaceful de facto
administration and non-recognition of the government by other government does not
destroy the de facto status of the government. The non-recognition of the Tinoco
regime by Great Britain did not dispute the de facto existence of that regime. There is
no estoppel since the successor government had not been led by British non-
recognition to change its position.
Discussion. Estoppel was not found by the arbitrator. The evidence of the de facto
status of the Tinoco’s regime was not outweighed by the evidence of non-recognition.
This implies that valid contracts may be formed by unrecognized government.
ALTER UPRIGHT, PLAINTIFF, v. MERCURY BUSINESS MACHINES CO.,n
INC., DEFENDANT Aug1
This is an action brought by a plaintiff assignee on a trade acceptance drawn by its
assignor on itself and accepted by defendant, representing a balance due for
machinery sold to defendant. The complaint alleges that the assignor was a
corporation organized and existing under the laws of West Germany, having its
principal place of business in West Berlin, Republic of West Germany. The motion at
bar seeks an order under subdivisions 1 and 2 of rule 107 of the Rules of Civil Practice
dismissing the complaint on the grounds that the court does not have jurisdiction of
the subject matter of the action and/or plaintiff does not have legal capacity to sue.
The basis of the motion is a contention that the plaintiff’s assignor is a State-controlled
enterprise of the German Democratic Republic. In support thereof, the defendant
submits a copy of a communication from the Chief of the Economic Affairs section of
the United States Mission in Berlin to the Department of State. Plaintiff’s affidavits in
opposition state that it has been advised by its assignor that it was founded by
residents of the German Democratic Republic under the Limited Liabilities Company
Law of 1892 and its founding is permitted in the German Democratic Republic; that it
has no office in West Berlin but has concluded contracts with firms in that city and in
West Germany; that the negotiations with defendant were carried on in West
Germany. The matter was sent to an Official Referee to hear and report with his
recommendation on this issue.
It has now been conceded that the said assignor was not a West German corporation
but rather an East German corporation. Upon such concession the court cannot
recognize the existence of a juridical creature of a government we do not recognize.
The court will take judicial notice that the German Democratic Republic is not
recognized by our Government. However, even though plaintiff’s assignor would have
no right to sue in this court as a corporation since the recognition of that legal entity is
barred by the foreign policy of the United States Government, nevertheless it cannot
be denied that some organization or group of persons does exist and entered into a
commercial transaction with the defendant. If it were clear that this group of people
consisted of private citizens unconnected with the unrecognized government, the court
is of the opinion that no further question would exist. The foreign policy of the United
States Government does not require us to deny that there are people residing in and
doing business in a certain geographical area. No prohibition or restriction seems to
have been imposed on trading in the items which are the basis of this cause of action.
Where, as here, it has received the benefits of the commercial transaction, it would be
inequitable to permit defendant to retain the fruits thereof without compensation. The
point made by defendant that it would not be able to enforce a proposed counterclaim
against plaintiff’s assignor in an East German court is not well taken. It does have an
opportunity to press any claim it may deem advisable in connection with the subject
transaction in this court.
However, overriding foreign policy considerations may make necessary a denial of
access to our courts in the event it is determined that the defendant dealt in some form
with the unrecognized Government of the German Democratic Republic.
If plaintiff’s assignor is as a matter of fact wholly owned by the so-called German
Democratic Republic, it would, by that fact, have no capacity to sue in our court,
regardless of its organization. Whether this be so still remains to be determined, since
the proof submitted on this issue is inconclusive.
Plaintiff’s contention that a claim of incapacity to sue cannot be set up against him,
despite the refusal of recognition, in that he is an American citizen and a resident of
the State of New York, is without merit. He can have no greater rights than his
assignor.
The subject matter of the contentions urged in support of dismissal under both
subdivisions 1 and 2 of rule 107 of the Rules of Civil Practice appears to be identical. It
is not that the court does not have jurisdiction of the subject matter, but the question
is whether the assignor has capacity to sue and the court will entertain the action.
It appears from defendant’s letter of December 9, 1959, that the sole issue tendered to
the Official Referee was the state of organization of the assignor corporation. It is now
agreed that it is an East German corporation. Accordingly, the motion to dismiss is
denied with leave to defendant to raise the matter by defense in its answer, unless the
parties agree to a prior trial of the issues as herein stated, in which event an order will
be settled.
Disposition
Accordingly, the motion to dismiss is denied with leave to defendant to raise the
matter by defense in its answer, unless the parties agree to a prior trial of the issues as
herein stated, in which event an order will be settled.