conduet. Halligan v. Marcil, 125 C. C. A. 619, 208 Fed. 403; Ex parte Marcil, 213 Fed. 990. On Dolan's Case, 101 Mass. 222; People | be confined in the Leavenworth penitenex rel. Duchaine v. Coon, 17 Misc. 261, tiary for three years from that date. He 40 N. Y. Supp. 33; Moebus's Petition, served in prison until February 24, 1916, 73 N. H. 350, 62 Átl. 170; Drinkall v. when he was allowed to go out on parole Spiegel, 68 Conn. 441, 36 L.R.A. 486, 36 under the Act of June 25, 1910 (36 Stat. Atl. 830; People ex rel. Newton v. at L. 819, chap. 387), as amended by the Twombly, 228 N. Y. 33, 126 N. E. 255. Act of January 23, 1913 (37 Stat. at L. The revoking of a parole forfeits all 650, chap. 9, Comp. Stat. § 10,535, 8 Fed. good-conduct time previously earned by Stat. Anno. 2d ed. p. 297), portions of the prisoner, and prevents the convict which are printed in the margin. from thereafter earning time for good June 25, 1916, the warden, in accordance with § 4, issued a warrant for the retaking of Corall as a parole violator. Before he was retaken, and in October, 1916, he was convicted at Chicago of another crime and sentenced therefor to the Illinois state penitentiary at Joliet, where he was confined until sometime After his release in December, 1919. from that prison he was retaken, December 17, 1919, [195] on the warden's warrant, to the Leavenworth penitentiary. In January, 1920, the parole board, pursuant to § 6, took action appropriate to revoke and terminate the parole. The validity of that action is the only question involved. Mr. Lee Bond filed a brief for respondent: The conditions of paroles and the power of boards cannot be enlarged and by their provision increase the fixed term for which a prisoner is sentenced. A prisoner can be compelled to serve every day of his sentence, not including good time, but not one day more. State ex rel. Davis v. Hunter, 124 Iowa, 569, 100 Am. St. Rep. 361, 100 N. W. 512; Re Prout, 12 Idaho, 494, 5 L.R.A.(N.S.) 1064, 86 Pac. 275, 10 Ann. Cas. 199; People ex rel. Newton v. Warden, 107 Misc. 48, 175 N. Y. Supp. 524; People ex rel. Irwin v. Homer, 107 Misc. 677, 177 N. Y. Supp. 482; Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047. Mr. Justice Butler delivered the opinion of the court: On November 25, 1914, Corall was convicted of the crime of breaking into a postoffice, and was sentenced to [194] pardon which provided that, upon breach of the condition, it should be the duty of the sheriff to immediately arrest him and return him to the penitentiary to serve out the remainder of his term, may be recommitted to serve out the unsatisfied portion of the sentence upon breach of the condition, even after the expiration of the period of five years from the date of the sentence; for the particular period of time within which the sentence is to be suffered by the convict is not a part of the legal sentence except so far as it fixes the quantum of time that he must suffer the imprisonment, and the provision authorizing his return to prison has reference to the length of imprisonment fixed by the sentence, and not to the particular period of time mentioned during which the sentence was to be executed. State v. Horne, 52 Fla. 125, 7 L.R.A. (N.S.) 719, 42 So. 388, rehearing denied in 52 Fla. 143, 42 So. 714. Corall claims that, allowing deductions for good conduct (Act of June 21, 1902, 32 Stat. at L. 397, chap. 1140, Comp. Stat. § 10,532, 8 Fed. Stat. Anno. 2d ed. P. 295), the term of his sentence actually ended before the expiration of three years from the date it began, and on or about March 17, 1917. The warden contends that the time elapsing between February 24, 1916, when he was paroled, and December 17, 1919, when he was retaken, cannot be taken into account; that when the board acted to revoke his 1 Section 1 is to the effect that prisoners may be released on parole, as provided in the act. ent of prisons of the Department of Justice Section 2 provides that the superintendand the warden and physician of each United States penitentiary shall constitute a board of parole for such prison, which shall establish rules and regulations for its procedure, subject to the approval of the Attorney General. Section 3. "That if it shall appear to said board of parole that there is a reasonable probability that such applicant will live and remain at liberty without violating the laws, and if in the opinion of the board such release is not incompatible with the welfare of society, then said board of parole may in its discretion authorize the release of such applicant on parole, and he said prison, and, in the discretion of the shall be allowed to go on parole outside of board, to return to his home, upon such terms and conditions, including personal reports from such paroled person, as said board of parole shall prescribe, and to remain, while on parole, in the legal custody [196] parole, the sentence had not been | the law, does not constitute service of served, and he was bound to serve that sentence. Escape from prison interrupts part of it which remained unexpired service, and the time elapsing between when parole was granted. February 4, 1921, Corall made application for a writ of habeas corpus to the district court for the district of Kansas. That court decided he was illegally held, and ordered his discharge. The warden appealed to the circuit court of appeals, where the judgment was affirmed. Mere lapse of time, without imprisonment or other restraint contemplated by and under the control of the warden of such prison from which paroled, and until the expiration of the term or terms speci fied in his sentence, less such good time allowance as is or may hereafter be provided for by act of Congress; and the said board shall, in every parole, fix the limits of the residence of the person paroled, which limits may thereafter be changed in the discre tion of the board. escape and retaking will not be taken into account or allowed as a part of the term. Dolan's Case, 101 Mass. 219, 222; Moebus's Petition, 73 N. H. 350, 352, 62 Atl. 170. The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is, in legal effect, imprisonment. The sentence and service are subject to the provision of § 6, that if the parole be terminated, the prisoner shall serve the remainder of the sentence originally imposed without deduction for the time he was out on parole. denced by the warden's warrant and his Corall's violation of the parole, evi Section 4. "That if the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole conviction, sentence to and confinement or any member thereof shall have reliable in the Joliet penitentiary, interrupted his information that the prisoner has violated service under the sentence here in queshis parole, then said warden, at any time tion, and was in legal effect on the same within the term or terms of the prisoner's plane as an escape from the custody and sentence, may issue his warrant to any control of the warden. His status and officer hereinafter authorized to execute the same, for the retaking of such prisoner." rights were analogous to those of an esDrinkall v. Section 5. "That any officer of said pris- caped convict. Spiegel, 68 on or any Federal officer authorized to serve Conn. 441, 449, 450, 36 L.R.A. 486, 36 criminal process within the United States. Atl. 830. The term of his sentence had to whom such warrant shall be delivered, not expired in October, 1916, when, at is authorized and required to execute such Chicago, he was convicted of another warrant by taking such prisoner and return- crime and sentenced to the Joliet peniing him to said prison within the time tentiary. Then if not earlier-he specified in said warrant therefor. Section 6. "That at the next meeting of ceased to be in [197] the legal custhe board of parole held at such prison tody and under the control of the after the issuing of a warrant for the re- warden of the Leavenworth penitentaking of any paroled prisoner, said board tiary, as required by § 3 of the act of parole shall be notified thereof, and if and the terms of the parole authorized said prisoner shall have been returned to thereby. His claim that his term exsaid prison, he shall be given an opportu pired in 1917, before he was retaknity to appear before said board of parole, en, and while he was serving sentence and the said board may then or at any at Joliet, cannot be sustained, and we time in its discretion revoke the order and hold that it had not expired in January, terminate such parole or modify the terms 1920, at the time of the action of the and conditions thereof. If such order or board. Under § 6, the board was author parole shall be revoked and the parole so terminated, the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced." ized at any time, during his term of sentence, in its discretion, to revoke the order and terminate the parole, and to require him to serve the remainder of the sentence originally imposed without any allowance for the time he was out on parole. Section 7 provides for a parole officer for each penitentiary, and makes it the duty The judgment of the Circuit Court of of such officer to aid paroled prisoners in Appeals is reversed, and the case is resecuring employment and to visit and exer- manded to the District Court, with direccise supervision over them while on parole and provides that the supervision of paroled tions that the respondent, Arthur Corall, prisoners may also be devolved upon the be restored to the custody of the warden United States marshals when the board of of the United States penitentiary at parole may deem it necessary. Leavenworth, Kansas. FRANK TERRACE and Elizabeth Terrace, Equity V. when suit maintainable. 2. A suit in equity does not lie where there is a plain, adequate, and complete LINDSAY L. THOMPSON, Attorney Gen-remedy at law. eral of the State of Washington. (See S. C. Reporter's ed. 197-224.) Courts [For other cases, see Equity, I. c, in Digest Sup. Ct. 1908.] when equitable jurisdic tion exercised. 3. Equitable jurisdiction will be exercised to enjoin the threatened enforcement - jurisdiction -- unconstitution of a state law which contravenes the Federal ality of state law. 1. The unconstitutionality of a state law is not itself ground for equitable relief in the courts of the United States. Note.-Generally, on the jurisdiction of equity where remedy at law exists see notes to Delaware, L. & W. R. Co. v. Central Stock Yards & Transit Co. 6 L.R.A. 855; Meldrum v. Meldrum, 11 L.R.A. 65; and Tyler v. Savage, 36 L. ed. U. S. 83. As to when court of equity will interfere to restrain proceedings at lawsee note to Davis v. Wakelee, 39 L. ed. U. S. 578. On injunction to restrain acts of public officers-see note to Mississippi v. Johnson, 18 L. ed. U. S. 437. On right to enjoin acts under an unconstitutional statute as affected by other remedies in case such acts are done see note to Harley v. Lindemann, 8 L.R.A.(N.S.) 124. On injunction against criminal proceedings-see notes to Crighto v. Dahmer, 21 L.R.A. 84: Hall v. Dunn, 25 L.R.A. (N.S.) 193; and Denton v. McDonald, 34 L.R.A. (N.S.) 454. As to the validity of class legislation generally-see notes to State v. Goodwill, 6 L.R.A. 621; and State v. Loomis, 21 L.R.A. 789. As to constitutional equality of privileges, immunities, and protection generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579. On the constitutionality of statutes restricting contracts and business generally-see note to State v. Loomis, 21 L.R.A. 789. As to who may raise objection that a statute contains an unconstitutional discrimination-see note to Pugh v. Pugh, 32 L.R.A.(N.S.) 954. For a discussion of police power generally-see notes to State v. Marshall, 1 LR.A. 51; Re Gannon, 5 L.R.A. 359; Electric Improv. Co. v. San Francisco, 13 L.R.A. 131; State v. Schlemmer, 10 LR.A. 135; Ulman v. Baltimore, 11 LR.A. 224; and Barbier v. Connolly, 28 L. ed. U. S. 923. On power of state under 14th Amend Constitution whenever it is essential in or der effectually to protect property rights and the rights of persons against injury otherwise irremediable. ment to the United States Constitution. to deny to aliens the right to engage in a lawful oocupation-see notes to Com. v. Hana, 11 L.R.A. (N.S.) 799; and People v. Crane, L.R.A.1916D, 569. On relation of treaty to state and Federal law-see note to Trott v. State, 4 A.L.R. 1377. As to state decisions and laws as rules of decision in Federal courts-see notes to Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Clark v. Graham, 5 L. ed. U. S. 334; Mitchell v. Burlington, 18 L. ed. U. S. 351; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Snare & T. Co. v. Friedman, 40 L.R.A. (N.S.) 380. Provisions of the Federal Constitution invocable by aliens independently of treaty. This note considers only those provisions of the Constitution upon which judicial authority has been found, and invoke such provisions, not of the retreats only of the right of an alien to setting out the cases to which the judisults of their application. Article 3, § 2, cial power of the United States government extends, is specific in its reference to citizens and subjects of foreign countries. No effort has been made to collect the cases in which an alien has sought the jurisdiction of the Federal courts under this section, and no consideration is given the matter. See, however, Montalet v. Murray, 4 Cranch, 46, 2 L. ed. 545; Breedlove v. Nicolet, 7 Pet. 413, 8 L. ed. 731; Minneapolis v. Reum, 6 C. C. A. 31, 12 U. S. App. 446, 56 Fed. 576; King of Prussia v. Kuepper, 22 Mo. 550, 66 Am. Dec. 639. The plan of the note is to consider first the prohibitions against the deprivation of life, liberty, or property without due process of law (Amendments 5 and 14), and the denial of the equal protection of the law to resident aliens (Amendment 14), which provisions have Injunction officer. against action by state 4. A Federal court of equity may enjoin threatened proceedings, either civil or criminal, to enforce an unconstitutional state law, by a state officer clothed with the duty of enforcing it. Real property - extent of rights. 5. The property rights in land protected been found to have been most frequently invoked by aliens; then to proceed to a consideration of such other general guaranties and specific prohibitions upon the states and the central government as have been considered by the courts, and which seem, by the terms in which they are set out, to comprehend within their protection all natural persons. Equivocal language used in declaring certain guaranties renders their protection to persons other than citizens subject to some doubt. These provisions are next considered, followed by those clauses by their terms applying only to citizens. The rights of nonresident aliens and alien enemies are not precisely the same as those of resident alien friends. A consideration of their rights under the Constitution is reserved to the latter part of the note. The holding in TERRACE V. THOMPSON, that alien inhabitants of a state are entitled to the guaranty of the 14th Amendment that no state shall "deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," is in accord with all the authorities, too numerous to cite. Reference may, however, be made to the following cases, in which the holding is made, as reflecting judicial opinion on the right of aliens to the guaranties: United States.-Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064 (discharging on habeas corpus Chinese laundrymen discriminated against in discretionary application of municipal police regulation); Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 52 L. ed. 625, 28 Sup. Ct. Rep. 337 (holding alien corporation not denied the equal protection of the laws); Patsone v. Pennsylvania, 232 U. S. 138, 58 L. ed. 539, 34 Sup. Ct. Rep. 281 (upholding Pennsylvania statutes forbidding ownership of certain kinds of firearms by aliens); Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283 (holding invalid state statute discrim 6. The right to earn a livelihood by following the ordinary occupations of life is protected by the Constitution. [For other cases, see Constitutional Law, IV. a, 1, in Digest Sup. Ct. 1908.] inating against aliens in private employment; compare Heim v. McCall, 239 U. S. 175, 60 L. ed. 206, 36 Sup. Ct. Rep. 78, Ann. Cas. 1917B, 287); Webb v. O'Brien, 263 U. S. 313, post, -, 44 Sup. Ct. Rep. 112 (holding California statute similar to that considered in TERRACE V. THOMPSON not unconstitutional); Frick v. Webb, 263 U. S. 326, post, 323, 44 Sup. Ct. Rep. 115, affirming order in 281 Fed. 407; Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546; Re Sing Lee, 54 Fed. 334 (the equal protection of the laws clause is directed only at the states; hence has no application in deportation proceedings under an act of Congress); Colyer v. Skeffington, 265 Fed. 17, order reversed in 277 Fed. 129. Connecticut.-State v. Travelers Ins. Co. 70 Conn. 590, 66 Am. St. Rep. 138, 40 Atl. 465; State v. Sinchuk, 96 Conn. 605, 20 A.L.R. 1515, 115 Atl. 33 (holding equal protection not denied aliens by a sedition act). - Indiana.-Donaldson v. State, Ind. 67 N. E. 1029, reversed in 167 Ind. 553, 78 N. E. 182. Maine. State v. Montgomery, 94 Me. 192, 80 Am. St. Rep. 386, 47 Atl. 165. 15 Am. Crim. Rep. 117. Pennsylvania.-Goldman v. Reyburn, 36 Pa. Co. Ct. 581 (holding a denial of the right to an alien anarchist to speak in public not a denial of the equal protection of the laws). "The 14th Amendment is not confined to citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." Yick Wo v. Hopkins, supra. It is likewise well settled that an alien may demand that he be accorded due process by the agents of the Federal government. U. S. Const., Amend. 5, provides that "no person shall be deprived of life, liberty, or property without due process of law." This is directed at the agencies of the United when remedy at law inade-¡ Constitutional law - who may invoke protection. 8. Alien inhabitants of a state may invoke the protection of the due process and equal protection clauses of the Federal Con 7. Persons are not obliged to take the risk of prosecution, fine, imprisonment, and loss of property in order to test the constitutionality of a statute, rather than re-stitution. sort to an equitable remedy. [For other cases, see Equity. I. in Digest Sup. Ct. 1918 Supp.] States, and guarantees protection to aliens in the same way that the due process clause of the 14th Amendment protects them from state action. [For other cases, see Constitutional Law, IV. a, 2, b, in Digest Sup. Ct. 1908.] post, 549, 44 Sup. Ct. Rep. 283; Chin Shee v. White, 273 Fed. 801, affirming 270 Fed. 356; Kaneda v. United States, 278 Fed. 694, certiorari denied in 259 U. S. 583, 66 L. ed. 1075, 42 Sup. Ct. Rep. 586. Kentucky.-Buford v. Speed, 11 Bush, 338. United States. Nishimura Ekiu v. United States, 142 U. S. 651, 35 L. ed. 1146, 12 Sup. Ct. Rep. 336; Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1032 (holding alien not denied due process in deportation proceedings by an administrative officer, as provided by act of Congress); Wong Wing v. United States, 163 U. S. 242, 41 L. ed. 145, 16 Sup. Ct. Rep. 983; Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 47 L. ed. 721, 23 Sup. Ct. Rep. 611 (the decisions government to remain in the country, to of executive or administrative officers acting within powers conferred by Congress are due process); Tang Tun v. Edsell, 223 U. S. 673, 56 L. ed. 606, 32 Sup. Ct. Rep. 359; Low Wah Suey v. Backus 225 U. S. 460, 56 L. ed. 1165, 32 Sup. Ct. Rep. 734 (due process does not require the assistance of counsel at all stages of deportation proceedings, nor compulsory process); Zakonaite v. Wolf, 226 U. S. 272, 57 L. ed. 218, 33 Sup. Ct. Rep. 31; Ng Fung Ho v. United States, 259 U. S. 276, 66 L. ed. 938, 42 Sup. Ct. Rep. 492; United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, ante, 221, 44 Sup. Ct. Rep. 54; United States v. Wong Dep Ken, 57 Fed. 206; Re Sing Tuck, 126 Fed. 386, "The term 'person,' used in the 5th order reversed in 63 C. C. A. 199, 128 Amendment," said Field, J., in a sepaFed. 592, which has judgment reversed rate opinion in Wong Wing v. United in 194 U. S. 161, 48 L. ed. 917, 24 Sup. States, 163 U. S. 228, 41 L. ed. 146, 16 Ct. Rep. 621; Sire v. Berkshire, 185 Fed. Sup. Ct. Rep. 977, "is broad enough to 967; Ex parte Orozco, 201 Fed. 106 include any and every human being (granting writ of habeas corpus to cit- within the jurisdiction of the Republic. izen of Mexico imprisoned by the mili- A resident, alien born, is entitled to the tary of the United States without due same protection under the laws that a process of law); Ex parte Toscano, 208 citizen is entitled to. He owes obediFed. 938 (holding aliens interned as pro-ence to the laws of the country in which vided by treaty are accorded due proc- he is domiciled, and, as a consequence, ess); United States v. Hom Lim, 214 he is entitled to the equal protection of Fed. 456, order reversed in 139 C. C. A. 68, 223 Fed. 520; Ex parte Hidekuni Iwata, 219 Fed. 610; Whitfield v. Hanges, 138 C. C. A. 199, 222 Fed. 745; Ex parte Chin Quock Wah, 224 Fed. 138; Re Chan Foo Lin, 156 C. C. A. 3, 243 Fed. 137 (granting judicial hearing de novo to Chinese person not accorded a fair hearing by immigration officials). See also Mahler. Eby, 264 U. S. 32, New York-Biesantz V. Supreme Council, R. A. 106 Misc. 545, 175 N. Y. Supp. 46. Thus it is said in Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1032, supra, that all aliens residing in the United States for a shorter or longer time are entitled, so long as they are permitted by the the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and property, and to their civil and criminal responsibility. They continue to be aliens, however, and, as such, remain subject to the power of Congress to expel them whenever, in its judgment, their removal is necessary or expedient. Ibid. And by residing in the United States for a shorter or longer time such persons acquire no vested right, protected by the Constitution, to remain or to return, having once departed. Chinese Exclusion Case, 130 Ú. S. 581, 32 L. ed. 1068, 9 Sup. Ct. Rep. 623. those laws." The same judge, dissenting from the judgment of the court in Fong Yue Ting v. United States, 149 U. S. 754, 37 L ed. 927, 13 Sup. Ct. Rep. 1016, thus states the reasons for according resident aliens constitutional protection: "Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and |